logo image

Types of Courts and Magistrates in Kenya

rss image

The Judiciary of Kenya is divided into two broad categories: - namely

A) Superior Courts

B) Subordinate courts

A) Superior Courts.

1. SUPREME COURT OF KENYA.

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.

Jurisdiction

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.

Composition 

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.

Functions of the Supreme Court

  1. Exclusive original jurisdiction to hear and determine disputes relating to the elections of the office of the president. Arising under Article 140 of the constitution.
  2. Has appellate jurisdiction to hear and determine appellate from the Court Appeal and any other court or tribunal as prescribed by the national registration.
  3. Vary, or overturn it.
  4. Supreme Court also has 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.
  5. At can also determine the validity of a declaration of a state of emergency, and extension of such a declaration.
  6. Also any legislation enacted in consequence of a declaration of a state of emergency.
  7. Decision it makes binds all other courts below it.
  8. It is the final interpreter of the constitution.
Membership

Current Justices

Following a protracted case on the retirement age of Judges who were appointed under the old Constitution of Kenya, the Supreme Court delivered a Ruling which effectively set the retirement age at 70 years, sending the Deputy Chief Justice and one other Supreme Court Judge who had reached 70 on retirement. The following are the current members of the Supreme Court.
Hon. David Maraga - Chief Justice & President of the Court 
Hon. Lady Justice Philomena Mbete Mwilu - Deputy Chief Justice & Vice President of the Court
Hon. Mr. Justice Mohamed Khadhar Ibrahim Hon. Justice (Prof.) Jackton Boma Ojwang Hon. Justice (Dr.) Smokin Wanjala
Hon. Lady Justice Njoki Susanna Ndung'u
Hon. Justice Isaac Lenaola
2. HIGH COURT (KENYA)
The High Court of Kenya was established under article 165 of the constitution of Kenya. It has supervisory  jurisdiction  over  all  other  subordinate  courts  and  any  other  persons,  body  or authority exercising a judicial or quasi-judicial function. It was known as the Supreme Court of Kenya until 1964 and its name has remained unchanged since then.
The High Court comprises a maximum of 150 judges, and there are twenty High Court stations spread throughout Kenya. By 2018 every county is expected to have a high court station with 36 counties already having at least one High Court station. It has jurisdiction over all criminal and civil matters, and handles criminal and civil cases and appeals from lower courts. It also deals with constitutional matters and supervises all administrative functions within the judiciary.
It has several departments established under it:
  1. Family Court
  2. Commercial and Admiralty Court
  3. Constitutional and Judicial Review Court
  4. Land and Environment Court---Land environment matters, including appeals from land tribunals
  5. Criminal Court
  6. Industrial Court---Labor and employment matters

 

 

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 19tcentury 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.