CUEA CLS 122 Constitutional

Practice. Topic 5
The Structure and Jurisdiction of the Courts
 • 161. (1) The Judiciary consists of the judges of
the superior courts, magistrates, other judicial
officers and staff.
• (2) There is established the office of––
• (a) Chief Justice, who shall be the Head of the
Judiciary;
• (b) Deputy Chief Justice, who shall be the Deputy
The Judiciary Head of the Judiciary; and
• (c) Chief Registrar of the Judiciary, who shall be
the chief administrator and accounting officer of
the Judiciary.
• (3) The Judicial Service Commission may establish
other offices of registrar as may be necessary.
 1. Superior Courts
2. Courts with the
status of the High
Court
Court System
3. Subordinate
Courts/Local
Tribunals
 • Article 162. (1) The superior courts are the
Supreme Court, the Court of Appeal, the High
Court and the courts mentioned in clause (2).
• (2) Parliament shall establish courts with the
status of the High Court to hear and determine
disputes relating to—
• (a) employment and labour relations; and
• (b) the environment and the use and
Court System occupation of, and title to, land.
• 3) Parliament shall determine the jurisdiction and
functions of the courts contemplated in clause
(2).
• (4) The subordinate courts are the courts
established under Article 169, or by Parliament in
accordance with that Article.
Court System

(a) the Magistrates

Part 3—Subordinate courts;
Courts

(b) the Kadhis’

169. (1) The courts;
subordinate courts
are— (c) the Courts
Martial; and
Jurisdiction, functions
and powers on the (d) any other court
courts established or local tribunal
under clause (1).
 • By jurisdiction is meant the authority which a
court as to decide matters that are litigated
before it or to take cognisance of matters
presented in a formal way for its decision. The
limits of this authority are imposed by the
statute, charter, or commission under which
the court is constituted, and may be extended
Jurisdiction of or restricted by the like means. If no restriction
or limit is imposed the jurisdiction is said to be
the Courts unlimited. A limitation may be either as to the
kind and nature of the actions and matters of
which the particular court has cognisance, or
as to the area over which the jurisdiction shall
extend, or it may partake of both these
characteristics. (Words and Phrases Legally
defined ? Volume 3: I N Page 113)
 • Re the Matter of the Interim Independent
Electoral Commission Supreme Court of Kenya
• Assumption of jurisdiction by Courts in Kenya is a
subject regulated by the Constitution, by statute
law, and by principles laid out in judicial
precedent.
• Speaker of the Senate and another v Attorney
General and another, Supreme Court of Kenya
Jurisdiction of • Where a court takes it upon itself to exercise a
jurisdiction which it does not possess, its decision
the Courts amounts to nothing
• Mumo Matemu v Trusted Society of Human
Rights Alliance and Others Court of Appeal
• It is trite that the jurisdiction of any court
provides the foundation for its exercise of judicial
authority. As a general principle, where a court
has no jurisdiction, it has no basis for judicial
proceedings much less judicial decision or order
 • I think that it is reasonably plain that a
question of jurisdiction ought to be raised at
the earliest opportunity and the court seized
of the matter is then obliged to decide the
issue right away on the material before it.
Jurisdiction is everything. Without it, a court
has no power to make one more step. Where a
Jurisdiction of court has no jurisdiction, there would be no
basis for a continuation of proceedings
the Courts pending other evidence. A court of law down
tools in respect of the matter before it the
moment it holds the opinion that it is without
jurisdiction. Per Nyarangi J in Owners of the
Motor Vessel “Lillian S” v Caltex Oil (Kenya)
Ltd [1989] eKLR
 Establishment Composition
The Supreme
Court
Jurisdiction
The Supreme Court: Establishment

