KENYA SCHOOL OF LAW

CIVIL LITIGATION-ATP 100

FIRM 2 CLASS G MEMBERS

NAME REG. NUMBERS

1. ALUSA ELVIS 20240035

2. MARY GITAARI 20240038

3. JIMMY MWANGI 20240039

4. TEDDY OKOTH 20240043

5. DAVID KIRAGURI WANJIRU 20240046

6. CHARLES NDOLO 20240048

7. LOISE THUGE 20240052

8. PRISCO MACHARIA 20240053

9. TSUWI THOMAS KALAMA 20240675

10. CYNTHIA BENSON 20241941

STATUTORY CONFERMENT OF JURISDITION
A court’s jurisdiction can emanate either from the constitution or legislation or both as illustrated
In Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd. & 2 Others 1 where it
was held that:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a
Court of law can only exercise jurisdiction as conferred by the Constitution or other
written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred
upon it by law. We agree with counsel for the first and second respondents in his
submission that the issue as to whether a Court of law has jurisdiction to entertain a
matter before it, is not one of mere procedural technicality; it goes to the very heart of the
matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court
dealt with the question of jurisdiction extensively in, In the Matter of the Interim
Independent Electoral Commission (Applicant).2 Where the Constitution exhaustively
provides for the jurisdiction of a Court of law, the Court must operate within the
constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.
Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by
the Constitution. Where the Constitution confers power upon Parliament to set the
jurisdiction of a Court of law or tribunal, the legislature would be within its authority to
prescribe the jurisdiction of such a Court or Tribunal by Statute law
Further, as Nyarangi J opined, ‘Jurisdiction is everything. Without it, the court has no power to
make one more step. A court lays down its tools in respect of the matter before it the moment it
holds the opinion that it is without jurisdiction.’3 In Desai v warsama, it was ruled that:
No court can confer jurisdiction upon itself and where a court assumes jurisdiction and
proceeds to hear and matter determine a matter not within its jurisdiction, the proceedings
and determination are nullities.4
A. JURISDICTION OF THE SUPREME COURT
According to article 163(3) of the constitution 5The Supreme Court is conferred with exclusive
and original jurisdiction to determine presidential election disputes and with appellate
1
2012 eKLR
2
Constitutional Application Number 2 of 2011.
3
Owners of Motor Vessel Lillian S v Caltex Kenya 1989 eKLR
4
Desai v Warsama [1967] E.A 351
5
Constitution of Kenya 2010
jurisdiction to determine appeals from the Court of Appeal that are of as of right involving the
interpretation or application of the constitution or any other court or tribunal prescribed by law.
The Supreme Court act is an Act of Parliament to make further provision with respect to the
operation of the Supreme Court pursuant to Article 163 (9) of the Constitution, and for connected
purposes.6
According to section 12 of the Act7 on the original jurisdiction of the Supreme Court, The court
normally handles;
a) Determination of disputes arising out of presidential elections
b) Advisory opinion as the Court may give an advisory opinion under Article 163 (6) of the
Constitution at the request of — the national government, a State organ or a county
government with respect to a matter concerning the county government. A request for
an advisory opinion shall clearly state the specific questions on which the opinion of the
Court is being sought and the nature of opinion sought shall not be adversarial, abstract,
or hypothetical. Where the court deems fit, it may, on its own motion, invite an expert
whose opinion on the subject matter it deems relevant.
Article 163(6) of the Constitution vests a consultative or advisory jurisdiction on the Supreme
Court to give its opinion, on questions unconnected with a pending case, a live dispute, a
violation and/or threat to the Bill of Rights or other provisions of the Constitution, to the national
government, any state organ, or any county government with respect to any matter concerning
county government.
In the Matter of the Interim Independent Electoral Commission the Court held:
‘…… The only parties that can make a request for an Advisory Opinion are the national
government, a State organ, or county government. Any other person or institution may only be
enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or
as amicus curiae’8
However, the Court may decline to assume jurisdiction on the subject matter in question, and
state its reasons. An advisory opinion has the same binding effect as any other decided case.
c) Determinations in a state of emergency Pursuant to Article 58(5) of the Constitution, a
person may petition the Supreme Court for determination of the validity of —

