Judiciary of Kenya

The Judiciary of Kenya is the system of courts that interprets and applies the law in Kenya. After the promulgation of the constitution of Kenya in 2010, the general public, through parliament, sought to reform the judiciary. Parliament passed the Magistrates and Judges Vetting Act of 2011. A major part of reforming the judiciary was the vetting of Magistrates and Judges in an attempt to weed out unsuitable ones. The Judicature Act has also been amended to raise the minimum number of Magistrates and Judges allowing more judicial officers to be hired. More magistrates and judges are needed to clear the backlog of cases that have caused great delay in the conclusion of cases and to staff new courts. New courts are needed to bring the courts closer to the people which is in line with devolution, a major principle written into the Constitution of 2010. New courts like the High Court opened in Garissa in November 2014 is a good example. In the past residents of North Eastern Kenya had to go all the way to Embu to access a High Court.

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Courts

The Judiciary of Kenya consists of five Superior courts made up of the Supreme Court, Court of Appeals, High Court, Industrial Court, Environment and Land Court. The subordinate courts consist of the Magistrate Court, Courts Martial and Kadhi Court. According to the Kenyan constitution, the judiciary is the main actor when it comes to solving primary disputes, including more serious ones such as heinous crime. The main mission is the establishment of peace in society through law and order.[1]

Supreme Court of Kenya
Main article: Supreme Court of Kenya

The Supreme Court is the highest court in Kenya, and all other courts are bound by its decisions. It was established under Article 163 of the Constitution as the final arbiter and interpreter of the Constitution.

It comprises the Chief Justice of Kenya, David Maraga, who is the President of the Court, the Deputy Chief Justice Philomena Mwilu, who is the Vice-President of the Court and five other Judges. It sits at the Supreme Court Building (formerly the Court of Appeal in Nairobi Central Business District), and has to have a quorum of five judges.

Court of Appeal
Main article: Court of Appeal of Kenya

This court handles appeal cases from the High Court and as prescribed by Parliament. It will constitute no less than 12 judges and will be headed by a President elected by the Court of Appeal judges among themselves. The current President of the Court of Appeal is Justice William Ouko.

Each station of the court is led by a Principal Judge.

High Court

The High Court of Kenya is established under Article 165 of the constitution of Kenya. It has supervisory jurisdiction over all other subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function. The judges responsible elect one of them to act as the topmost principal judge in the court system. It has unlimited original jurisdiction and carries out supervisory roles.

Employment & Labour Relations Court (formerly the Industrial Court)

Established under Article 162(2)(a) of the Constitution of Kenya 2010 as well as The Employment & Labour Relations Act of 2011 - An Act of Parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations and for connected purposes. Any disputes relating to employments is preliminarily held at this court, and any further proceedings are taken to the High Court if the case is not determined to conscience of the complainant.

Environment and Land Court

An Act of Parliament to give effect to Article 162(2)(b) of the Constitution; to establish a superior court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes

Subordinate Courts

The courts below the High Court are referred to as Subordinate courts. These are:

The Magistrate Court

Article 169 1(a) of the constitution of Kenya 2010 creates the Magistrate court. This is where majority of the judiciaries cases are heard. Magistrate courts are generally located in every district in Kenya. The new Magistrate Courts' Act 2015 significantly increases the pecuniary jurisdiction of magistrate courts. One of the most notable changes in terms of the expansion of the jurisdiction of the Magistrates Courts is with regard to the increase of the pecuniary jurisdiction in relation to proceedings of a civil nature. For instance, the pecuniary jurisdiction where the Court is presided over by a chief magistrate has been increased from KES 7 million to KES 20 million shillings. The Chief Justice is however empowered to revise the pecuniary limits of the civil jurisdiction by a Gazette notice, by taking into account inflation and prevailing economic conditions. The presiding judicial officer in Magistrate court could be a Chief Magistrate, Senior Principal Magistrate, Senior Resident Magistrate, Resident Magistrate or Principle Magistrate. Their authorities vary in administrative responsibility and range of fining and sentencing abilities. The Judicature Act is the statute passed by parliament detailing the varying powers and jurisdiction of Magistrates and Judges.

Kadhi's Court

Article 169 1(b) of the Constitution of Kenya 2010 creates Kadhi's court. This is a court that hears civil matters relating to Sharia law. The parties involved must all be followers of Islam and all must agree that the matter to be decided under Islamic law. The matter must be civil in nature e.g. Divorce, succession etc. The court is headed by a Chief Kadhi and parliament is given the authority to enact laws describing the guidelines, qualification and jurisdiction of this court. Appeals from Kadhi Court are heard by the High Court.

Martial Courts

Article 169 1(c) of the constitution of Kenya 2010 creates the Martial courts. Generally, this type of jurisdiction involves a group of law administrators, that is, the military court where matters involving members of the Kenya Defense Forces are heard. Appeals from this court are heard by the High Court.

Core Values

The judiciary is guided by the following core values:[2]

  1. Professionalism
  2. Integrity
  3. Diligence
  4. Team work
  5. Courage
  6. Humility

Administration within the Judiciary
The Judiciary

The chief administrator of the Supreme Court is the Chief Justice, who is the President of the Supreme Court. One of his/her responsibilities is to come up with procedures for running the courts, as well as decisions on staffing and where new courts should be opened. Certain situations dictate that the Chief Justice appoint a judge or panel of judges to deal with a specific matter. The Deputy Chief Justice is the deputy president of the Supreme Court.