(a) the Chief Justice, who

Establishment and
shall be the president of the
Composition
court;
(i) deputise for the Chief
Justice; and
163. (1) There is established
(b) the Deputy Chief Justice,
the Supreme Court, which
who shall—
shall consist of—
(ii) be the vice-president of
the court; and
(2) The Supreme Court shall
be properly constituted for
the purposes of its (c) five other judges.
proceedings if it is
composed of five judges.
Current Justices
1. Hon. Lady Justice Martha Koome - Chief Justice
and President of the Supreme Court
2. Hon. Lady Justice Philomena Mwilu - Deputy Chief
Justice and Vice President of the Supreme Court
3. Hon. Justice Mohamed Khadhar Ibrahim
4. Hon. Justice Dr Smokin Wanjala
5. Hon. Lady Justice Njoki Susanna Ndung'u
6. Hon. Justice Isaac Lenaola
7. Hon. Justice William Ouko
Former Justices
1. Hon. Lady Justice Nancy Makokha Baraza, Retired Deputy Chief
Justice & Deputy President of the Supreme Court of Kenya
2. Hon. Justice Dr Willy Mutunga, Retired Chief Justice and President
of the Supreme Court of Kenya
3. Hon. Lady Justice Kalpana Hasmukhrai Rawal, Retired Deputy Chief
Justice & Deputy President of the Supreme Court of Kenya
4. Hon. Justice Philip Kiptoo Tunoi, Retired Justice of the Supreme
Court of Kenya
5. Hon. Justice Prof. Jackton Boma Ojwang, Retired Justice of the
Supreme Court of Kenya
6. Hon. Justice David Maraga, Retired Chief Justice and President of
the Supreme Court
 The Supreme Court: Jurisdiction

(a) exclusive original (b) subject to clause

jurisdiction to hear (4) and (5), appellate
(3) The Supreme
and determine jurisdiction to hear
Court shall have—
disputes relating to and determine
the elections to the appeals from—
office of President
arising under Article
140; and
(ii) any other court or
(i) the Court of tribunal as
Appeal; and prescribed by
national legislation.
 The Supreme Court: Appellate Jurisdiction
(a) as of right in any case
(4) Appeals shall lie from the
involving the interpretation or
Court of Appeal to the
application of this
Supreme Court—
Constitution; and
(b) in any other case in which
the Supreme Court, or the
Court of Appeal, certifies that
a matter of general public
importance is involved,
subject to clause (5).
The Supreme Court:
Appellate Jurisdiction
• Malcolm Bell v Daniel Toroitich Arap Moi & another [2013] (Supreme
Court)
• What does it take for a case to be certified as one involving a matter of
general public importance
• Peter Ngoge v Ole Kaparo(Supreme Court)
• In the interpretation of any law touching on the Supreme Court’s
appellate jurisdiction, the guiding principle is to be that the chain of
Courts in the constitutional set-up, running up to the Court of Appeal,
have the professional competence, and proper safety designs, to resolve
all matters turning on the technical complexity of the law; and only
cardinal issues of law or of jurisprudential moment, will deserve the
further input of the Supreme Court.
The Supreme Court:
Advisory Jurisdiction

• Article 163(6)
• The Supreme Court 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.
The Supreme Court:
Advisory Jurisdiction

• Article 163 (6).

• The Supreme Court Act No. 7 of
2011 under Section 13,
• Supreme Court Rules 2012
• The Supreme Court of Kenya
Practice Directions
 • RE IIEC ([2011] eKLR Sup. Ct. Const.
Application No. 2) paragraph 33,
• “(An advisory opinion) means legal
The Supreme advice rendered by the Court to the
Court: Advisory public body or bodies seeking the same,
by virtue of scope created by law. Since
Jurisdiction. such an opinion does not flow from any
What it is. contest of rights or claims disposed of by
regular process, it does not fall in the
class of ‘judgment, or ruling, or order, or
decree’.
 • In Matter of the National Land Commission
([2015] eKLR Sup. Ct. Const. Application No.
2 [2014])
• “The Supreme Court of Kenya, in the
The Supreme exercise of the powers vested in it by the
Constitution, has a solemn duty and a clear
Court: Advisory obligation to provide firm and recognizable
reference-points that lower Courts and
Jurisdiction other institutions can rely on, when they are
called upon to interpret the Constitution.
Duty to Give. Each matter that comes before the Court
must be seized upon as an opportunity to
provide high-yielding interpretive guidance
on the Constitution;
The Supreme Court: Advisory Jurisdiction.
When Given.

