CHAPTER TEN OF THE

CONSTITUTION

JUDICIARY
SUPERIOR COURTS
IN KENYA
THE JUDICIARY UNDER THE NEW
CONSTITUTION
Under section :
162. (1) The superior courts are the Supreme
Court, the Court of Appeal, the High Court and
the courts referred to 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
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.
PART 2SUPERIOR COURTS CONTINUED

SUPREME COURT
163. (1) There is established the Supreme
Court, which shall consists of
(a) the Chief Justice, who shall be the
president of the court;
(b) the Deputy Chief Justice, who shall
(i) deputize for the Chief Justice; and
(ii) be the vice-president of the court; and
(c) five other judges.
(2) The Supreme Court shall be properly
constituted for the
purposes of its proceedings if it is composed of
five judges.
(3) The Supreme Court shall have
(a) exclusive original jurisdiction to hear and
determine disputes relating to the elections to the
office of President arising under Article 140;

and
 (b) subject to clause (4) and (5), appellate
jurisdiction to hear and determine appeals
from

(i) the Court of Appeal; and

(ii) any other court or tribunal as prescribed
by national legislation.
(4) Appeals shall lie from the Court of
Appeal to the Supreme Court
 (a) as of right in any case involving the
interpretation or
application of this 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).

(5) A certification by the Court of Appeal under

clause (4) (b) may be reviewed by the Supreme
Court, and either affirmed, varied or overturned.
 (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.

(7) All courts, other than the Supreme Court, are

bound by the decisions of the Supreme Court.
(8) The Supreme Court shall make rules for the
exercise of its jurisdiction.

(9) An Act of Parliament may make further

provision for the operation of the Supreme Court
 COURT OF APPEAL
164. (1) There is established the Court of
Appeal, which

(a) shall consist of the number of judges, being

not fewer than twelve, as may be prescribed by
an Act of Parliament; and

(b) shall be organized and administered in the

manner prescribed by an Act of Parliament.
(2) 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) The Court of Appeal has jurisdiction to hear

appeals from
(a) the High Court; and
(b) any other court or tribunal as prescribed by
an Act of Parliament.
165.
HIGH COURT.
(1)There is established the High Court, which

(a)shall consist of the number of judges

prescribed by an Act of Parliament; and
(b)shall be organized and administered in the
manner prescribed by an Act of Parliament.

(2) There shall be a Principal Judge of the High

Court, who shall be elected by the judges of the
High Court from among themselves.
(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
whether a right or fundamental freedom in
the Bill of Rights has been denied, 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;
(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
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.
(4) Any matter certified by the court as raising a
substantial
question of law under clause (3) (b) or (d) shall be
heard by an uneven number of judges, being not
less than three, assigned by the Chief Justice.

(5) The High Court shall not have jurisdiction in

respect of
matters
(a) reserved for the exclusive jurisdiction of the
Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts
(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
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
of justice.
 OTHER FUNCTIONS OF THE HIGH
a) Interpretation of the Constitution
COURT
if the question on the interpretation of the
Constitution arises before a subordinate court
and the court is of the opinion that it involves a
substantial question of the law. The court may
refer it to the High Court for interpretation, but
must do so if any of the parties to the
proceedings so requests.
b) Enforcement of fundamental rights and
freedoms
Under section 84 (1) of the Constitution, the
High Court has original jurisdiction to enforce
c) Presidential and parliamentary election
petitions
The High Court has original jurisdiction to hear
and determination presidential and
parliamentary election petitions. Under section
10 (1) of the Constitution it has jurisdiction to
hear and determine a petition challenging:
1. The nomination of a person to contest a
presidential election
2. The election of a president as a member of the
National Assembly
3. The election of a person to the office of the
President
Under this provision the petitioner must fie only
Under the Constitution the High Court has original
jurisdiction to hear and determine a petition:
a) Challenging the validity of a person as a member of
the national Assembly
b) To determine whether a seat in the National
Assembly has become vacant.
d) Admiralty jurisdiction
Section 4(1) of the Judicature Act constitutes the High
Court an Admiralty court, with jurisdiction to hear and
determine civil disputes arising on the high seas,
within territorial waters and inland navigable lakes and
rivers.
The High Court has jurisdiction to apply international
law in the determination of such disputes.
e) Supervisory jurisdiction
Under section 65 (2) of the Constitution, the
High Court has jurisdiction to supervise the
administration of justice in subordinate courts
and tribunals.