6
Supreme Court Act, 2011.
7
ibid
8
In the Matter of the Interim Independent Electoral Commission [2011] eKLR
 1) A declaration of a state of emergency
2) Any extension of a declaration of a state of emergency
3) Any legislation enacted or other action taken in consequence of a
declaration of a state of emergency.
Any petition concerning the state of emergency is to be made in accordance with the Rules made
under the Act.
Appellate Jurisdiction Of The Supreme Court
Appeals by leave
Appeals to the Supreme Court shall be heard only with the leave of the Court except to appeals
from the Court of Appeal in respect of matters relating to the interpretation or application of the
Constitution.9
Appeal as of right
Pursuant to Article 163 (4)(a) of the Constitution, appeals shall lie from the Court of Appeal to
the Supreme Court as of right in any case involving the interpretation of the Constitution.10
Appeal upon certification
Any appeal to the Supreme Court involving a matter of general public importance shall only be
made—
a. Upon certification by the Court of Appeal or
b. Upon certification by the Supreme Court in accordance with Article 163 (4) (b) of the
Constitution.11
An application for certification shall be filed before, and determined by the Court of Appeal at
the first instance.12
Direct appeals from tribunals
The Act provides that, a judge of a superior court aggrieved by the decision of a tribunal made
under Article 168 of the Constitution may appeal directly to the Supreme Court, within ten days
after the tribunal makes its recommendations.13

9
Sec 15 of supreme court act of 2022 CAP 9B (Revised 2022)
10
Sec 15A of supreme court act of 2022 CAP 9B (Revised 2022)
11
Sec 15B of supreme court act of 2022 CAP 9B (Revised 2022)
12
Ibid
13
Sec 15C of Supreme Court Act of 2022 CAP 9B (Revised 2022)
The appeal shall be heard and determined in accordance with the procedure set out under the
Rules.14
Review of own decision
The Supreme Court may review its own decision, either on its own motion, or upon application
by a party in any of the following circumstances:15
1. Where the judgement, ruling or order was obtained through fraud, deceit or
misrepresentation of facts;
2. Where the judgement, ruling or order is a nullity by virtue of being made by a
court which was not competent;
3. Where the court was misled into giving a judgement, ruling or order under the
belief that the parties have consented; or
4. Where the judgement, ruling or order was rendered on the basis of repealed law,
or as a result of a deliberate concealment of a statutory provision
In Wanjigi v Chebukati & 2 others the court set the principles a party should comply with when
appealing to the Supreme Court in a matter which had originated in the High Court by way of
judicial review were as follows;
1. Not all judicial review matters were appealable to the Supreme Court, as of right;
2. It was open to the party concerned to move the court on appeal under article 163(4)(b) of
the Constitution, in which, the normal certification process applied;
3. Where such an appeal came under article 163(4)(a) the Constitution, the petitioner was to
identify the particular(s) of constitutional character that was canvassed at both the High
Court and the Court of Appeal;
4. The party concerned should demonstrate that the superior courts had misdirected
themselves in relation to prescribed constitutional principles, and either granted, or failed
to grant judicial review remedies, the resulting decisions standing out as illegal,
irrational, and/or unprocedural, hence unconstitutional.
B. JURISDICTION OF THE COURT OF APPEAL
The statute conferring jurisdiction on the court of appeal of Kenya is the appellate Jurisdiction
Act under section 3 which states as follows:

