LEGAL SYSTEMS &

METHODS
LECTURE 4:

The Kenyan Court System

Dr. Henry Paul Gichana
 Lecture content

 Judicial authority and the Judiciary

 The Courts’ Structure and Jurisdiction; Court Officers
 Court Proceedings: Structure & Process of Civil and
Criminal Litigation
 Judicial Authority & the Place and Role of the
Judiciary
 Judiciary authority – authority to adjudicate legal disputes by interpreting and
applying the law
o Derived from the people as part of the Social Contract

 Judiciary – arm of government in which judicial authority is vested and consists

of the system of courts and judges/judicial officers (including staff)
 The social contract theory on the need for government / social order
o Thomas Hobbes – People collectively give up individual freedoms to a leviathan (a sovereign) in
exchange for social order and protection (Civil Society)
• Leviathan enjoys total control /absolute sovereignty (political absolutism)
o John Locke - Social contract to form a “commonwealth” key for impartial dispute resolution
• Representative democracy with limited government
 Essential for the safeguarding of the ideals envisioned as part of the social contract -
human rights, equality, freedom, democracy, social justice and the rule of law (limited
government)
 Judicial authority under the Kenyan Constitution
 Judicial authority is derived from the people and vests in, and shall be
exercised by, the courts and tribunals established by or under this
Constitution (Art 159(1))
 Guiding principles for the exercise of judicial authority (art 159(2))
a) justice shall be done to all, irrespective of status;
b) justice shall not be delayed;
c) alternative forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms
shall be promoted, subject to clause (3);
d) justice shall be administered without undue regard to procedural
technicalities; and
e) the purpose and principles of this Constitution shall be protected and
promoted.
 (3) Traditional dispute resolution mechanisms shall not be used in a way
that—
a) contravenes the Bill of Rights;
b) is repugnant to justice and morality or results in outcomes that are
repugnant to justice or morality; or
c) is inconsistent with this Constitution or any written law.
 The System/Structure of Courts

Supreme Court

Court of Appeal

Environment and Employment and

High Court
Land Court Labour Relations Court

Magistrates’ Courts, Kadhis’ Courts & Courts Martial + Tribunals (Local)

Tribunals
  Chief Justice (Head of Judiciary)
 Deputy Chief Justice (Deputy Head of
the Judiciary)
 Chief Registrar (Chief Administrator
and Accounting Officer)
 Registrar of the Supreme Court
Judiciary –  President of the Court of Appeal
o Registrar and Deputy Registrars of
Administrative 
the Court of Appeal
Principal Judge of the High Court
Leadership o Registrar and Deputy Registrars of
the High Court
 Presiding Judges of Equal Status
Courts
o Registrar and Deputy Registrars
 Magistracy (CM, SPM, PM, SRM, RM)
o Registrars
 Jurisdiction
What is Jurisdiction?
This is the authority given by law to a court to try cases of a
certain kind or matters falling within a particular geographic
area or area of law. It is vital to determine which court has
jurisdiction before filing a suit.

