The Supreme Court existed briefly at independence but was abolished with the amending of the then constitution in 1964. It was replaced by the Appeal and High Courts under a Chief Justice. The New Constitution re-introduces the Supreme Court and assigns it the highest executive role within the Judiciary. Excerpts from Part 2 - Superior Courts:
163. (7) All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
Functionally, the Supreme Court is made up of seven judges as provided in the New Constitution. Excerpts:
163. (1) There is established the Supreme Court, which shall consists of— (a) the Chief Justice, who shall be the president of the court; (b) the Deputy Chief Justice, who shall— (i) deputise for the Chief Justice; and (ii) be the vice-president of the court; and (c) five other judges.
Chief Justice Willy Mutunga, President of the Supreme Court
In a country such as ours where just about everything of public interest is often politicised, the Supreme Court and the rest of the courts, will be expected at every turn, to remind the public of the need make reference to and fall-back to constitutional interpretation of issues of controversy for guidance and consensus. This is critical at a time when the country is transitioning from the old into the new (and modern) Constitution and constitutional order; and in order to maintain public faith this court must be seen to pursue ".......a coherent and principled approach to the interpretation of the Constitution" (Ongoya, 2008).
Judicially, this court will be expected to hear and determine certain and specific matters or appeals that carry significant public weight and interest such as on the validity of the election of the President, and which may crucially, originate from any citizen. Excerpts from Articles 140 (of Chapter 9 - The Executive, Part 2 - The President and Deputy President):
140. (1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.
(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.
Again from Chapter 10:
163. (3) The Supreme Court shall have— (a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President ...... .
Following announcement of results of the March 2013 Presidential Election by the IEBC, the Coalition on Reform and Democracy CORD, challenged before the Supreme Court, the election of the Jubilee Coalition's President-elect. CORD petitioned that the "....... electoral process was so fundamentally flawed that it precluded the possibility of discerning whether the presidential results declared were lawful......" Although the Supreme Court found that the vote process did experience operational and logistical challenges, it ruled, unanimously, that the presidential election was sufficiently free, fair, credible and transparent and allowed the declaration by the IEBC to stand.
The Supreme Court will also be on hand to hear appeals originating from the Appeals Court or if law permits, other Superior Courts or Tribunals:
(3) The Supreme Court shall have— (b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from— (i) the Court of Appeal; and (ii) any other court or tribunal as prescribed by national legislation.
The Supreme Court however will be expected to act mostly as an advisory court. It will be expected to keep an eye on the goings on in the country, and courts, as well as have a sense and ear to the public mood and aspirations; and perhaps to act as the voice of the people during times when they may feel that their representatives in parliament have failed or the government is insensitive to their needs:
(4) Appeals shall lie from the Court of Appeal to the Supreme Court— (a) as of right in any case involving the interpretation or application of this Constitution; and (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
The Supreme Court will also have a say on the weighty matter of a state of emergency. Chapter 4 Part 4 - State of Emergency, excerpts from article 58:
58. (5) The Supreme Court may decide on the validity of— (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; and (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.
Should there be a dispute between a County government and the national government (or any of its agent organs), the Supreme Court is well placed to advise the protagonists on how to resolve their differences:
163. (6) 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 county government.
Indeed, the Court was called upon by the Senate in June 2013, to give an advisory opinion touching on whether the National Assembly acted unconstitutionally by disregarding the input of the Senate, or a mediation committee of the two Houses, before forwarding the Division of Revenue Bill 2013 to the President for assent. The Court ruled on the 1st of November 2013, by a unanimous decision, that the lower house erred in its actions.
Court of Appeal
The Court of Appeal is properly recognised by the New Constitution as an appelate court subordinate only to the Supreme Court. As a superior court, its decisions will be final except only in certain 'weighty' cases that may call for and/or involve the wise counsel of the Supreme Court. Excerpts from Chapter 10 - Judiciary Part 2 Superior Courts:
163. (4) Appeals shall lie from the Court of Appeal to the Supreme Court— (a) as of right in any case involving the interpretation or application of this Constitution; and (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).
(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
Clause (5) above is important to the extent that it affirms the people of Kenya as the supreme authority and from whom the Court of Appeal is bequeathed authority by way of delegation.
The composition of the Court of Appeal is also defined in the New Constitution in Chapter 10 Part 2. As its name suggests, the Court of Appeal will mainly concern itself with the hearing of appeals from the High Court (and lower courts) and Tribunals and as such (unlike the Supreme Court) will not be a proactive court. Like the Supreme Court, this appellate court will have a president to improve its management and accountability. Excerpts:
164. (1) There is established the Court of Appeal, which— (a) shall consist of the number of judges, being not fewer than twelve, .......