It exercises the jurisdiction by making such

orders and issuing such writs as it may
deem fi.
Such writs include:

1. Prohibitory order:
This is an order of the High Court
restraining a court or tribunal from
proceeding with a matter before it. This
order may be granted if the court or
tribunal is:
a) Improperly constituted
b) Disregarding relevant matters
c) Exceeding its jurisdiction
d) This order prevents a court or
tribunal from exceeding its jurisdiction
or ignoring the
2. Certiorari: This is a High Court order to a
subordinate court tribunal demanding the production
of certified copies of the proceedings and decisions for
purposes of quashing the decision. The order may be
granted if a decision is arrived at in total disregard of
the rules of natural justice or in excess of jurisdiction
of the tribunal e.t.c.
3. Mandamus: This is a High Court order to a tribunal,
public of official administrative body or local authority
demanding the performance of public duty imposed
upon it by statutes.
The order compels performance by such bodies where
it is unlawfully refused.
4. Habeas corpus:
It literally means produce body. This is an order of
the High Court to a detaining authority or body
demanding the production of the detainee before
the court to show cause why the detainee should
not be released forthwith. This order
questions the legality of the detention. Its
functions to secure the release of detainees in
unlawful custody. The order will be granted when a
persons right or personal liberty
is violated.
PUISNE JUDGES SIT ALONE EXCEPT WHEN
Entertaining a criminal appeal when 2 judges sit if
the chief justice so orders
Entertaining a Constitutional reference i.e.
interpreting the Constitution when uneven
number of judges not less than three sits.

Entertaining a civil appeal from the Kadhis court when

the judge sits either with the
Chief Khadi or two Khadi's.
Decisions of the High Court may be appealed against
in the court of appeal.
 SUBORDINATE COURTS
Subordinate courts.
169. (1) The subordinate courts are
(a) the Magistrates courts;
(b) the Kadhis courts;
(c) the Courts Martial; and
(d) 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).
(2) Parliament shall enact legislation
conferring jurisdiction, functions and
powers on the courts established under
clause (1).
Kadhis Courts.
170. (1) There shall be a Chief Khadi and such
number, being not fewer than three, of other
Kadhis as may be prescribed under an Act of
Parliament.
(2) A person shall not be qualified to be appointed
to hold or act in the office of Khadi unless the
person
(a) professes the Muslim religion; and
(b) possesses such knowledge of the Muslim law
applicable to any sects of Muslims as qualifies the
person, in the opinion of the Judicial Service
Commission, to hold a Kadhis court.
(3) Parliament shall establish Kadhis courts, each
of which shall have the jurisdiction and powers
(4) The Chief Kadhi and the other Kadhis, or the
Chief Kadhi and such of the other Kadhis (not
being fewer than three in number) as may be
prescribed under an Act of Parliament, shall each
be empowered to hold a Khadi's court having
jurisdiction within Kenya.
(5) 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 Khadi's
courts.
 RESIDENT MAGISTRATES COURT
Establishment: It was established by section 3(1)
of the Maistrates court Act which providesinter
alia There is hereby established the Resident
Magistrate court which shall be a
courtsubordinate to the High Court.
Composition: The Resident Magistrates court is
duly constituted when held or presided over
by:
Chief Magistrate
Senior Principal Magistrate
Principal Magistrate
Senior Resident Magistrate
Resident Magistrate
 JURISDICTION

Under Section 3(2) of the Magistrates Courts Act, the

court has jurisdiction to hear cases throughout Kenya.
It entertains both criminal and civil cases. It exercises
original and limited appellate jurisdiction.
Criminal jurisdiction
When presided over by the Resident Magistrate, the
maximum sentence the court may impose is restricted:
fine: Kshs. 20,000, stokes; 24, imprisonment; 7 years
The court is held by the Chief Magistrate,
Senior Principal Magistrate, Principal
magistrate or the senior Resident
magistrate, it has jurisdiction to impose
any sentence provided the offence
is triable by the court.
It entertains criminal appeals from the
District Magistrate Court 3rd class.
Civil jurisdiction
The civil jurisdiction is subject to pecuniary or
monetary restrictions. It exercises original
jurisdiction
only in civil cases as follows:
Chief magistrate 3,000,000.00
Senior Principal Magistrate 2,000,000.00
Principal Magistrate 1,000,000.00
Senior Resident Magistrate 800,000.00
Resident Magistrate 500,000.00
The Resident Magistrate court has unlimited
jurisdiction to hear and determine cases based on
African customary law. Decisions of the Resident
magistrates court may be appealed against in
the High Court.
 DISTRICT MAGISTRATES COURT

Establishment: It is established by
section 7 (1) of the Magistrates Court
Act which provide
inter alia there is hereby established for
each District Magistrate court which
shall be a court
subordinate to the High Court.
Composition: The court is duly
constituted when presided over or held
by the District Magistrate
1 st, 2nd and 3rd class duly appointed
JURISDICTION
Under section 7 (3) the court has jurisdiction
throughout the District for which it is established. It
entertains both civil and criminal cases. It exercises
original and limited appellate jurisdiction.
Civil jurisdiction
Its jurisdiction is subject to fiancial or
pecuniary restrictions as follows:
District magistrate 1 st class Kshs 75,000.00
District magistrate 2nd class Kshs 75,000.00
The court has a limited jurisdiction to hear and
determine civil cases based on African customary
law.
Criminal jurisdiction
It exercise original jurisdiction in criminal cases
and the maximum sentence it may impose
is restricted by law as follows:
COURT MAXIMUM FINE IMPRISONMENT TERM
STROKES
District Magistrate 1 st class 20,000 7 years 24
District Magistrate 2nd class 10,000 2 Years 12
 COURTS MARTIAL

