The Development of the Kenya Legal System,

Legal Education and Legal Profession*

G. G. S. MUNORUt

THE LEGAL SYSTEM

The evolution of the Kenya Legal Order has always been influenced
by the plurality of races, the social development of each race, and the
political system for the time being established. The first local legislation
dealing with the legal system established a triple system of courts. The
most important system consisted of a national Supreme Court with sub-
ordinate courts below it, staffed with English-speaking personnel and
applying English law. The second was the Muslim system at the Coastal
strip applying Muslim law and some English law. The third was the
Native Tribunals system staffed by Africans, who were either traditional
court holders or nominees of the colonial government. The native
tribunal system was supposed to apply the different customary laws
of the various tribes in Kenya.
However, there were some points of interaction between the
different systems. First the Supreme Court had supervisory powers over
each of the court systems. Secondly, some administrative officers staffed
both the English type of courts and the Native Tribunal system.
Thirdly, Africans could be subject to the Muslim Courts if they
professed the Muslim faith. In any case Muslims were subject to the
criminal jurisdiction of the English type of court system. But despite
these points of confluence the three systems were distinct and there
were strong pressures to keep them so. The Muslims, convinced of
the purity of their law, would not entertain any innovations which
would dilate their Koranic Law.
The colonial order. wanted to keep Africans from the influence
of other types of laws, and especially from the English procedural law
because it was convinced that Africans could not understand it.
As the country progressed politically, socially, and economically,
some changes did occur but these affected the procedural and jurisdic-
tional aspects of the different court systems leaving the systems struc-
turally separate. A few points should be noted before discussing the

*This lecture was delivered at the Faculty of Law, Haile Sellassie I University,
on 18th December, 1972, and Mr. George Rukwaro, Lecturer, Faculty of Law,
Nairobi, assisted in the preparation of the lecture.
tLL.B. (E.A.), LL.M. (Columbia), Dean, Faculty of Law, University of Nairobi.
1 The Supreme Court was styled the High Court in .1964.
G. G. S. MUNORU 2

changes which brought about the present system of courts. Africans

were the driving force towards an integrated system not so much because
they were convinced of the inherent justice of the British system, but
because "Africans increasingly regarded their own system as an overt
indication of the second class justice meted out to them by the colonial
authorities, and the English system available to the immigrant as another
unjustified privilege for the immigrants". 2 The organs administering
justice to them were tribunals not courts. While they could be subjected
to other system of courts and law, the other races could not be subjected
to customary law. Again in all cases where parties were natives, every
court was to be guided by native law and custom but it was not
obligatory to apply customary law. Customary law was to guide "so far
as it was applicable and not repugnant to justice and morality" and
in any case every court was only obliged to apply customary law accord-
ing to substantial justice without "undue regard to technicalities of
procedure and without undue delay".- The latter part of this requirement
is the more surprising coming from a legal system which has always
believed that justice is often hidden in the interstices of procedure.
The colonial administration, unfamiliar with the indigenous legal system
and laws, merely rode rough-shod over these rules by introducing their
own concepts, thus confounding what they regarded as a confused
situation.
The picture began to change in the early sixties, although there
were rumblings earlier. The reason for the changes during the early
part of the last decade was that the African voice was being heard and
heeded as it became apparent that eventual take-over of the Government
by Africans could no longer be delayed. The main thrust of reform in
the sixties was directed towards:

1. Unification of the legal system.

2. Elimination of racial undertones in the court system and in the
application of the laws to the citizens.

The first reforms in 1962 were purely administrative and left the
structure as it had always been. They were directed towards equipping
the Africans with legal skills which would enable them to handle their
added responsibilities.4 Administrative officers who had magisterial
powers had to have legal training and to pass the law examination for
administrative officers. Court clerical officers had to attend courses at
a training centre first established at the Jeanes School but later trans-
ferred to Maseno in 1961.5 Posts of District Registrars and Senior
2 Ghai and McAuslan, Public Law and Political Change in Kenya, p. 164.
East African Order-in-Council, 1902, 5.20.
4 Ghai and McAuslan, pp. 360-361.
5 Hall, "District Magistrates' Training in Kenya", (1969) 5 EALJ 299.
3 THE DEVELOPMENT OF THE KENYA LEGAL SYSTEM