• The Matter of the Principle of

Gender Representation in the
National Assembly and the Senate
([2012] eKLR Sup Ct. Const. Appl.
No. 2)
• Advisory Opinions are an avenue
for settling matters of great public
importance, which may not be
suitable for conventional
mechanisms of justiciability.
The Supreme Court: Advisory Jurisdiction.
When Given

• Speaker of the Senate & another v

Attorney-General & 4 others
([2013] eKLR Sup.Ct. Const.
Application No. 2 [34]),
• The facts must be uncontested
• The case involves an interpretation
of the constitution
The Supreme Court: Advisory Jurisdiction
Matter Concerning County Government

• “(1) For a reference to qualify for the

Supreme Court’s Advisory-Opinion
discretion, it must fall within the four
corners of Article 163(6):
• It must be ‘a matter concerning
county government.’
• The question as to whether a matter
is one ‘concerning county
government’ will be determined by
the Court on a case-by-case basis.
The Supreme Court: Advisory Jurisdiction
Matter Concerning County Government

• Speaker of the Senate & another v

Attorney-General & 4 others ([2013] eKLR
Sup.Ct. Const. Application No. 2 [34]),
• “It emerges that a matter qualifies to be
regarded as one of county government
only where:
• that is the case in the terms of the
Constitution;
• it is the case in the terms of statute law;
• it is the case in the perception of the
Court
The Supreme Court: Advisory Jurisdiction
Re IIEC ([2011] eKLR (Sup. Ct.)
Sub-Judice

• The Court will be hesitant to exercise its

discretion to render an Advisory Opinion
where the matter in respect of which the
reference has been made is a subject of
proceedings in a lower Court.
• Where a reference has been made to the
Court the subject matter of which is also
pending in a lower Court, the Court may
nonetheless render an Advisory Opinion if
the applicant can demonstrate that the issue
is of great public importance and requiring
urgent resolution through an Advisory
Opinion….
The Supreme Court: Advisory
Jurisdiction
Re IIEC ([2011] eKLR (Sup. Ct.)
Role of the AG

• It is recommended, though not

mandatory that the advice of the
Attorney General should be sought
• This is not inconsistent with the
doctrine of separation of powers
 “The only parties that can make a request
for an Advisory Opinion are:
The Supreme National A state A county
Court: Advisory government, organ, or government.
Jurisdiction
Re IIEC ([2011]
eKLR (Sup. Ct.) Any other person or institution may only
Locus Standii be enjoined in the proceedings with leave
of the Court, either as intervener
(interested party) or as amicus curiae.
 • We, therefore, hold that an
Advisory Opinion, in this context,
The Supreme Court: is a ‘decision’ of the Court, within
Advisory Jurisdiction the terms of Article 163(7), and is
thus binding on those who bring
Re IIEC ([2011] eKLR
the issue before the Court, and
(Sup. Ct.) upon lower Courts, in the same
Paragraphs 92 and 93 way as other decisions
Whether Binding.

The Supreme Court: Advisory
Jurisdiction
Re IIEC ([2011] eKLR (Sup. Ct.)
Paragraphs 92 and 93
Whether Binding.
• It is inappropriate that the Supreme Court’s
Advisory Opinion should be sought as mere
advice.
• Where a government or State organ makes a
request for an Opinion, it is to be supposed
that such organ would abide by that Opinion;
the Opinion is sought to clarify a doubt, and to
enable it to act in accordance with the law.
• If the Applicant were not to be bound in this
way, then it would be seeking an Opinion
merely in the hope that the Court would
endorse its position and, otherwise, the
Applicant would consider itself free to
disregard the Opinion. This is not fair and
cannot be right.”
 The Supreme Court may decide
The validity of a The validity of any
declaration of a state of extension of a declaration
emergency. of a state of emergency .
The Supreme Court:
Jurisdiction
on Declaration of a
State of Emergency.
Any legislation enacted, or other
action taken, in consequence of a
declaration of a state of emergency.
 Establishment Composition
The Court of
Appeal
Jurisdiction
Court of Appeal: Establishment and Composition

