It’s many students’ dream to one day become a lawyer and most lawyers’ goal to sit in judgement of a matter, to be a judge and to ultimately reach the peak – be the Chief Justice.
The Judiciary is one of the arms of the government. The principle of the independence of the Judiciary flows from the concept of the separation of powers.
The Judiciary, under the constitution is independent from the Legislature, which enacts laws and the Executive, which administers them. The judiciary interprets the law and acts as an impartial and fair adjudicatory authority in disputes involving individuals inter se, and between individuals and the state, in alleged breaches of the law and in numerous other matters.
The Judicature Act (Section 3) provides for the basis of the laws which courts in Kenya apply. The constitution (section 84) vests in the court power to enforce provisions relating to fundamental rights.
HISTORICAL BACKGROUND OF JUDICIARY
The first court of East Africa is said to have been set up by the sultan of Zanzibar in the year 1839, where Islamic Law was applied in determination of cases. Fifty years later, the Imperial British East African Company (IBEA) was granted a Charter by the British Government and established a secular court in 1890 at Mombasa, which applied the English legal system. The appeal from this court lay with the High Court of Judicature in Bombay, India. In 1895 the British Government declared East Africa a protectorate and re-established the secular court in Mombasa. In 1897 East Africa was promulgated by the order of British Colonial Office starting the first court applying the legal system from which the appeal lay to the High Court at Zanzibar and thereafter to the privy Council of London.
The year 1902 is very important to the Kenya Judiciary. It was in this year that the Judicial System was set up in Mombasa with the appointment of two High Court Judges namely: Justice R. B. P Cator and Mr. Justice R. W. Hamilton was appointed the Chief Justice of Kenya. Four years later, on 1st April, 1906 Mr. Justice Hamilton was appointed the Chief Justice of Kenya. In 1922, the High Court moved to Nairobi.
In the course of the development of the British Legal System, the colonial Government appointed a number of European Magistrates who were mostly posted to marked towns next to the European settled areas since settlers claimed to be entitled to the English legal system, and indeed the colonial law allowed them to opt to be tried especially as Europeans under the jury system which was not applicable to other races which were tribal under assessor’s system in capital crimes.
As to the settlement of disputes in accordance with the indigenous accepted customs, the British Authority under the colonial governor had many native tribunals established in 1907 under the Courts Ordinance at the divisional levels of each district in Kenya. The Tribunals were controlled and administered by the Chief Native commissioner who was a European. Many elders were selected to hear and determine the cases according to the accepted traditional customs of the particular tribe, and literate clerks were employed to record the proceedings. The appeals from the Native Tribunals were heard and decided by the District Officers and/or the District Commissioners, and finally by the Provincial Commissioner.
In the rare case of any further appeal, such appeal lay to the Supreme Court. In due course, the Native Tribunals Ordinance 1930, reduced the number of elders sitting on a tribunal and a literate member was required to record the proceedings.
By 1950 it was considered that the Native Tribunal had evolved sufficiently for it to be converted into a court similar to that for the non-Africans. In that year the African Courts Ordinance abolished the tribunals and replaced them with a system of African Courts.
Appeals from the African Courts lay to an African Appeal Court and further appeal was to an appeals Magistrate or a First Class/Resident Magistrate and, finally, to the Court of review presided over by a senior advocate sitting with the African Courts Officer, a senior member of the African Appeals Court and a representative of the Chief Native Commissioner. The administrator of the African Court system was the African Courts Officer at headquarters assisted by a Provincial African Courts Officer and a Registrar of African Courts at the district.
In dispensing justice under the applied English and Indian laws where non-Africans were concerned, the administration of justice was entrusted to expatriate Judges and Magistrates. Appeals lay from the Subordinate Courts to the Supreme Court. The system was under the Chief Justice and was administered by the Registrar of the Supreme Court. The system was under the Chief Justice and was administered by the Registrar of the Supreme Court. The system was under the Chief Justice and was administered by the Registrar of the Supreme Court. The courts were restricted to the main urban centres at Nairobi, Mombasa and Kisumu. Other centres were served by Judges and Magistrates going on periodic circuits.
Muslim courts were also distinguished from the Native Tribunals in that they were classified as Subordinate Courts. As such, appeals from them lay directly to the Supreme Court and were, at all times, subject to the supervisory jurisdiction of the court. The head of Muslim courts was the Chief Kadhi.
The segregated system of administration of justice prevailed, until the early sixties when the whole system of African Courts was transferred from the Provincial Administration to the Judiciary.
Furthermore, it was not until 1963, in the Independence Constitution that the beginning of a truly independent and impartial Judiciary was provided for. The Independence Constitution provide for the establishment of a Supreme Court with unlimited original criminal and civil jurisdiction over all persons, regardless of race.
