THE JUDICIARY

Judicial authority and legal system.

​Judicial Authority is derived from the people and is vested in courts and tribunals established by the constitution.

Principles that guide Judicial Authority in Courts and Tribunals in Kenya.

1. Justice must be done to all, irrespective of status.
2. Justice shall not be delayed.
3. Alternative forms of dispute resolution must be pursued including reconciliation, mediation, arbitration and even traditional dispute resolution mechanism. 
4. Justice shall be administered without undue regard to procedural technicalities.
5. ​The purposes and principles of the constitution must be protected and promoted.

​Ways in which the traditional Dispute resolution is limited in Kenya.

1. The mechanisms used in traditional dispute resolution should not contravene the Bill of RIGHTS.
2. The traditional court should not operate in a way that is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality.
3. The operations of the traditional courts should not be inconsistent with the constitution.

The structure of the judicial system in Kenya.

​The Hierarchy of the court system in the Kenyan judiciary is in accordance with; 

1. The seriousness of the cases the courts handle.
2. The punishment they give out
3. The geographical area of operation. 

The courts have either original or appellate jurisdiction.

​​Difference between original and appellate jurisdictions.

• Original jurisdiction refers to the ability of a court to hear cases brought to a court for the first time.
• Appellate jurisdiction is the powers of a court to hear appeals brought in from a lower court. 

The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff.

The Head of the Judiciary is the Chief Justice with the Deputy Chief Justice as the Deputy Head of the Judiciary.
 
Chief Registrar of the Judiciary is the chief administrator and accounting officer of the Judiciary. The System of courts is as follows

1. Superior Courts

Supreme Court consisting of the Chief Justice who is the president of the court, the Deputy Chief Justice-the vice-president of the court; and five other judges. 
Appointment to the Supreme Court requires the following qualifications;

1. Degree in law from a recognized university or an advocate of the high Court of Kenya.
2. At Least fifteen years experience as a superior court judge or a distinguished academic, judicial officer, legal practitioner and or other relevant legal field.
3. High moral character, integrity and impartiality. 

Supreme Court Judges retire at the age of seventy Five Years.

Functions of the Supreme Court of Kenya.

1. The Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.
2. It has appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal.
3. The Supreme Court gives 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.
4. It has of right in any case involving the interpretation or application of the Constitution.
5. ​All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court

2. Court of Appeal ​

Court of Appeal consisting of judges, not fewer than twelve, a president of the Court of Appeal elected by the judges of the Court of Appeal from among themselves. (The court of Appeal has membership of 30 Judges currently). Each judge to be appointed to the court of Appeal should have ten years experience as a superior court judge or at least ten years as a distinguished academic or legal practitioner. 
The court of appeal does not have original jurisdiction except on an application for a stay of execution pending appeal to it on contempt proceedings.

Function of the Court of Appeal in Kenya.

​The Court of Appeal has jurisdiction to hear appeals from the High Court; and any other court or tribunal as prescribed by an Act of Parliament.

3. High Court 

​High Court headed by a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.

Functions of the high court of Kenya.

1. The High Court has unlimited original jurisdiction in criminal and civil Matters.
2. It has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
3. It has jurisdiction to hear an appeal from a decision of a tribunal appointed to consider the removal of a person from office. For example, appeals from the courts martial, Business and rental Tribunals on matters related to the constitution.
4. It has jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of this Constitution;
5. It determines 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.
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. It listens to appeals from the lower courts when the parties involved are not satisfied.
8. It deals with disputes that take place outside Kenya's territorial waters/maritime.
9. It hears appeals from decisions made by professional disciplinary tribunals involving advocates of the high court and other members of the profession.
10. It acts as a constitution court by determining whether a case brought before it is constitutional or unconstitutional.
11. It listens to appeals from special courts when the parties are not satisfied with the decision made.
12. It corrects/amends the irregularities in decisions made by lower courts.
13. It hears cases that carry death sentences / involve large sums of money.
14. It deals with cases that concern land/succession disputes.
15. It hears election petitions.
16. It exercises divorce jurisdictions in matrimonial matters,
17. ​It hears appeals from tribunals E.g. Rent Restrictions, Business Premises Rent Tribunal.

Termination of the services of a judge from office.

A judge can be dismissed from service on the following grounds.

1. Inability to perform the functions of the office arising from mental or physical incapacity.
2. A breach of a code of conduct prescribed for judges or superior courts by an act of parliament.
3. Bankruptcy.
4. Incompetence.
5. Gross misconduct or misbehavior.

The process of removal of a judge from office. 
​
Such a process is initiated by the Judicial Service Commission on its own initiative or on petition of any person to it based on any of the dismissal grounds.
 
The commission, if satisfied with the petition or initiative, forwards the matter to the president, who will suspend the said Judge, within Fourteen Days after receiving the petition and on advice of the Judicial Service Commission.
 