14
Ibid
15
Sec 21A, Supreme Court Act CAP 9B
The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court
and any other Court or Tribunal prescribed by an Act of Parliament in cases in which an appeal
lies to the Court of Appeal under any law.16
For all purposes of and incidental to the hearing and determination of any appeal in the exercise
of the jurisdiction conferred by this Act, the Court of Appeal shall have, in addition to any other
power, authority and jurisdiction conferred by this Act, the power, authority and jurisdiction
vested in the High Court.17
In the hearing of an appeal in the exercise of the jurisdiction conferred by this Act, the law to be
applied shall be the law applicable to the case in the High Court.18
C. JURISDICTION OF THE HIGH COURT CONFERRED BY THE JUDICATURE
ACT CAP 8 LAWS OF KENYA.
It important to note; most of the jurisdiction of this court is well outlined in the Constitution of
Kenya.
1. Admiralty Jurisdiction
The Judicature Act provides that the High Court shall have the Admiralty jurisdiction. The Act
postulates that the High Court shall be a court of admiralty and shall exercise admiralty
jurisdiction in all matters arising on the high seas, or in territorial waters, upon any lake or other
navigable inland water in Kenya.19
Further, subsection 2 provides for how the admiralty jurisdiction shall be exercised. It states that
The admiralty jurisdiction of the High Court shall be exercisable over and in respect of the same
persons, things and matters, in the same manner and to the same extent and finally in accordance
with the same procedure, as in the High Court of England. The Act further states that it shall be
exercised in conformity with international laws and the comity of nations.
Subsection 3 clarifies that in the exercise of its admiralty jurisdiction, the High Court may
exercise all the powers which it possesses for the purpose of its other civil jurisdiction.
2. Contempt of Court
The High Court as stipulated in the Act shall have the power to punish for contempt of court. It
provides that: “The High Court and the Court of Appeal shall have the same power to punish for

16
Section 3 of the Appellate Jurisdiction Act
17
Ibid
18
Ibid
19
Sec 4, Judicature Act CAP 8 LAWS of Kenya
contempt of court as is for the time being possessed by the High Court of Justice in England, and
such power shall extend to upholding the authority and dignity of subordinate courts.”20
D. JURISDICTION OF THE EMPLOYMENT AND LABOUR RELATIONS COURT
(ELRC)
The ELRC is established under Section 4 of the ELRC Act and Article 162(2) of the Constitution
of Kenya 2010 (COK 2010). Under Section 12 of the ELRC Act, the Court has exclusive original
and appellate jurisdiction over disputes relating to employment and labour relations. Noteworthy,
Article 162(2) grants the ELRC the status of the High Court. It’s therefore a superior court
whose decisions should be challenged at the court of appeal.
The exclusivity of its original jurisdiction in this regard is further anchored in Article 165(5) of
the COK 2010 which denies the High Court jurisdiction to hear and determine matters relating to
employment and labour relations as this remain the preserve of the ELRC.
Exclusive original jurisdiction
Its exclusive original jurisdiction covers disputes including the following:
(a) Disputes relating to or arising out of employment between an employer and an employee;
(b) Disputes between an employer and a trade union;
(c) Disputes between an employers’ organization and a trade union’s organization;
(d) Disputes between trade unions;
(e) Disputes between employer organisations;
(f) Disputes between an employers’ organisation and a trade union;
(g) Disputes between a trade union and a member thereof;
(h) Disputes between an employer’s organisation or a federation and a member thereof;
(i) Disputes concerning the registration and election of trade union officials; and
(j) Disputes relating to the registration and enforcement of collective agreements.
Appellate jurisdiction
Further, the Court has appellate jurisdiction to hear and determine disputes relating to:
(a) Decisions of the Registrar of Trade Unions, and
(b) decisions of any other local tribunal or commission as may be prescribed under any written
law

