“I Would Know by What Power I am Called Hither…” — Understanding the Jurisdictions of Kenyan Courts

King Charles I

In 1649, King Charles I was tried for high treason in the name of the people of England but the question soon became, how could a king actually be tried for treason? Treason in itself was an offence against the king and so could the king be tried for an offence against the king? In his trial, King Charles I raised this point and asked,

“I would know by what power I am called hither. I would know by what authority, I mean lawful [authority].”

And so would we all want know by what authority we are brought before a court, be we kings or not. For without this authority, the court has no basis to hear the case against you, and its decision in the case would amount to nothing.

During our legal training at the Kenya School of Law, we were taught that jurisdiction is everything; without it a court has no power to make one more step. Jurisdiction is the authority vested in the court by law to adjudicate upon, determine and dispose of a matter. In Kenya, assumption of jurisdiction by courts is a subject regulated by the Constitution, by statute, and by principles laid out in judicial precedent. Jurisdiction therefore flows from the law.

Here is the jurisdiction of the various courts in Kenya:

The Supreme Court of Kenya

Established under Article 163 of the Constitution and being the apex court in Kenya, the Supreme Court has the following jurisdiction:-

1. Exclusive jurisdiction to hear and determine disputes relating to elections to the office of the President arising under article 140. This means that no court, other than the Supreme Court, has the jurisdiction to hear and determine disputes relating to an election for the office of the President.
2. Appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other tribunal as prescribed by national legislation. Appeals lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. Appeals may also lie in cases where the Court of Appeal or Supreme Court certifies that a matter of general public interest is involved. The issue of public interest was further traversed in the case of Malcolm Bell v Daniel Toroitich Arap Moi & another (2013)
3. It 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 governments.
4. It may also decide on the validity of a declaration of a state of emergency, any extension of a declaration of state of emergency, and any legislation enacted, or action taken, in consequence of a declaration of a state of emergency.

The Court of Appeal

Established under Article 164 (1) of the Constitution, the Court of Appeal is an appellate court subordinate only to the Supreme Court of Kenya.

It hears appeals from the High Court and may have original jurisdiction only when punishing contempt of court, or when staying the execution of orders of the High Court.

It has the power to determine appeal cases with finality, to order for a trial or a re-trial, to frame issues for the determination by the High Court, to receive additional evidence, or to order that it be taken by another court.

The High Court

Established under article 165 of the Constitution, the High Court has:

1. Unlimited original jurisdiction in criminal and civil matters.
2. The jurisdiction to determine whether a right or fundamental freedom has been denied, violated, infringed or threatened.
3. The jurisdiction to hear an appeal from a decision of a tribunal appointed to consider the removal of a person from office.
4. The jurisdiction to hear any matter regarding the interpretation of the Constitution including the determining whether any law is inconsistent with, or in contravention of, the constitution.
5. The jurisdiction to determine whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the constitution.
6. Jurisdiction to hear any matter relating to the constitutional powers of State organs in respect of county governments, and any matter relating to the constitutional relationship between the levels of government, or relating to conflict between national and county laws.
7. Supervisory jurisdiction over subordinate courts, and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
8. Any other jurisdiction, original or appellate, conferred on it by legislation.

The High Court in Kenya has various divisions that allow it to exercise its jurisdiction. These divisions include, the Criminal Division, the Civil Division, the Constitutional and Human Rights Division, the Judicial Division, the Commercial and Tax Division, the Family Division, and the Anti-corruption and Economics Crimes Division.

It is important to note that the High Court has no jurisdiction over issues reserved for the exclusive jurisdiction of the Supreme Court and issues falling within the jurisdiction of specialized courts, i.e the Employment & Labour Relations Court and the Environment and Land Court.

It is also important to note that all matters to do with companies and company law are filed in the High Court.

The Employment and Labour Relations Court

The Employment and Labour Relations Court (ELRC) is established under the Employment and Labour Relations Court Act, 2011. It is a court of the same status as the High Court and has exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution. It also has jurisdiction over matters relating to the provisions of the ELRC Act, or any other written law which extends jurisdiction to the court on matters relating to employment and labour relations.

The Environment and Land Court

The Environment and Land Court (ELC), established under the Environment and Land Court Act 2011, is a superior court of record with the status of the High Court. It has jurisdiction to hear and determine disputes relating to the environment, and the use and occupation of, and title to, land.

The Magistrate’s Court

In Kenya, the hierarchy of the Magistrate’s courts is as follows: The Chief Magistrate’s Court, the Senior Principle Magistrate’s Court, the Principal Magistrate’s Court, the Senior Resident Magistrate’s Court, the Resident Magistrate’s Court and the District Magistrate’s Court.

In criminal matters, any charge may be brought in the magistrate courts save for capital offences which are prosecuted in the High Court.

In civil matters, the jurisdiction of magistrate courts is entirely dependent on the value of the subject matter and is categorized as follows:

Chief Magistrate’s Court — Kshs. 20,000,000

Senior Principle Magistrate’s Court — Kshs. 15,000,000

Principal Magistrate’s Court — Kshs. 10,000,000

Senior Resident Magistrate’s Court — Kshs. 7,000,000

Resident Magistrate’s Court — Kshs. 5,000,000

The Kadhi’s Court

Established under article 169 of the Constitution, the jurisdiction of the Kadhi’s court in Kenya is limited to the determination of questions of Muslim law relating to personal status, marriage, divorce, or inheritance proceedings in which all the parties subscribe to the Muslim faith. The parties should however submit to the jurisdiction of the court.

It is noted that the Kadhi’s court has unlimited pecuniary jurisdiction as highlighted in a recent case in the High Court at Embu (Succession Number 47 of 2014). The court also has jurisdiction to hear children matters as regards parties that profess the Islamic faith.

Other roles of the court include: officiating and registration of Islamic marriages, mediation between Muslim couples in marital disputes, adjudicating over divorce proceedings, and the issuance of divorce certificates.

Conclusion

As highlighted above, jurisdiction is the foundation on which a court may legally hear and determine a case. Without jurisdiction, a court has no power to make one more step.

In the Charles I trial, the king protested as to the court’s jurisdiction on the basis that his own authority to rule had been due to the divine right of kings given to him by God and so, he could not be tried. The court challenged this doctrine of sovereign immunity and proposed that the King of England was not a person, but an office whose every occupant was entrusted with a limited power to govern ‘by and according to the laws of the land and not otherwise’ and therefore the king could be tried if he did not govern by and according to the laws of the land.

Thus before proceeding in any matter, in any court, it is important to first know by what power you are called thither…by what lawful authority.