A tribunal is then appointed to determine the case. If the Judge is aggrieved by the decision of the Tribunal, he/she may appeal to the Supreme Court within ten days after the tribunal has made its recommendation.
 
The president will finally act in accordance with the recommendation of the tribunal.

4. Subordinate courts.

a) The Magistrates courts. 
Its jurisdiction in both Civil and criminal cases is limited to geographical areas. However the courts have unlimited Jurisdiction in proceedings concerning claims under
 
customary law such as dowry, divorce, legitimacy, inheritance and the administration of estates of the deceased person.
 
They have unlimited jurisdiction in dealing with matters related to land, adultery and inheritance.
 
These are the courts responsible for sentencing persons who have broken law of the land. Reasons why a person who has broken the law should be sentenced by a court.

1. To deter the criminal from future crimes.
2. To deter others from committing similar offences since they would have known the punishment for breaking the law.
3. To secure for the public a period o protection from the offender who is in prison.
4. To reform the criminal through counseling and corrective training
5. To satisfy the demands of the people for retribution through punitive justice. 

b)      The Kadhis’ courts. 
The courts are headed by a Chief Kadhi and not fewer than three Kadhis Qualifications for appointment as a Kadhi.

1. One must profess the Muslim religion.
2. One must possess such knowledge of the Muslim law applicable to any sects of Muslims. The jurisdiction of the Kadhis Court is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all concerned parties profess to the Muslim religion.
3. The Courts Martial. 

This is a subordinate court that was established under the Armed Forces Act after the abortive ’82 Air force coup. It has penal or disciplinary powers to ensure discipline within the armed forces. they try cases involving assisting an enemy, cowardice, desertion, insubordination, neglect of duty, drunkenness, malingering and absence without leave. 
There is no right to appeal to the high court against the decisions of the courts martial unless they involve constitutional cases. Industrial Court Juvenile Court

The Judicial Service Commission.

Membership of the JSC is as follows.

1. The Chief Justice who is the Chairperson of the Commission.
2. 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.
3. One High Court Judge and one magistrate, of whom one must be a woman and one a man elected by members of the association of judges and magistrates.
4. The attorney General.
5. Two advocates , one woman and one man each with at least fifteen years of experience, elected by members of the statutory body responsible for the professional regulation of advocates (LSK)
6. One person nominated by the public Service Commission.
7. One woman and one man to represent the public, not being a lawyer, appointed by the president with the approval of the national assembly.
8. The chief registrar of the Judiciary, who will be secretary to the commission. 

Members, except the AG and Chief Justice hold office for a term of 5 years and can be re-appointed for one further term

Functions of the Judicial Service Commission

1. The Judicial Service Commission promotes and facilitates the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice.
2. It recommends to the President persons for appointment as judges.
3. It reviews and makes recommendations on the conditions of service of judges and judicial officers, other than their remuneration; and the staff of the Judiciary.
4. It appoints, receives complaints against, investigates and removes from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary.
5. It prepares and implements programmes for the continuing education and training of judges and judicial officers.
6. ​It advises the national government on improving the efficiency of the administration of justice.

The concept of “Independence of the Judiciary” in Kenya.

1. In the exercise of judicial authority, the Judiciary is subject only to the Constitution and the law and not to the control or direction of any person or authority.
2. The office of a judge of a superior court cannot be abolished while there is a substantive holder of the office.
3. 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. The Judicial Act protects Judges and Magistrates against any form of victimization and molestation.
4. There is a separate system of command for the judiciary unlike other government departments.
5. Appointment of the magistrates is done independently by JSC, which is independent of PSC. The president in consultation with the Judicial Service Commission appoints the Judges.
6. The judges are bound by the Oath of Allegiance to perform their duties without fear or favour.
7. Judges enjoy security of tenure.
8. ​Statutes fix salaries and allowances of Judges.

Challenges facing the judiciary in Kenya.

1. There is constant Conflict between the three arms of government. This hinders the just operation of the judiciary. Too much interference from the Executive has undermined the independence of the Judiciary.
2. The long court processes have always delayed dispensation of justice in Kenya.
3. Corruption. This is common among the Judges who sometimes compromise their integrity due to greed/ Public doubts of its impartiality due to rampant corruption
4. Inadequate personnel. There are few qualified judges. For example in 2002, there were 47 judges serving a population of 30 million people. This causes delay in hearing of cases.
5. There is constant termination of cases by the Attorney General thereby denying justice to some genuine cases.
6. Poor co-ordination within the court system
7. Incompetence of some judicial officers. E.g. poor and inconsistent judgments. This has been attributed to flawed appointments and promotion procedures.
8. Lack of adequate funds to cater for the needs of the judiciary. This has led to inadequate court structures and facilities such as equipment, chairs, libraries etc.
9. Lack of continuous legal education to keep them a breast of the latest legal development and skills in information technology.
10. There is a lot of ignorance among the public in Kenya on judicial affairs and their legal rights/ignorance on the legal rights. Members of the public fear the courts and the court language.
11. Information on the judiciary has not been made available to the public and it appears to be a preserve of a few.
12. Litigation fees are high limits public’s access to the courts.