‘JURISDICTION IS EVERYTHING’
“Jurisdiction is everything. Without it, a court has no power
to make one more step. Where a court has no jurisdiction
there would be no basis for a continuation of proceedings
pending other evidence. A court of law downs its tools in
respect of the matter before it, the moment it holds the
opinion that it is without jurisdiction.”
-Owners of Motor Vessel “Lillian S” v. Caltex Oil Kenya Ltd
 Forms of Jurisdiction
 Territorial jurisdiction - the authority to hear cases within a
specified geographical area.
 Subject Matter jurisdiction - the court's authority over the
subject of the legal questions involved in the case.
 Personal jurisdiction - the court’s authority over a person,
regardless of their location.
 Exclusive jurisdiction - the power of a court to adjudicate a
case to the exclusion of all other courts i.e. it is the sole
forum for determination of a particular type of case.
 Original/Inherent jurisdiction - the power to hear a case at
first instance i.e. for the first time as opposed to appellate
jurisdiction (below).
 Appellate jurisdiction - power to hear an appeal as to the
rightness of a previous legal decision and possibly overrule it.
 Pecuniary jurisdiction - the authority of a court to determine
matters of a specified monetary value/amount of the case in
question.
 The System of Courts & their Jurisdiction –
Supreme Court (SC)
1. Establishment - Established under Art 163(1) of the Constitution
2. Membership & organization - Consists of (7) judges; the Chief
Justice (President), the Deputy Chief Justice (Vice President) and
five (5) other judges.
 Properly constituted for purposes of its proceedings if it is composed of five judges.
3. Jurisdiction - Has original, appellate and advisory jurisdiction.
 Set out under Art 163(3) as read together with the Supreme Court Act, 2011. Has
authority to make rules for the exercise of its jurisdiction (Art 163(7))
i. Exclusive original jurisdiction(Art 163(3)(a)) to hear and determine disputes
relating to the elections to the office of President. See, Raila Amolo Odinga &
another v. Independent Electoral and Boundaries Commission & 2 others
[2017] eKLR.
ii. Appellate jurisdiction (Art 163(3)(b)) to hear and determine appeals from the
Court of Appeal (CoA) and any other court or tribunal per national legislation.
 Appeals lie from the CoA as of right in any case involving the interpretation or
application of the Constitution.
 In any other case, the SC or the CoA has to certify that a matter of general
public importance is involved. Certification by the CoA may be reviewed by the
SC, and either affirmed, varied or overturned.
 See, Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR
(para 39)
 The System of Courts & their Jurisdiction –
Supreme Court (SC)
iii. Advisory opinion jurisdiction (Art 163(6)) - may give an advisory opinion at
the request of the national government, any State organ, or any county
government with respect to any matter concerning county government.
 Advisory opinion -‘a non-binding statement by a court of its interpretation
of the law on a matter submitted for that purpose.’ (Black’s Law
dictionary )
 Although not binding and carry no precedential value, they are sometimes
offered as persuasive evidence in cases where no precedent exists.
 See, Council of Governors & 47 others v Attorney General & 3 others
(Interested Parties); Katiba Institute & 2 others (Amicus Curiae) [2020]
eKLR.
iv. Special Jurisdiction (Art 58(5)) - Jurisdiction to decide on the validity of a
declaration of a state of emergency; any extension of a declaration of a state of
emergency; and any legislation enacted or other action taken, in consequence of
a declaration of a state of emergency.