20
Sec 5(1), Judicature Act CAP 8 LAWS of Kenya
Orders the court may make:
The ELRC is empowered under Section 12(3) of the ELRC Act to make the following orders:
1) Interim preservation orders including injunctions in cases of urgency;
2) A prohibitory order;
3) An order for specific performance;
4) A declaratory order;
5) An award of compensation in any circumstances contemplated under this act or any
written law;
6) An award of damages in any circumstances contemplated under this act or any
written law;
7) An order for reinstatement of any employee within three years of dismissal, subject to
such conditions as the court thinks fit to impose under circumstances contemplated
under any written law; or
8) Any other appropriate relief as the court may deem fit to grant, and
9) Orders as to costs.
E. JURISDICTION OF THE ENVIRONMENT AND LAND COURT
The Environment and Land Court is a superior court established by Article 162(2) of the
Constitution of Kenya.
The Environment and Land Court Act no.19 of 2011 (ELCA) gives effect to Article 162(2) of
the Constitution and the court was established to hear and determine disputes relating to the
environment and the use and occupation of, and title to land.21
As provided for in the Environment and Land Court Act, the court exercises jurisdiction
throughout Kenya.22 It has original and appellate jurisdiction to hear and determine all disputes in
accordance with Article 162(2)(b) of the Constitution which includes disputes relating to
environmental planning and protection, climate issues, land use planning, title, tenure,
boundaries, rate, rent, valuations, mining, minerals and other natural resources, land
administration and management and compulsory acquisition of land.
It is also empowered to hear cases relating to public, private and community land and contracts,
choses in action or other instruments granting any enforceable interests in land.

