The Constitution of Kenya

Chapter IV: The Judicature

[ Table of Contents | Chapter 3 | Chapter 5]

Part 1: The High Court and the Court of Appeal
Part 2: Other Courts
Part 3: The Judicial Service Commission

Part 1
The High Court and the Court of Appeal

60. Establishment of High Court

There shall be a High Court, which shall be a superior court of record, and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.
The judges of the High Court shall be the Chief Justice and such number, not being less than eleven, of other judges (hereinafter referred to as puisne judges) as may be prescribed by Parliament.
The High Court shall be duly constituted notwithstanding a vacancy in the office of a judge of that Court.
The office of a puisne judge shall not be abolished while there is a substantive holder thereof.
The High Court shall sit at such places as the Chief Justice may appoint

61. Appointment of Judges of High Court

The Chief Justice shall be appointed by the President.
The puisne judges shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission.
A person shall not be qualified to be appointed a judge of the Hish Court unless-
1. he is, or has 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 court having jurisdiction in appeals from such a court; or
2. he is an advocate of the High Court of Kenya of not less than seven years standing; or
3. he holds, and has held for a period of, or for periods amounting in the aggregate to, not less than seven years, one or other of the qualifications specified in paragraphs (a), (b), (c) and (d) of section 12 (1) of the Advocates Act as in force on 12th December, 1963.
If the office of Chief Justice is vacant, or if the Chief Justice is for any reason unable to discharge the functions of his office, the President may appoint a puisne judge to act as Chief Justice, and a puisne judge so appointed shall exercise the functions of that office until a person is appointed to and assumes the functions of that office, or until the Chief Justice resumes those functions, as the case may be, or until his appointment is sooner revoked by the President
If the office of a puisne judge is vacant or if a puisne judge is appointed to act as Chief Justice or is for any reason unable to discharge the functions of his office, or if the Chief Justice advises the President that the state of business in the High Court so requires, the President acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualifled to be appointed a judge of the High Court to act as a puisne judge; and a person may act as a puisne judge notwithstanding that he has attained the age prescribed for the purposes of section 62 (1).
A person appointed under subsection (5) to act as a puisne judge shall, subject to subsections (4) and (7) of section 62, continue to act for the period of his appointment or, if no period is specified, until his appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission, and may continue to act thereafter for so long as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that have already been commenced before him.

62. Tenure of Office of Judges of High Court.

Subject to this section, a judge of the High Court shall vacate his office when he attains such age as may be prescribed by Parliament.
Notwithstanding that he has attained the age pro- scribed for the purposes of subsection (1), a judge of the High Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
A judge of the High Ckurt may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other causes) or for misbehaviour, and shall not be removed except in acardance with this section.
A judge of to High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Chief Juisidue represents to the preseident that the question of removing a puisne judge under this section ought so be investigated, then-
1. the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons-
  1. who hold or have held the office of judge of the High Court or judge of appeal ; or
  2. who are qualified to appointed as judges of
  3. the High Court under section 61 83); or
  and
2. the tribunal shall inquire into the matter and report on the facts thereof to the President and recomemded to the president whether that judge ought to be removed under this section
Where the question of removing a judge from office has been referred to a tribunal under this section, the President, acting in accordance with the advice of the Chief Justice, may suspend the judge from exercising the functions of his office and any suct suspension may at any time he revocked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommend to the President that the judge ought not to be removed from office.
Where the question arises as whether the Chief Justice has become unable by reason of physical or mental infirmity to exercise the functions of his office or that his conduct ought to he investicated, then the President shall appoint a tribunal consisting of five members appointed by him in the manner provided under subsection (8).
The tribunal appointed under subsection (7) shall consist of the following members-
1. a person who holds or has held the office of Speaker of National Assembly who shall be the chairman;
2. two persons who holds or have held office as judges of appeal;
3. one person upon whom the rank the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act; and
4. the chairman of the Public Service Commission.
When the question of removing the Chief Justice has been referred to a tribunal under this section he shall not exercise any of to functions of his office pending the decision of the tribunal; but he will resume those functions if the tribunal recommends to the President that the Chief Justice ought not be removed from office

63. Oaths to be Taken by Judges of High Court.

A judge of the High Court shall not enter upon the duties of his office until he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.

64. Establishment of Court of Appeal.

There shall be a Court of Appeal which shall be a superior court of record, and which shall have such juris- diction and powers in relation to appeals from the High Court as may be conferred on it by law.
The judges of the Court of Appeal shall be the Chief Justice and such number, not being less than two, of other judges (herein referred to as judges of appeal) as may be prescribed by Parliament.
The foregoing provisions of this Part shall apply in respect of the judges of appeal as they apply to puisne judges.
Where a puisne judge has been appointed as a judge of appeal he may continue to exercise the functions of a puisne judge to enable him to complete proceedings in the High Court that were commenced before him prior to his being so appointed.

