TOPIC TWO

2.1 The Hierarchy of Courts in the Republic of Kenya

Superior Courts- Supreme Court, Court of Appeal, the High Court & specialized courts equal in
status to the High Court e.g ELRC & the ELC.

Subordinate Courts- Chief Magistrate Court, Senior Principal Magistrate Court, Principal
Magistrate Court, Senior Resident Magistrate Court, Resident Magistrate Court, Kadhi’s Court,
Courts Martial & other tribunals as may be established by an act of parliament

2.2 The Judiciary

The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and
staff. As the third arm of government, it is legally mandated to interpret laws, adjudicate over
and resolve disputes between citizens inter se and between citizens and the state. Under Article
159 (2) of the constitution, the courts and tribunals in exercising judicial authority should be
guided by the principles such as:

I. Justice for all, irrespective of status,

II. Justice shall not be delayed,
III. Alternative forms of dispute resolution including reconciliation, mediation, arbitration
and traditional dispute resolution mechanisms shall be promoted.
IV. Justice shall be administered without undue regard to procedural technicalities; and
V. The purpose and principles of the constitution shall be protected and promoted.

According to Article 160 (1) of the constitution, the judiciary is subject only to the constitution
and the law and not subject to the control or direction of any person or authority. Under Article
160 (5), 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 lawful performance of a judicial function.(see also- section
15 of the Penal Code). See further, Nyakundi LJ in Edgar Kagoni Matsigulu V DPP & The
AG (Mombasa High Court, Petition 144 of 2019 consolidated with Petition no. 143 of 2019).

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2.3 Jurisdiction

Our courts are established in a hierarchical fashion with the Supreme Court being at the Apex,
going all the way down to subordinate courts, with each court having powers and possessing
such competencies called jurisdiction as donated by statutes. Jurisdiction –in terms of the
territory and subject matter expands the higher the court sits in the hierarchy. Importantly, these
courts can only exercise such powers as are expressly given to them by law. Thus, any arrogation
of powers to itself that a court does not possess is unlawful and has no legal effect and amounts
to a nullity. On matters of jurisdiction, the Court of Appeal in The Owners of Motor Vessel
“Lilian S” v Caltex Oil Kenya Ltd (1989) KLR posited thus;

‘……Jurisdiction is everything. Without it, a court has no power to take one more step. Where a
court has no jurisdiction, there would be no basis for continuation of proceedings pending other
evidence. A court of law must down tools in respect of the matter before it the moment it holds the
opinion that it is without jurisdiction….’

Earlier on, in Sir Ali Bin Salim v Sharrif Mohamed Shatry (1938) KLR 10, it had been asserted
thus;

If a court has no jurisdiction over the subject matter of the litigation, its judgments and orders,
however precisely certain and technically correct, are mere nullities and not only voidable; they
are void and have no effect as estoppels or otherwise, and may not only be set aside at any time by
any court in which they are rendered, but be declared void by any court in which they may be
presented. It is well established by the law that jurisdiction cannot be formed by consent of the
parties and any waiver on their part cannot make up for the lack or defect of the jurisdiction.

2.4 Supreme Court

Established under Article 163 of the constitution, the Supreme Court is the senior most court and
its judgments, directions and orders are under the principle of judicial precedent, binding on all
courts throughout the Republic except itself. It consists of the Chief Justice, who shall be the
president of the court, deputy chief justice and five other judges. A proper sitting of the SC
comprises of five judges [163(2)]. It has exclusive original jurisdiction to hear and determine
disputes relating to the elections to the office of the president. It also has appellate jurisdiction to
hear and determine appeals from the court of appeal and any other court or tribunal as prescribed
by national legislation [163(3)]. Appeals lie from the Court of Appeal to the SC as of right in any
case involving the interpretation or application of the constitution and in any other case in which
the SC, or the court of appeal, certifies that a matter of general public importance is involved
[163 (4)]. Notably, a certification by the Court of Appeal on matters of general public

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importance may be reviewed the SC and either affirmed, varied or overturned [163(5)]. The SC
may also give an advisory opinion at the request of the national government, any state organ or
county government on any matter concerning county government [163 (6)]. The SC may make
rules for the exercise of its jurisdiction [163 (8)] and pursuant to Article 163 (9), the Supreme
Court Act of 2011 was promulgated to make further provisions with respect to the operations of
the SC.