Establishment: It is established by section 85 (1) of the Armed Forces Act pursuant to

section 4
(1) of the Constitution. It is a subordinate court.
Composition: The court consists of a presiding offier who sits with not less than 2 other
persons
or not less than 4 if an offier is being tried or where the maximum penalty for the offence
is
death. The court is assisted by a judge / advocate on questions of procedure.
Jurisdiction: It exercises limited, original jurisdiction in criminal cases involving
members of the
armed forces and applies military law e.g. disobeying lawful orders, mutiny, and
desertion.
The court is empowered to impose the following
sentences:
Fine
Reprimand
Reduction of rank
Dismissal
Capital punishment
Imprisonment
Decisions of the court may be appealed against in
the High Court. The convict may appeal against
conviction or sentence or both.
 TRIBUNALS

These are bodies established by Acts of

parliament to exercise judicial or quasi-judicial
functions.
Tribunals supplement ordinary courts in the
administration of justice.
All tribunals are governed by the principals of
natural justice i.e.
a) Person shall be condemned unheard
b) No person shall be a judge in his own case
ADVANTAGES
Tribunals enjoy certain advantages over ordinary courts:
1. Cheap: It is relatively cheaper to see a dispute through a
tribunal than an ordinary court
hence there is a saving on cost.
2. Policy and other matters: Tribunals incorporate policy
considerations among other
matters in their decision making process and therefore arrive at
balanced decisions.
3. Informality: Tribunals are less technical i.e are free from
technicalities of procedure or
otherwise which characterize ordinary courts.
4. Flexibility: Tribunals are not bound by previous decisions.
This gives them the required
flxibility to explore in decision-making.
5. Expert knowledge and specialization: Tribunals are
specialized in that they deal with
similar disputes all through. Expertise is built on
experience.
6. Convenience: Tribunals in certain circumstances sit at
the convenience of the parties.
They generally use languages familiar to the parties.
7. Relieve over burdened courts: Tribunals compliment
ordinary courts in the
administration of justice by dealing with certain disputes.

DISADVANTAGES
1. Legal representation: May be limited or non- existent
2. Tribunals generally exercise unregulated discretion
3. Decisions of certain tribunals may not be appealed
 EXAMPLES OF TRIBUNALS

1. Industrial court
2. Rent tribunal
3. Business premises tribunal
4. Insurance appeals tribunal (Insurance
Act2)
5. Land Tribunals (Sec. 9B of the
Magistrates Court Act)
6. Capital Markets Tribunal (Capital
Markets Act3)
 INDUSTRIAL COURT
Establishment: It is established by section 14 (1) of
the Trade Disputes Act.
Composition: The court consists of a judge appointed
by the President. He sits with 2 other
persons selected by him from a panel of 4 persons
appointed by the Minister for Labour in
consultation with the Central Organization of Trade
Unions (COTU) and Federation of Kenya
Employers. Currently there are 2 industrial court
judges.
Jurisdiction: It exercises limited original jurisdiction in
relation to industrial disputes e.g. between
employees and employers or between employers and
Disputes may be referred to the court by the
minister for labour or a registered trade union.
Decisions of the court are known as Awards and are
fial. Under section 17 (1) of the Trade
Disputes Act, an award cannot be appealed against,
stayed, restrained or be reviewed.
An award must be published in the Kenya Gazette
whereupon it is effective. The court maintains
a register of all collective agreements registered by
it.
The essence of the industrial court is to promote
industrial harmony.
 RENT TRIBUNAL
Establishment: It is established by Section 4 (1) of
the Rent Restriction Act4.
Composition: It consists of the chairman and other
persons appointed by the Minister in charge of
Housing. To qualify for appointment as chairman, one
must be an advocate of not less than 5 years
standing.
One of the other persons appointed by the Minister
must be the deputy chairman.
Jurisdiction: It exercises original jurisdiction in civil
cases between landlords and tenants of residential
premises whose monthly rent does not exceed Kshs
2,500.00. Decisions of the
 POWERS AND FUNCTIONS OF THE RENT TRIBUNAL

