Over the years, milestones have been witnessed in the Judiciary’s structure, transparency, composition, authority, and even functions. The 2010 Constitution takes the bulk of the credit for recent key changes in the Judiciary
Under the independence Constitution, the appointment of the Chief Justice was done by the Governor-General, with the advice of the Prime Minister and at least four of the seven county assemblies.
The Judiciary was subject to the Governor-General as the final authority. This has changed and under Article 160(1) of the Constitution of Kenya 2010, the Judiciary is subject to the Constitution and not under the control or direction of any person or authority.
Mr Justice Dennis Farrell took over from Mr Justice Ainley as Chief Justice, albeit in acting capacity. Mr Kitili Mwendwa was appointed in July of 1968, becoming the first indigenous Kenyan to occupy the coveted position of Chief Justice. He was in office till July 1971.
Another scenario of note was the appointment of Mr Justice Fred Kwasi Apaloo as Chief Justice. Apaloo, a Ghanaian, scored a first by serving as Chief Justice in two different countries — Ghana and Kenya. He was Ghana’s Chief Justice between 1977 and 1986. In Kenya, he served as Chief Justice for a year before Mr Justice Abdul Majid Cockar replaced him. The new Chief Justice occupied the office until his retirement in 1997.
At independence, the Constitution vested judicial power in the Judiciary, comprising a Supreme Court, Court of Appeal, and other courts like magistrates’ courts, kadhi courts and tribunals. The Supreme Court was mandated to carry out judicial review – look out for fairness and adherence to due process by administrative bodies in their decisions and interpret the Constitution.
The Supreme Court was scrapped in 1969, paving the way for the Court of Appeal to become the highest court in the land. However, the powers of the Supreme Court were transferred to the High Court despite the fact that the Court of Appeal was the highest court in the land. It was not until 2010 Constitution reinstated the Supreme Court, effectively becoming the top court in Kenya.
The Supreme Court, created pursuant to Article 163 of the Constitution of Kenya 2010, has exclusive original jurisdiction to hear and determine disputes relating to elections to the office of the president. It also has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation.
All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
The court may give advisory opinion at the request of the national government, any state organ, or county government with respect to matters concerning them. Although they are not binding and carry no precedency value, advisory opinions are sometimes offered as persuasive evidence in cases where no precedent exists.
With the exception of the court’s original jurisdiction, the Constitution leaves broad room for Parliament and, indeed, the court itself to make rules relating to the exercise of its jurisdiction. Article 163(7) provides that the Supreme Court shall make rules for the exercise of its jurisdiction.
Parliament is mandated to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land. Previously, the Judiciary addressed this by establishing specialised divisions to deal with matters such as land and environment, judicial review, and commercial disputes.
In a break with the past, the new Constitution, in Article 169(3) expressly provides for the employment and land courts with the status of the High Court.
Parliament passed laws in 2011 creating the Environment and Land Court. The court comprises the principal judge and such number of judges deemed necessary to discharge its functions. The court has jurisdiction throughout Kenya to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
The judges of the Environment and Land Court are:
- Lady Justice Anne Abongo Omollo
- Mr Justice Oscar Amugo Angote
- Mr Justice John M. Mutungi
- Mr Justice Boaz Nathan Olao
- Mr Justice Antony Oteng’o Ombwayo
- Mr Justice Antony Kimani Kaniaru
- Lady Justice Lucy Nyambura Gacheru
- Lady Justice Beatrice Kiprotich
- Lady Justice Lucy Njoki Waithaka
- Mr Justice Peter Muchoki Njoroge
- Mr Justice Stephen Murigi Kibunja
- Mr Justice Samuel Ndungu Mukunya
- Mr Justice Samson Odhiambo Okongo
- Mr Justice Munyao Silas
- Lady Justice Mary Muthoni Gitumbi
- Mr. Justice Elijah Ogoti Obaga
The Industrial Court, which has been in the law books since 1964, was re-established under Section 11 of the Labour Institutions Act (2007). It was elevated to the same level as the High Court. However, it continued to be treated as a subordinate to the High Court, with the High Court providing supervision until 2010 when Parliament was mandated to create courts at the same level as the High Court. Judges of the new court are now appointees of the President upon recommendation by the Judicial Service Commission. In effect, the Industrial Court is part of the Judiciary’s court structure and is no longer under the Ministry of Labour.