164. (1) There is established the Court

of Appeal, which— (a) shall consist of (2) There shall be a president of the
the number of judges, being not fewer Court of Appeal who shall be elected
than twelve, as may be prescribed by by the judges of the Court of Appeal
an Act of Parliament; and (b) shall be from among themselves.
organised and administered in the
manner prescribed by an Act of
Parliament
 • Currently, the Court of Appeal
has permanent benches in
Nairobi, Mombasa, Nyeri and
Kisumu.
Court of Appeal: • The court also has sub-registries
Establishment in Nakuru, Eldoret, Garissa,
Busia, Kisii, Meru, Malindi and
and Composition Kakamega where appeal matters
are filed and judges visit on
circuit to dispense justice.
Court of Appeal: Establishment and Composition

Statute Law (Miscellaneous

7 (1) of the Judicature Act
limits the number of Court
of Appeal judges to 30 but
not fewer than 12.
Amendment) Bill, 2022,
currently under public
participation in the National
Assembly. Seeks to increase
the number to 70
Judges of the Court of Appeal
1. Mr. Daniel Isokolo Musinga - President, Court of Appeal 16. Lady Justice Mumbi Ngugi
2. Lady Justice Wanjiru Karanja 17. Lady Justice Pauline Nyamweya
3. Lady Justice H. M. Okwengu 18. Mr. Justice Imaana Laibuta
4. Mr. Justice M. Warsame (Commissioner to the JSC) 19. Mr. Justice Luka Kiprotich Kimaru
5. Mr. Justice M.S.A. Makhandia 20. Mr. Justice Paul Mwaniki Gachoka
6. Mr. Justice Patrick O. Kiage 21. Lady Justice Lydia Awino Achode
7. Mr. Justice S. Gatembu Kairu 22. Mr. Justice Frederick Andago Ochieng
8. Mr. Justice Kathurima M’inoti 23. Mr. Justice John Mutinga Mativo
9. Lady Justice Agnes K. Murgor 24. Lady Justice Grace Wangui Ngenye
10. Lady Justice Fatuma Sichale 25. Lady Justice Abida Ali Aroni
11. Lady Justice Jamila Mohammed 26. Mr. Justice Aggrey Muchelule
12. Mr. Justice Sankale Ole Kantai 27. Mr. Justice Weldon Korir
13. Lady Justice Hellen Omondi 28. Mr. Justice George Vincent Odunga
14. Mr. Justice Francis Tuiyott 29. Mr. Justice (Prof) Joel Ngugi
15. Lady Justice Jessie Lesiit
Court of Appeal: Jurisdiction

(3) The Court of (b) any other court

Appeal has (a) the High Court; or tribunal as
jurisdiction to hear and prescribed by an
appeals from— Act of Parliament.
 Establishment Composition
The High
Court
Jurisdiction
High Court: Establishment and Composition

(a) shall consist of

(1) There is section 7 (2) of the
the number of judges
established the High Judicature Act sets
prescribed by an Act
Court, which— the maximum at 150.
of Parliament; and
High Court: Establishment and Composition

The High Court (2) There shall be a

Principal Judge of the High
(b) shall be organised and Court, who shall be elected
administered in the by the judges of the High
manner prescribed by an Court from among
Act of Parliament. themselves
 • Art 165(3) Subject to clause (5), the High
Court shall have—
• (a)unlimited original jurisdiction in
criminal and civil matters;
• (b) jurisdiction to determine the question
High Court: whether a right or fundamental freedom
in the Bill of Rights has been denied,
Jurisdiction violated, infringed or threatened;
• (c) jurisdiction to hear an appeal from a
decision of a tribunal appointed under this
Constitution to consider the removal of a
person from office, other than a tribunal
appointed under Article 144
 • Art 165(3)
• (d) jurisdiction to hear any question respecting
the interpretation of this Constitution
including the determination of—
• (i) the question whether any law is
inconsistent with or in contravention of this
Constitution;
• (ii) the question whether anything said to be
High Court: done under the authority of this Constitution
or of any law is inconsistent with, or in
Jurisdiction contravention of, this Constitution;
• (iii) any matter relating to constitutional
powers of State organs in respect of county
governments and any matter relating to the
constitutional relationship between the levels
of government; and
• (iv) a question relating to conflict of laws
under Article 191; and
• (e) any other jurisdiction, original or
appellate, conferred on it by legislation.
High Court: Jurisdiction

