The Kenyan Court System &

Jurisdiction
The structure of courts in Kenya
Jurisdiction
 Jurisdiction is the Court’s power to entertain, hear and determine a dispute before it.
(Black’s Law Dictionary, 9th Edn).
 A Court’s jurisdiction flows from either the Constitution or legislation or both. A Court
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
(SCOK in Samuel Macharia v KCB (2011)eKLR).
 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. (In the Matter of the Interim Independent Electoral
Commission 2011)
Supreme Court of Kenya (SCOK)
 SCOK is the apex court in Kenya and its jurisdiction is stipulated under
Article 163(3)(4).
 First, the SCOK has original and exclusive jurisdiction to hear and
determine disputes arising from presidential elections.
 Second, it has appellate jurisdiction to hear and determine appeals from
the Court of Appeal (COA) and any other court or tribunal as prescribed
by national legislation. Appeals from the COA are as of right in cases
involving the interpretation and application of the CoK or certification
of a case as one involving a matter of public importance. See recent BBI
case.
 Third, in view of Art 163(3), the SCOK 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 SCOK is also empowered to determine the validity of a declaration
of a state of emergency, an extension of such a declaration or any
legislation enacted or action taken in consequence of a declaration of a
state of emergency. See Art 58(5) of CoK.
 Fifth, the SCOK has jurisdiction to hear appeals from a tribunal
constituted under Article 168 of the CoK on removal of judges of
superior courts from office.
 Section 3 of the Supreme Act 2011 tasks the SCOK to, inter alia,
develop rich jurisprudence that respects Kenya’s history and traditions and
facilitates its social, economic and political growth; and provide
authoritative and impartial interpretation of the Constitution.
 Sec 14 rendered unconstitutional in the Samuel Macharia Case for
conferring special jurisdiction.
Court of Appeal
 Established under Art 164(3) of the CoK is “to hear appeals from (a) the
High Court; and (b) any other Court or tribunal as prescribed by an Act
of Parliament.”
 Two of the Acts of Parliament vesting in the CoA jurisdiction to hear and
determine appeals from other Courts are the Environment and Land
Court Act at Section 13(1) – to hear appeals from the Environment and
Land Court and the Employment and Labour Relations Act,
at Section 12(1) – to hear appeals from the Employment and Labour
Relations Court.
 The COA shall consist of the number of judges, being not fewer than
twelve, as may be prescribed by an Act of Parliament.
 President : Justice Daniel Musinga
High Court
 Article 165 establishes the High and Court and provides for its jurisdiction under Clause 3.
 First, the HC has unlimited original jurisdiction in criminal and civil matters.
 Second, it has jurisdiction to determine the question whether a right or fundamental freedom in
the Bill of Rights has been denied, violated, infringed or threatened.
 Third, the HC has 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;
 Fourth, the High Court has 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 done under the authority of this Constitution or of any law is
inconsistent with, or in 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.
 Fifth, the HC 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.
 The Court of Appeal has in the Delamere case expressed its
understanding of the High Court’s unlimited original jurisdiction
in the following terms:
“The High Court, on the other hand can hear all matters without regard to
territory or the subject matter in dispute. In criminal matters, it has jurisdiction
to try the pettiest of offenders to the murder. Likewise, in civil matters it has the
jurisdiction to try a claim for the meanest amount without regard to the origin of
the claim. Of course it does not normally do so; it would be overwhelmed by sheer
volume of work. But it has the jurisdiction to do so. That is our understanding of
the phrase ……. unlimited original jurisdiction in civil or criminal matters ….”
 Principal Judge : Hon Lady Justice Lydia Achode
Environment and Land Court (ELC)
 Article 162(2) of the CoK empowers Parliament to “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 occupation of, and title to, land.
 Clause (3) thereof authorizes Parliament to “determine the jurisdiction
and functions of the Courts contemplated in clause (2).”
 Pursuant to Article 162(3) of the CoK, Parliament enacted the
Environment and Land Court Act 2011 Section 13(1) of which outlines
the ELC’s jurisdiction as follows:
 “(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the
Court [the ELC] shall have power to hear and determine disputes—
(a) relating to environmental planning and 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.
 “(3) Nothing in this Act shall preclude the Court from hearing and determining
applications for redress of a denial, violation or infringement of, or threat to, rights or
fundamental freedom relating to a clean and healthy environment under Articles 42,
69 and 70 of the Constitution.”
 The Court shall also has appellate jurisdiction over the decisions of subordinate courts
or local tribunals in respect of matters falling within the jurisdiction of the Court.
 Presiding Judge : Hon Justice Samson Odhiambo Okong’o
The Employment and Labour Relations Court
 Section 12(1) of the Employment and Labour Relations Court Act provides for the jurisdiction of the ELRC in the
following terms:
 “(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it
in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which
extends jurisdiction to the Court relating to employment and labour relations including—
(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’ organisation and a trade union organisation;
(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.