Part 2
Other Courts

64. Establishment of Other Courts.

Parliament may establish courts subordinate to the High Court and courts-martial, and a court so established shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.
The High Court shall have jurisdiction to supervise any civil or criminal proceedings before a subordinate court or court-martial, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.
The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by subsection (2).

66. Katchis' Courts.

There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may be pro- scribed by or under an Act of Parliament.
A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless-
1. he professes the Muslim religion; and
2. he possesses such knowledge of the Muslim law applicable to any sect or sects of Muslims as qualifies him, in the opinion of the Judicial Service Commission, to hold a Kadhi's court.
Without prejudice to section 65 (1), there shall be such subordinate courts held by Kadhis as Parliament may establish and each Kadhi's court shall, subject to this Con stitution, have such jurisdiction and powers as may be conferred on it by any law.
The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being less than three in number) as may be prescribed by or under an Act of Parliament, shall each be empowered to hold a Kadhi's court having jurisdiction within the former Protectorate or within such part of the former Protectorate as may be so prescribed: Provided that no part of the former Protectorate shall be outside the jurisdiction of some Kadhi's court.
The jurisdiction of a Kadhi's court shall extend to the determination of questions of Muslim law relating to per- sonal status, marriage, divorcc or inheritance in proceedings in which all the parties profess the Muslim religion

67. References and Appeals on Interpretation of Constitution.

Where a question as to the interpretation of this Constitution arises in proceedings in a subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if a party to the proceedings so requests, refer the question to the High Court.
Where a question is referred to the High Court in pursuance of subsection (1), the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.
When the High Court is determining a matter in connexion with a reference to it under subsection (1) (other than an interlocutory matter) it shall be composed of an uneven number of judges, not being less than three.
Where a subordinate court or a court-martial has given a final decision in civil or criminal proceedings on a question as to the interpretation of this Constitution, and the question has not already been referred to the High Court under subsection (1) of this section or under section 84 (3), an appeal shall lie against that decision as of right to the High Court, either-
1. direct; or
2. if-
  1. an appeal lies as of right from the decision to another subordinate court or court-martial; or
  2. an appeal lies from the decision to another subordinate court or court-martial with the leave of the court that gave the decision or of some other court, and that leave has not been witheld, by way of that other subordinate court or court-martial.

PART 3
The Judicial Service Commission
	68.	(1) There shall be a Judicial Service Commission
which shall consist of-
	(a) the Chief Justice as chairman;
(b) the Attorney-General;

(c) two persons who are for the time being designated by
the President from among the puisne judges of the
High Court and the judges of the Court of Appeal;
and

	(d)	the chairman of the Public Service Commission.

	(2)	In the exercise of its functions under this Constitution,
the Commission shall not be subject to the direction or control
of any other person or authority.

	(3)	Subject to this Chapter, the Commission may make
regulations regulating its own procedure and, with the consent
of the President, may confer powers or impose duties on any
public officer or authority for the purpose of the discharge of
its functions.

	(4)	Subject to any regulations made under subsection (3),
the Commission may act notwithstanding a vacancy in its
membership or the absence of a member, and its proceed-
ings shall not be invalidated by the presence or participation
of a person not entitled to be present at or to participate in
chose proceedings:

	Provided that a decision of the Commission shall
require the concurrence of a majority of all the members
thereof.

	69.	(1) The power to appoint persons to hold or act in
an office to which this section applies (including the power to
confirm appointments), the power to exercise disciplinary
control over persons holding or acting in those offices and the
power to remove those persons from office shall vest in the
Judicial Service Cornmission

	(2)	The Judicial Service Commission may, by directions
in writing and subject to such conditions as it thinks fit, dele-
gate any of its powers under subsection (1) to any one or more
of its members or to any judge of the High Court or to any
person holding or acting in an office to which this section
applies:

	Provided that a power that relates to an office the holder
of which is required to possess legal qualifications may not be
delegated under this subsection except to one or more
members of the Commission.

	(3)	The offices to which this section applies are-

(a) the office of Registrar or Deputy Registrar of the High
Court;
(b) the office of the Chief Magistrate, the Principal
Magistrate, the Senior Resident Magistrate, Resident
Magistrate or District Magistmte;

(c) the office of any other person empowered to hold or
be a member of a subordinate court exercising
criminal jurisdiction;

(d) the office of Chief Kadhi and Kadhi; and

(e) such other offices of member of any court or con
nected with any court as may be prescribed by
Parliament

[ Table of Contents | Chapter 3 | Chapter 5 ]

The Constitution of Kenya

Chapter IV: The Judicature

Part 1 The High Court and the Court of Appeal

Part 2 Other Courts

Part 1
The High Court and the Court of Appeal

Part 2
Other Courts