Judiciary in Kenya's History
Man's innate sense of fairness, social and religious nature, and desire for order meant that he has had a judicial system based on laws the define public order and punishment for offenders.
Obviously during this period the aims were to have a Judiciary that was based on the British system. Later, it allowed for segregated courts for the native, the Muslim and for the European. It went on to incorporate local community elders, religious leaders, and trained magistrates.
The Judiciary under the Independence Constitution was largely unable to distinguish itself as a defender of the rights and liberties of the people of Kenya, due to its systematic mutilation of its Constitutional authority by the Executive.
The people are the supreme authority under the New Constitution. The Judiciary gets its authority from the people of Kenya. It will exercise this authority via courts and tribunals, to interpret and apply the law of the Republic. It must do so independently without subject or control of anyone or any authority except the Constitution and the Law. Judicial Authority will be exercised through Superior and Subordinate Courts.
It is believed that ever since the earliest times of recorded history, man has had a judicial system existing in various forms and names. Historical records and studies of civilizations are all in general agreement to the fact that judicial systems were integrated into cultural norms and practice. The authority of the juduciary was exercised by one or more elders, or ruler, with or without provision of an appeal mechanism. Hence they were custodians of law as well as social mechanisms for dispute resolution and an acceptable process to mete out punishment to the law breaker, and to recompense victims. Thus from the view point that he desires order and justice, man looks up to the judiciary to exercise authority without fear or favour.
The Egyptians may have had a formal, organised court system as far back as 3,000 BC according to history. Well documented is the code and laws of Hammurabi the King of ancient Babylon. Although most societies had class differences they nevertheless recognised a form of justice and fairness to be necessary in order to guarantee social peace and order. Judicial systems also served to ensure social equality and impartiality; to ensure all enjoy the same rights and privileges irrespective of status, or at least within the same status.
As long as there are laws governing man, there was always the need for a mechanism of their interpretation and application. Thus special classes of social positions evolved to study the law, to adjudicate, and to arbitrate, etc. Names such as 'Muchiri' and Muthamaki amongst the Kikuyu meant 'one who performed the work of a judge' or one who led a committee of elders without lording over his peers. Others like the Maasai had a leader known as the Laibon and who doubled up as the adjudicator of community and personal matters, and so on.
1. The Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. Joshua M Kivuva (2011) "Restructuring the Kenya State". Constitution Working Paper Series No 1. Society for International Development, SID.