 All courts, other than the Supreme Court, are bound by the decisions of
the Supreme Court.
 The Registrar of the Supreme Court is in charge of the day-to-day
administration of the Court and registry.
 The System of Courts & their Jurisdiction –
Court of Appeal (CoA)
1. Establishment - Established under Art 164(1) of the Constitution
2. Membership & organization - consist of not less than twelve judges and is headed by the
President of the CoA who is elected by the judges of the Court.
o The practice and procedure of the CoA are regulated by the rules of the court made by
the Rules Committee constituted under the Appellate Jurisdiction Act (Cap. 9).
o The Act provides that an uneven number of at least three judges shall sit for the
determination of any matter by the court (save for cases requiring the summary
dismissal of an appeal). The decision of the court shall be according to the opinion of a
majority of the judges who sat for the purposes of determining that matter.
o There are five CoA stations located in Nairobi, Kisumu, Nakuru, Nyeri and Mombasa with
sub-registries of the Court in Eldoret, Malindi, Kakamega, Kisii, Meru, Busia and Garissa.
Nairobi has two Divisions, Civil and Criminal Divisions, each headed by a specific judge.
o The Registrar of the CoA is responsible for the day-to-day administration of the Court
and the management of its registry and sub-registries. The Registrar is assisted by
Deputy Registrars at each of its stations.
o The organization and day-to- day operations of the Court are guided by the provisions of
the Court of Appeal (Organization and Administration) Act, 2015.
3. Jurisdiction - Has appellate and limited original jurisdiction
i. Appellate jurisdiction - to hear appeals from the High Court and any other court or
tribunal as may be prescribed under legislation. In exercising this jurisdiction, the CoA
has the power, authority and jurisdiction vested in the HC.
ii. Limited original jurisdiction - to hear cases concerning and punish for contempt of
court. To hear applications for stay of execution of High Court orders.
 The System of Courts & their Jurisdiction –
Court of Appeal (CoA)
1. In exercising its jurisdiction, the CoA has powers to:
i. Determine a case finally.
ii. Order for a trial.
iii. Order for a re-trial.
iv. Frame issues for the determination of the High Court.
v. Receive additional evidence or order that it be taken by another court.
 The System of Courts & their Jurisdiction –
High Court (HC)
1. Establishment - Established under Art 165(1) of the Constitution.
2. Membership & organization - Headed by a Principal Judge elected by the judges of the Court from
among themselves.
 The Court consists of the Principal Judge and not more than two hundred (200) judges
appointed per Art 166(1)(b) of the Constitution – s 4 High Court (Organization and
Administration) Act.
 Ordinarily, the High Court is duly constituted by a single Judge sitting alone. However, there are
instances where a bench of more than two High Court Judges may be constituted to determine
certain kinds of cases (Decision by principal Judge in consultation with CJ).
o Any matter raising a substantial question of law that falls within the jurisdiction of the Court under
Article 165(3)(b) or (d) of the Constitution shall be heard by an odd number of at least three judges,
assigned by the Chief Justice – s 9(2), High Court (Organization and Admin) Act; Art 165(4).
 Presiding Judge – head of a station or a division.
 The organization and day-to- day operations of the Court are guided by the provisions of the
High Court (Organization and Administration) Act, 2015. The Registrar of the High Court is
responsible for the day-to-day administration of the Court and the management of the
registries of the Court and is assisted by Deputy Registrars for every station and division.
 Divisions - Established by CJ for effectiveness and efficiency in the administration of justice
and to promote judicial performance.
o The Family and Children Division; the Commercial Division; the Admiralty Division; the Civil Division;
the Criminal Division; the Constitutional and Human Rights Division; the Judicial Review Division; and
any other division as the Chief Justice may, on the advice of the Principal Judge determine.
 The System of Courts & their Jurisdiction –
High Court (HC)
3. Jurisdiction - Has appellate, unlimited original, supervisory and any other
jurisdiction – Art 165(3),(6).
i. Appellate jurisdiction -
o To hear an appeal from a decision of a tribunal appointed under the Constitution to consider the
removal of a person from office, other than the removal of the President.
o To hear appeals from the Magistrates’ courts and from tribunals.
ii. Original jurisdiction -
• Unlimited original jurisdiction in criminal and civil matters.
• Despite this jurisdiction, in actual practice, the Court will hear those criminal cases which cannot be tried
by the subordinate courts i.e. murder and treason whereas in civil cases, it has jurisdiction where the value
of the subject matter, in dispute exceeds Kshs. 20,000,000.
• Jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been
denied, violated, infringed or threatened.
• Jurisdiction to hear any question respecting the interpretation of the Constitution.
iii. Supervisory jurisdiction -
• Over subordinate courts and over any person, body or authority exercising a judicial or quasi-
judicial function, but not over a superior court.
• May make such orders, issue such writs and give such directions as it may consider appropriate for
the purpose of ensuring that justice is duly administered by such courts.
iv. Any other jurisdiction –
▪ Either original or appellate conferred on the court under legislation.
▪ Admiralty (s4 Judicature Act), Electoral (s2 Elections Act), Succession/Probate (Law of Succession Act),
Matrimonial (Marriage &/ Matrimonial Property Act), Bankruptcy and winding up (Companies Act).
 The System of Courts & their Jurisdiction –
High Court (HC)
 Has no jurisdiction on matters reserved for the exclusive jurisdiction of the Supreme
Court or falling within the jurisdiction of equal status courts. See, Karisa Chengo & 2
