SUPERIOR COURTS

SUPREME COURT

Establishment
This court is established under article 163 of the constitution. It is the highest court in Kenya.
Composition
It is composed of;

a) Chief justice- who is the president of the court.

b) Deputy chief justice – who shall deputize the chief justice and is also the vice president
of the court.
c) Five other judges.

The supreme court is a competent court if presided over by at least five supreme court judges.
Jurisdiction
a) Exclusive original jurisdiction – The court has powers to hear and determine disputes
relating to the election of the president. The power of the court is to determine the
question whether the presidential election was valid.
b) Appellate jurisdiction – The supreme court has powers to hear appeals from the court
of appeal and any other courts or tribunals as may be prescribed by the National
Assembly. Appeals from the court of appeal to the supreme court shall be;
i) Any case involving the interpretation of the constitution
ii) Any case that is certified of being of general public interest
iii) Advisory
c) Advisory jurisdiction – The supreme court may give an advisory opinion at the request
of the national government, any state organ or any county government with respect to
any matter concerning these institutions. This advisory opinion is not binding.
N.B. The decision of the supreme court is binding on all other courts.

COURT OF APPEAL

Establishment
It is established under article 164 of the constitution.
Composition
It is comprised of not less than 12 and not more than 30 court of appeal judges. It is headed by
a president of the court of appeal elected by the judges from amongst themselves. It is a
competent court if presided over by 3 judges.

Jurisdiction
It only exercises appellate jurisdiction and hears appeal from the high court, employment and
labour relations court and environment and land court. It can also hear appeals referred to it by
the director of public prosecution in matters of law and criminal cases. In civil cases an appeal
can be heard on the following grounds;
i) The decision is contrary to law
ii) The decision has failed to determine the material facts of the case
iii) Where there is substantive error or defects in procedure
After listening to an appeal the court of appeal has powers to;
i) Confirm, uphold, approve the decision of the lower court
ii) Reverse the decision of the lower court
iii) Change or substitute the sentence but not increase it
iv) Order a new trial

HIGH COURT
Establishment

The court is established under article 165 of the constitution. It is a superior court of record.
Composition
It comprises of not more than 150 high court judges. It is headed by a principal judge who is
elected by the judges from amongst themselves. It is a competent court if presided over by one
judge; however, when the court is sitting as a constitutional court, it shall be presided over by 3
high court judges.
Jurisdiction
a) Unlimited original jurisdiction in civil and criminal matters – The court has power to try
any case known to Kenyan law and pass any sentence authorized by law.
b) Appellate jurisdiction – The high court hears appeals from subordinate courts and
tribunals. In exercising its appellate jurisdiction, the high court has powers to;
i) Confirm, change or reverse in any manner the order of subordinate court
ii) Direct the lower court to take additional evidence
iii) Make any order that it deems just
c) Supervisory jurisdiction – This is the power of the high court to supervise the activities
of the subordinate courts and tribunals. It may make the following orders or writs for
the purpose of ensuring that justice is duly administered.
i)Mandamus – Literally means “we command”. It is an order directed to a
subordinate court or any other body exercising quasi-judicial authority to do a
particular thing which it has failed to do. It arises where the court failed to discharge
its legal duties.
ii)Certiorari – It literally means “Be informed”. It is an order of the high court
requiring a subordinate court or tribunal to bring its records or decision to the high
court and show cause why it should not be quashed. The order is usually issued
where there is:
➢ There is improper exercise of discretion
➢ Some error on the face of the records
➢ Breach of natural justice
➢ Biasness

The purpose of issuing such an order is;