21
The Environment and Land Court Act no.19 of 2011
22
Sec 13, The Environment and Land Court Act no.19 of 2011
The court exercises appellate jurisdiction over the decisions of subordinate courts and local
tribunals in respect to matters falling within its jurisdiction.
Some of these tribunals include: National Land Commission, Business Premises Rent Tribunal,
Rent Restriction Tribunal, National Environment Tribunal, Cooperative Tribunal ( in as far as
the dispute relates to land).
The court further exercises supervisory jurisdiction over the subordinate courts, local tribunals,
persons or authorities in accordance with Article 165(6) of the Constitution.
Under section 13(3) of the Environment and Land Court Act the Court has jurisdiction to hear
and determine application for redress of a denial, violation or infringement of, or threat to, rights
or fundamental freedom relating to a clean and healthy environment under Article 42, 69 and 70
of the Constitution.
Under section 13(7) The court have power to make orders and grant relief as the Court deems fit
and just, including : Interim or permanent preservation orders including injunctions, prerogative
orders, award of damage, compensation, specific performance, restitution, declaration or costs.
F. JURISDICTION OF THE MAGISTRATES’ COURTS
Establishment of the Court
The Magistrate’s Court is established under article 169(1)(a) of the Constitution of Kenya, 2010
as one of the subordinate courts. In addition, the parliament has enacted the Magistrates’ Court
Act, an act of parliament that confers jurisdiction, functions, powers and the procedure to be
followed by the court.
Constitution of the court
The Magistrate’s Court has five divisions presided over by; the Chief Magistrate, the Senior
Principal Magistrate, the Principal Magistrate, the Senior Resident Magistrate, and the Resident
Magistrate.23
Jurisdiction of the Court
The Magistrate’s Court exercises both civil and criminal jurisdiction. This is discussed below.
a) Criminal jurisdiction
The Magistrate’s Court has jurisdiction to hear and determine disputes of criminal nature that
have been conferred on it by the criminal procedure Code or any other written law. 24 Pursuant to
the first schedule read together with section 5(2) of the Criminal Procedure Code, murder and
23
Magistrates’ Court Act 2015, s 5
24
Magistrates’ Court Act 2015, s 6
treason are the only offenses that are expressly ousted from the jurisdiction of the Magistrate’s
Courts. The default court having jurisdiction to determine treason and murder cases under
section 40 and 203 respectively of the Penal Code is the High Court. This position is provided
for in the case of Charles Henry Nyaoke v Cabinet Secretary, Ministry of Interior and Co-
ordination of National Government & 4 others.25
Key offenses that fall under the jurisdiction of the Magistrates’ Courts include; robbery, robbery
with violence, attempted robbery and attempted robbery with violence. This offenses fall under
the Magistrate court the first class, presided over by a chief magistrate, a senior principal
magistrate, a principal magistrate or a senior resident magistrate as provided for under section
296 and 297 respectively of the Criminal Procedure Code.
b) Civil jurisdiction
Pecuniary Jurisdiction/Limitations
Every division of the Magistrates’ Court has jurisdiction to hear and determine matters of civil
nature and whose subject matter is of a given value.26 The limits are outlined as follows;
i. Where the subject matter does not exceed Kenya shillings twenty million for a court
presided over by a Chief magistrate;
ii. Where the subject matter does not exceed Kenya shillings fifteen million for a court
presided over by a senior principal magistrate;
iii. Where the subject matter does not exceed Kenya shillings ten million for a court
presided over by a principal magistrate;
iv. Where the subject matter does not exceed Kenya shillings seven million for a court
presided over by a senior resident magistrate;
v. Where the subject matter does not exceed Kenya shillings five million for a court
presided over by a resident magistrate;
Civil matters under African customary law
Furthermore, pursuant to section 7(3), the Magistrates’ courts have jurisdiction over the
following civil matters under the African customary law;
i. Land held under customary tenure;
ii. Marriage, divorce, maintenance or dowry;
iii. Seduction or pregnancy of an unmarried woman or girl;
25
[2020] eKLR, p 89
26
Magistrates’ Court Act 2015, s 7
 iv. Enticement of, or adultery with a married person;
v. Matters affecting the status of widows and children including guardianship, custody,
adoption and legitimacy; and
vi. Intestate succession and administration of intestate estates, so far as they are not
governed by any written law.
Claims on violation of human rights
Magistrate’s Courts have jurisdiction to hear and determine applications for redress of a denial,
violation or infringement of, or threat to, a right or fundamental freedom in the Bill of rights. 27
However, this jurisdiction is subject to article 165(3) (b) of the constitution of Kenya, 2010 as
well as the pecuniary limitation set under section 7(1) of the Magistrates’ Court Act.
The Magistrate’s Court may only determine claims on violation of human rights in so far as
those rights relate to article 25(a) and (b). That is freedom from torture and cruel, inhuman or
degrading treatment or punishment; and the freedom from slavery or servitude. The high court
under article 165(3)(b) reserves exclusive jurisdiction to hear and determine the question of
whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed
or threatened.
Finally, in exercising this jurisdiction, the matter in question is subjected to the pecuniary
limitations set under section 7(1). The Magistrate’s Court may only determine claims on
violation of human rights only to the extent and pecuniary limits set for the respective division. 28
Claims in environment and land cases
Section 9 of the Magistrate’s Courts Act read together with Section 26 of the Environment and
Land Court Act grants the magistrate’s court jurisdiction to determine claims relating to;
Environmental planning and protection, climate issues, land use planning, title, tenure,
boundaries, rents, valuations, mining, minerals and other natural resources; Compulsory
acquisition of land; Land administration and management; Public, private and community land
contracts, chores in action or other instruments granting any enforceable interests in land; and
Environment and land generally.
In the case of Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 Others, Justice
Lenaola did establish that the Environment and Land Court did not have the exclusive

27
Magistrates’ Court Act 2015, s 8(1)
28
ibid.
jurisdiction to hear and determine environment and land matters. 29 In addition, conferring
jurisdiction to the magistrate’s courts to determine these matters did not in any way diminish the
role of the Environment and Land Court. As the case would be, appeals from the Magistrate’s
Court would still be determined by this court.30
Claims in employment and labour relations claims
Pursuant to section 29(4) of the Employment and Labour Relations Court Act read together with
section 9(b) of the Magistrates’ Courts Act, the Magistrate’s Court has jurisdiction over some of
the employment and labour relations matters. This jurisdiction is however subject to the
Employment and Labour Relations Court jurisdiction to determine employment and labour
matters.31
In addition, the chief justice has power to appoint certain magistrates to preside over
employment and labour matters through gazette notices. 32 Through gazette notice number 6024
of 2018 for instance, the Chief Justice appointed all Magistrates of the rank of Senior Resident
Magistrates and above listen and determine matters in following categories;
i. Disputes arising from contracts of employment where the employees gross monthly
salary does not exceed Kshs. 80,000, with an exception of trade disputes under the
Labour relations Act, 2007.
ii. Offences under the Work Injury benefit act, 2007;
iii. Offences under the Employment Act, 2007(Rev 2022) such as prohibition against
forced labour under section 4(3) and prohibition of sexual harassment under section 6 of
the Act.
iv. Offences under the Occupational Safety and Health Act, 2007; and
v. Offences under the Labour Relations Act, 2007.

