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1. Administration of justice
2. Formulation and implementation of judicial policies
3. Compilation and dissemination of case law and other legal information for the effective administration of justice
The judicial system in Kenya is defined by 15 articles spanning from Article 159 (judicial authority) to article 173 (Judiciary Fund) contained in the new constitution of Kenya.
In Kenya, the courts under the Constitution operate at two levels, namely; Superior and Subordinate courts.
The Court system has been decentralized with the Supreme Court and the Court of Appeal having their own Presidents and the High Court having a Principal Judge as heads of the respective institutions.
The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It comprises of Seven judges: the Chief Justice, who is the president of the Court, the Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-president of the Supreme Court and five other judges. The Court of Appeal is established under Article 164 of the Constitution of Kenya 2010.
The High Court is established under Article 165 and it consists of a number of judges to be prescribed by an Act of Parliament. The Court is organized and administered in the manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of the High Court from among themselves.
The subordinate courts are established under Article 169. They consist of the Magistrates’ Courts, Kadhis Courts, Court Martial, and any other court or local Tribunal established by an Act of Parliament.
The Judiciary derives its mandate from the Constitution of Kenya, Article 159 provides that:
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 including reconciliation, 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;
b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
c) is inconsistent with this Constitution or any written law.
Independence of the Judiciary
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.
Kenya Judiciary History
The first court in British East Africa was established by the Imperial British East Africa Company in 1890 with A.C.W Jenner as its first judge.
In 1895, the East Africa Protectorate was established with Consular court to serve British and other foreign persons. However a court with jurisdiction over all persons in the territory was first established in 1897 — Her Majesty’s court of East Africa, which was later renamed ‘the High Court of East Africa’.
The Kenya’s Judiciary has roots in the East African Order in Council of 1897 and the Crown regulations. The Kenyan legal system was shaped by English legal system occasioned by the British administration that lasted over six decades where judges and the bar, were exclusively European.
Before 1895, when Kenya was declared a British Protectorate, the country had no structured legal system. The territory was administered via the Imperial British East Africa Company, which carried out all the obligations undertaken by the British Government under any treaty or agreement made with another State. In 1896, the territory became known as the East African Protectorate. It was then renamed Kenya Colony and Protectorate in 1920 and remained so until 1963 when Kenya became an independent state.
With the settlement of the British in the East African Protectorate, there arose a need for a legislative and administrative system to govern the inhabitants. For ease of administration, the British settlers imported laws and systems of governance from Britain, and British laws that had been codified in India, to apply to the East African Protectorate. These laws were mainly for the benefit of the settlers and were applied without regard to the already existing native society.
The natives were allowed to practice African Customary law while the Hindus who had emigrated from India, to practice Hindu Customary law in the area of personal law as the Muslims and Arabs communities practiced Muslim Law. Kenya’s Judiciary was hence 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 that lasted for only five years was also established – one court for Europeans, and the other for Africans.
The colonial authorities empowered village elders, headmen and chiefs 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.
How the Court System worked
The Chief Native Commissioner could set up, control and administer the tribunals. Similar African tribunals at the divisional level of each district were established. The Governor was authorized to appoint a Liwali at the Coast to adjudicate matters in the Muslim Community.
Appeals against the decisions of tribunals were filed to the D.O, (District/Divisional Officers) D.C, (District Commissioner) or the PC (Provincial Commissioner), while the final appeal lay with the Supreme Court. In cases where non-Africans were involved, 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.
Main courts were established in large urban centres – Nairobi, Mombasa and Kisumu. Judges and magistrates on circuit served other centres. The segregated system of administration of justice prevailed until 1962 when the African courts were transferred from the Provincial Administration to the Judiciary. The independence Constitution established a Supreme Court with unlimited original criminal and civil jurisdiction over all persons, regardless of racial or ethnic considerations. When Kenya became a Republic in 1964, the Supreme Court was renamed the High Court.
In 1967, the Judicature Act, the Magistrates’ Courts Act and the Kadhis Courts Act were enacted to streamline the administration of justice.
Public Information on the Supreme Court Building
The Supreme Court of Kenya sits at the intersection of Taifa Road and City Hall Way in the capital Nairobi. It is located in the Central Business District, next to the Kenyatta International Conference Centre (KICC), and the Office of Governor of the Nairobi County Government.
The Supreme Court Building was built in 1931 and is the official seat of the Chief Justice, the Chief Registrar and the Supreme Court itself. It has played host to many high-profile visitors including Hilary Clinton, who visited in 2012 as Secretary of State, and HE Kofi Annan, who has visited several times.
The building is of national heritage value by virtue of its rich history and architecture. It is classified as a national monument under the Antiquities and Monuments Act.
The building has three floors and a basement. It can be accessed via two gates: the main gate on City Hall Way and the other on Taifa Road, opposite Kenya Re Plaza. Other gates for special access exist.
Chief Justices since Colonial Period to Present
Colonial Chief Justices Period Served
Sir Robert William 1905 – 1920
Lt. Col. Jacob William 1920 – 1934
Sir Joseph Sheridan 1934 – 1946
Sir John Harry Barclay Nihill 1946
Sir Harace Hector Hearne 1951 – 1954
Sir Kenneth Kennedy O’connor 1954 – 1957
Sir Ronald Ormiston Sinclair 1957 – 1962
Independent Kenya Chief Justices Period Served
Sir John Ainsley 1963- 1968
Arthur Dennis Farrel 1968
Kitili Mwendwa 1968 -1971
Sir James Wicks 1971 – 1982
Sir Alfred Henry Simpson 1982 – 1985
Chunilal Bhagwandas Madan 1985 – 1986
Cecil Henry Ethelwood Miller 1986 – 1989
Robin Allan Winston Hancox 1989 – 1993
Fred Kwasi Apaloo 1993 – 1994
Abdul Majid Cockar 1994 – 1997
Zachaeus Richard Chesoni 1997 – 1999
Bernard Chunga 1999 – 2003
Johnson Evans Gicheru 2003 – 2011
Willy Munyoki Mutunga 2011
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