In Kenya, the powers of government are traditionally divided into three main organs
i.e the Executive, the Legislature and the Judiciary. The separation of powers here
makes the judiciary more independent however, the legislature, which makes the laws,
contains members of the executive (President and the Cabinet Ministers) who are
responsible for carrying out the laws. This is not unusual since the Ministers who
are elected members of parliament, are responsible both individually and collectively
to the legislature for the administration of their Ministries.
In Kenya, Legislative power is vested in the unicameral National Assembly with 224
members (210 elected by universal adult suffrage, 12 nominated, the Attorney-General,
and the House Speaker as ex-officio members). They serve a term of 5 years, subject
to dissolution of parliament.
The maximum term of the National Assembly is five years but can be extended. The
President can dissolve it at any time. The National Assembly may also force its
own dissolution by a vote 2/3 majority vote.
Currently, the ruling party is the National Rainbow Coalition (NARC) which won the
2002 General elections. The Party that has ruled Kenya since independence in 1963
Kenya has a multi-party political system with over 40 registered political parties.
Kenya became a one party state in 1982 through an amendment of the constitution.
However, in 1992 Section 2A of the constitution was repealed to pave way for the
re-introduction of multi-party politics in the country.
The Judiciary is one of the three arms of government established under Chapter IV
of the Constitution. The role of the judiciary is to interpret and apply the law
and the Constitution, and to provide impartial adjudication of disputes. It is headed
by the Chief Justice and comprises of judges of the Court of Appeal, High Court
(puisne) judges, magistrates and kadhis. The Court of Appeal, which is preceded
by the High Court, is the highest court on the land. It adjudicates appeals from
the High Court. Its decisions are binding on the High Court and all other subordinate
The East African Order in Council of 1897 and the Crown Regulations made there under,
marked the beginning of a legal system in Kenya, establishing a tripartite court
system, namely, native courts, Muslim courts and those staffed by Administrative
Officers and Magistrates.
Administration of Justice concerning non-Africans was entrusted to expatriate judges
and magistrates. The head of the system was the Chief Justice while the administrative
duties were carried out by the Registrar of the Supreme Court (now the High Court).
Appeals lay from Subordinate Courts to the Supreme Court. Muslim Courts were headed
by a Chief Kadhi and were classified as subordinate Courts.
The main Courts were established in Nairobi, Mombasa and Kisumu. Other centers were
served by judges and magistrates on circuit.
The segregated legal system came to an end in 963 when the independence constitution
enacted the beginning of an independent and impartial judiciary.
The independence constitution established a Supreme Court with unlimited original
criminal and civil jurisdiction over all persons, regardless of racial or ethnic
considerations. When Kenya attained the status of a republic in 1964, the Supreme
Court was renamed the High Court and remains so to date.
Judges to the judiciary were to be appointed by an independent Judicial Service
Commission. The constitution further provided for the establishment of a Court of
Appeal and the Kadhi’s Court.
In 1967, the Judicature Act (Chapter 8), the Magistrates Courts Act (Chapter 10),
and the Kadhi’s Court Act (Chapter 11) were enacted to streamline the administration
of justice in Kenya.
The High Court is created under S.60 of the Constitution of Kenya, with unlimited
original jurisdiction in civil and criminal matters. It is the highest court of
original jurisdiction in Kenya.
It is also endowed with appellate jurisdiction. Appeals from various administrative
bodies and subordinate courts are heard and determined by the High Court.
The High Court is the final arbiter in matters concerning the interpretation of
the Constitution by virtue of S.67 (1) of the Constitution. The High Court is further
empowered by S.44 of the Constitution to hear and determine election petitions.
It is also vested with admiralty jurisdiction in all matters arising on the high
seas or in territorial waters, or upon any lake or navigable inland waters in Kenya.
The hierarchical structure of Magistrates Courts is as follows:
- Chief Magistrate
- Senior Principal Magistrate
- Principal Magistrate
- Senior Resident Magistrate
- Resident Magistrate
- District Magistrate