The Kenyan legal system traces its origins to the British Common law system. Understanding Kenya Court Jurisdiction is vital in ensuring that your legal case is heard by the right court.
It is essential to determine the correct court with territorial, pecuniary, and subject matter jurisdiction over your case to avoid delays and increased costs. If you are unsure about the jurisdiction of your case, it is recommended that you seek legal advice from a qualified lawyer.
The Kenyan Legal System
The Constitution, which is the supreme law of the land, takes precedence over all other forms of law, written and unwritten. If any other law is inconsistent with it, the constitution prevails, and the other law, to the extent of its inconsistency, is void. All other written laws, including Acts of Parliament, which are passed by parliament and also include subsidiary legislation, that is, laws made under the authority of an Act of Parliament.
English statutes of general application passed before 12 August 1897 (the reception date), are law in Kenya, unless a Kenyan statute, or a latter English statute made applicable in Kenya, has repealed any such statute. A statute of general application, if repealed by a later English statute would still be law in Kenya. Statutes of general application include public Acts of Parliament, that is, those which apply to the inhabitants at large and which are not limited in their application to prescribed persons or areas. The statutes are also applicable in Kenya in the form that they had at the reception date.
Any subsequent amendments of such statutes in England have no effect in Kenya. African Customary Law, which is only applicable in civil cases where one or more of the parties is subject to or affected by it, in so far as it is applicable and is not repugnant to justice and morality or inconsistent with any other law. The general rules of international law also form part of the Laws of Kenya.
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Constitutional Reform Process in Kenya
Kenya has had two substantive Constitutions since gaining independence: The 1963 independence constitution and the Constitution of Kenya, 2010. The 1963 constitution was a result of negotiations between Kenyan political parties and the British colonial government. It was amended numerous times between 1964- 1990 to ensure the political survival and succession of power by the then ruling party, the Kenya African National Union (KANU).
More specifically, the amendments were aimed at consolidating power in the Presidency at the expense of other institutions, mostly the Judiciary. Fed up by a repressive, one party regime whose tenure was marred by detention without trial and weakening of the doctrine of the separation of powers, Kenyans began agitating for restoration of their fundamental rights and multiparty democracy. Support for change increased significantly and in 1991, the then ruling party, KANU was forced to restore multiparty democracy.
But a number of laws still restricted civil and political rights, the offence of sedition persisted and the Electoral Commission was not independent. Kenyans felt that a new, tamper proof Constitution was required to guarantee fundamental rights and remedy historical injustices. A number of draft constitutions including the Bomas draft (2003) and the Wako draft (2005) were tabled but did not make it to the statute books.
In 2009, a Committee of Experts (CoE) was appointed to spearhead delivery of a draft Constitution that would be acceptable to all Kenyans. The CoE submitted a final draft Constitution and a referendum was held on 4 August 2010. The draft Constitution was endorsed by 67% of Kenyan voters .
In many respects, the current constitutional dispensation is a breath of fresh air. The president no longer has the powers to appoint and dismiss at will, the independence of the Judiciary is guaranteed and devolution has brought government closer to the governed. The transitional provisions contained in the Sixth Schedule to the Constitution of Kenya, 2010 were intended to assist in the transition into the new order, but were limited in time and in operation and were to remain in force for the period provided in order to achieve the aspirations of Kenyans in moving into the new order. These transitional provisions were as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution.
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Authority to Make Laws in Kenya
The authority to make laws in Kenya is primarily vested in two institutions: Parliament and County Assemblies. Parliament makes laws that apply nationally while County Assemblies make laws applying in the respective counties. The Parliament of Kenya consists of the National Assembly and the Senate. In the previous constitutional regime, Parliament had only one chamber.
The Speaker presides over the meetings of the National Assembly and is an ex-officio member, bringing the total membership of the National Assembly to 350. The National Assembly enacts legislation that may cover both National and County issues. The National Assembly also plays an important, but not an exclusive, role in the financial control of Government expenditure. Specifically, it determines the allocation of revenue between the national and county governments.
The Senate comprises 47 members elected by registered voters of the counties, each county represented by one member, 16 women members nominated by political parties according to their proportion of elected senators; two members one man and one woman to represent the youth; and two members, one man and one woman to represent persons with disabilities. The Speaker of the Senate is an ex officio member, bringing the total membership of the Senate to 68. The Senate represents the counties and serves to protect the interests of the counties and their governments.
The Senate considers debates and approves Bills that concern counties. It determines the allocation of revenue among counties and exercises oversight over national revenue allocated to the county governments. The Senate also participates in oversight of state officers by considering and determining resolutions to remove the President and Deputy-president from office.
The Kenya Judiciary- Structure of the Courts
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Law Making Process
Most of the laws in Kenya emanate from an act of Parliament. These are introduced into Parliament as Bills. The Bill may be either one concerning the county government (which affects the functions of the county government, relates to election of members of a county assembly or a county executive or affects county finances) or one not concerning county government. A Bill that does not concern the county government is considered only in the National Assembly.