Principal Judge: Hon Lady Justice Maureen Onyango

Magistrates Courts
 Subordinate courts under Art 169 of the CoK. They are presided over by chief magistrates,
senior principal magistrates, principal magistrates, senior resident magistrates or resident
magistrates (Sec 5 of the Magistrate Courts Act).
 Civil Jurisdiction. They have jurisdiction to hear and determine all cases of civil nature except
as limited by Statute. They have pecuniary jurisdiction which is monetary jurisdiction and the
different magistrates courts are differentiated as to hear and determine such cases as follows:
(i)A Court presided over by a Chief Magistrate, has the civil jurisdiction in cases in which the subject
matter does not exceed the value of twenty million shillings.
(ii)A court presided over by a Senior Principal Magistrate has jurisdiction in cases in which the value of the
subject matter does not exceed fifteen million shillings.
(iii) A court presided over by a Principal Magistrate has jurisdiction in cases in which the value of the
subject matter does not exceed ten million shillings.
(iv) A court presided over by a Senior Resident Magistrate has jurisdiction in cases in which the value of the
subject matter does not exceed seven million shillings.
(v)A court presided over by a Resident Magistrate has jurisdiction in cases in which the value of the subject
matter does not exceed five million shillings.
 However, the pecuniary jurisdiction is temporary since the Chief Justice can revise the limits
while considering inflation and the economic conditions
 The MCs have jurisdiction to deal with matters relating to African Customary
Law as provided under Section 7 (3) of the MCA Act. These matters include
ones touching on land held under customary tenure, marriage, divorce,
dowry and maintenance, pregnancy of unmarried women, adultery, the
status of widows, custody and guardianship, adoption and legitimacy of
children, as well as matters of intestate succession.
 By dint of Sec 8 of the MCA, Subject to Article 165 (3) (b) of the
Constitution and the pecuniary limitations set out in section 7(1), a
magistrate's court shall 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. (2) The applications
contemplated in subsection (1) shall only relate to the rights guaranteed in
Article 25 (a) and (b) of the Constitution. (3) Nothing in the Act may be
construed as conferring jurisdiction on a magistrate's court to hear and
determine claims for compensation for loss or damage suffered in
consequence of a violation, infringement, denial of a right or fundamental
freedom in the Bill of Rights.
 The MCs are empowered by Sec 29 of the Industrial Court Act to hear
and determine claims relating to employment and labour, as long as
they act subject to the pecuniary jurisdiction as above herein stated.
 Further, under the Gazette Notice No. 6024, the MCs presided over by
Senior Resident Magistrate and above have jurisdiction on disputes that
arise from contracts of employment where the gross monthly salary of
such employee does not exceed 80,000/=. They also have jurisdiction
that relate to offences under the Work Injury Benefits Act, 2007,
Employment Act, 2007, Labour Institutions Act, 2007, Occupational
Safety and Health Act, 2007 and the Labour Relations Act, 2007.
 Sec 26 of the ELC Act confers the MCs the jurisdiction to hear and
determine claims that relate to environmental planning, climate, use of
land and planning, tenure, title, rates, rents, boundaries, mining and
minerals, and all other natural resources. It is also given the jurisdiction
over matters compulsory acquisition of land, land administration, land
tenures and contracts and environment and land matters in general
Criminal Jurisdiction of MCs