G. JURISDICTION OF THE COURT MARTIAL

Armed Forces Act Chapter 199 Section 69(1)

29
[2017] eKLR, p 59
30
ibid. p 65
31
Constitution of Kenya 2010 Article 162(2)(a)
32
Magistrates’ Court Act 2015, s 29(3)
The court martial is established under Article 169 of the Constitution of Kenya 2010 and Section
84 of the Armed Forces Act.
This act shall apply to:
a) Officers and servicemen who are not reservists;
b) Reservists who have been called out for training for a period in the aggregate not
exceeding twenty eight days under section 184, section 185 every reservist called by the
President under Gazette notice temporarily to strengthen the officers during the time of
war or under section 186 to support the civil power in the maintenance of order in the
event of disturbance for a period not exceeding twenty eight days.
c) Any person who is serving with the armed forces under an engagement whereby he
agrees to be subject to this Act, and who is not otherwise subject to this Act.
d) Any person to whom Parts IV to XI (inclusive) for the time being apply by virtue of
section 8 or section 9. (Charles Maina Ngare v Republic, court martial No.1 of 2008)
Convention of Proceedings Jurisdiction of the Court Martial
A court martial may be convened by chief of General Staff or by the Commander an order which
shall be signed either by the Chief of General Staff or by the Commander or by an officer not
below the rank of major or corresponding rank authorized in writing by the Chief of General
Staff to sign such orders on behalf of the Chief of General Staff or the Commander.
1) Any person subject to this Act who commits a civil offence, whether in Kenya or
elsewhere, shall be guilty of an offence and, on conviction by court martial -
a) If the civil offence is treason or murder, shall be sentenced to death.
b) In any other case, shall be liable to any punishment which a civil court could
award for the civil offence if committed in Kenya, being one or more of the
punishments provided by this Act, or such punishment, less than the maximum
punishment which a civil court could so award, as is provided by this Act:
Provided that, where a civil court could not so award imprisonment, a person so
convicted shall be liable to suffer such punishment, less than dismissal from the
armed forces, as is provided by this Act.
 2) A person shall not, except with the consent of the Attorney General, be charged with an
offence under this section committed in Kenya if the corresponding civil offence is
treason, treasonable felony, treachery, murder, manslaughter or rape.33
Where the offence is murder or manslaughter, an offence under this section shall be deemed, for
the purposes of subsection (2), to have been committed at the place where the act or omission
which caused the death occurred, irrespective of the place of death.34
An Office or Service man on duty outside Kenya shall not cease to be subject to this Act for such
reasons.35
The Kenya Defense Forces Act No 25 of 2012 Part IX
1. In the case of any proceedings, the courts martial established under Article 169 of the
constitution shall consist of:
a) A judge advocate appointed under section 165 who shall be the presiding
judge,
b) At least five other members appointed by the Defence Court-Martial -
Administrator if an officer is being tried and
c) Not less than three other members in any other case
At least one of the members provided for above shall be of equivalent rank as the accused person
where the accused person is an officer and the lowest ranking officer in Defence forces who is
available at the time where the accused person is a service member.
Sitting and Power of the Court Martial (Sec 162 of the Kenya Defence Forces Act)
1) The court martial may sit in any place, whether within or outside the Republic of Kenya.
2) If a court martial sitting at some place considers it necessary in the interest of justice to
sit at some other place, it may adjourn for purposes of sitting at that other place.
3) A court martial shall have the power to try any person subject to the Kenya Defence
Forces Act for any offences under the Act, and to award any punishment provided for by
the Act for that offence.
Offences not triable by courts martial
A court martial shall not try any civilian person who is subject to this Act and charged with any
of the offences under the Sexual Offences Act, 2006 and the law relating to protection from

