LEGAL SYSTEMS NOTES PT 3

 *DISCLAIMER*

The notes below are adapted from the Kenyatta University Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

COURT STRUCTURE

Hierarchical order of the court system.

Kenya has a court system that operates at different levels.

Structure of the court system refers to the hierarchical arrangement of the court from the lowest to the highest one.  Composition of the court on the other hand refers to the presiding judicial officer(s) that is the Magistrates and the Judges.

Jurisdiction of a court describes the kind of cases that a particular court is empowered to hear and determine.

DISTRICT MAGISTRATES COURTS

These are established under Section 7 of the Magistrates Courts Act Cap 10 of the Laws of Kenya.  There are 3 classes of DM’s courts: DM3; DM2; DM1.  District Magistrate 3 has since been phased out administratively although the Act has not yet been amended.  However Criminal Law Amendment Act No. 5 of 2003 has expressly abolished DM courts with regard to criminal proceedings.

Each DM Court is presided over by one Magistrate.  The territorial jurisdiction of a DM’s court is limited to the administrative district for which the court is established.  However the Chief Justice may designate two or more districts for purposes of District Magistrates Courts.  These courts only have original jurisdiction as opposed to appellate jurisdiction i.e. the power to hear cases at first instance only.  They have no appellate jurisdiction whatsoever.

With regard to criminal cases District Magistrate Courts can entertain cases relating to all kinds of criminal offences except those exclusively triable by the High Court.

Under Section 9 of the Magistrates Court Act the civil jurisdiction includes:

1.                   Where the proceedings concern a claim under customary law;

2.                  Civil cases where the value of the subject matter in dispute does not exceed KShs. 5000/- for DM2 or KShs. 10000/- for DM1.

RESIDENT MAGISTRATES COURTS

These are established under Section 3 of Cap 10.  A Resident Magistrate Court is presided by a Resident Magistrate, Senior Resident Magistrate, Principal Magistrate, Senor Principal Magistrate or even the Chief Magistrate.  The territorial jurisdiction of an RM is country wide Section 3(2) of Cap 10.  However, under the Civil Procedure Act particularly Sections 11 to 18 the place for suing with regard to civil proceedings is specifically provided for.  At present, all Resident Magistrate Courts have only original jurisdiction in both civil and criminal matters. 

In criminal cases Resident Magistrates Courts have power to hear and determine all cases involving offences under any Kenyan Law except those exclusively triable by the High Court.

In Civil cases the current jurisdiction of Resident Magistrate Courts is set out in the Statute law (Miscellaneous Amendment Act of 2002) as follows:

1.                   RM Court pecuniary jurisdiction is Kshs. 100,000/-

2.                  SRM – PM Court pecuniary jurisdiction is 300,000/-

3.                  SPM and Chief Magistrate pecuniary jurisdiction is 500,000/-

However the CJ is further empowered to increase the limit of the jurisdiction of RM courts by notice in the Kenya Gazette as follows

1.                   For Chief Magistrates upto KShs. 2,000,000/-

2.                  for SPM up to KShs. 1,000,000/-

3.                  For SRM up to KShs.  800,000/-

4.                  For RM up to KShs.   500,000/-

THE HIGH COURT

This is established under Section 60 of the Constitution which provides that there shall be a High Court which shall be a superior court of record and which shall have unlimited original jurisdiction in criminal and civil matters and such other jurisdiction and powers as may be conferred on it by the Constitution or any other law.

However in practice only those cases in respect of which the subordinate courts have no jurisdiction will be heard in the High Court.  As a superior court of record decisions of the High Court are binding on subordinate courts.  With regard to the composition of the High Court, ordinarily, the High Court is duly constituted by a Judge sitting alone.  However there are instances where two or more High Court Judges may sit together to hear certain types of cases.  The Judges of the High Court are the Chief Justice and others known as Puisne Judges.

Section 7 of the Judicature Act Cap 8 Laws of Kenya provides that High Court Judges shall not exceed 50.  Further they shall not be less than 11.

Under Section 61 (5) of the Judicature Act provision is made for appointment of Acting Judges.  Regarding jurisdiction in practice the High Court hears ordinary civil cases where the value of the subject matter exceeds the pecuniary jurisdiction the Resident Magistrate courts.

In criminal cases the High Court only hears cases relating to offences of murder and treason.  In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain matters which can only be heard by the High Court exclusively.  These include:

1.                   Interpretation of the Constitution.  Under Section 67 of the Constitution whenever the High Court is sitting as a Constitutional Court it shall be composed of two or three Judges sitting together.

2.                  Cases involving enforcement of fundamental rights and freedoms of the individual which are set out in Chapter 5 of the Constitution.

3.                  Election Petitions involving Parliamentary and Presidential Elections under Section 44 of the Constitution.  When the High Court is sitting as an Election Court it will be comprised of one Judge in Parliamentary Election Petitions and an Appeal therefrom will lie to the Court of Appeal.  In a Presidential Election Petition the Court will be comprised of 3 Judges sitting together and an appeal will be in the Court of Appeal comprising of 5 Judges sitting together.

4.                  Judicial Review under Order 53 of the Civil Procedure Rules the High Court has powers of Judicial Review, of Judicial action, Administrative action as well as legislative action and in this regard can grant orders of Certiorari, Mandamus and Prohibition.

5.                  Supervisory Jurisdiction:  The High Court exercises supervisory jurisdiction over subordinate courts and in this regard can transfer cases from one subordinate court to another if it deems it fit.

6.                  Admiralty jurisdiction Section 4 of the Judicature Act provides that the High Court shall be a court of admiralty i.e. the court shall entertain cases of High Seas, Territorial Waters, Lakes and other navigable inland waters.

7.                  Appellate Jurisdiction:   The High Court has appellate jurisdiction i.e. appeals from all subordinate courts and tribunals exercising quasi judicial powers can properly be entertained by the High Court.

8.                 Winding up of Companies:  This can only be filed at the High Court.

9.                  Probate Jurisdiction under the Laws of Succession

10.              Bankruptcy petitions

11.               Matters dealing with Intellectual property.

All appeals from the High Court lie to the Court of Appeal.