 Under Sec 6 of the MCA, a MC has jurisdiction and powers in proceedings

of a criminal nature as may be conferred on it by — (a) the Criminal
Procedure Code; or (b) any other written law. First Schedule of the CPC
lists the offences and respectable courts where they can be tried.
 Their criminal jurisdiction is limited to cases relating to treason and
murder because the High Court exclusively has the original jurisdiction
over the same. Nonetheless, in the case of Charles Henry Nyaoke v
Cabinet Secretary, Ministry of Interior and Co-ordination of National
Government & 4 others (2020) eKLR, the High Court in Kisumu analyzed
the original jurisdiction of the High Court in murder cases and held that,
the fact that the High Court is the only court that has original jurisdiction
in criminal matters lacks legal justification and thus initiating murder
trials at the magistrate courts would enable better attainment of access
to justice due to the decentralization and devolvement of Magistrate
Courts all over the country.
 The criminal jurisdiction is also limited to matters of
International Law. On sentencing, all Courts except the
Resident Magistrate Court have the authority to pass any
sentence that is authorized by law while the Resident
Magistrate Court can pass a sentence for offences under the
Sexual Offences Act, as well as the Penal Code Sections
278,308(1). These include offences of stealing of stock,
motor vehicle, fishing gear and preparation to commit a
felony.
 Furthermore, the court has the jurisdiction to adjudicate over
matters relating to contempt of court apart from cases of
contempt that happens in the face of that particular court.
One who commits such contempt can be sentenced to pay a
fine of 100000 or below and/or imprisonment for a term not
Magistrates Courts Cont’d
 Specialcourts have been established to hear and
determine matters filed therein. They include;
1). The Anti-Corruption Court
2). The Children Court
 The above courts are manned by magistrate’s
gazette for that purpose by the Honorable Chief
Justice. Magistrates Courts also have jurisdiction
to hear and determine traffic matters in the
manner provided for under the Traffic Act.
Other Subordinate Courts
1. Khadis Courts
Established under Article 170 of the Constitution. 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.
2. Court Martial
Established under Article 169(1)(c) of the CoK and Section 84 of
the Kenya Defense Forces Act. It has jurisdiction to hear matters
involving the members of the Kenya defense forces. Appeals that
arise from matters in the court martial are heard by the High
Court
3. Tribunals
 These are bodies that are formed by Acts of parliament to exercise
judicial functions. The constitution of Kenya, 2010 in article 169(1)
recognizes tribunals established by Acts of parliament as part of the
subordinate courts that are under the Judiciary. They play a major role
in supplementing ordinary courts in the administration of justice.
However, unlike ordinary courts, tribunals do not have penal
jurisdiction. Tribunals are coordinated through the office of the registrar
of tribunals established by the Judicial Service Commission.
 There are over 50 tribunals in Kenya and 20 of them have been transited
to the Judiciary in compliance with the constitution. Some of these
include; the competition tribunal, energy tribunal, national environment
tribunal, and legal education appeals tribunal, just to mention a few.
Most of the tribunals are subject to the supervision of the High Court
4. Small Claims Court
 Established by the Small Claims Act, 2016, this is a subordinate court
in the structure of the court system in Kenya under Article 169(1) of
the Constitution with a monetary jurisdiction of matters not exceeding
Ksh 1 Million.
 The establishment of the court is part of an initiative to enhance the
ease of doing business in the country. The courts are intended to reduce
backlog of cases by having disputes resolved through simple, inexpensive
and expeditious procedures, thus enhancing access to justice.
 The main objective of the court is to guarantee the right of access to
justice as envisioned under Article 48 of the Constitution through
simplicity of procedure, timely disposal of proceedings, fairness of
process and reasonable court fees.
Yours Truly,
Firm Four