District Registrars were created and their main function was to supervise
African courts. Court recorders were also trained to keep proper
records in African courts where formerly practically none were kept.
However, these were rudimentary changes and did nothing to integrate
the court system.
More changes came about in 1963. These were the first movements
towards integration of the legal system. The African Courts (Amend-
ment) Act 6 was passed and introduced far reaching changes. There-
after appeals in statutory criminal law cases would go to the Supreme
Court while civil and customary law appeals were taken to the Court
of Review which was the highest Court in the African Court System.
Advocates could not appear for clients before African courts, but a
person wishing to be represented in a criminal case could apply to the
court for his case to be transferred to a subordinate court where legal
representation was permitted.
A more significant move was the transfer of African courts from
Provincial Administration to the Judiciary. Thereafter the Chief Justice
had the power to appoint African courts members and he also exercised
disciplinary control, though in the latter matters the Chief Justice had
to consult with the Provincial Commissioner of the area concerned
before taking any disciplinary action contemplated.
Political progress in East Africa at about this time necessitated
a change in the structure of the East African Court of Appeal. This
was an appellate court which had been created by imperial legislation
and exercised jurisdiction over the three East African countries and Aden.
With the independence of Tanganyika and its subsequent attainment
of Republican status and also the creation of the East African Common
Services Organisation, changes became imperative. An act of the Central
Legislative Assembly, the chief legislative body for E.A.C.S.O., was
passed creating the E.A.C.A. 7 This Act provided that the judges of this
court were thereafter to be appointed by the Authority of the Organisa-
tion and that the staff of the Court were to be paid by the Organisation.
Appellate jurisdiction in each state was to be prescribed by national
legislation (in each state). Kenya did prescribe for such jurisdiction."
Political changes within Kenya also called for drastic changes in
the Kenya Legal System. Trial by jury for Europeans was abolished,
as were the special provisions for trial of Europeans in the subordinate
courts. Thereafter, the assessor system was to apply to every trial
in respect of a serious crime. The position of the Judiciary was also
entrenched in the Independence Constitution. Some features. of the
entrenchment were tainted with the regional structure of the Independence
6 No. 50 of 1962.
7 East African Court of Appeal Act, No. 13 of 1962.
8 Appellate Jurisdiction Act, No. 38 of 1962.
G. G. S. MUNOkU 4

Constitution, but since the regional system has been abolished in Kenya
this need not be discussed here. The Constitution established a Supreme
Court with unlimited jurisdiction in criminal and civil matters. Judges
were to be appointed by the Governor-General on the advice of the
Prime Minister. The lower courts including African courts' magistrates
and officers were to be appointed and disciplined by the Judicial
Service Commission. There was no change in the structure and status
of the East African Court of Appeal, but there was a provision enabling
the Kenya Parliament to set up a Court of Appeal for Kenya. This
provision has been retained in the present Kenya Constitution but
so far it has not been used. The special status which the Muslims had
always enjoyed was also entrenched in the Kenya Constitution. Kadhis'
Courts were established and were given jurisdiction to try all cases
involving Muslim personal law where all parties were Muslims. Lastly,
with the attainment of Republican status appeals to the Judicial Com-
mittee of the Privy Council were abolished. Subject only to minor
changes this was the legal system which existed until 1967 when there
was a complete overhaul.
The present legal system was established by three important Acts
passed in 1967. These are, the Kadhis' Courts Act,' 0 the Magistrates'
Courts Act" and the Judicature Act.'2 This legislation repealed all the
former acts relating to subordinate courts and -the law they were applying.
The Kadhis' Courts Act established a Kadhis' Court system all over the
country, all of them being subordinate to the High Court of Kenya. These
Courts were empowered to apply Muslim law in personal matters and
appeals from them lay to the High Court. When the High Court is hearing
such appeals it has to sit with the Chief Kadhi or two other Kadhis as an
assessor or assessors. Two points must be mentioned here: Kadhis'
Courts apply Muslim law only if both parties are Muslims. Secondly,
the High Court and Subordinate Courts have jurisdiction over Muslim
law matters but it appears that these courts are not bound to apply
Muslim law.' 3 Predictably, these provisions met stiff opposition from
Muslim quarters for they interfered with Muslim law. There were two
opposed viewpoints. The Government wanted to integrate the legal
system, and on the other hand the Muslims wanted to retain their special
status. The arrangement described above was the best compromise that
could be secured. To quote what Justice Cardozo says in another context,
"the goal .. .was not a logical synthesis but compromise". 4
The other important legislation is the Magistrates' Courts Act. It
9 Constitution, s. 64 (1).
10 No. 14 of 1967.
11 No. 17 of 1967.
12 No. 16 of 1967.
13 See s. 5, Kadhi's Courts Act.
14 Paradoxes in Legal Science.
5 THE DEVELOPMENT OF THE KENYA LEGAL SYSTEM