(a) reserved for the

(5) The High Court (b) falling within the
exclusive jurisdiction of
shall not have jurisdiction of the
the Supreme Court
jurisdiction in respect courts contemplated in
under this
of matters— Article 162 (2).
Constitution; or
 • (6) The High Court has supervisory
jurisdiction over the subordinate courts
and over any person, body or authority
exercising a judicial or quasi-judicial
function, but not over a superior court.
• (7) For the purposes of clause (6), the High
Court may call for the record of any
proceedings before any subordinate court
High Court: Judicial or person, body or authority referred to in
Review Jurisdiction clause (6), and may make any order or give
any direction it considers appropriate to
ensure the fair administration of justice.
 • What is Judicial Review?
• Judicial review is the supervisory
jurisdiction of the High Court to review
the decision of an inferior tribunal to
determine its conformity to the law.
Judicial Review determines the legality
and regularity of ;
High Court: Judicial ❑A decision
Review Jurisdiction ❑A proposed decision
❑A failure to act
 • Judicial Review in constitutional law is
directed at all the other arms of
government.
• Its origin is typically traced to the
seminal decision of the United States
Supreme Court in Madbury vs
Madison (1803)
High Court: Judicial • It is said to be a necessary
Review Jurisdiction consequence of the supremacy of the
constitution.
• The court has the last word on
whether or not anything done under
the constitution or written law is in
conformity with the constitution.
 • Two strands of Judicial Review
• There are two strands of Judicial Review
❑Judicial Review in Administrative Law
❑Judicial Review in Constitutional Law
• Judicial Review in administrative Law is the
power of the High Court to determine the
legality and regularity of inferior tribunals or
High Court: Judicial bodies. It is typically directed at the executive
branch of the government.
Review Jurisdiction • Judicial Review in Constitutional Law is the
power of the Court to review the acts of the
other arms of government to determine their
constitutionality (It is this strand that we are
concerned with in this discussion because it
raises delicate constitutional issues arising
from the doctrine of separation of powers.)
 • CCK v Royal Media Services Ltd [2014]
eKLR
• The Supreme Court recognized that
the power of any judicial review is now
found in the constitution
• Republic v Director of Public
High Court: Judicial Prosecution Ex Parte Chamanlal Vrajlal
Kamani [2015] eKLR
Review Jurisdiction • The grounds in judicial review
applications be developed and the
grounds for granting relief under the
Constitution and the common law be
fused, intertwined and developed so
as to meet the changing needs of our
society so as to achieve fairness and
secure human dignity…
 • Commission on Administrative Justice
v Insurance Regulatory Authority &
another [2017] eKLR
• On reliefs available from this court,
Article 23 (3) provides that the court
may grant appropriate relief including
a declaration of rights, an injunction, a
High Court: Judicial conservatory order, a declaration of
Review Jurisdiction invalidity o any law that denies,
violates, infringes, or threatens a right,
compensation and an order of judicial
review.
• Thus, judicial review is available as
relief to a claim of violation of the
rights and freedoms guaranteed in
the constitution
 • Constitutional Basis
• Article 165(3)(d) jurisdiction to hear any
question respecting the interpretation of
this Constitution
• Article 165(6) The High Court has
supervisory jurisdiction over the
subordinate courts and over any person,
body or authority exercising a judicial or
High Court: Judicial quasi-judicial function, but not over a
superior court.
Review Jurisdiction • Article 165(7) For the purposes of clause
(6), the High Court may call for the record
of any proceedings before any subordinate
court or person, body or authority
referred to in clause (6), and may make
any order or give any direction it considers
appropriate to ensure the fair
administration
 • Constitutional Basis
• Article 23. (1) The High Court has
jurisdiction, in accordance with Article
165, 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
• 23(3) In any proceedings brought under
High Court: Judicial Article 22, a court may grant appropriate
relief, including––(f) an order of judicial
Review Jurisdiction review.
• Article 47 (3) Parliament shall enact
legislation to give effect to the rights in
clause (1) and that legislation shall—
• (a) provide for the review of
administrative action by a court or, if
appropriate, an independent and impartial
tribunal; and
 • Problem
• It is said to be inconsistent with the
doctrine of Separation of powers. Courts
are acting as prefects over the two arms of
government
• Courts respond by saying
• It is the constitutional role of the courts
High Court: • It is part of a system of checks and
Judicial Review balances
• Courts will exercise restraint and will be
slow to interfere.
• Courts will defer to the policy choices of
the two arms of government
• But courts will interfere if the constitution
has been violated.
 • Speaker of the Senate & another v. Attorney-
General & 4 Others, Sup. Ct. Advisory Opinion
Reference 2 of 2013; [2013] eKLR