others v Republic [2015] eKLR. The Court of Appeal held:
“We have deliberately discussed the law in South Africa to demonstrate that like in
Kenya the ELRC under Article 162(2) was intended to be autonomous, distinct and
independent of the High Court and it is for that reason that it was bestowed with the
status of the High Court. Indeed, it can be gathered from the Final Report of the
Committee of Experts on Constitutional Review process that there was a need to address
the competing jurisdictional issues that historically existed between the High Court and
the ELRC under the repealed Constitution. It was the intention of the drafters, in our
view, to give the ELRC and ELC independence from the High Court. This independence is
essential to the role of the Courts as specialized courts charged with the responsibility
of developing coherent and evolving labour relations, environment and land
jurisprudence… In concluding this aspect of the matter, we reiterate that the High
Court, the ELRC and ELC are courts of equal status, autonomous of each other and each
exercises peculiar jurisdiction. They are not one and the same.”
 The System of Courts & their Jurisdiction –
Courts of Equal Status
Two specialized superior courts of record, of equal status as the High Court,
provided for in the Constitution (art 162(2)) and established by an Act of
Parliament:
1. Employment and Labour Relations Court (ELRC)
i. Establishment –
 Established & operationalized under the Employment and Labour Relations Court Act , 2011
 Previously, the Industrial Court
 Established to address the competing jurisdictional issues that historically existed between the High
Court and the Industrial Court.
ii. Membership & organization –
 Headed by a Principal Judge elected by judges of the Court.
 Number of judges as determined by JSC.
 Properly constituted for the purposes of its proceedings by a single judge except in any matter
certified by the Court as raising a substantial question of law under Article 165(3)(b) or (d) of the
Constitution, which shall be heard by an uneven number of judges, being not less than three,
assigned by the Chief Justice.
 Has a Registrar who is responsible for the day-to-day running of the Court.
iii. Jurisdiction –
 to hear and determine disputes relating to or arising from employment and labour relations.
 no jurisdiction to hear and determine other matters not falling under the Act establishing it.
 The System of Courts & their Jurisdiction –
Courts of Equal Status
2. Environment and Land Court (ELC)
i. Establishment –
 Established & operationalized under the Environment and Land Court Act, 2011.
ii. Membership & organization –
 Headed by a Presiding Judge elected by judges of the Court.
 Number of judges as determined by JSC.
 Properly constituted for the purposes of its proceedings by a single judge except in any
matter certified by the Court as raising a substantial question of law under Article
165(3)(b) or (d) of the Constitution, or relating to impact on the environment and land,
which shall be heard by an uneven number of judges determined by the Chief Justice.
 Has a Registrar who is responsible for the day-to-day running of the Court.
iii. Jurisdiction –
 To hear and determine disputes relating to the environment and the use and
occupation of, and title to, land.
 No jurisdiction to hear and determine other matters not falling under the Act
establishing it.
 The System of Courts & their Jurisdiction –
Subordinate Courts
 Established under Article 169 of the Constitution of
Kenya. They are:
1. The Magistrates’ Courts
2. The Kadhis’ Courts
3. The Courts Martial and
4. Anyother court or local tribunal as may be established by an
Act of Parliament.
i. The Small Claims Court – The Small Claims Court Act, 2016
(SCC).
 The System of Courts & their Jurisdiction –
Subordinate Courts
1. The Magistrates’ Courts – Hierarchy
Established under Article 169(1) of the Constitution and the
Magistrates’ Courts Act, 2015 (MCA). Duly constituted when
presided over by a:
i. Chief Magistrate (CM) - highest level
ii. Senior Principal Magistrate (SPM)
iii. Principal Magistrate (PM)
iv. Senior Resident Magistrate (SRM)
v. Resident Magistrate(RM) - lowest level
vi. District Magistrate's (DM) - abolished by the Magistrates'
Courts Act 2015.
 The System of Courts & their Jurisdiction –
Subordinate Courts
1. The Magistrates’ Courts – Civil jurisdiction
The Magistrates Courts have jurisdiction to decide civil
matters where the subject matter does not exceed:
 Kshs 20 million for a Chief Magistrate
 Kshs 15 million shillings for a Senior Principal
Magistrate
 Kshs 10 million shillings for a Principal Magistrate
 Kshs 7 million shillings for a Senior Resident Magistrate
 Kshs 5 million shillings for a Resident Magistrate (RM).
 The System of Courts & their Jurisdiction –
Subordinate Courts
1. The Magistrates’ Courts – Civil jurisdiction
 A magistrate’s court has jurisdiction in proceedings of a civil nature concerning any of
the following matters under African customary law-
a) land held under customary tenure;
b) marriage, divorce, maintenance or dowry;
c) seduction or pregnancy of an unmarried woman or girl;
d) enticement of, or adultery with a married person;
e) matters affecting status, and in particular the status of widows and children
including guardianship, custody, adoption and legitimacy, and;
f) intestate succession and administration of intestate estates, so far as they are not
governed by any written law.
2. Jurisdiction over claims relating to violation of human rights – s 8 MCA
3. Jurisdiction over claims in employment & labour relations claims as well as in land
and environment cases – s 9 MCA & s 26 of the Environment and Land Court Act
4. Jurisdiction in contempt of court cases - A magistrate’s court has power to punish for
contempt of court in terms of section 10 of the MCA.
 The System of Courts & their Jurisdiction –
Subordinate Courts
1. The Magistrates’ Courts – Criminal jurisdiction
Jurisdiction and powers in criminal proceedings as conferred under the Criminal
Procedure Code Cap 75 and any other written law, except offences exclusively
triable in the High Court.

