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The Judiciary in Kenya is made up of a well defined and structured court system as well as the Judicial Service Commission and the Judiciary Training Institute. It was only after the enactment of the Independence Constitution in 1963 that a truly independent and impartial judiciary was set up. The Independence Constitution established a Supreme Court with unlimited original criminal and civil jurisdiction over all persons, regardless of racial or ethnic considerations. The judges were to be appointed by an independent Judicial Service Commission. The Constitution further provided for the establishment of a Court of Appeal and the Kadhi’s court. When Kenya became a Republic in 1964, the Supreme Court was renamed the High Court and remains so. In 1967, three major laws were enacted. These were the Judicature Act (Cap 8), the Magistrates’ Courts Act (Cap 10), for magistrates’ courts, and the Kadhi’s Courts Act (Cap 11) responsible for governing the Kadhi’s Courts. These Acts have streamlined the administration of justice in Kenya.. Today, the Judiciary is made up of:
- The Supreme Court, which is the highest court,
- Court of Appeal, the High Court,
- Magistrates Courts,
- Kadhi’s Courts,
- Children’s Courts,
- Traffic Courts,
- Anti-Corruption Courts,
- Courts Martials,
Judicial Reforms in Kenya:
The new Constitution has paved the way for tremendous reforms in the Judiciary. Governance structures have been decentralized and democratized. Monumental changes include the establishment of the Supreme Court, the Environment and Land Court, and the Employment and Labour Relations Court. The system of administration in the courts has also been reformed, with the creation of the new position of Chief Registrar, which is delinked from judicial functions to improve service delivery. Other reforms already undertaken to deal with the backlog of cases include the computerization of the Judiciary, digitization of its records, and declarations by judges and magistrates on when to clear pending rulings and judgments. Judicial officials are visiting prisons to ensure criminal justice becomes a focus of urgent attention. Efforts are also being made to ensure that nobody is in prison illegally and that criminal cases and appeals are fast-tracked. The new Constitution has also seen the birth of an all-inclusive Judicial Service Commission, whose constitutional role is spelt out in terms of recruitment and disciplining of judicial officers. The J SC will have crucial oversight jurisdictions over the Judiciary. Internally, the Judiciary will be run by a team made up of the Chief Justice, the Deputy Chief Justice, the President of the Court of Appeal, the head of the High Court, the Chief Registrar, JSC’s elected representatives, the magistracy, managers running key departments in the Judiciary, paralegals, the National Council on Law Reporting and the Judicial Training Institute. The Deputy Chief Justice will head a critical Strategic and Transformative Committee that has internal and external stakeholders. This committee has begun to undertake key reforms within the governance, ﬁnancial, IT and ethical sectors, as well as the implementation of fundamental policy blueprints that had been shelved for years. The National Council on the Administration of Justice, launched on August 11, 2011, brings together interagency concerns in the administration of justice. Stakeholders, such as the police, prisons, State Law Office, the Ministry of Justice, religious and secular civil society, private sector and foreign interests will participate collectively in matters fundamental to the administration of justice. The recruitment of 28 judges, the Chief Registrar, and the vetting of judges and magistrates are also a monumental and positive step in the reform agenda aimed at improving the administration of justice in the country. The Supreme Court will be modern, paperless and the home of progressive and robust Kenyan jurisprudence.
Judicial Service Commission in Kenya
Judicial Service Commission in Kenya is established under Article 171(1) of the Constitution. The Constitution provides that the members of the Judicial Service Commission will include: (a) The Chief Justice to serve as the commission chairman; (b) One Supreme Court judge elected by the judges of the Supreme Court; (c) One Court of Appeal judge elected by the judges of the Court of Appeal; (d) one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates (e) The Attorney-General; (f) Two advocates, a woman and a man, each of whom 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; and (h) One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Constitution stipulates that the functions of the commission shall be to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice, and shall:
- Recommend to the President persons for appointment as judges;
- Review and make recommendations on the conditions of service of judges and judicial officers, other than their remuneration; and the staff of the Judiciary;
- 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;
- Prepare and implement programmes for the continuing education and training of judges and judicial officers; and
- Advise the national government on improving the efficiency of the administration of justice.
Judiciary Fund in Kenya
The new Kenyan Constitution, in Chapter 10 Section 173, establishes the Judiciary Fund which will be administered by the Chief Registrar of the Judiciary. It will be used for administrative expenses and other purposes for the discharge of the functions of the Judiciary. Each financial year, the Chief Registrar will prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval. Upon approval, the expenditure of the Judiciary will be a charge on the Consolidated Fund and the funds paid directly into the Fund.
Bench Research Hotline in Kenya
Bench Research Hotline in Kenya is a facility dedicated to judicial officers. It is a research desk manned by legal assistants with legal training and experience in online research. The research assistants receive queries from judges, research and submit the results to the inquiring judge.
The Bench Research Hotline takes advantage of online legal database resources, combining it with case and statute law, legal commentaries and encyclopaedia data. The hotline aids the administration of justice for providing judges with quick access to research material relevant to the cases they hear.
History of the Judiciary in Kenya
In 1897, the East African Order in Council was established ik Kenya based on subordinate courts — Native, Muslim and those under administrative officers and magistrates. A dual system of superior courts was also established, for Europeans and Africans. The system lasted for five years. Village elders, headmen and chiefs were empowered to settle disputes. This was recognised in the Native Courts Ordinance of 1907. In 1950, the African Courts Ordinance abolished the tribunals and replaced then with African Courts. In 1962, the courts were transferred from the Provincial Administration to the Judiciary. In 1963, an impartial Judiciary was set up. In 1967, the Judicature Act, Magistrates’ Courts Act and the Kadhis Courts Act were enacted; They have been the backbone of the administration of justice in Kenya.
Tribunals in Kenya
Tribunals in Kenya: These are institutions created to assist the courts in the administration of justice so as not to overburden the courts. Tribunals, however, lack penal jurisdiction. They include:
- Administration tribunals set up by statute to adjudicate over disputes that arise out of the statutes creating them. They deal with the administration and enforcement of the Act concerned. For example, the Rent Tribunal is specifically meant for the determination of questions arising out of the Administration and Rent Restriction Act, while the Business Rent Tribunal deals with controlled tenancies for commercial purposes.
- Inquiry tribunals are full-scale inquiries that deal with urgent matters of public importance, for example, the dissolution of Parliament, corruption investigation, mishandling of issues and improper conduct of public 0fficers.
- Domestic tribunals are set up by private organisations for administration purposes, settling of disputes and exercising disciplinary control of members of the organisation. Jurisdiction is, therefore, contractual and limited by rules or regulations which comprise the terms of the contract. Other tribunals include those dealing with issues on energy, environment, teacher service, land disputes, capital markets and water disputes.
Children’s Courts in Kenya
Children’s Courts in Kenya ware established under Section 73 of the Children Act No. 8 of 2001 they are constituted for the purpose of hearing any charge against a child (except for a charge of murder) or when a child has been charged with a person or people above the age of 18. Cases of adults accused under the Children’s Act, 2001, are heard in a Children’s Court as well. The only people allowed in court during such hearings are members and court officials, those involved in a case, advocates, witnesses, those directly concerned with the case, parents or guardians, accredited journalists and people specially authorized by the court.