The current judges of the Industrial Court are:
- Lady Justice Monica Wanjiru Mbaru
- Mr Justice Njagi Marete
- Lady Justice Maureen Atieno Onyango
- Mr Justice Mathews Nderi Nduma
- Mr Justice Jorum Nelson Abuodha
- Lady Justice Hellen Seruya Wasilwa
- Mr Justice Stephen Okiyo Radido
- Mr Justice James Rika
- Lady Justice Linnet Ndolo Ngume
- Mr Justice Makau Onesmus Ndumbuthi
- Mr Justice Byram Ongaya
- Mr Justice Nzioki wa Kamau
Yet another milestone is in the composition of the Judiciary staff. At independence, the Supreme Court had no less than 11 judges and the Chief Justice. The High Court had just seven judges, and the subordinate courts boasted 40 resident magistrates. Currently, the Judiciary has seven judges in the Supreme Court, 10 in the Court of Appeal, 45 in the High Court, 278 magistrates serving the subordinate courts and 2,557 paralegal staff spread throughout the country.
It is instructive to note that entrenchment of the Judiciary in the independence Constitution did not stop the Government of the day and its functionaries from committing transgressions against the citizenry. The list of human rights violations and economic crimes is too long to tabulate here. The most severe included torture and detention without trial, police brutality, massacres of communities, sexual abuse and violence against women and girls, politically-instigated clashes, and a host of economic crimes, such as the looting of public coffers and land grabbing.
All these violations were perpetrated in spite of the fact that the Constitution guaranteed fundamental rights.
Over time, the Government substantially eroded and weakened many of the safeguards against abuse. The first major blow to the rule of law came in 1966 when the nascent state passed the Preservation of Public Security Act (PPSA), in essence re-enacting colonial detention laws. Under the PPSA, the Government detained scores of its outspoken critics, tortured and harassed their spouses, children, and relatives and, in the process, stifled calls for democratic change and an open society.
The 1980s, particularly after the failed coup d’état of 1982, saw probably the worst period of abuse of human rights. The hunting and rounding up of Mwakenya suspects saw the institutionalisation of torture through the torture chambers of Nyayo and Nyati houses. The institutional machinery for the enforcement of fundamental rights and freedoms were either too feeble or totally absent.
Notoriously, in the 1980s, during the de jure single party era, the High Court abdicated its role of enforcing the Bill of Rights in a number of cases where the court ruled that its enforcement jurisdiction was ‘’inoperative’’ because the Chief Justices had not formulated rules of procedure contemplated under Section 84 (6) of the then Constitution.
In a series of cases decided between 1979 and 1991, the courts developed a number of technical rules whose impact was to deprive themselves of the authority and ability to vindicate the fundamental rights of citizens through legal action.
The odyssey of cases began with the 1979 case of Anarita Karimi Njeru versus The Republic where the Court of Appeal interpreted the Constitution as granting the power to resolve constitutional rights only to the High Court
The Court of Appeal, the highest court in Kenya, thereby renounced any jurisdiction to hear appeals related to fundamental rights and liberties and held that the High Court was the only court with the jurisdiction to hear such cases.
Then in 1998 came the case of Gibson Kamau Kuria versus the Attorney-General. Here, the High Court held that the failure of the Chief Justice to promulgate rules of procedure for the enforcement of constitutionally-guaranteed rights under Section 84(2) of the Constitution deprived the High Court of the jurisdiction to consider such constitutionally-based claims. The High Court affirmed this restrictive interpretation in the 1989 case of Masinde Muliro versus the AG and Maina Mbacha versus the AG.
Then the complete emasculation of the Bill of Rights came in 1991 in the case of Koigi wa Wamwere versus the AG. The High Court held that a person whose rights had been violated could not bring a constitutional challenge under Section 84 if other means of remedying the alleged violation were available.
It is against this background that Chief Justice Bernard Chunga eventually published the procedural laws for enforcement of the Bill of Rights, the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001.
Judicial deference to politics, resort to technicality, flawed judicial reasoning and legal analysis, outright and sometimes pernicious bias, and a retreat from constitutional methods and standards of interpretation became some of the features of the judicial system. Thus in sensitive areas, implicating the Executive or otherwise touching on politico-legal issues, the courts laughed out several cases, including election petitions, on frivolous grounds.
Worse still, in cases where the Judiciary invalidated governmental action or upheld human rights, there was no unequivocal judicial philosophy, compelling jurisprudence, or interpretive practice that emerged, were denied, or rendered nugatory in the circumstances, thereby defeating the whole judicial enforcement of human rights.
Judicial officers who defied the Executive and upheld their independence were often subjected to intimidation. The rapid decline of the Judiciary only slowed in the 1990s, when political pluralism was reintroduced.
Around 1988, during the tenure of Chief Justice Cecil Henry Ethelwood Miller, a Bill was introduced to remove security of tenure for judges to enable the dismissal of errant judges.
Explaining the purpose of the Bill, Attorney-General Matthew Guy Muli said: “We are only streamlining the procedure so that the President, as head of government and executive, has unfettered discretion in the matter. This does not mean that in an appropriate case he cannot order an inquiry into the conduct of any incumbent.”
The Bill sailed through with a 131-0 vote.