➢ To secure an impartial trial
➢ To review an excess of jurisdiction
➢ To challenge an ultra vires act
➢ To correct an error of law on the face of the records
iii)Habeas corpus – Literally means “Have the body produced”. It is an order of the
high court directing an administrative body or a subordinate court who has the
custody of another person to produce that other person to court for trial and if
there is no evidence, the person be released. The order would be granted if the
person has been detained and has not been brought to court within a prescribed
time or within a reasonable time.
iv)Prohibition – It is an order directed at a subordinate court or tribunal prohibiting
it or stopping it from doing an act e.g. from continuing with proceedings. It applies
where there is excess of jurisdiction or lack of jurisdiction.
v)Declaration – This merely declares a legal position without substituting the
remedy given by the subordinate court
d) Interpretation of the constitution – The constitution provides that when any question
in relation to its interpretation arises, it may be referred to the high court for
interpretation.
e) Admiralty jurisdiction - This the power of the court to handle disputes arising from the
high seas, territorial waters or other inland navigable waters.
f) Jurisdiction in election matters - 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.
g) Jurisdiction to determine the question whether a fundamental right or freedom in the
bill of rights has been denied, infringed upon or threatened.
h) Succession(inheritance)/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 may be
appropriate 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.
i) Matrimonial jurisdiction
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.

SPECIAL COURTS

EMPLOYMENT AND LABOUR RELATIONS COURT

Establishment
It is established under section 4 of the Industrial Court Act in pursuance of article 162 of the
constitution. It is a superior court with the same status as the high court.
Composition
It is composed of a principal judge and such number of judges as may be appointed by the
president acting on the advice of the Judicial Service Commission (J.S.C)
Jurisdiction

The court shall have exclusive jurisdiction both original and appellate to hear and determine all
disputes relating to employment and labour relations. The court shall have power to;
➢ Enforce a collective bargaining agreement (CBA)
➢ Resolve any industrial action e.g. strike
➢ Declare the termination of employment unlawful
➢ Order for improvement of working conditions of employees
ENVIRONMENT AND LAND COURT
Establishment
It is established under section 4 of the Environment and Land Act. It is a superior court with the
same status as the high court
Composition
The court shall consist of a presiding judge and such number of judges as determined by the
Judicial Service Commission from time to time.

Jurisdiction
The court has and exercises jurisdiction throughout Kenya. It shall have original and appellate
jurisdiction to hear and determine all disputes relating to environment and land. The court shall
have power to make any of the following orders;

➢ Interim or permanent preservation orders

➢ Prerogative orders
➢ Award of damages
➢ Compensation
➢ Restitution
➢ Specific performance

ADMINISTRATIVE TRIBUNALS
These are quasi-judicial organs established for the administration of justice in Kenya

They are an alternative to dispute resolution in Kenya other than the courts; they are formed by
specific acts of government and deal with specific issues. E.g.
i. Business premises rent tribunal
ii. Rent restriction tribunal
iii. Licensing boards
iv. Co-operative tribunals
v. Land tribunals etc.
Reasons/(Advantages) for administrative tribunals

i. Simplicity of procedure – the court system is technical in nature and therefore need
to establish simpler mechanisms for solving disputes with straight forward
procedures.
ii. Cost – the court fees are high and out of reach and therefore tribunals are cheaper.
 iii. Need for speedy resolution for disputes – they are fast to resolve any dispute unlike
courts which take long
iv. Are best suited for enquiries – this is because courts are law abiding and not for
finding facts
v. Need for specialization – they deal with specific problems only that require expert
knowledge
vi. Accessibility- They are readily accessible for those who require to refer their
grievances to them.
vii. Privacy- Proceedings of tribunal can be held without triggering publicity as is the
case with court proceedings.
viii. Flexibility – Tribunals are not bound by previous decisions. This affords them room
to explore.
ix. Informality- Are not subject to formality of procedure.
Disadvantages
i. Inability to enforce their own orders because they don’t have the powers or the
machinery to enforce the orders they make and refer their decisions to be enforced
by the court.
ii. Possibility for unfairness – this comes as a result of simplicity of the procedure that
leads to unfairness because they are free to make their own procedures.
iii. Unavailability – Are not very common since they only deal with particular problems
in an area. Most people do not know they exist.
iv. Wide discretion of power – this may lead to abuse of power if not checked.
v. Limited scope – because they only deal with particular problem in an area and do
not operate outside this object.

