Courts System in Kenya : SUBORDINATE COURTS

Courts System in Kenya

PART TWO: SUBORDINATE COURTS

Other than just a brief mention, the New Constitution does not say much else about these Subordinate Courts except to grant Parliament the powers to define the functions, roles and jurisdiction of these courts. Article 169 of the Kenyan constitution states:

169. (1) The subordinate courts are—

(a) the Magistrates courts;

(b) the Kadhis’ courts;

(c) the Courts Martial; and

(d) any other court or local tribunal as may be established by  an Act of Parliament, other than the courts established as required by Article 162 (2).( Industrial Court and Enivironment and Land Court)

(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).

RESIDENT MAGISTRATE’S COURTS

Establishment of the Court: The court is established under Article 169(1) of the Constitution and the Magistrates Courts Act CAP 10 Laws of Kenya

Composition of the court: A magistrate’s court shall be subordinate to the High Court and shall be duly constituted when presided over by single magistrate who could be a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate.

Jurisdiction

The Resident Magistrate’s Court shall have jurisdiction throughout Kenya

                                i.                                    Criminal jurisdiction of Resident Magistrate’s Court.

The Resident magistrate’s court shall have and exercise such jurisdiction and powers in proceedings of a criminal nature as may for the time be conferred on it by—

(a) the Criminal Procedure Code; or

(b) any other written law.

        ii.            Civil jurisdiction of Resident Magistrates Courts

The Magistrates’  Courts  shall  have  and  exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—

(a) seven million shillings where the court is held by a chief magistrate;

(b) five million shillings where the court is held by a senior principal magistrate;

(c) four million shillings Where the court is held by principal magistrate;

(d) three million shillings where the court is held by a senior resident magistrate; or

(e) two million shillings where the court is held by a resident magistrate.

      iii.             Appeal from certain district magistrates’ courts in criminal matters

Any person who is convicted of an offence on a trial held by a magistrate’s court  of  the  third  class, or where a person charged with an offence has  been acquitted on such a trial, the Attorney-General may appeal against his conviction or sentence, or both, or against the acquittal, as the case may be, to the Resident Magistrate’s Court: Provided that no appeal shall lie in the case of a person who pleaded guilty and was convicted on that plea, except as to the legality or extent of the sentence.

      iv.            Appeal from certain district magistrate’s court s in civil matters

 Any person who is aggrieved by an order of a magistrate’s court of the third class made in proceedings of a civil nature may appeal against the order to a magistrate’s court of the first class.

DISTRICT MAGISTRATES’ COURTS

Establishment of district magistrate’s courts

A district magistrate’s court shall be established for each district, each of which shall be a court subordinate to the High Court and shall be duly constituted when held by a District Magistrate who has been assigned to the district in question by the Judicial Service Commission.

Criminal jurisdiction of district magistrate’s court
A district magistrate’s court shall have and exercise such jurisdiction and powers in proceedings of a criminal nature as are for the time being conferred on district magistrates’ court by—
(a) The Criminal Procedure Code (Cap. 75); or
 (b) Any other written law.
 Civil jurisdiction of district magistrate’s court
A district magistrate’s court shall have and exercise jurisdiction and powers in proceedings of a civil nature where either—
(a) the proceedings concern a claim under customary law; or
(b) the  value  of  the  subject  matter  in  dispute  does  not  exceed  five
thousand  shillings,  or  ten  thousand  shillings  where  the  court  is constituted by a district magistrate having power to hold a magistrate’s court of the first class.
“Magistrate’s court” means the Resident Magistrate’s Court or a district magistrate’s court;
“Magistrate’s court of the first class” means the Resident Magistrate’s Court, or a district magistrate’s court held by a District Magistrate having power to hold a magistrate’ court of the first class;
“Magistrate’s court of the third class” means a district magistrate’s court held by a District Magistrate having power to hold a magistrate’s court of the third class;

KADHIS COURT

Establishment
Established under Article 169(1) of the Constitution of Kenya 2010 and Kadhis Court Act CAP 11 Laws of Kenya.
Composition
Kadhis Courts will be headed by a Chief Kadhi
There shall be such number of Kadhis, in addition to the Chief Kadhi, as may be prescribed by the President by order, being in any case not less than three.
Kadhis’ Courts shall be a court subordinate to the High Court and shall be duly constituted when held by the Chief Kadhi or a Kadhi.
Persons appointed as Kadhis may or may not be advocates of the High Court but will be sufficiently proficient in Muslim Law and be professed Muslims.
Jurisdiction
The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.
However, nothing shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.
High Court exercises supervisory jurisdiction over the Kadhis Court.

