The Judiciary under the Old Constitution
The Independence Constitution gave reasonable powers and security of tenure to the Judges, but their authority was quickly eroded as KANU sought to concentrate power at the center and in the person of the President.
The Constitution provided for the establishment of the Supreme Court of Kenya. Other Superior Courts were the Court of Appeal for Kenya (to be established through Parliamentary law, and to which certain decisions of the Supreme Court could be appealed), and the High Court as well as the special Judicial Committee, and Tribunals that could be established when needed. A Judicial Service Commission was also setup at Independence. Subordinate Courts included Magistrate Courts, Courts of a Kadhi and the Courts Martial, as well as other courts and tribunals established by law through the Parliament of the Republic of Kenya. Later, the Supreme Court was scrapped, and the Appeals Court became the highest Court in the land.
|The Supreme Court had at least eleven Judges and a Chief Justice. The Kadhi Court was led by a Chief Kadhi and 3 other Kadhis.
Kenya attained self-rule in 1963 under a colonial governor-general and a government headed by a prime-minister. The then Constitution of Kenya was known as the Kenya Subsidiary Legislation, 1963. Thus all other arms of government, including the Judiciary, were subject to the governor-general as the final authority.
The Kenya Subsidiary Legislation, 1963, provided for a Supreme Court as the highest court in Kenya. Excerpts from Chapter 10 on The Judicature, Part 1. The Supreme Court:
171. (1) There shall be a Supreme Court which shall have unlimited Jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law.
(2) The judges of the Supreme Court shall be the Chief Justice and such number, not being less than eleven, or other judges (hereinafter referred to as "the puisne judges") as may be prescribed by Parliament ....... .
The Chief Justice was appointed by the governor-general in consultation with the prime-minister. At that time, Kenya had Regional Assemblies (as part of the devolution structures) and the prime-minister had to obtain approval from at least 4 out of the 7 Assemblies to propose his choice of Chief Justice to the governor-general. This provision was an extension of the powers enjoyed by the Regions which themselves were a creation of the Lancaster House negotiations between KADU (which represented small tribes and groups) and KANU. Excerpts:
172. (1) The Chief Justice shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister: Provided that before tendering advice of this subsection the Prime Minister shall consult the Presidents of the Regional Assemblies and shall not advise the Governor-General to appoint any person as Chief Justice unless the Presidents of not less than four Regional Assemblies concur in his tendering such advice.
The Supreme Court was also recognised and granted authority as a court of record:
172. (3) The Supreme Court shall be a superior court of record ......
This Constitution did not expressly require that there be a Court of Appeal (to be known as the Court of Appeal for Kenya to distinguish it from the East African Court of Appeal); that decision was left to parliament. However, the constitution did provide certain guidelines for the establishment of such a court. Excerpts:
177. (1) Parliament may, if it thinks fit, establish a Court of Appeal for Kenya .......
(2) The judges of the court of Appeal for Kenya shall be: (a) the Chief Justice, as President; (b) such numbers of Justice of Appeal (if any) as may be prescribed by Parliament ....... (c) the puisne judges for the time being of the Supreme Court.
Other courts such as the Kadhis' Court (and which were subordinate to the Supreme Court) were provided for in the constitution. Excerpts from Part 3., Other Courts:
178. (1) Parliament may establish courts subordinate to the Supreme Court ......
179. (1) There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may be prescribed by Parliament.
(3)......there shall be such subordinate courts held by Kadhis (...referred to as "courts of a Kadhi") as Parliament may establish .......
More to follow soon......
Roles & Functions
1. The Constitution of Kenya aka Kenya Subsidiary Legislation, 1963. Government of Kenya.
2. The Constitution of Kenya Revised edition 2008 (2001). National Council for Law Reporting. The Attorney General.