The Judiciary of Kenya is divided into two broad categories: - namely
A) Superior Courts
B) Subordinate courts
The Supreme Court of Kenya is the highest court in Kenya. It is established under Article 163 of the Kenya Constitution. As the highest court in the nation, its decisions are binding and set precedent on all other courts in the country.
The Supreme Court has both original and appellate jurisdiction, as well as the jurisdiction to give advisory opinions. The Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140 of the Constitution. It has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
Appeals can only be as a matter of right, where the case involves interpretation or application of the Constitution or a matter certified by the Supreme Court or the Court of Appeal as one that involves a matter of general public importance. The Supreme Court may review a certification by the Court of Appeal and either affirms, vary or overturn it.
The Supreme Court has the jurisdiction to render advisory opinion at the request of the National Government, any State organ, or any County Government with respect to any matter concerning County Governments. It can also determine the validity of a declaration of a state of emergency, an extension of such a declaration, or any legislation enacted in consequence of a declaration of a state of emergency.
The Supreme Court is made up of seven Judges. These are; the Chief Justice of Kenya, who is the president of the Court, the Deputy Chief Justice of Kenya, who is the deputy to the Chief Justice and vice-president of the court and five other judges . The Supreme Court is properly constituted for purposes of its proceedings when it has a composition of five judges.
In the event that a Chief Justice serves the mandatory ten years as Chief Justice before turning 70, the retired Chief Justice can opt to continue serving as an associate justice, even though this may raise the membership of the court above seven.
Function of the High
Court
It has the supervisory jurisdiction over all other subordinate courts and any other
person, body, or authority exercising a judicial or quasi-judicial function.
Has
jurisdiction over all criminal
and civil cases and
appeals
from the lower courts.
Also
deals with the constitutional matters and supervises all administrative functions
within the judiciary.
Case examples Robbery with
violence Rape
Murder and
man
slaughter only a few.
Among the current justices
of the High Courts are:
Hon. Mr. Justice Amraphael
Mbogholi Msagha
Hon. Mr. Justice Hatari P G
Waweru and
many others.
3. KENYA COURTS OF APPEAL.
The
court of Appeal of Kenya is established under Article 164 of the constitution of Kenya and consists of a number of judges,
being not
fewer than twelve
and not more than thirty.
The Courts handle appeals arising over the decisions of the High Court of Kenya as well as any other court or tribunal as provided for
in the law. The judges of the court of Appeals elect a
president to represent them on the Judicial Service Commission. The Court of Appeal currently
has six registries, one
each in Nairobi, Mombasa, Nyeri,
Kisumu, Nakuru and
Eldoret.
Composition.
The
court is headed by a president of the Court of Appeal who is elected by the judges of the court
of appeal from among themselves. The current
president is Justice Paul
Kihara Kariuki.
Functions.
1. The
court handles appeals arising over the decision of the High Court of Kenya as well as
any other court or tribunal as provided for law.
Case examples
Compromised court
ruling.
Current justices.
The
following are the current members
of the Court of Appeal:
Hon. Mr. Justice Paul
Kihara Kariuki
Hon. Mr. Justice Erastus m Githiji Hon. Mr.
Justice Phillip N
Waki
Hon. Mr. Justice John Walter
4. INDUSTRIAL
COURT IN KENYA
Establishment
of the industrial court of Kenya began.
Constitution of Kenya (CoK) at Art. 162 provides for establishment of the industrial court (ICK)
by legislation. The ICK deals with employment matters exclusively. The court has the status of High
Court.
Court
composition
Comprises
judges
appointed by the president on advice of judicial
service commission
They retire
at 70
They elect one of their own to be principal judge who serves for 5 years, and reverts to
judge position if s/he has not
attained 70.
Jurisdictions
of
the industrial courts
Dispute between employer and
employee.
Dispute between employer and
trade unions.
Registrations of CBAs
(Collective Bargaining
Agreement).
All
disputes concerning terms and
conditions of employment.