COURT MARTIAL

Establishment
Established under Article 169(1) of the Constitution and Defence Forces Act No. 25 of 2012.
Composition
 It consists of a Judge Advocate and at least five other members, appointed by the Defence Court-martial Administrator if an officer is being tried and at least 3 others in any other case.
Jurisdiction
 It has power to try any person who commits an offence under the Kenya Defence forces Act no. 25 of 2012.
The court does not try offences committed under the Sexual Offences Act and laws relating to protection of domestic violence by persons who are subject under the Act. The Court can be constituted within of Kenya or outside. Appeals from the court lie to the High Court.

ENVIRONMENT AND LAND COURT OF KENYA

ENVIRONMENT AND LAND COURT OF KENYA
The environment and land court is established under section 4 of the Environment and Land Court Act No. 19 of 2011. Section of the Act states as follows:
“4. (1) There is established the Environment and Land Court.
(2) The Court shall be a superior court of record with the status of the High Court.
 (3) The Court shall have and exercise jurisdiction throughout Kenya and shall ensure reasonable and equitable access to its services in every county.”

Jurisdiction of the Court

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in Kenya relating to environment and land.

(2) the Court have power to hear and determine disputes—

(a)    relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b) Relating to compulsory acquisition of land;

(c) Relating to land administration and management;

(d) relating to public, private and community land and contracts, chooses in action or other instruments granting any enforceable interests in land; and

(e) Any other dispute relating to environment and land.

3. Hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment

4. Appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

Industrial Court of Kenya

 Industrial Court of Kenya

Establishment: The Industrial court is established in pursuant of Article 162 (2) (a) of the Constitution of Kenya 2010, for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of good employment and labour relations in Kenya.

The Industrial Court is a superior court of record with the status of the High Court and shall and exercise jurisdiction throughout Kenya.

Jurisdiction

The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162 (2) of the Constitution and the Provisions of the Industrial Court Act or any other written Law which extends jurisdiction to the court relating to employment and Labour relations including:-

(a) disputes relating to or arising out of employment between an employer and an employee

 (b) disputes between an employer and a trade union.

 (c) disputes between an employer’s organisation and a trade union’s organization,

 (d) disputes between trade unions,

 (e) disputes between employer organisations,

(f) disputes between an employer’s organisations,

 (g) disputes between an employer’s organisation and trade union,

 (h) disputes between a trade union and a member thereof,

 (i) disputes between an employer’s organisation or a federation and a member thereof,

 (j) disputes concerning the registration and election of trade union officials, and

(k) disputes relating to the registration and enforcement of collective agreements.

Appellate Jurisdiction

The court shall have appellate jurisdiction to hear and determine appeals from:-

 (a) decisions of the Registrar of trade unions, and

 (b) any other court, local tribunal or commission and prescribed under any Written Law.

POWERS OF THE INDUSTRIAL COURT

In exercise of its jurisdiction, the court shall have power to make any of the following orders:-

(i)                 interim preservation orders including injunctions in cases of urgency

(ii)                a prohibitory order

(iii)              an order for specific performance

(iv)             a declaratory order

(v)               an award of compensation in any circumstances contemplated under the Industrial Court Act or any written Law.

(vi)                   an award of damages in any circumstances contemplated under the Industrial Court Act or any written Law.

(vii)           an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written Law.

(viii)          any other appropriate relief as the court may deem fit to grant.

COMPOSITION OF THE COURT

The court shall consist of; (a) The Principal Judge; and (b) Such number of Judges as the President may, acting on the recommendations of the Judicial Service Commission, appoint (1) The Principal Judge shall be elected in accordance with the procedure prescribed in Article 165 (2) of the Constitution. (2) The Principal Judge shall hold office for a term of not more than five years and shall be eligible for re-election for one further term of five years. (3) The Principal Judge shall have supervisory powers over the Court and shall be answerable to the Chief Justice. (4) In the absence of the Principal Judge or in the event of a vacancy in the office of the Principle Judge, the Judges of the Court may elect any other Judge to have and exercise and perform the powers and functions of the Principal Judge, and who shall be deemed to be the Principle Judge.

THE HIGH COURT OF KENYA

THE HIGH COURT OF KENYA

Establishment:

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.

Composition: Ordinarily, the High Court is duly constituted by one Judge sitting alone. However there are instances where two or more High Court Judges may be required to determine certain kinds of cases.