33
Armed Forces Act Sec 69(2)
34
Armed Forces Act Sec 69(3)
35
Armed Forces Act Sec 4(a)
domestic violence where that offence is committed in Kenya. However, where a person subject
to this act commits an offence indicated above, that person shall be tried and sentenced by a
court martial.
Punishment by the Court-martial may include death, imprisonment, dismissal from the Defence
Forces, reduction in rank by one rank, forfeiture of up to twelve-month seniority of rank, a fine
not exceeding the equivalent of three months’ pay, severe reprimand or reprimand, admonition,
fine not exceeding three million shillings.
A person convicted by the Court Martial may with the leave of the court appeal to the High
Court against the conviction, sentence or both.
The decision of the High Court on any appeal under this Act shall be final and shall not be
subject to any further appeal.36
In Charles Maina Ngare v Republic, The Appellant, being a paymaster at the National Defence
College was charged with 8 counts of civil offences contrary to Section 69(1) of the Armed
Forces Act Chapter 199 of the Laws of Kenya i.e. stealing by a person in the public service
contrary to Section 280 of the Penal Code Chapter 280 of the Laws of Kenya. It was alleged that
the Appellant committed the offence at the National Defence College while he was performing
the duties of the college paymaster. The appellant was sentenced for three years for each count to
run concurrently.37
Aggrieved by the conviction and sentence the appellant filed an appeal at the High Court. In his
finding the presiding judge G.W Ngenye Macharia ruled that the prosecution did not proof their
case beyond a reasonable doubt. The appeal therefore succeeded and both the conviction and
sentence were quashed.
H. JURISDICTION OF THE KADHIS' COURTS
The jurisdiction of the Kadhis' is guided by both the constitution of Kenya 2010 38 and the Kadhis'
courts Act.39
Section 540, in establishing the jurisdiction of the court, provided that the court shall have
jurisdiction to determine the question of Muslim law relating to personal status, marriage,
divorce or inheritance in proceedings where both parties are Muslims. However, this section
36
Armed Forces Act sec 115 (3)
37
Charles Maina Ngare v Republic, court martial No.1 of 2008
38
Article 170(5)
39
Section 5 of Kadhis' courts Act. CAP 11 Laws of Kenya.Revised 2022(1967)
40
Ibid
does not incorporate that even where the proceedings must involve parties who are both
Muslims, that both also must submit to the jurisdiction of the Kadhis' court.41
The Act, however, sets out that the jurisdiction of the High Court and the subordinate Courts
shall not be limited in any proceedings that come before it. 42 This means that irrespective of
whether the parties have a claim that can be determined by the Kadhis' Courts, these parties can
as well elect to take their case to either the High Court of Kenya or a subordinate court in Kenya
if they believe that justice will be served better under those forums.
I. JURISDICTION OF THE SMALL CLAIMS COURT
The statute that confers jurisdiction to the small claims court is the Small Claims Court Act. The
said court is to be presided over by an adjudicator. 43 The adjudicator must be an advocate of the
High Court of Kenya, with at least three years’ experience in the legal field. 44
The nature of claims addressed by the court is outlined in the small claims act under section 12 to
include the following:
i. A contract for sale and supply of goods or services;
ii. A contract relating to money held and received;
iii. Liability in tort in respect of loss or damage caused to any property;
iv. For the delivery or recovery of movable property;
v. Compensation for personal injuries; and
vi. Set-off and counterclaim under any contract.
vii. The pecuniary jurisdiction of the Small Claims Courts is Kshs. 1,000,000.45
The idea behind the Small Claims Court is to allow for access to justice to the masses through a
quick, inexpensive and expeditious informal process, in order to guarantee the right of access to
justice under Article 48 of the Constitution. The courts should ideally be accessible in every sub-
county and progressively in other decentralized units of judicial service delivery.
The Small Claims Court is not tied down by the Civil Procedure Rules (2010), with the
procedures in the court being touted as deliberately less formal, simple and straightforward. The