(2) There shall be a president of the Court of Appeal who shall be elected by the judges of the Court of Appeal from among themselves.
(3) The Court of Appeal has jurisdiction to hear appeals from— (a) the High Court; and (b) any other court or tribunal .......
The High Court of Kenya's jurisdiction will be concerned with a wide range of legal issues ranging from the determination of all criminal and civil matters, to being the protector of the Bill of Rights, and as an appellate court to decisions made by a tribunal setup to consider the removal from office of a state official (excluding the president). The High Court is provided for in the New Constitution as a Superior Court; excerpts from Article 165, etc, Chapter 10 Judiciary, Part 2 - Superior Courts:
165. (1) There is established the High Court, which— (a) shall consist of the number of judges prescribed by an Act of Parliament; ........
This number is prescribed by the The Judicial Service Act, 2011. It is fair to say that this number will depend largely on availability of money to run the courts, on population and geography and most importantly, the pace of maturity of our new devolved governments.
The head of the High Court will be called Principal Judge of the High Court:
165. (2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
Obviously, the High Court will have authority and supervisory roles over lower courts only. It will therefore be expected to monitor the goings on in the Subordinate courts and could at its own discretion, take control of a matter in those courts when in its opinion, justice is not being served adequately. Excerpts:
165. (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
As the General Elections of 2013 approached, the High Court embarked on extensive self-preparations for the timely hearing of the large number of appeals expected from the elections. Chapter 7 - Representation of the People, Part 1 - Electoral System and Process:
87. (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
And so it was that numerous electoral petitions on the 2013 General Election results for Governor, Senator, Women Representative, and Member for the National Assembly were lodged in the High Court throughout the country soon after the IEBC announced the results:
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
The High Court will play an important role of protecting the Bill of Rights in allowing and hearing appeals for new trials for offenders convicted by any court; and in cases where an appeal decision has even been heard and determined by either the Court of Appeal or the Supreme Court. Excerpts from Chapter 4 The Bill of Rights, Part 2 Rights and Fundamental Freedoms, Article 50:
50. (6) A person who is convicted of a criminal offence may petition the High Court for a new trial if - (a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and (b) new and compelling evidence has become available.
Industrial (Employment & Labour) Courts
The New Constitution grants the Industrial Court the status of a high court. Excerpts:
162. (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations; ........
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
Indeed, on August 25, 2011 the 10th Parliament enacted the Industrial Court Act, 2011 to "....... to confer jurisdiction on the Court with respect to employment and labour relations ......." in order to give effect to Article 162. (2)(a) and (3) mentioned above. The Act provides for the establishment of a Rules Committee with representation from employers' and workers' bodies, ostensibly to harmonise the work of the Court with the realities surrounding the social economics affecting labour and employment.
Interestingly, it is to be found within the Act that, "30. The Cabinet Secretary may make regulations for the better carrying out of the provisions of this Act".
This Court had occasion in July 2013 to examine the well-known and long-running dispute between the Teachers Service Commission TSC and the Kenya National Union of Teachers KNUT in which the latter had called a nationwide strike by its members. Finding that the two antagonists never really meaningfully engaged each other, the Court ordered the two parties "....... to decamp from their hard line positions and proceed to the negotiating table in good faith......."; though it also found the Union to have failed to issue the mandatory 7 day strike notice and consequently declared the strike action illegal. For some curious reasons, the Union had neglected to make an appearance in the case and subsequently advised its members to continue with their industrial action.
The Teachers Service Commission promptly went back to Court "....... seeking leave of the Court to commence contempt proceedings against the Union and its officials for disobeying its orders. The two officials were each fined half a million shillings or serve 30 days in civil jail.
Environment & Land Courts
The Environment and Land Court is a new specialised Superior Court in the Judiciary and whose establishment is anchored in the New Constitution. Excerpts from Article 162.
162. (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) the environment and the use and occupation of, and title to, land.
To give effect to the Article 162. (2) above, the Court was established by an Act of Parliament i.e., The Environment and Land Court Act, 2011. As a specialised superior court having the status of a High Court, its functions and jurisdictions will, according to the provisions in the Act, include but not limited to:
13.(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other written law relating to environment and land.
(2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes relating to environment and land, including disputes― (a) relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.