1. RENT RESTRICTION TRIBUNAL

Establishment
Are established by Rent Restriction Act Cap. 276

Are established by the order of the minister in charge of housing

Composition
The Act empowers a cabinet secretary by the Kenya Gazette to establish a tribunal having
jurisdiction in such areas as he may deem fit. He may appoint a chairman, deputy chairman of
whatever qualification but they must have practiced as advocates.

The principal secretary in the ministry appoints the two other members; any matter in this
tribunal is decided by majority votes.
Functions
i. Assess the standard rent for any premises either on application of any person
interested or on its own motion
ii. Fix the date of commencement of any standard rent payable
iii. Apportion rent in case of sharing tenants
iv. Where the rent chargeable in respect of any premises includes payment of water,
light, sweepers, watchmen and other services in addition to the standard rent, they
shall determine and fix the charge
v. Order of recovery of rent arrears in favour of the landlord
vi. Where in any premises the tenants enjoy the services in common e.g. watchmen,
light, water etc. they shall apportion such charges to the tenants
vii. Permit the landlord to exercise levies on the rent arrears
viii. Order for the repairs of the building

2. BUSINESS PREMISES RENT TRIBUNAL

Establishment

Established as per the Landlord and Tenant Act Cap. 301

Composition
Sec. 11 sub-sec. 1 of the Act 301 empowers the minister responsible for commerce to appoint a
tribunal which shall exercise its power over the areas specified in their appointment.

Primary function – To determine whether or not any tenancy is controlled tenancy and the act
defines controlled tenancy as – Tenancy of a shop, hotel, or any catering establishment to
which the government or the local authority is not a party and which has not been reduced in
writing and if it’s in writing should not exceed 5 years.

Shop premises - wholly used for the purpose of retail or wholesale trade or business for
services to get money.
Hotel – A place where meals and/or accommodation are supplied to at least five adult persons.
Catering establishment – Premises in which food or drinks are sold for consumption on
premises to persons boarding on the premises.
The business premises rent tribunal is established to set out reasonable tenant standard and
ensure that landlords don’t charge high rent for business premises.
Powers
i. To determine whether tenancy is controlled tenancy because they are established to
cover controlled tenancy.
ii. To determine or vary the rent to be payable in respect of any controlled tenancy.
iii. Fix the amount of service charges if required as per the agreement in respect of
controlled tenancy.
iv. Make orders for recovery of possession and repayment of arrears.
v. Award compensation incurred by the tenant on termination of controlled tenancy.
3. CO-OPERATIVE TRIBUNAL
Its established by Sec. 77 sub-sec. 1 of the Co-operative Society’s Act consisting of:
a. Chairman and deputy chairman appointed by chief justice
b. Three members appointed by cabinet secretary for the time being responsible for the
co-operative development
They shall be legally qualified and at least one of whom shall be an advocate of the High Court
of Kenya
They shall be appointed to the tribunal through gazettement by the CS for a period of 3 years

Functions
i. To determine disputed referred to it between:
a. Members of the society
b. Co-operative society and other co-operative society
c. Members of the co-operative society and the society

JUDICIAL SERVICE COMMISSION

Establishment
Its established under article 171 of the Constitution of Kenya
Composition
a. The Chief Justice who shall be the chairperson of the commission
b. One supreme court judge elected by the judges of the supreme court
c. One court of appeal judge elected by the court of appeal judges
d. One high court judge and one magistrate; one a woman and one a man elected by the
association of judges and magistrates
e. The Attorney General
 f. Two advocates, one a man and woman, each of which has at least 15 years experience,
elected by the members of the statutory body responsible for the professional
regulation of advocates
g. One person nominated by the Public Service Commission
h. One woman and one man to represent the public, not being lawyers, appointed by the
president with the approval of the National Assembly
Functions of the Judicial Service Commission