Jurisdiction:

i The High Court has unlimited original jurisdiction in criminal and civil matters.

ii The High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

iii The High Court has jurisdiction to hear an appeal from a decision of a tribunal appointed under the Constitution or national legislation to consider the removal of a person from office, other than a tribunal appointed under Article 144.

iv The High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of: the question whether any law is inconsistent with or in contravention of the Constitution, the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution, 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, and a question relating to conflict of laws under Article 191;any other jurisdiction, original or appellate, conferred on it by legislation.

v The High Court does not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under this Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2).

vi 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. Also being a Superior court of record means that the decisions of the High Court as precedents, are binding on the subordinate courts by the doctrine of stare decisis.

vii Although High Court has unlimited original jurisdiction in civil and criminal cases in actual practice, it will hear those criminal cases which cannot be tried by the subordinate courts i.e. murder and treason whereas in civil cases, it has jurisdiction where the value of the subject matter, in dispute exceeds Kshs. 500,000.00. The High Court has power to pass any sentence authorized by law.

viii In addition to the ordinary civil and criminal jurisdiction or the High Court, there are other matters, which can only be heard by the High Court. Thus, the High Court enjoys special powers and jurisdiction in the following matters as conferred to it by the constitution and other legislations some of which are given hereinafter:-

High Court Special Powers

1.   Supervisory Jurisdiction

The Constitution confers specific, powers on the High Court to exercise supervisory jurisdiction in any civil and criminal proceedings before subordinate courts and may make such orders, issue such writs and give such directions as may consider appropriate for the purpose of ensuring that justice is duly administered by such courts. This includes the power of the High Court to transfer proceedings from one court to the other.

To invoke the supervisory jurisdiction of the High Court a person must have exhausted all other available remedies and right of appeal. In exercise of its supervisory powers under judicial review, the high court may issue any of the prerogative orders of:

• Mandamus – The literal meaning of mandamus is “we command”. This is an Order issued by the High Court to any person or body commanding him or them to perform a public duty imposed by law or state. The order is available to compel administrative tribunals to do their duty e.g. to compel a licensing board to issue a license on application of him who has met the prescribed criteria.
• Certiorari – The term means to “be informed”. This is an Order issued by the High Court directed at an inferior court body exercising judicial or quasi-judicial functions to have the records of the proceedings presented to the High Court for the purposes: To Secure an impartial trial, To review an excess of jurisdiction, To challenge an ultra vires act, To correct errors of law on the face of the record.  To quash a judicial decision made against the rules of natural justice. An order of certiorari will be wherever anybody of persons having legal authority to determine questions affecting the rights and having a duty to act judicially, acts in excess of their legal authority. It therefore serves to quash what has been done irregularly.
• Prohibition – This is an order issued by the High Court to prevent an inferior court or tribunal from hearing or continuing to hear a case either In excess of its jurisdiction or in violation of the rules of natural justice.
• Writ of Habeas corpus – Habeas corpus means “produce the body”, dead or alive. This order is issued where the personal liberty of a person is curtailed by arrest and confinement without legal justification. By issuing this order, the High Court calls upon the person holding the body to answer by what authority is they continuing to withhold the individual and with the aims at securing release of such persons held apparently without legal justification.

2.   Interpretation of the constitution

The Constitution provides that where any question as to the interpretation of the constitution arises in any proceedings in any subordinate court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the High Court. The High Court shall be composed of an uneven number of judges, not being less than three when it determines the constitutional question referred to it. The decision of the High Court is binding on the Court that referred the question to the High Court and it must dispose of the case in accordance with the High Court’s decision.

3.   Admiralty Jurisdiction

Section 4 of the Judicature Act Chapter 8 (1967) provide that the High Court will act as a court of admiralty and will decide “matters arising on the high seas or in territorial waters or upon any lake or other navigable inland waters in Kenya”. The law applicable to be exercised “the conformity with international law and the comity of nations”.

4.   Election jurisdiction

Under the National Assembly and Presidential Election Act, the High court has special powers to hear and determine disputes arising from the national electoral process. The High Court may make an order as it deems fit, including the nullification of the election results upon hearing of a petition presented to it by a voter or loser in the election.

For the High Court to nullify the election of a Member of Parliament, the petitioner must prove that an election offence has been committed. The composition of the High court is that one (1) Judge sits to determine dispute in parliamentary election while Three (3) Judges must sit if it is presidential election. Any appeal on the High Court decision on Presidential election goes to the Court of Appeal where at least five (5) Judges will sit to determine the appeal. Disputes in the election of councilors go to subordinate courts.

5.   Succession/Probate Jurisdiction

The Probate Division of the High court has jurisdiction to hear any application and determine any dispute and pronounce such decree and issue such orders as my be expedient in inheritance matters e.g. the High Court may issue probate i.e. a person has been validly appointed by a will to administer the property of the deceased.

6.   Matrimonial Cases

The court exercises jurisdiction in divorce matters. In exercise of its matrimonial jurisdiction, the High Court may issue orders for:

• Dissolution of marriage.
• Nullity of marriage.
• Separation and maintenance (alimony).
• Custody, adoption and guardianship of infants
• Spousal Property and financial adjustments etc.

7. Other powers

• To protect and enforce Fundamental rights and Freedoms of individuals which are set out in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
• To hear and determine Bankruptcy proceedings.
• To supervise winding up of dissolved companies.