LEGAL SYSTEMS PT 4

 *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 the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

Under Section 64 of the Constitution there shall be a superior court of record and which shall have such jurisdiction and powers as may be conferred to it by law.  The Court of Appeal is the highest court of law in the land.  It was established in 1977 after the collapse of the East African Court of Appeal and after the collapse of the East Africa Community and only has appellate jurisdiction.  The only time when the Court of Appeal can exercise original jurisdiction is when trying matters in relation to contempt before the court.

The Appellate Jurisdiction Act Cap 9 is an Act of Parliament which confers on the Court of Appeal jurisdiction to hear appeals from the High Court and other purposes incidental thereto.  Under Section 64(2) of the Constitution the Court of Appeal shall be comprised of the Chief Justice and such number not being less than 2 other judges as may be prescribed by Parliament.

Presently the Judicature Act states that the Judges of Appeal shall not exceed 11 in number.  The ordinary composition of the Court of Appeal is 3 Judges of the court of appeal sitting together.

APPOINTMENT

The Chief Justice is appointed by the President while the other judges are appointed by the President acting in accordance with advice received from the Judicial Service Commission.

QUALIFICATION

One must have been a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the commonwealth or in the republic of Ireland or a Judge having jurisdiction in Appeals from such a court.  If one is an advocate of the High Court of Kenya it should be of not less than 7 years standing.

Judges of the High Court and the Court of Appeal enjoy security of tenure.  This means that a judge may not be removed from the office except in the manner provided for in the constitution.  Under the constitution a judge can only leave court by

1.                   Death

2.                  Resignation

3.                  On reaching the mandatory age of retirement;

4.                  Insanity

5.                  Removal from office for inability to perform the functions of his office either arising from infirmity of body or mind or from any other cause or from his behaviour.

The procedure for removing a judge involves appointment of a tribunal by the president which tribunal will then recommend to the President that the Judge ought to be removed from the office under Section 62 of the Constitution. 

KADHIS COURTS

Section 66 (1) of the Constitution provides that there shall be a Chief Kadhi and such number not being less than 3 of other Kadhis as may be prescribed by or under an Act of Parliament.  Kadhi’s courts are established under the Kadhis Courts Act Cap 11 of the Laws of Kenya.  Its jurisdiction extends to determination of questions of Muslims or Islamic law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess Islamic or Muslim religion.  However under Cap 11 it is provided that nothing in that Act shall limit the jurisdiction of the high Court or of any subordinate court in any proceedings that come before it.  This means therefore that Kadhis courts do not have exclusive jurisdiction in the aforementioned matters i.e. cases that can be heard in the Kadhis court can also be competently heard by ordinary courts.

QUALIFICATIONS OF A KADHI

To qualify to be appointed as a Kadhi one must profess the Islamic religion, secondly one must possess such knowledge of Islamic Law applicable to any sect or sects of Muslims as qualifies in the opinion of the Judicial Service Commission to hold the office of a Kadhi. 

In deciding cases before them, the law and rules of evidence applicable are those of Islamic Law.  the Chief Justice may however make rules for the conduct of the Kadhis Courts but the Civil Procedure rules generally apply.

COURT MARTIALS

These are established under the Armed Forces Act Cap 119 Laws of Kenya specifically under Section 85.   A court martial may be convened by the Chief of the General Staff or a Commander of any of the 3 services that constitute the Kenyan Armed Forces. 

A Court Martial is an ad hoc court that is as and when the need arises the court is established.  The Court Martial constitutes of a presiding officer and not less than two members.  However, if the offence in question attracts a death penalty then there shall be a presiding officer and not less than four members.  A Presiding Officer of a Court Martial must be an officer not below the rank of a major.  However in a special case where such an officer is unavailable or due to other exigencies, a court martial will be presided over by an officer of the rank of Captain who is at least of 5 years standing.  Except with the written consent of the Attorney General, there shall be a judge/advocate at each court martial who is appointed by the Chief Justice. The jurisdiction of the court martial is to try cases involving members of the Armed Forces and which relate to the offences created under Cap 119 specifically Part V thereof.

Appeals from court martials go to the High Court but only with the leave of the High Court.  No further appeal lies to the Court of Appeal.

TRIBUNALS AND OTHER QUASI JUDICIAL BODIES

These are several and they are usually established under an Act of Parliament.  Examples are

1.                   The Industrial Court – this is established under the Trade Disputes Act Cap 234.  its composition includes a Judge and two other members appointed from a panel constituted by the Minister for labour.  The judge of the Industrial Court is appointed by the President for a renewable term of 5 years and the requisite qualifications are the same as those for other judges;  Its jurisdiction is to hear industrial disputes that occur between employer and employees, federation of employers and employee unions etc.  These relate to matters of employment, terms of employment, dismissal redundancy collective bargaining agreement etc.  No Appeal lies from an award of the Industrial Court.

2.                  Business Premises Rent Tribunal which is established under the Landlord and Tenants (Shops Hotels and Catering Establishments) Act Cap 301 Laws of Kenya.

3.                  Rent Tribunal established under the Rent Restriction Act Cap 296 Laws of Kenya;

4.                  The Cooperative Tribunal established under Section 77 of the Cooperative Societies Act

5.                  Land Disputes Tribunal established under the Land Disputes Tribunals Act of 1990;

6.                  Licensing Boards established under myriad Acts.