establishes one hierarchy of Colurt system for the whole country. The
lowest tier is the District Magistrates' Courts which have three grades,
the next is the Resident or Senior Resident Magistrates' Courts. Appeals
from these Courts go to the High Court and therefrom to the Court of
Appeal for East Africa.
The District Magistrates' Courts are at the bottom of the hierarchy.
A District Magistrate's Court is presided over by a layman with legal
training. It has full jurisdiction in the area in respect of which it is
established. Its criminal jurisdiction is limited by its meagre sentencing
powers. For example, a Third Class Magistrate's. Court can only impose
a maximum of six months' imprisonment, while the maximum fine it
can impose is 1,000/-. In addition the Chief Justice may by an
order empower a Third Class District Magistrate to deal- with offences
created by certain specified statutes. The civil jurisdiction of the District
Magistrates' Courts is also interesting. In so far as customary law is
concerned their jurisdiction is unlimited. In any other civil matters the
subject matter should not exceed 1,000/- for Second and Third Class
District Magistrates, or 2,000/- for First Class District Magistrates.
The reasons advanced for this difference in civil customary law
matters and non-customary law is that non-customary law matters need
more experience especially where the value involved is great. But this
is not necessarily true or convincing as illustrated by Ghai and MacAslan,
These two learned authors have this to say:
"It seems strange that a court which has no jurisdiction over a
simple claim of repayment of a debt of 12,000/- may deal with
a case of succession under customary law ten times as much. .
Another counter-argument can be advanced. A District Magistrate once
appointed might be posted to an area outside his tribal home. The
process of administering customary law of that area may be more
difficult than issues arising from a simple contract case.
The next tier in the hierarchy is the Resident or Senior Resident
Magistrate's Court. It is presided over by a professionally qualified
lawyer and it has national territorial jurisdiction. These magistrates
are appointed by the Judicial Service Commission.
The most important Court in Kenya is the High Court. It is created
by section 60 of our Constitution, and it has unlimited jurisdiction in
civil and criminal matters. Formerly the number of judges was fixed
at not less than eleven excluding the Chief Justice, but now it. has
been fixed at not less than fourteen. It ,sits in Nairobi, but there are
resident judges in other major towns such as Mombasa and Nakuru.
In addition High Court Judges go on circuit, to other places.
To emphasise how important this court is, its procedure for
15 Ghai and McAuslan, p. 371.
 G. G. S. MUNORU 6

appointments and discipline is entrenched in the Constitution.6 These

procedures are aimed at securing the independence of the judiciary.
The Chief Justice is appointed by the President while the Puisne Judges
are appointed by the President on the advice of the Judicial Service
Commission. No person is eligible for appointment to this court unless:
(a) he is or has been a judge of a court having unlimited jurisdic-
tion in civil and criminal matters in the commonwealth or in
the Republic of Ireland or a court having jurisdiction in appeals
from such a court; or
(b) he is an advocate of the High Court of Kenya of not less than
seven years' standing; or
(c) he holds, or has held for a period of or for periods amounting
to an aggregate of not less than seven years one of the qualifica-
tions in section 12 (a) (b) (c) and (d) of the Advocates Act.17
Once appointed the judges retire at the age of sixty-eight.
The procedure for removal from the court is also entrenched in
the Constitution. A judge can only be removed from the court for
inability to perform the functions of his office through infirmity of
mind or any other cause, or for misbehaviour.18 If the question of
removal of a judge arises, a tribunal must be appointed by the President
from among members qualified to be judges. If the Chief Justice's
removal is in issue the members of the tribunal must be appointed from
persons selected by the Public Service Commission. In any other cases
the President selects the members of the tribunal. Once the tribunal
is appointed there is no further connection with the Chief Executive,
who is bound to act in accordance with the findings of the tribunal.19
The final court in Kenya is the Court of Appeal for East Africa.
It is a unique institution for it has international jurisdiction over three
sovereign states-Kenya, Uganda and Tanzania Mainland. Its jurisdic-
tion in each of the countries is governed by territorial legislation and
it varies from country to country. Recently Tanzania Mainland curtailed
its appellate jurisdiction in criminal cases of a political nature, notably
treason. The court is one of the organs of the East African Community
and its members are appointed by the authority of the Community as
already mentioned.

