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Historical Background of the Judiciary in Kenya

The history of Kenya’s Judiciary can be traced to the East African Order in Council of
1897 and the Crown regulations made there under which marked the beginning of a legal
system in Kenya. I t was based on a tripartite division of subordinate courts; that is,
Native courts, Muslim courts and those staffed by Administrative officers and
Magistrates.

A dual system of superior courts was also established, one court for Europeans and the
other for Africans. This system only lasted for 5 years.

Upon the realization by the colonial authorities of the need to have dispute resolution
organs, village elders, headmen and chiefs were empowered to settle disputes as they had
done in the pre-colonial period. These traditional dispute settlement organs gradually
evolved into tribunals. They were accorded official recognition in 1907 when the Native
Courts Ordinance was promulgated. This ordinance established native tribunals that were
intended to serve each of the ethnic groups in Kenya.

The chief Native Commissioner was authorized to set up, control and administer the
tribunals. The ordinance also established similar tribunals at the divisional level of each
district and also authorized the governor to appoint a Liwali at the Coast to adjudicate
over matters between the Muslim Community.

One could appeal against the decisions of these tribunals to the D.O and or D.C and
finally to the PC. The final appeal lay with the Supreme Court.

The Native Appeals Tribunal’s ordinance 1930 reduced the number of elders sitting on a
tribunal and also made it a requirement that a literate member records the proceedings.
By 1950 these tribunals had evolved sufficiently for them to be converted into courts
similar to those that hitherto served non-Africans. In 1950 the African Courts Ordinance
abolished the Tribunals and replaced then with African Courts.

In dispensing justice under the relevant English and Indian laws where non-Africans were
concerned, the administration of justice was entrusted to expatriate judges and
magistrates. Appeals lay from subordinate courts to the Supreme Court. The head of the
system was the Chief Justice while the administrative duties were carried out by the
Registrar of the Supreme court. The main courts were established at the large urban
centres such as Nairobi, Mombasa and Kisumu. Judges and magistrates on circuit served
other centres

Muslim courts were headed by a chief Kadhi and were classified as subordinate courts.
As such, appeals from Islamic courts lay to the Supreme Court.

The segregated system of administering justice prevailed until 1962 when the African
Courts were transferred from the provincial administration to the Judiciary. Further, it

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was not until 1963 when the independence Constitution finally enacted that the beginning
of a truly independent and impartial Judiciary was set up.

The Independence Constitution established a Supreme Court with unlimited original


criminal and civil jurisdiction over all persons, regardless of racial or ethnic
considerations.

The judges were to be appointed by an independent judicial service commission. The


Constitution further provided for the establishment of a court of appeal and the Kadhi’s
court.

When Kenya attained the status of a republic in 1964, the Supreme Court was renamed
the High Court and remains so to date.

In 1967 three major laws were enacted. These were the Judicature Act (Chapter 8), the
Magistrates’ Courts Act (Chapter 10) and the Kadhis Courts Act (Chapter 11). These
Acts have streamlined the administration of justice in Kenya.

HIGH COURT

A. JURISDICTION.

Original Jurisdiction.

The High Court is created by Section 60 of the Constitution of Kenya.

• It has unlimited original jurisdiction in civil and criminal matters.


• It is the highest court of original jurisdiction in Kenya.

Appellate Jurisdiction

The High Court is also endowed with appellate jurisdiction.

• Appeals from various administrative bodies and subordinate courts are heard and
determined by the High Court.

Constitutional References

The High Court is the final arbiter in matters concerning the interpretation of the
Constitution. This jurisdiction is conferred upon it by Section 67(1) of the Constitution.

• When any question as to the interpretation of the Constitution arises in


proceedings in any subordinate court, that court shall, if any party to the
proceedings so requests, refer the matter to the High Court for interpretation.

Election Petitions

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The High Court is further empowered by Section 44 of the Constitution to hear and
determine election petitions.

• It is for the court to determine questions as to whether a person has been validly
elected as a Member of Parliament.

Admiralty Jurisdiction.

• Moreover, the High Court has admiralty jurisdiction in all matters arising on the
high seas or in territorial waters, or upon any lake or navigable inland waters in
Kenya.
• This would relate to incidents such as boundary disputes between Kenya and
another country with regard to territorial waters, Kenya’s Exclusive Economic
Zone with regard to the coastline and any acts of piracy on the high seas.

B. COMPOSITION

Appointment of Judges.

The High Court comprises of the Chief Justice and not more than fifty puisne judges.

• A person may be appointed a judge of the High Court if he/she possesses the
following qualifications:

He is or has been, a judge of a court having unlimited jurisdiction in civil and criminal
matters in some part of the commonwealth or a court having jurisdiction in appeals from
such a court.


o He is an advocate of the High Court of Kenya of not less than Seven Years
standing.

Tenure

A High Court judge vacates his office when he attains the age of 73 years.

• A judge may also be removed from office for inability to perform the functions of
his office whether arising from physical or mental infirmity.
• Such removal may only be carried out by the President of the Republic if the
question of his removal has been referred to a tribunal appointed for such purpose
and the tribunal has recommended to the President that the Judge ought to be
removed from his office for inability or misbehavior.

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