The Structure of the Judiciary in Kenya

The structure of the Judiciary in Kenya consists of the superior courts and the subordinate courts. Chapter 10 of the Kenyan Constitution establishes the Judiciary as an independent arm of government.

Judicial authority is derived from the people and vests in and shall be exercised by, the courts and tribunals established by or under the Constitution.

In the exercise of judicial authority, the Judiciary is subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority.

The Judiciary shall be an independent custodian of justice in Kenya. Its primary role is to exercise the judicial authority given to it, by the people of Kenya.

The institution shall deliver justice in line with the Constitution and other laws. It shall resolve disputes justly to protect the rights and liberties of all people, thereby facilitating attaining the ideal rule of law.

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Structure of the Judiciary in Kenya

The hierarchy of the courts in Kenya consists of the judges of the superior courts, magistrates, other judicial officers and staff.

The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts established by parliament below.

Parliament shall establish, and determine the jurisdiction and functions of, the courts with the status of the High Court to hear and determine disputes relating to (Article 162 (2))–

• employment and labour relations; and
• the environment and the use and occupation of, and title to, land.

The subordinate courts are–

• the Magistrates courts;
• the Kadhis’ courts;
• the Courts-Martial; and
• 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 (2).

Parliament shall enact legislation conferring jurisdiction, functions and powers on the subordinate courts.

Therefore, the structure of the Judiciary in Kenya consists of–

• the Supreme Court;
• the Court of Appeal;
• the High Court;
• the Industrial Court;
• the Environment and Land Court;
• the Magistrates’ Courts;
• the Kadhis’ Courts;
• the Court Martial; and
• the Tribunals established by an Act of Parliament.

Superior Courts in Kenya

The superior courts are the Supreme Court, the Court of Appeal, the High Court, the Employment and Labour Relations Court and the Environment and Land Court.

1. Supreme Court

Article 163 of the Kenyan Constitution establishes the Supreme Court which shall consist of–

• the Chief Justice, who is the president of the court;
• the Deputy Chief Justice, who shall-
  • deputise for the Chief Justice; and
  • be the vice-president of the court; and
• five other judges.

2. Court of Appeal

Article 164 of the Kenyan Constitution establishes the Court of Appeal which–

• shall consist of the number of judges, being not fewer than twelve, as an Act of Parliament may prescribe; and
• shall be organised and administered in the manner prescribed by an Act of Parliament (Court of Appeal (Organization and Administration) Act).

There shall be a president of the Court of Appeal who shall be elected by the judges of the Court of Appeal from among themselves.

3. High Court

Article 165 of the Constitution establishes the High Court which–

• shall consist of the number of judges prescribed by an Act of Parliament (currently no more than 200 judges according to the High Court (Organization and Administration) Act); and
• shall be organised and administered in the manner prescribed by an Act of Parliament (High Court (Organization and Administration) Act).

There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.

For purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance, the Chief Justice may, where the workload and the number of judges in a station permit, establish any of the following divisions in the High Court–

• 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 of the High Court, determine.

Every division of the High Court shall consist of–

• a Presiding Judge designated by the Chief Justice as the head of the Division;
• such number of judges as the Chief Justice may determine;
• a Deputy Registrar who shall be responsible to the Presiding Judge in the discharge of the functions of the office; and
• officers (staff of the Court).

4. Employment and Labour Relations Court

Also known as the Industrial Court. The Court shall be a superior court of record with the status of the High Court.

The Employment and Labour Relations Court shall consist of–

• the Principal Judge of the Court; and
• such number of Judges as may be determined and recruited by the Judicial Service Commission and appointed under Article 166(1) of the Constitution.

The Principal Judge shall be elected following the procedure prescribed in Article 165(2) of the Constitution.

The Principal Judge shall hold office for a term of not more than five years and shall be eligible for re-election for one further term of five years.

The Principal Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice.

5. Environment and Land Court

The Court shall be a superior court of record with the status of the High Court.

The Court shall consist of the Presiding Judge and such number of Judges as the Judicial Service Commission may determine from time to time.

The Presiding Judge shall be elected following the procedure prescribed in Article 165(2) of the Constitution.

The Presiding Judge shall hold office for a term of five years and shall not be eligible for re-election.

The Presiding Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice.

Subordinate Courts

The subordinate courts are the-

• Magistrates courts;
• Kadhis’ courts;
• Courts-Martial; and
• 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 (2) of the Constitution.

A magistrate’s court shall be subordinate to the High Court and shall be duly constituted when presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate (Magistrates’ Courts Act).

The Kadhis’ court under Article 170 of the Constitution shall consist of a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament.

The jurisdiction of a Kadhis’ court shall be 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 Kadhi’s courts.

The Court Martial hears cases involving people serving in the Military under the Kenya Defence Forces Act. In the case of any proceedings, the Court Martial shall consist of–

• a Judge Advocate who shall be the presiding officer. The Judge Advocate of a Court Martial shall be a magistrate or an advocate of not less than ten years standing appointed by the Chief Justice.;
• at least five other members, appointed by the Defence Court-martial Administrator if an officer is being tried; and
• not less than three other members in any other case.

Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction. Most are under the supervision of the High Court.