i. Recommend to the president persons for appointment as judges

ii. Review and make recommendations of the conditions of the service of:
a. Judges and judicial officers, other than their remuneration
b. The staff of the judiciary
iii. Appoint, receive complaints against, investigate and remove from office or
otherwise discipline registrars, magistrates, other judicial officers and other staff of
the judiciary, in the manner prescribed by an Act of Parliament
iv. Prepare and implement programs for the continuing education and training of
judges and judicial officers
v. Advise the national government on improving the efficiency of the administration of
justice
Appointment of the Chief Justice and the deputy Chief Justice
Requirements

The Chief Justice should have at least 15 years’ experience as superior court judge or 15 years’
experience as a distinguished judicial officer, legal practitioner or other experience relevant in
the legal field
Be a holder of a law degree from a recognized university or an advocate of the High Court of
Kenya
Should have a high moral character, integrity and impartiality
Court of Appeal judges
Should have at least 10 years experience as a superior court judge or a distinguished academic
or legal practitioner
Be a holder of a law degree from a recognized university or an advocate of the High Court of
Kenya
Have high moral character, integrity and impartiality
Judges of the High Court

Must have a law degree from a recognized university.

Must be an advocate of the high court of Kenya or must possess an equivalent qualification
from a common law institution.
At least 10 years’ experience as superior court judge or professionally qualified magistrate or
distinguished academic or legal practitioner
Should have high moral character, integrity and impartiality

Removal from office

A judge of superior court may be removed from office only on the grounds of:
i. Inability to perform the functions of his office arising from mental or physical
incapacity.
ii. Breach of code of conduct prescribed for the judges of the superior courts.
iii. Bankruptcy
iv. Incompetence
v. Gross misconduct or misbehavior
Attorney General
The office of the Attorney General is established by the Constitution. He shall be nominated by
the president with the approval of the national assembly where the president will appoint him
Qualifications of appointment are similar to those of the Chief Justice
The Attorney General is:
i. The principal legal advisor to the government
ii. Represent the national government in court or in any other legal proceedings to which
the national government is a party or other criminal proceedings
iii. Shall perform any function conferred on the office by an Act of Parliament or by the
president
iv. He shall have the authority with the leave of the court to appear as a friend of the court
in any civil proceedings to which the government is not a party
v. Shall promote, protect and uphold the rule of law and defend public interest
Advocates

Advocate is defined as any person who is duely entered upon the role of advocates having the
rank of a senior council and including any person entered below
i. Officer in the Attorney General’s office
ii. Principal registrar of titles or any registrar of titles
Requirements
Has been admitted as an advocate
His name is in the names of advocates
Has in force a practicing certificate of advocate’s Act of 1999

Qualifications
i. Be a Kenyan citizen
ii. Should have attained a law degree of any university approved by the legal education
council
iii. Should have attended as a learner with an advocate in the Attorney General’s chamber
for one year
iv. Has passed all the examinations as prescribed by the council of legal education
After completing the requirements, a person can petition the Chief Justice to be admitted as an
advocate of the High Court
The petition is made on prescribed form, if the Chief Justice is satisfied as to the qualification
service and moral fitness of the petitioner, he shall order the petitioner to be admitted as an
advocate or to the role of the advocate of Kenya
LAW SOCIETY OF KENYA

Its established by the Law Society of Kenya Act as a body corporate with perpetual succession,
common seal with the power to sue or be sued.
Sec. 4 of the Law Society of Kenya Act states the following as the functions or objects:
i. Facilitate the acquisition of legal knowledge by members of legal profession or others
ii. Assist the government and court in all matters affecting the legislation and
administration and practice of law in Kenya
iii. Protect and assist the members of legal profession of Kenya in respect of condition of
their work or otherwise
iv. Helps to maintain and improve the standards of conduct in running the legal profession
in Kenya
v. Protect/Assist the public of Kenya in all matters touching the law.