LEGAL EDUCATION
I will now turn to the methods of qualifying for entry into the legal
profession. For a long time there were no institutions in Kenya and
indeed in Eastern Africa for training lawyers. The legal profession was

16 Constitution, ss. 61 and 62.

17 Constitution, s. 61.
18 Constitution, s. 62 (3).
19 Constitution, s. 62 (4).
7 THE DEVELOPMENT OF THE KENYA LEGAL SYSTEM

the preserve of a few non-Africans trained in Britain or India. Further-

more -there was a deliberate policy of the Colonial Order to curtail legal
education for Africans. The reasons behind this were both political and
functional. It was felt that legal education would inevitably lead Africans
to agitate politically-the last thing the colonial order would have
wished to see, let alone encourage. It was also the view of the occupying
power, that Kenya needed doctors and agriculturalists more than legal
technicians. The effectiveness of this policy is vividly demonstrated by
the fact that at Independence day Kenya had six African lawyers
and Tanzania had two. Uganda was better off but not to any great
extent.
The first African lawyer qualified in September, 1954, having
penetrated the colonial political iron curtain on the pretext that he was
going to London to study economics. In the same year the first African
Chief Justice arrived in England to study. He was the first African to
have gone to England with the declared intention of studying law. By
this time the colonial government had changed its erstwhile attitude
of opposition to one of near apathy. Anybody who wished to study
law in Britain could go only at his own expense. 0 Few Africans could
afford the cost of a trip to Britain, let alone that of taking a son through
the university.
With the era of Independence it was obvious that drastic measures
were required to cure this desperate situation. The year 1960 is of
great importance to legal education in East Africa. For in July of
that year the Lord Chancellor of England appointed a committee
on legal education in Africa. Lord Denning, a distinguished English
Judge, was appointed Chairman. Its recommendations were received by
the Lord Chancellor in October of the same year. It was the view of
this committee that legal education in East Africa should be uniform. Two
possible methods of qualifying could be adopted. The first one was via
a law degree from a faculty of law followed by one year of practical
training. The other was the articled clerkship similar to the English
solicitor's training. The committee recommended the first, but noted
that Kenya was preparing to adopt the second.
The Tanzania Government responded to the recommendations
with its characteristic alacrity. In February, 1961 an Act establishing
the University College of Dar es Salaam as a Constituent College of
the University of East Africa was passed. Without waiting for a building
to be put up T.A.N.U. gave up its premises and in October, 1961 the
first group of undergraduates numbering fourteen was admitted. All
these pioneers were enrolled to read for the degree of LL.B. It must
have been the smallest University in the world at the time.
20 See Chief Justice Mwendwa's Foreword to T. Jackson, A Guide to the Legal
Profession in East Africa.
G. G. S.. MUNORU 8

It has already been mentioned that the Denning Committee

favoured this method and also recommended that it should be uniform
in E.A. However, this recommendation was not received with universal
approbation. The Kenya Law Society preferred a system of articled
clerkship coupled with attendance at a School of Law as the sole method
of entry to the bar. The Government accepted this method only as an
additional means of entering the profession. Thus Kenya had two
methods of entry into the profession :21 by obtaining a law degree at
Dar or studying law at the Kenya School of Law.
To implement these recommendations in Kenya, a Council of Legal
Education was set up in 1961 and was charged with the overall duty of
advising the Attorney-General on matters of legal education in Kenya.
Obviously the situation was unsatisfactory. Without going into debate as
to the relative merits or demerits of each system there were other reasons
which militated against two streams of entry into the profession. Inter
alia, there was the question of duplication of efforts resulting in dimuni-
tion of the meagre economic and human resources available in Kenya.
Secondly, there was the break-up of the University of East Africa with
the result that the three constituent colleges became fully fledged
Universities. This led to the important question of whether Kenya would
continue the dual system (after the break-up).
Two things accelerated the need for decision. First, the Kenya School
of Law had not grown into a strong institution and, secondly, the Govern-
ment had come to look with favour on University Education. After
negotiations between the Government, the University, and the Legal
Profession, it was finally decided that a Faculty of Law should be
established at the University. The students would then pursue a three-
year course of study leading to the degree of Bachelor of Laws.
The Faculty of Law was indeed established in July, 1970 and the
first undergraduates were admitted in the same year. However, our
early days though equally humble as those of our sister faculty at
Dar es Salaam were more prosperous. Already at the University there
existed a Department of Law within the Faculty of Commerce with
a skeleton of legal staff. It was mainly a service department, and it
formed the nucleus from which our present faculty was born.
The pattern which emerged after the tripartite talks between the
Government, the University, and the Legal Profession is as follows:
The law degree from the University would henceforward be the basic
qualification for entry into the profession. Thereafter any student wishing
to become an advocate would serve pupillage for one year with an
advocate of not less than five years' standing. After completion of this