1. To assess the standard rent of any premises on its

own motion or on application.
2. To determine the date from which such rent is
payable.
3. To apportion rent between tenants where tenancy is
shared.
4. To facilitate vacant possession of premises to enable
the landlord do repairs or erect
additional buildings.
5. To facilitate recovery of rent arrears by the land lord.
6. To permit the levy of distress for rent.
7. To employ clerks, valuers and other persons to enable
 BUSINESS PREMISES TRIBUNAL
Establishment: It is established by section 11 (1) of
the Land Lord and Tenant (shops, hotels and catering
establishments) Act5.
Composition: It consists of the chairman and other
persons appointed by the Minister for Commerce. The
chairman must be an advocate of not less than 5
years standing.
Jurisdiction: It exercises jurisdiction in civil cases
between landlords and tenants of commercial
premises where the tenancy is controlled.
Under section 2 (1) of the Act, a controlled tenancy is
a tenancy of a shop, hotel or catering establishment
which has not been reduced into writing or has been
 POWERS AND FUNCTIONS OF THE BUSINESS
PREMISES TRIBUNAL
Decisions of the tribunal may be appealed against in
the High Court.
1. To determine whether the tenancy is controlled or
not.
2. To determine the rent payable in respect of a
controlled tenancy upon application
3. To apportion rent between tenants where a
controlled tenancy is shared.
4. To permit the levy of distress for rent.
5. To vary or rescind its own decisions
6. To compel the landlord to compensate the tenant
for any loss occasioned by termination
of the tenancy.
7. Facilitates vacant possession of the premises.
 JUDICIAL AUTHORITY AND LEGAL SYSTEM
Judicial authority.
159. (1) Judicial authority is derived from the
people and vests in,
and shall be exercised by, the courts and tribunals
established by or
under this Constitution.
(2) In exercising judicial authority, the courts and
tribunals shall be guided by the following
principles
(a) justice shall be done to all, irrespective of
status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution
mediation, arbitration and traditional dispute
resolution
mechanisms shall be promoted, subject to clause
(3);
(d) justice shall be administered without undue
regard to
procedural technicalities; and
(e) the purpose and principles of this Constitution
shall be
protected and promoted.
(3) Traditional dispute resolution mechanisms shall
not be used
in a way that
(a) contravenes the Bill of Rights;
Independence of the Judiciary.
160. (1) In the exercise of judicial authority, the
Judiciary, as
constituted by Article 161, shall be subject only to this
Constitution and the law and shall not be subject to the
control or direction of any person or authority.
(2) The office of a judge of a superior court shall not be
abolished
while there is a substantive holder of the office.
(3) The remuneration and benefits payable to or in
respect of
judges shall be a charge on the Consolidated Fund.
(4) Subject to Article 168(6), the remuneration and
benefits
payable to, or in respect of, a judge shall not be varied
(5) A member of the Judiciary is not liable in an
action or suit in
respect of anything done or omitted to be done
in good faith in the
lawful performance of a judicial function.
Judicial offices and officers.
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 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.
Establishment of the Judicial Service Commission.
171. (1) There is established the Judicial Service
Commission.
(2) The Commission shall consist of
(a) the Chief Justice, who shall be the chairperson
of the
Commission;
(b) one Supreme Court judge elected by the judges
of the
Supreme Court;
(c) one Court of Appeal judge elected by the judges
of the Court
of Appeal;
(d) one High Court judge and one magistrate, one a
(e) the Attorney-General;
(f) two advocates, one a woman and one a man, each
of whom
has at least fifteen years experience, elected by the
members of the statutory body responsible for the
professional regulation of advocates;
(g) one person nominated by the Public Service
Commission;
and
(h) one woman and one man to represent the public,
not being
lawyers, appointed by the President with the approval
of the
(3) The Chief Registrar of the Judiciary shall be the
Secretary to
the Commission.
(4) Members of the Commission, apart from the
Chief Justice and
the Attorney-General, shall hold office, provided
that they remain
qualified, for a term of five years and shall be
eligible to be nominated
for one further term of five years.
Functions of the Judicial Service
Commission.
172. (1) The Judicial Service Commission
shall promote and
facilitate the independence and
accountability of the judiciary and the
efficient, effective and transparent
administration of justice and shall
(a) recommend to the President persons
for appointment as
judges;
(b) review and make recommendations on the
conditions of
service of
(i) judges and judicial officers, other than their
remuneration; and
(ii) the staff of the Judiciary;
(c) appoint, receive complaints against, investigate and
remove
from office or otherwise discipline registrars,
magistrates,
other judicial officers and other staff of the Judiciary, in
the
manner prescribed by an Act of Parliament;
(d) prepare and implement programmes for the
continuing
education and training of judges and judicial officers;
and
(e) advise the national government on improving the
efficiency of the administration of justice.
(2) In the performance of its functions, the
Commission shall be
guided by the following
(a) competitiveness and transparent processes of
appointment of judicial officers and other staff of the
judiciary; and
(b) the promotion of gender equality.