Solutions to the problems facing Kenya’s Judiciary. 

1. There has been increased legal education given to officers and members of the public by the judiciary and other bodies like Kituo Cha Sheria, which releases information booklets and offers free legal advice to people.
2. The terms and conditions of service for judges and other officers were improved in 2002 in order to make them work better.
3. The government also set up a committee led by Justice Aaron Ringera in what was famously referred to as Judicial Surgery, to investigate the conduct of judges. Those who were adversely mentioned in the report were suspended.
4. The government has recruited more legal officers to reduce the backlog of cases in courts.
5. The passing of the Vetting of Judges and Magistrates Act, 2011 (VJM Act) In March 2011, established the Judges and Magistrates Vetting Board, chaired by Sharad Rao ,which is carrying out the vetting exercise to restore public confidence in the Judiciary.

Some of the mile stone decisions undertaken to restore public confidence in the judiciary include;

1. The suspension of Deputy CJ Nancy Baraza and her final resignation for harrassing an innocent security guard.
2. Dropping of President of the Kenyan Appellate Court Justice Riaga Omollo for political bias and authoritarian demeanor while carrying out his activities on the bench.
3. Dropping Judge Samuel Bosire for condoning torture of suspects during Coup trial in 1982.
4. Dropping of Court of Appeal Judge Emmanuel Okubasu for being unsuitable to continue holding office. Joseph Nyamu
5. Justice Mohammed Ibrahim, though Praised as impartial and immune to corruption, was dropped for having an overflowing in-tray of cases
6. ​Appellate judge Roselyn Nambuye was kicked out due to delays in delivering more than 270 judgements and being too wordy in her ruling. 

However Nambuye and Mohammed Ibrahim successfully appealed against the decision which once more saw their reinstatement on 21at September 2012 pending further investigations.

The Rule of Law. 
Meaning of ‘the Rule of Law’.​

This is the absolute supremacy or predominance of regular law as opposed to arbitrary power. The concept is associated with the view of Albert Venn Dicey who published a book, The Law of the Constitution in 1895, in which he presupposes the supremacy of the law. That all persons whether individual or in government, are subject to the law.
 
In Kenya, all citizens and residents are subject to and governed by the same law irrespective of their status, race and religion
Elements of the rule of law.

1. The principle of legality. The state can only exercise those powers granted to it by the law. It should be a government of laws and not of men.
2. Separation of powers of the three arms of government. This refers to the practice of dividing the powers of government into the executive, legislature and judicial functions equally and putting in place a system of checks and balances to ensure they control each other. The three functions are to be independent of each other.
3. Equality before the law. Everyone should be treated equally under the law.
4. The judiciary must work without favour or the fear of intimidation in the administration of justice.​

The principles of the Rule of Law.

Joseph Raz in an article titled, The Rule of Law and its Virtues outlines the following eight principles of the rule of law.

1. All laws should be prospective and open. A new law should only apply in future.
2. Laws should be durable and not changing every other day.
3. No centre of power, and specifically parliament, should enjoy monopoly right in making laws for citizens of a country, the judiciary should scrutinize parliament.
4. The independence of the judiciary should be protected.
5. The principal of natural justice should form an important element in the judicial system of a country.
6. There must be easy accessibility to the courts of law. They should neither be expensive nor intimidating.
7. The security forces should not use force in contravention of the law.

Meaning of the concept of Natural Justice.

​it refers to the requirement that the bodies that resolve disputes adhere to at least minimum standard of fair decision making

Two principles govern the Concept of Natural Justice.

1. The person affected by an impending decision must have the right to a fair hearing prior to the decision being made.
2. The person or body hearing the case should act in good faith and without Bias. The right to fair hearing 
   1. The accused must be given prior notice of the case against him and given a chance to respond.
   2. ​The accused must be given chance of knowing the case against him and stating his own case.
   3. ​The person charged should have opportunity to consider, challenge and contradict any evidence, being fully aware of the allegations leveled against him.
   4. ​ The person has a right to legal representation by a legally qualified person.
   5. All legal decisions should have reasons within the law..

The rule against Bias.

Full inquiry must be conducted into the circumstances involved before the Arbitrator makes a decision. The decision made should be impartial with the adjudicator lacking interest in the outcome. 
A person is presumed innocent until proven otherwise and the police have no right to beat up suspects.

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