21 For a useful survey of the opposition to university legal education, see Ghai
and McAuslan, Chap. X.
9 THE DEVELOPMENT OF THE KENYA LEGAL SYSTEM

period of pupillage the intending advocate will have to join the Kenya
School of Law for a period of about nine months. The Law School
course will be geared towards the achievement of the lawyerly skills
that the advocate will need in his life. The emphasis, therefore, is on
practical subjects such as conveyancing, criminal and civil procedure, etc.
However, other legal qualifications are still recognised in Kenya.
Anybody holding a law degree from the Universities recognised under
section 12 (d) of the Advocates' Act can still enter the Kenya legal
profession, subject only to passing any of the subjects from which the
Council of Legal Education has not granted exemption to the graduate,
and after serving the prescribed period of pupillage. Lately the Advocates'
Act has been amended to enable the Council in its unfettered discretion
to recognise any law degree as a basis of entry into the Kenya legal
profession. Barristers-at-Law and Solicitors qualified in England and
any legal practitioners with the right of audience before a Common-
wealth Court with unlimited civil and criminal jurisdiction may also
be qualified to enter the Kenya legal profession provided that the
Council of Legal Education is satisfied that a Kenya advocate would
be accorded the like privilege in that court.

THE LEGAL PROFESSION

I now turn to the legal profession in Kenya. Those who are familiar
with the English legal profession are already aware of the division
between Barristers and Solicitors. There is no such division- in Kenya.
Anybody who qualifies to practice law in Kenya is an advocate and
is entitled to do such legal work as could have been done by either a
barrister or a solicitor in England.
As I have mentioned elsewhere, it is only the African population
which was a late-starter in the legal profession. Fortunately the situation
is improving at a fast rate. However, Kenya as a country has had an
old and well established legal profession. In the early days of the pro-
fession there was a large measure of public control, but gradually the
profession has been able to fight for its independence from the Govern-
ment and has to a large extent succeeded. These efforts were mainly
spear-headed by the Law Society as a body. There are large numbers
of bodies of private practitioners in Kenya. The unfortunate thing is
that the majority of these lawyers are concentrated in the urban areas
with the consequence that the majority of the Kenya population does not
have easy access to the legal profession. Every practitioner must be a
member of the Law Society which is a body established by statute
whose main object is to steer and guide the legal profession. It has

22 Advocates' Act, s. 3 (1) , s. 5.

G. G. S. MUNORU 10

disciplinary powers over advocates. The Attorney-General is the Head

of the Bar.
The other major part of the legal profession is employed in the
public service. The majority of lawyers who are public servants are
employed in the Office of the Attorney-General. This is a very large
office and apart from giving legal advice to the Government depart-
ments, the Office of the Registrar-General is under it. Most of the lawyers
joining this office are designated State Counsels and Assistant Regis-
trars, if they go to the Office of the Registrar-General. Two other
Government departments require full-time lawyers: the Lands Office
has a substantial number of lawyers handling land registration matters,
while those who have a predilection for international law may now
find a place at the legal desk of the Ministry of Foreign Affairs. A
significant number of lawyers has lately been trickling into the Local
Government system as Town Clerks or Clerks to County Councils, but
here, for reasons beyond the scope of this paper, the number of lawyers
in Local Government is not as great as it should be.
In addition, members of the legal profession have always found a
place in the private sector as company secretaries or in the public
corporations as corporation secretaries. But here they face stiff com-
petition from the members of other professions. Probably the tendency
should be to give the lawyers such jobs in preference to consulting a
legal firm as a money saving device. Lastly I come to law teachers as
members of the legal profession. My mentioning them last should not
in any way be taken as indicative of their status. The law teachers are to
be found in the institutions of higher learning. Obviously the Faculty
of Law has the largest number of law teachers, but others are to be
found in the Kenya School of Law, and the Kenya Institute of
Administration, which traips lay magistrates.

CONCLUSION
I have attempted to describe the evolution of the Kenya legal system,
legal education, and legal profession only in outline. There has been
very little attempt to analyse the role of the Kenya lawyer as a social
engineer. It is a vital area and so far as I am aware there has been no
attempt to study it. A legal system and a legal profession which is
detached from the needs of the society in which it finds itself would be
running a grave risk of becoming irrelevant to that society. The layman
would definitely lose what the Americans have aptly described as fidelity
to law. The extent to which the Kenya legal order is responsive to the
needs of its society must, however, await a more thorough study.