The judges of the High Court and the Court of Appeal each elect a member to deal with administrative issues as well as represent them in the Judicial Service Commission.

The Chief Registrar of the Supreme Court has the responsibility of being the chief administrator and accounting officer of the Judiciary. The Court of Appeal, High Court and Magistrate Court all have a Registrar to serve as administrator, record keeper and accounting officer in each of the courts.

Judicial Service Commission
Main article: Judicial Service Commission (Kenya)

An independent Judicial Service Commission has been set up to handle the appointment of judges. They will recommend a list of persons to be appointed as judges by the President.

Chief Justice
Main article: Chief Justice of Kenya

The Chief Justice of Kenya is the head of the Judiciary and President of the Supreme Court. He or she is appointed by the country's President on the recommendation of the Judicial Service Commission and subject to the approval of the National Assembly. The current Chief Justice is David Kenani Maraga.

Controversies

In Northern Kenya, where there are numerous disputes regarding the ownership of the arid land - there is more trust in locally fining and compensating victims for the actions of their perpetrators. Villagers find securing justice outside the justice system more satisfying - as they are able to vindicate an entire social group as opposed to the accused individual. This restoration of order at the social level is seemingly hard to achieve through the regular judicial system. Other barriers such as large geographical distances to courts, long waiting times, increased fees, and lack of private and not for profit attorneys also compound this issue. However, when dealing with issues and grievances against government, these informal conflict resolution methods do not suffice - the people then turn to the judiciary. This dual-judicial system, one official and one quasi, exists because there remains a dissonance between socio-cultural groups and the larger laws applied to the entire country.[1]

Effectiveness and Reform

According to the Governance, Justice, Law and Order Sector reform program - only 3% of the Kenyan population file their cases at court, and 7% do so through police reporting. The remaining 48% resort to chiefs or assistant chiefs (part of the executive) and 25% to traditional 'elders'.[1] In terms of incorporating international law into municipal law, Kenya, like many other countries, has struggled to effectively consolidate legal mechanisms to universally apply across the entire country.[3]

Change Management

Research indicates that change in the judiciary of Kenya has been slow and no serious attempts for reform have been made since 1998. Moreover, employees are often kept in the dark about changes and their input is not really taken into consideration.[4] Further studies show that in order to enhance professionalism, procurement codes must be followed, with regular training provided to staff and clear and structured timelines.[5]

Additionally, the influence and power of the executive over the judiciary reigns supreme. Although the Constitution of Kenya 2010 has taken strides to address the undue influence of authority in what should ideally be an independent judicial system - there remains many loopholes by which executive intrusion and control present themselves as evident.[6] Some recommendations to prevent this from occurring are involving key stakeholders of the judiciary in the decision-making process and allowing them to conduct a cost-benefit analysis whenever appropriate. The judiciary should also have a well-established policy regarding executive interference as it moves into the future.[7] The case for an independent Judiciary is thus not only valid, but even highly looked upon in order to fulfill the mission of upholding the peace in society via equal application of law and order. Since the appointment method of judges and magistrates is based on the Judicial Service Commission, it is hard to not have partisan influence.[8]

Collaboration with the International Development Law Organization[9]

With the motto of being "robustly Independent, bu constructively interdependent" the three different branches of government in Kenya, spearheaded by the Judiciary, came together in 2018 to create the State of the Judiciary and Administration of Justice Annual Report (SOJAR). The report delves into the major reforms conducted by the judiciary since 2010, including but not limited to the access to justice for women and marginalized groups.[10]

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See also

References
  1. Chopra, Tanja (2008). "Reconciling Society and the Judiciary in Northern Kenya" (PDF). Justice for the Poor and Legal Resources Foundation Trust Research Report.
  2. "Overview – The Judiciary of Kenya". Retrieved 2020-04-24.
  3. Ojwang, J. B.; Otieno-Odek, J. A. (May 1988). "The Judiciary in Sensitive Areas of Public Law: Emerging Approaches to Human Rights Litigation in Kenya". Netherlands International Law Review. 35 (1): 29–52. doi:10.1017/S0165070X00007464. ISSN 1741-6191.
  4. Mutuku, Stella Ngali (2004). "An Assessment of Strategic Change Management Process. A Case Study of Kenyan Judiciary" (PDF). School of Business University of Nairobi.
  5. Mesa, Rebecca Nyakerario (2018-06-18). DETERMINANTS OF PROCUREMENT PERFORMANCE IN JUDICIARY DEPARTMENT AT THE NAKURU LAW COURTS, KENYA Check |url= value (help) (Thesis thesis). JKUAT.
  6. Oseko, Julie Ouma (November 2011). "Judicial independence in Kenya: Constitutional challenges and opportunities for reform" (PDF). University of Leicester.
  7. Nzamu, Jeniffer M. (2016). Determinants of implementation of government funded projects: case of the judiciary refurbishment of courts in the North Coast region, Kenya (Thesis thesis). University of Nairobi.
  8. "Kenya Law: The Independence of the Judiciary in Kenya". kenyalaw.org. Retrieved 2020-03-26.
  9. "Paving the way for a stronger judiciary in Kenya | IDLO - International Development Law Organization". www.idlo.int. Retrieved 2020-04-24.
  10. "Reports – The Judiciary of Kenya". Retrieved 2020-04-24.
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