The Bill has to be published in the Kenya Gazette fourteen days before its introduction. It then has its First Reading, which is a formal reading of the title of the Bill. This is followed by a Second Reading, which is an occasion for debate on the general principles of the Bill, after which it is referred to a Committee of the National Assembly for debate and discussion on the detailed provisions.
If the Committee reports favorably to the Assembly, then the Bill has its Third and final reading, where the debate, if any, is restricted to a general statement or reiteration of objections. Upon receiving a bill, the President can assent to the Bill or refer it back to Parliament for reconsideration noting his reservations. Parliament may then amend the Bill in light of the reservations or with a 2/3 majority pass the Bill a second time without amendment. If the latter takes place the President must assent to the Bill within 7 days.
The Senate and National Assembly occasionally tussle in the promotion of devolved government. In early 2013, the Speaker of the National Assembly reversed his decision to refer the division of revenue bill to the Senate. The Supreme Court in an Advisory Opinion held that âthe division of Revenue Bill deals with the amount of money that is to be allocated to the Counties from the National Government.
The Executive Branch
The Executive is the arm of government that implements government laws and policies, a role neither performed by the Judiciary nor the Legislature. It oversees, coordinates and administers over the country to ensure all systems run well.
The High Court of Kenya
The High Court of Kenya is a court of unlimited original jurisdiction in criminal and civil matters established under article 165 of the Constitution of Kenya, 2010 as part of the Kenyan Judiciary. It also has supervisory jurisdiction over all other subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function. It was known as the Supreme Court of Kenya until 1964.
In stations like Nairobi, Mombasa and Kisumu where the High Court has a heavy caseload and multiple Judges, the Court is divided into Divisions. Each station or division is headed by a Presiding Judge. Under the Constitution of Kenya 2010, the court is headed by a Principal Judge who is elected by the Judges of the Court from among themselves. Under the repealed Constitution of Kenya, the Registrar of the High Court was the overall chief administrator of the Judiciary.
The High Court consists of a Principal Judge and not more than two hundred judges. A single Judge presides over the Court. However, parties to a case are at liberty to request that their cases be heard by an odd number of Judges being not less than three, where the case raises significant constitutional issues. In such cases, the Chief Justice picks the Judges who are to preside over these cases. Most of these cases are heard by 3 Judges.
Jurisdiction of the High Court
The High Court discharges its judicial mandate in line with Article 165 of the Constitution, Independently and its subject only to the Constitution and the law. The High Court has unlimited original jurisdiction to determine all criminal and civil matters. The Court interprets the Constitution and hears cases concerning violation and or infringement of the Bill of Rights. In addition, it handles appeals emanating from Subordinate Courts (Magistrates Court, Kadhis Court, Tribunals, Court Martials, Small Claims Court).
In Kenya, the concept of Kenya Court Jurisdiction is crucial in determining which court has the authority to hear and determine a particular legal case. It is essential to understand the jurisdiction of the courts to ensure that your case is heard by the right court, thereby increasing your chances of success.
- Territorial Jurisdiction: This refers to the geographical area over which a court has authority.
- Pecuniary Jurisdiction: This refers to the monetary value of the claim that a court can handle.
- Subject Matter Jurisdiction: This refers to the type of cases that a court can hear.
The Kenya Court Jurisdiction has a significant impact on your legal case. If you file a case in the wrong court, it may be dismissed or transferred to the correct court, leading to delays and increased costs. For instance, if you are involved in a land dispute in Nairobi, you should file your case in the Environment and Land Court in Nairobi, which has territorial and subject matter jurisdiction over land disputes in Nairobi.
The jurisdiction of Kenyaâs courts plays a crucial role in determining the scope of their authority and power. The High Court in Kenya has unlimited original jurisdiction in all matters and can hear any case, including constitutional petitions, appeals, and original suits. The Magistratesâ Courts in Kenya generally do not have jurisdiction to hear cases involving foreign parties, except in certain circumstances such as when the foreign party is a Kenyan citizen or when the case involves a matter in which Kenya has a substantial interest.
The choice of court depends on the value and complexity of the case, as well as the parties involved. Generally, cases involving high-value disputes or complex legal issues are filed in the High Court, while smaller disputes are filed in the Magistratesâ Court.
Yes, a decision made by a Magistratesâ Court in Kenya can be appealed to the High Court, either on a question of law or on a matter of fact.
The Commercial Division of the High Court in Kenya has jurisdiction to hear cases involving commercial disputes, including contract disputes, company law disputes, and other matters related to commercial transactions.
Leave of the court is required to file a case in the High Court in Kenya in certain circumstances, such as when the case involves a constitutional issue, a matter of public interest, or when the case is brought by or against the Attorney General.
Yes, the courts in Kenya can apply foreign law in a dispute, either as the governing law of the contract or as the applicable law in a particular transaction.
Court Jurisdiction in Kenya
| Court | Jurisdiction |
|---|---|
| High Court | Civil and criminal cases |
| Magistratesâ Courts | Civil cases with a value of KES 10 million or less |
| Land Tribunal | Land disputes |
| Family Division of the High Court | Family law cases |
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