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.