Appellate jurisdiction, etc.
Some of the justices include: Mbaru
Monica Wanjiru
Marete
D.K.
Njambi Onyango Maureen
Athens Nduma Mathew Nderi
Wasiwa Hellen
Seruya.
It is expected that major towns, hubs of industry and employment will host the court. They
include Mombasa, Kisumu, Eldoret,
Nakuru and Nyeri.
B) Subordinate Courts.
1. KADHI
COURTS.
Kadhi courts or
Kadhi’s court are a
court system in Kenya which enforce rights of inheritance,
family and succession for Muslims. The history
of Kadhi courts extends to prior colonization of East Africa in the 19th century and the courts continued under British rule and after Kenyan
independence in 1963. An estimated 7% to
20% of the Kenyans population is Muslim.
A new constitution of Kenya approved by referendum
on August 4, 2010 establishes the Kadhi
court system as
a subordinate court under
the superior courts of Kenya.
Kadhi’s court in Kenya deal with Islamic
matters. The court is composed of a chief Kadhi and at
least three other Kadhis or as
may be
prescribed
by parliament.
Each
Kadhi’s court
is
subordinate to the high court. A
Kadhi is proficient in Islamic
law.
A person shall not qualify be appointed Kadhi unless, in the opinion of the Judicial Service Commission, he
professes the Muslim religion and has knowledge of
the Muslim law applicable to
any sects. For a Kadhi’s court to have jurisdiction over any person, parties to the dispute must profess the Islamic faith. Jurisdiction is limited
to personal matters such as marriage, divorce and inheritance. It does not have any criminal
jurisdiction.
Some Kadhi magistrates include:
1. Al Muhdhar A.S. Hussein-Chief
Kadhi Mombasa
2. |
Rashid Ali Omar |
Deputy chief Kadhi |
Nairobi (Upper hill) |
3. |
Zaharani M. Omar |
Kadhi 1 |
Eldoret. |
2. COURT MARTIAL
Article 169 of the constitution of Kenya 2010 creates the court martial. This is the military
court where matters involving members of the Kenya Defense Forces are
heard. Appeals from these
courts are heard by the High Court.
3. THE MAGISTRATE COURT.
Article 169 1, a of the
constitution of Kenya
2010 creates the Magistrate Court. This is where
majority of the judiciary cases are heard. Magistrate courts are generally located in every district in Kenya. One of the most notable
changes in terms of the expansion
of
the
jurisdiction of the Magistrate courts
is
with
regard to the increase
of the pecuniary jurisdiction in relation to proceeding of civil nature. For instance, the pecuniary
jurisdiction where the court is presided over by a chief magistrate has been increased from KES 7 million to KES 20 million shillings. The chief
justice is however, empowered to revise the pecuniary
limits of the civil jurisdiction
by a gazette notice, by taking into account inflation and prevailing economic conditions. The presiding judicial officer in magistrate court could be a
Chief Magistrate, Senior Principal Magistrate, Senior Resident
Magistrate, Resident Magistrate, or Principal Magistrate. Their authorities vary in administrative responsibility
and
range of fining and sentencing abilities. The judiciary Act is the statute passed by
parliament detailing the varying powers and jurisdiction
of Magistrate and judges.
References.
1 “The standard:
Demystifying the
Kadhi
Court” Retrieved
2010-7-22
2 “Country
Profile: Kenya (Pdf). Library of Congress Federal Research division (June 2007).
Accessed 2010-7-24.This article incorporates
text from
this
source, which is in the public
domain.
3 “Daily Nation: Kadhi
courts illegal, judge rule”
4 “New Kenya Constitution Ratified”. Voice of
America. 6 Aug 2010. Retrieved 6
august 2010.
5 “Proposed
constitution of Kenya 2010 (pods). Retrieved 2010-7-22
6 “The constitution of Kenya” (pdf).
Retrieved 2010-7-23
7 “Daily Nation: Referendum: Clerics insist
on removal of clauses” Retrieved 2010-7-22.
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