The Judges of the court were appointed on the advice of an independent Judicial Service Commission (JSC) which consisted of the Chief Justice, two Puisne judges and two members of the Public Service Commission.
In addition to its function in relation to Judges of the Supreme Court, the JSC also vested in it the power to appoint, discipline and remove all judicial officers. Upon Kenya attaining Republican status in 1964, the Supreme Court was renamed the High Court and has remained so to date.
The last major reform of the Judiciary was in 1967 with the passage of three interrelated Acts that is, the Judicature Act (Cap. 11). These Acts were intended to streamline, once and for all, the process of administration of Justice in Kenya. It was appreciated that various problems did exist as a result of the segregated approach that had influenced the development of the Judiciary throughout the colonial period.
The most significant of those Acts was the Magistrates’ Court Act. This Act created the Magistrate courts, as we know them today. It reduced the large number of courts under the African Courts system. Above the District Magistrates were the professionally qualified Resident and Senior Resident Magistrates. Appeals lay to the High court and then on the Court of Appeal for East Africa.
Simultaneously with the commencement of the Magistrates Court Act, the Kadhi’s Courts Act was put into effect. Section 3 of the latter Act empowered the President to prescribe the number of Kadhis, not exceeding twelve, to sit in eight Kadhis’ courts established by section 4 of the Act.
The segregated system of administration of Justice meant that there was only a handful of Judges and magistrates in the non-African system. As at independence, there only the Chief Justice, seven Judges of the High Court and about forty Resident Magistrates in the country. The unification of the Judiciary set the pace for its expansion.
In 1961 the University of East Africa started the Faculty of Law at the University College, Dar-es-Salaam. Two years later, in 1963, the Kenya Government set up the Kenya School of Law from which the first 13 advocates graduated in 1968. Then, in 1970, the new University of Nairobi set up the Faculty of Law.
This soon led to the change of the role of the Kenya School of Law from that of training law students into lawyers to post graduate institution for lawyers for admission to the Roll of Advocates.
THE COURT SYSTEM
The court system is established under Article(s) 162 and 169 of the constitution of Kenya, 2010. The system comprises;
- The Supreme Court
- The Court of Appeal
- The High Court
- The Environment and Land Court
- The subordinate courts comprising of;
– Magistrate Court
– Kadhis Court
Other courts and tribunals related to the Judiciary set-up to hear matters/disputes under specific Acts are: –
– The Court Martial is created by section 84 of the Armed Forces Act (Cap. 199). Its is presided over by a Magistrate seconded by the Judiciary.
– The Co-operative Tribunal is established under the Co-operative Society Act to resolve disputes within the co-operative movement. It is chaired by a magistrate who is seconded from the Judiciary.
– The Industrial Court is a creature of the Trade Disputes Act (Cap. 234). The Court has Judges and other members appointed under the Act for a renewable term.
– The Rent Tribunal under the Rent Restriction Act is chaired by a Magistrate on secondment from the Judiciary. The Tribunal regulates the relationship of landlord and tenant of a dwelling house with particular reference to rent.
– The Business Premises Rent Tribunal is set up under the landlord and Tenants (Shops, Hotels and Catering Establishment) Act (Cap 301) and it is also chaired by a Magistrate. The Tribunal deals with disputes between landlords and tenants of business premises.
– Any other court or local tribunal established by an act of parliament
Apart from the Industrial Court which is presided over by a Judge or a Tribunal formed by the Presided to look in to a specific matter all other tribunals are usually chaired by magistrates on the secondment from the Judiciary.
Judicial offices are established under Article 161 of the constitution of Kenya 2010. Judicial officers comprise of;
- The Chief Justice who is the head of the judiciary and president of the supreme court of Kenya
- The Deputy Chief Justice who is the deputy head of the judiciary and vice president of the supreme court of Kenya
- Court of Appeal Judges
- High Court Judges
- Magistrates comprising of;
– Chief Magistrate
– Senior Principal Magistrate
– Principal Magistrate
– Senior resident magistrate
– Resident Magistrate
The Chief Justice, Deputy Chief Justice and Judges are appointed by the President on the advice of the Judicial Service Commission.
The Judges have security of tenure that ensures they are not arbitrarily removed from office. They can only be removed for inability to perform the functions of the office of a judge – either from infirmity of body or mind or any other cause or for misbehavior – but even then, only after a tribunal, appointed by the President on the advise of the Chief Justice, recommends removal of a Judge.
The Judicature act provides for judges and magistrates against possible civil suits arising from an act done or ordered by the judge or magistrate in the discharge of their judicial duty and powers to punish for contempt of court are given to the court to maintain its independence and integrity.
Remuneration of Judges including allowances are paid out of the consolidated Fund. Security and vehicles are also provided.
The writer is a law student