2.5 Court of Appeal

COA is established under Article 164 of the Constitution as a superior court of record having
such jurisdiction and powers in relation to appeals from the high court and otherwise as may be
conferred upon it by the law. The COA judges are of such number not being less than 12 as may
be prescribed by the parliament [164(1)]. Article 164 (2) provides for the president of the COA
who is elected by the COA judges from among themselves.

The COA has limited jurisdiction, i.e, it can only exercise powers conferred by the Appellate
Jurisdiction Act. It is also governed by the COA rules and has jurisdiction to hear and determine
appeals from the high court and any other tribunal as may be prescribed by an Act of parliament.
Under section 31 of the Appellate Jurisdiction Act, the COA has power to confirm, reverse, or
vary the decision of the high court with such directions as may be appropriate, to order a new
trial and to make any necessary incidental or consequential orders including orders as to costs.

In Onyango v Republic, it was held that the jurisdiction of the COA is derived from the statute
and the court has no inherent jurisdiction. It thus refused to entertain a second appeal from the
decision of the Court Martial since there was no statutory provision donating any such powers.
Similarly, the COA held in Kariuki v Republic that it had no jurisdiction to hear an appeal
against a refusal by the high court to admit an appeal out of time.

In hearing and determination of any appeal, the COA also has power, authority and jurisdiction
vested in the high court including joinder of appeals and joinder of persons. Where two or more
appeals are brought from convictions or sentences passed at the same trial, they will be
consolidated and proceed as one unless the court orders otherwise. Where two or more persons
convicted by a subordinate appealed to the high court and their appeals were consolidated, their
second appeals will be consolidated and proceed as one unless the court otherwise or two or

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more of them give notice to the court against such proceedings. In the hearing of the appeal, the
law to be applied is the law applicable to the case in the High court and judgment thereof may be
executed and enforced as if it were the judgment of the high court.

A party to an appeal from the subordinate court may appeal against the decision of the high
court on a matter of law only. It has been held in Anthony Maneno V Republic that severity of
sentence is a matter of fact. However a party to a first appeal from the high court may appeal on
matters of law and facts. Notably, whereas the COA’s jurisdiction is in the main appellate, it
does have original jurisdiction limited to the hearing and granting of applications for injunctions,
stay of execution, and other conservatory orders under rule 5(2) (b) pending the hearing of
appeals. The COA may thus order the suspension of a sentence passed by the high or subordinate
court pending the hearing of appeals before it.

2.6 The High Court

The HC is established under Article 165 of the constitution as a superior court of record, vested
with unlimited original jurisdiction in all civil and criminal matters, in addition to all other
powers as may be conferred on it by the constitution and any other laws. The COA in Thomas
Patrick Gilbert Cholmondeley v Republic (2008) eklr explained its understanding of the high
Court’s unlimited original jurisdiction in the following terms:

The high court, on the other hand can hear all matters without regard to territory or the subject
matter in dispute. In criminal matters, it has jurisdiction to try the pettiest of the offenders to the
murderer. Likewise, in civil matters it has the jurisdiction to try a claim for the meanest amount
without regard to the origin of the claim. Of course it does not normally do so; it would be
overwhelmed by the sheer volume of the work. But it has jurisdiction to do so. This is our
understanding of the phrase ‘…unlimited original jurisdiction in civil or criminal matters…’

HCts are presided over by the Judges as prescribed by an Act of Parliament, which also provides
for the manner in which the HC shall be organized and administered- [165 (1)] of the
constitution. There also exists the principal judge of the HC, who is elected by the judges of the
HC from among themselves- 165 (2).

The HC has the following types of Jurisdictions:

2.6.1 Enforcement Jurisdiction

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Article 165 (3) (b) of the constitution provides that the HC shall have jurisdiction to determine
the question whether a right or fundamental freedom in the Bill of rights has been denied,
violated or threatened. Such jurisdiction is invoked by the subject citizen or by any other person
acting on his behalf. The HC may then grant appropriate relief including a declaration of rights,
an injunction, a conservatory order, a declaration of invalidity of any law that denies, violates,
infringes or threatens a right or fundamental freedom in the Bill of rights and is not justified
under the constitution; an order for compensation and an order of judicial review.