41
Article 170(5) of the Constitution of Kenya 2010 requires all the parties to the proceedings to the Kadhis' Courts
to be Muslims as well as submit to the jurisdiction of the Kadhis' Courts
42
Section 5 of the Kadhis' Courts Act
43
Section 5(1) of The Small Claims Court Act.
44
Section 5(2) of The Small Claims Court Act
45
Section 12(3) of the Small Claims Court Act
Small Claims Court Act excludes strict application of the rules of evidence to court proceedings
and may indeed admit as evidence material the Court considers credible or trustworthy.
J. JURISDICTION OF TRIBUNALS
Apart from the courts established in Kenya, our constitution also envisages the establishment of
different tribunal by acts of parliament. It provides …any other court or local tribunal as may be
established by an act of parliament other than the courts established as required by article 162. 46
The parliament is therefore given the power to enact different legislations conferring jurisdiction
on the said tribunals.47 In that regard then then, parliament has enacted legislations establishing
various tribunals. Just to mention but a few:
 Legal education appeals tribunal
 Tax Appeals Tribunal
 Industrial Property Tribunal
 Communication and Multimedia Appeals Tribunal
 HIV & AIDS Tribunal
 National Environment Tribunal
1) Jurisdiction of the Legal Education Appeals Tribunal
It is established under section 29 of the Legal Education Act. 48 The tribunal hears appeals made
to it by any party or a reference made to it by the council of legal education on matters relating to
the legal education act.49 The specific matters include appeals from a decision of the council to:
 Refuse to grant a license.
 Impose conditions on a license.
 Suspend or revoke a license.50
In determining any case before it the tribunal is empowered to take into consideration any
evidence, which it considers relevant to the subject of the appeal before it. 51 Upon the hearing of
the appeal, the tribunal is empowered to:
i. Confirm, set aside or vary the order or decision in question.

46
Article 169(1)(d) of the Constitution of Kenya
47
Article 169(2) of the Constitution of Kenya
48
Legal Education Act No. 27 of 2012
49
Section 31 of Legal Education Act
50
Section 32 of Legal Education Act
51
Section 31(4) of Legal Education Act
 ii. Exercise any powers which would have been exercised by the council, in the
proceedings in connection with which the appeal is brought.
iii. Make any other order, including an order, for costs, as it may consider just.52
2) Jurisdiction of the Political Parties Disputes Tribunal (PPDT)
This tribunal is established under Section 39 of the Political Parties Act.53
Under Section 40 of Political Parties Act 2011, this tribunal has the jurisdiction to hear and
determine disputes between:
• Members of a political party.
• A member of a political party and a political party.
• Political parties.
• An independent candidate and a political party.
• Coalition partners.
• Appeals from the decisions of the Registrar of Political Parties under the Act.
• Disputes arising out of party primaries.
3) Micro & Small Enterprises Tribunal
Established by the Micro and Small Enterprises Act, No. 55 of 2012, S. 54.
Its mandate is to hear and determine disputes arising among members of Micro and Small
Enterprises, and disputes between the Micro and Small Enterprises Authority and Associations.
4) Transport Licensing Appeal Board
Established by the National Transport and Safety Authority Act No. 33 of 2012, S. 39
It is mandated to consider appeals from the decisions of NTSA.
5) National Civil Aviation Administrative Review Tribunal
It is established under section 66 Civil Aviation Act, No. 21 of 2013.54
It hears appeals from decisions of the Kenya Civil Aviation Authority.

52
Section 35 of Legal Education Act
53
Political Parties Act, 2011
54
Civil Aviation Act No.21 of 2013, sec 66