• “The system of checks and balances that
prevents autocracy, restrains institutional
excesses and prevents abuse of power apply
equally to the Executive, the Legislature and
the Judiciary. No one arm of Government is
infallible, and all are equally vulnerable to the
High Court: dangers of acting ultra vires the Constitution.
Whereas the Executive and the Legislature are
Judicial Review regularly tempered and safeguarded through
the process of regular direct elections by the
people, the discipline of an appointed and
unelected Judicial arm of Government is
largely self-regulatory. The parameters of
encroachment on the powers of other arms of
Government must be therefore clearly
delineated, [their] limits acknowledged, and
restraint fully exercised. It is only through the
practice of such cautionary measures, that the
remotest possibility of judicial tyranny can be
avoided.” per Njoki Ndungu J SCt
 • Speaker of the Senate & another v.
Attorney-General & 4 Others, Sup. Ct.
Advisory Opinion Reference 2 of 2013;
[2013] eKLR
• “...The institutional comity between the
three arms of Government must not be
endangered by the unwarranted
intrusions into the workings of one arm by
High Court: another.
• “However, where a question arises as to
Judicial Review the interpretation of the Constitution, this
Court, being the apex judicial organ in the
land, cannot invoke institutional comity to
avoid its constitutional duty. We are
persuaded by the reasoning in the cases
we have referred to from other
jurisdictions to the effect that Parliament
must operate under the Constitution
which is the supreme law of the land.”
High Court:
Judicial Review
• In countries that have a
specialized constitutional court, it
is usual to establish an
appointment mechanism for the
constitutional court that differs
from that used for the ordinary
civil, criminal and administrative
judicial appointments.
 • Solution
❑Recognise the constitutional court
as a hybrid institution,
legal/political
❑Create specialized courts
❑Limited but secure tenure
High Court: ❑Create a different system of
appointment that factors in the
Judicial Review political realities
• Examples
❑Germany
❑France
❑Spain
❑South Africa
 Half of the 16 Justices of the
Federal Constitutional Court are
elected by the Bundestag, and
Judicial Review half by the Bundesrat.
Germany The President and Vice-
President of the Court are also
elected, in turns, by the
Bundestag and the Bundesrat.
 • The nine members of the Constitutional
Council (which performs a constitutional
review function but does not form part
Judicial of the ordinary judiciary) are appointed
on a representative basis, with one-third
Review of the members appointed by the
president of the republic, one-third by
France the president of the Senate, and one-
third by the president of the National
Assembly.
 • In Spain’s 1978 Constitution the
judicial council (General Council of
Judicial Power) nominates all members
of the ordinary judiciary, but only two
of the twelve members of the
Constitutional Tribunal (four are
chosen by a three-fifths majority of
Judicial Review each house of parliament, two by the
government).
Spain • This different mode of composition, in
part, reflects the idea of the
Constitutional Court as a hybrid
political-legal institution.
 ❑The 11 judges of the Constitutional Court
are independent. They cannot be
members of Parliament, of the
government or of political parties. They
are required to be impartial and to uphold
justice for all without fear, favour or
prejudice.
❑Sections 174 to 178 of the Constitution
deal with the appointment of judicial
officers. First, the Judicial Service
Commission draws up a list of candidates
Judicial Review that must have three more names than
the number of vacancies. The
South Africa Commission does this after calling for
nominations
interviews.
and holding public
❑Then the President, after consultation
with the Chief Justice and the leaders of
political parties represented in the
National Assembly, chooses the judges
from this selection.
❑The judges ordinarily serve for a non-
renewable term of between 12 and 15
years.
 ❑James Opiyo Wandayi v Kenya
National Assembly & 2 others
[2016] eKLR.
❑The applicant ,James Opiyo Wandayi,
was and still is the sitting elected
Member of Parliament for Ugunja
Constituency within the Republic of
Kenya.
Judicial Review ❑He brought an action to challenge the
constitutionality of his suspension
Illustration from parliament.
❑In court it was argued that the court
had no jurisdiction to question the
acts of the legislature s it would be a
violation of separation of powers.
❑The court found that judicial review is
in fact a necessary consequence of
separation of powers and issued an
injunctive order against the National
Assembly kicking off a firestorm.
The Establishment Composition
Environment
and Land Court
(ELC)
Jurisdiction
 • Establishment of the Court
• S4(1) There is established the
ELC: Environment and Land Court.
Establishment • S 4(2) The Court shall be a
superior court of record with the
s 4 ELC Act status of the High Court.
Cap 12 A • S4 (3) The Court shall have and
exercise jurisdiction throughout
Kenya..
 • 5. Composition of the Court
• The Court shall consist of the Presiding
Judge and such number of Judges as may
be determined by the Judicial Service
Commission from time to time.