Where contravention of fundamental rights and freedoms is alleged, an application for redress is
made by way of Petition supported by an affidavit and must, in criminal cases, be served upon
the AG and the DPP within 14 days of filing. If a question of contravention of rights arises
within the proceedings pending before a subordinate court, which question the presiding officer
considers to be not frivolous or vexatious, he may refer it to the High court in the prescribed
form. When an allegation of contravention of rights is made by a party to proceedings that are
pending in a subordinate court, he is required to apply informally to the presiding officer during
the pendency of the said proceedings for a reference to be made to the HC to determine the
question of the alleged violation. Only when and where the presiding officer is satisfied that the
allegation is meritorious and not frivolously or vexatiously made shall he grant the said
application and frame the question for the HC’s determination.

Notably, filing of a constitutional reference in the HC does not operate as an automatic stay
/stoppage of any further proceedings at the subordinate court. Grant of stay by the HC is
discretionary and may only be granted after a formal application.

2.6.2 Appellate Jurisdiction

The HC has a limited appellate jurisdiction- which exists only where provided by the statute.
Thus, a person convicted on a trial held by a subordinate court may appeal to the HC on matter
of law and facts. No appeal however is allowed in case of an accused who has pleaded guilty and
has been convicted by the subordinate court except as to the extent or legality of sentence. The
state through the DPP has a right of appeal to the HC against the acquittal of an accused as well
as an order by such court refusing to admit a complaint or formal charge or dismissing a charge
as a matter of law.

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In Mwangi v Republic, [2005] KLR 371 the accused person was charged with the offence of
robbery with violence, and in the alternative, handling stolen property. He was convicted of the
latter offence but acquitted of the charge of robbery for lack of proof. He appealed against the
decision of the trial court; and the high court set aside the conviction on the alternative charge
and substituted a conviction for robbery with violence. The COA held that since the AG had not
appealed against the acquittal, the high court had no jurisdiction to alter the acquittal of the
appellant for the formerly charged offence and to pass a sentence of death for it.

The high court also has jurisdiction for hearing appeals from a decision of any tribunal appointed
under the constitution to consider the removal of a person from office. This does not extend to an
appeal from the decision of a tribunal appointed to inquire into the President’s physical or mental
capacity to perform the functions of the office under Article 144.

2.6.3 Interpretative Jurisdiction

Under Article 165 (3) of the constitution, the HC has jurisdiction to hear any question respecting
the interpretation of the constitution including the determination of:

a. The question whether any law is inconsistent with or contravenes the constitution;
b. The question whether anything done under the authority of the constitution or any law is
inconsistent with, or contravenes the constitution;
c. Any matter relating to the constitutional powers of state organs over county governments
and to the constitutional relationship between the levels of the government; and;
d. Any question relating to conflict of laws
Not every question or any allegation of constitutional interpretation qualifies for a reference to
the high court and not every mention of the constitution leads to an automatic referral of the
matter to the high court. In Odhiambo v Republic (Civil Appeal No. 54 of 1989), Justice Apaloo
explained thus:

My own conception of a constitutional issue when it relates to the interpretation of a provision of

the constitution is that there are posed to the court, two or more conflicting interpretations of the
constitution and the constitutional court is asked to pronounce on which is the correct one

Where a question arises as to the interpretation of the constitution in proceedings in a

subordinate court and the court opines that the question involves a substantial question of law,
the court may in its own motion and must if a party to the proceedings so requests, refer the
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question to the high court. The HC will then in exercise of its interpretative jurisdiction deal with
and determine that question and render its decision on the question referred to it in accordance
with which the subordinate court will then dispose of the case before it.

2.6.4 Supervisory Jurisdiction

The HC has supervisory jurisdiction over subordinate courts and over any person, body or
authority exercising a judicial or quasi judicial function. The constitution at Article 165(6)
excludes superior courts from the HC’s jurisdiction since it would be untenable for it to purport
to supervise judicial bodies of concurrent or superior jurisdiction.

2.7 Subordinate Courts

Under Article 169 (1) of the constitution, subordinate courts are the magistrates courts, kadhi’s
courts, the courts martial and any other court or local tribunal as may be established by an Act of
Parliament, other than courts established for employment and labor relations; the environment
and the use and occupation of, and title to, land. According to Article 169 (2), Parliament has
been vested with power to enact legislation conferring jurisdiction, functions and powers on
these subordinate courts.

Under the Section 3 (2) of the Magistrate’s court Act, Resident Magistrate’s Court has
jurisdiction throughout Kenya and exercises power and jurisdiction in criminal proceedings as
conferred on it by the CPC or any other written law. The first schedule of the CPC indicates the
rank of the presiding officers of the magistrate’s court that have jurisdiction to try specific
offences under the Penal Code.

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