 Persons aggrieved by a decision of the Magistrates’ Court can

appeal to the High Court.
 The System of Courts & their Jurisdiction –
Subordinate Courts
2. The Small Claims Court
 Presided over by an Adjudicator
 Has a monetary jurisdiction of matters not exceeding Kshs.1 million.
 The Court’s jurisdiction is determination of claims relating to: contracts for sale and
supply of goods or services; a contract relating to money held and received; liability in
tort in respect of loss or damage caused to any property or for the delivery or
recovery of movable property; compensation for personal injuries; set-off and
counterclaim under any contract.
 All proceedings before the Court are required, so far as is practicable, to be heard and
determined on the same day or on a day to day basis until final determination of the
matter which shall be within sixty days from the date of filing the claim. (s 34 (1,
SCC).
 Judgment given in determination of any claim shall be delivered on the same day, and
in any event, not later than three (3) days from the date of the hearing. (s 34 (2,
SCC).
 An appeal from the decision or order of the Court lies to the High Court on matters of
law and such an appeal shall be final. (s 38, SCC).
 The System of Courts & their Jurisdiction –
Subordinate Courts
3. The Kadhis’ Court
 Provided for under Art 169(1) and 170 of the Constitution and established and
operationalized through the Kadhis’ Court Act
 Their jurisdiction is limited to the determination of questions of Muslim Law
relating to personal status, marriage, divorce or inheritance in proceedings in
which all the parties profess the Muslim Religion and submit to the
jurisdiction of the Kadhis’ courts (art 17(5)
4. The Courts Martial
 Courts Martial deal with cases involving persons serving in the military and they are
established under Article 169 (c) of the Constitution and operationalized by the
Kenya Defence Forces Act, 2012.
 Offences tried by Courts Martial are, inter alia: Aiding an enemy, Communication with
an enemy, Spying, Cowardice, Neglect of duty, Advocating governmental change by
force, Looting and pillaging, Mutiny, Desertion, Disobeying a lawful order.
 Appeals emanating from the Courts Martial lie to the High Court.
 The System of Courts & their Jurisdiction –
Subordinate Courts
5. Tribunals
 Tribunals are bodies established by statute and given powers of an
administrative or quasi judicial nature.
 They are set up for specific matters.
 Where tribunals are given quasi judicial powers, it is a clear recognition of
the fact that the courts are not the ideal forum for the settlement of
disputes.
 It does not usurp judicial functions.
 They are more accessible and cheaper than the courts, they are free from
technicality of the courts.
 An excess in the jurisdiction of the tribunals can be remedied by an order of
prohibition or an injunction.
 Examples include the National Environment Tribunal, Political Parties
Disputes Tribunal, Cooperative Tribunal, Sports Disputes Tribunal, Rent
Restriction Tribunal etc.
 Officers of the Court
1. Judges & Magistrates
Collectively referred to as the Bench.
2. Advocates- Collectively referred to as the Bar. They are members of the Law
Society of Kenya and must have a practicing certificate according to the Advocates
Act in order to appear before the bench to represent their clients or themselves.
3. The police – They are members of the National Police Service under Article 243 of
the Constitution of Kenya 2010. They duty is to arrest and record statements of the
complainant, witnesses and the accused persons. They also hold and have a duty to
produce the complainant in Court. This includes the Inspection Officers(IOs) who are
under obligation to investigate offences.
4. The prosecutor – They represent the Director of Public Prosecutions. Their duty
is to prosecute the complainant’s case by representing the state hence R vs…
5. Clerks – They assist the Court during the proceedings. They are tasked with
interpreting when the witness/accused persons/parties do not understand a certain
language. They read out matters in the cause list to the Court to ensure that all
listed are dispensed with. They are also tasked with assisting clients of the Court at
the registry.
 Court Proceedings: Structure & Process of Civil and Criminal
Litigation
1.Civil Litigation
Governed by the Civil Procedure Rules. The critical stages are:
i. Demand Letter
ii. Drafting of pleadings (See Order 2 of the Civil Procedure Rules)
iii. Filing of the claim in Court-
iv. Issuance and Service of Summons to Enter Appearance
v. Entering Appearance and Defence- See orders 6 and 7 of the CPR.
vi. Pre-trial Conference
vii. Hearing
viii. Interlocutory applications
ix. Judgment
x. Extraction of the Decree (Order 21)
xi. Execution of Decrees and Orders (Order 22)
xii. Appeals from Orders
 Court Proceedings: Structure & Process of Civil and Criminal
Litigation
1.Criminal Litigation
Governed by the Criminal Procedure Code. The critical stages are:
 Complaint is made to the Kenya Police and recorded in the Occurrence Book.
 Arrest - if Police satisfied that an offence has been committed. The rights of an
arrested person are set out under Article 49 of the Constitution
 Charge Sheet (Subordinate Court) / Information (HC) drafted - details of the accused
person as well as the description of the alleged offence and the law that is alleged to
have been contravened.
 Court appearance/ Arraignment for plea taking- An accused person is required to
unequivocally plead either, guilty or not guilty, to the charge
 Bail/Bond- If the accused pleads not guilty, the court may proceed to admit the accused
to a cash bail or bond.
 Trial - The Prosecution, (the office of the Director of Public Prosecutions (ODPP), opens
its case followed by a defence if a prima facie case is established.
 Judgment- written & reasoned judgment on the guilt or innocence of the accused
person.
 Sentencing- Based on the record of the accused, the accused’s mitigation as well as
statement(s) of the victim (s) of the offence.
 Appeals-