ELC:
Composition
ELC Act Cap 12 A
 • 6. Presiding Judge
• S 6 (1) The Presiding Judge shall be
elected in accordance with Article 165(2)
of the Constitution.
• S 6 (2) The Presiding Judge shall hold
office for a non-renewable term of five
years.
ELC: Presiding • S 6 (3) The Presiding Judge shall have
ELC Act Cap 12 A supervisory powers over the Court and
shall report to the Chief Justice.
• S 6 (4) In the absence of the Presiding
Judge or in the event of a vacancy in the
office of the Presiding Judge, the judges of
the Court may elect any other Judge of the
Court to exercise the functions of the
Presiding Judge.
 • 13. Jurisdiction of the Court
• S13 (1) The Court shall have original and
appellate jurisdiction to hear and determine
all disputes in accordance with Article
162(2)(b) of the Constitution and with the
provisions of this Act or any other law
applicable in Kenya relating to environment
and land.
• (2) In exercise of its jurisdiction under Article
162(2)(b) of the Constitution, the Court shall
ELC: Jurisdiction have power to hear and determine disputes—
(a) relating to environmental planning and
ELC Act Cap 12 A protection, climate issues, land use planning,
title, tenure, boundaries, rates, rents,
valuations, mining, minerals and other natural
resources; (b) relating to compulsory
acquisition of land; (c) relating to land
administration and management; (d) relating
to public, private and community land and
contracts, choses in action or other
instruments granting any enforceable interests
in land; and (e) any other dispute relating to
environment and land.
 • 13. Jurisdiction of the Court
• Co-operative Bank of Kenya Limited v
Patrick Kangethe Njuguna & 5 others
[2017
• The Environment and Land Court has no
jurisdiction, this being a case for a
recovery of a debt secured by a charge.
ELC: Jurisdiction
ELC Act Cap 12 A
The
Employment Establishment Composition
and Labour
Relations Court
ELRC
Jurisdiction
 • Establishment of the Court
• 4. Establishment of the Employment and
Labour Relations Court
• S 4 (1) There is established the
Employment and Labour Relations Court
ELRC: Establishment & pursuant to Article 162(2) of the
Constitution.
Composition • S 5. Composition of the Court
ELRC ACT Cap 234B • S 5 (1) The Court may consist of— (a) the
Principal Judge; and (b) such number of
Judges as may be determined and
recruited by the Judicial Service
Commission and appointed in accordance
with Article 166(1) of the Constitution.
 • S 5(2) The Principal Judge shall be elected
in accordance with the procedure
prescribed in Article 165(2) of the
Constitution.
• S 5(3) The Principal Judge shall hold office
for a term of not more than five years and
shall be eligible for re-election for one
ELRC: Presiding further term of five years.
• S5(4) The Principal Judge shall have
ELRC ACT Cap 234B supervisory powers over the Court and
shall be answerable to the Chief Justice.
• S5(5) In the absence of the Principal
Judge or in the event of a vacancy in the
office of the Principal Judge, the Judges of
the Court may elect any other Judge to
have and exercise and perform the powers
and functions of the Principal Judge, and
who shall be deemed to be the Principal
Judge
 • S12. Jurisdiction of the Court
• S 12 (1) The Court shall have exclusive original
and appellate jurisdiction to hear and determine
all disputes referred to it in accordance with
Article 162
• S 12(2) of the Constitution and the provisions of
this Act or any other written law which extends
ELRC: jurisdiction to the Court relating to employment
and labour relations including— (a) disputes
relating to or arising out of employment between
Jurisdiction an employer and an employee; (b) disputes
between an employer and a trade union; (c)
disputes between an employers’ organization
ELRC Act Cap and a trade union’s organization; (d) disputes
between trade unions; (e) disputes between
employer organizations; (f) disputes between an
234B employers’ organization and a trade union; (g)
disputes between a trade union and a member
thereof; (h) disputes between an employer’s
organization or a federation and a member
thereof; (i) (j) disputes concerning the
registration and election of trade union officials;
and disputes relating to the registration and
enforcement of collective agreements.
 • S12. Jurisdiction of the Court
• (5) The Court shall have jurisdiction to
hear and determine appeals arising
from—(a) decisions of the Registrar of
Trade Unions; and
ELRC: • (b) decisions of any other local tribunal or
commission as may be prescribed under
Jurisdiction any written law.

ELRC Act Cap

234B
 • S12. Jurisdiction of the Court
• The National Social Security Fund Board of
Trustees v. Kenya Tea Growers Association
& 14 others Civil Appeal No. 656 of 2022
• The appeal arose from a petition filed in
ELRC: the ELRC challenging the constitutionality
of the National Social Security Fund Act
Jurisdiction 2013 (“the Act”) for being
unconstitutional. ELRC had nullified the
ELRC Act Cap Act
• Held
234B • The Employment and Labour Relations
Court (“ELRC”) has no jurisdiction to
determine the constitutionality of a
statute unless the dispute arises out of an
employer-employee relationship.
 Establishment Composition
The
Subordinate
Courts
Jurisdiction
 • Establishment
• The 2010 constitution provides for the
establishment of magistrate courts.
• Magistrates' courts are established by
the Magistrates Courts Act
• Jurisdiction is conferred by the
Magistrates Courts Act, the Civil
Magistrate Courts. Procedure Act, the Criminal Procedure
Code and the Law of Succession Act.
• Composition
• Magistrate courts are duly constituted
when held by a Chief Magistrate,
Senior Principal, A Principal Magistrate
and a Senior Resident Magistrate or
Resident Magistrate
 • The hierarchy of magistrate’s is
as follows;
❑Chief Magistrate
❑Senior Principal Magistrate
Magistrate ❑Principal Magistrate
❑Senior Resident Magistrate
Courts: ❑Resident Magistrate
Hierarchy
 • Twenty million shillings for Chief
Magistrate.
• Fifteen million shillings for Senior
Pecuniary Principal Magistrate.
Jurisdiction of • Ten million shillings for Principal
Magistrate.
Magistrates' • Seven million for Senior Resident
Courts Magistrate.
• Five million for Resident
Magistrate
 • Magistrate Courts have
jurisdiction concerning claims
under customary law such as
Magistrates marriage, divorce, dowry and
Court’s: intestate succession
Jurisdiction on
Customary Law
Claims
 • The court martial is established
under article 169 of the
constitution. It has criminal
jurisdiction over member of the
Kenya Defense Forces; the army,
Courts Martial navy and air force.
• Its rules, procedures and crimes to
be tried are contained in the Kenya
Defense Forces Act No 25 of 2012.
• Appeals from the courts martial are
to the High Court of Kenya
 • The Kadhi courts are established under
article 169 of the constitution.
• It is composed of a Chief Kadhi and other
Kadhis as may be prescribed under an act
of parliament.
• The jurisdiction of a Kadhi Court is limited
Kadhi Courts 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.
• The parties must submit to the jurisdiction
of the Kadhi Courts
 END OF SUB-TOPIC
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CHARLES B G OUMA LLB MLB
ADJUNCT FACULTY CUEA
04/04/2023 CHARLES B G OUMA LLB MLB 79