Report from Kenya

Kenya is a common law country with a system of law and government bearing the hallmarks of the English system. When the country acquired its independence from the British in 1963, it adopted the Westminster-type constitution with the familiar framework of government having three organs: the Legislature, the Executive and the Judiciary.

The country has a population of 33 million. Politics takes place in a framework of a presidential representative democratic republic, whereby the President is both the head of state and head of government, and of a pluriform multi-party system.

Since independence, Kenya has maintained remarkable stability despite changes in its political system and crises in neighboring countries. Particularly since the re-emergence of multiparty democracy, Kenyans have enjoyed an increased degree of freedom. (See Wikipedia article on Kenya.)

The Judiciary

Kenya’s Judiciary is established under chapter IV of the Constitution. The country’s superior courts of record are the Court of Appeal and the High Court. The High Court has unlimited original jurisdiction in all civil and criminal matters as well as appellate jurisdiction over matters emanating from the magistrate’s courts and statutory tribunals. The Court of Appeal, on the other hand, exercises appellate jurisdiction over the decisions of the High Court.

The Judges of the High Court and the Court of Appeal are appointed by the President acting in accordance with the advice of the Judicial Service Commission. The Constitution prescribes a minimum of eleven judges for the High Court and two for the Court of Appeal. Presently, there are 46 Judges of the High Court and eight Judges of Appeal. The Chief Justice is a member of both courts. (See generally, the Constitution of Kenya, s 60-64.)

In the lower hierarchy of the court system are the Magistrates’ Courts and the Kadhis’ Court. The former are established under an Act of Parliament under a power donated by the Constitution and their jurisdiction has limitations defined both by geography and the nature or value of the subject matter. They deal with both civil and criminal matters and are responsible for the bulk of the litigation carried on in Kenya’s justice system. The jurisdiction of the Kadhis’ Courts is constitutionally limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion .

The Court of Appeal

Traditionally, the Court of Appeal’s jurisdiction has been limited to hearing and determining appeals emanating from the High Court. Nevertheless, the Court also exercises original jurisdiction in respect of certain procedural applications, particularly applications for an injunction pending an appeal from the High Court.

Since it was established, the Court has been involved in the resolution of disputes embracing social and moral questions of profound importance to society. More recently, the Court has delivered landmark opinions on three subjects: the division of matrimonial property, the right to a legal representative of one’s own choice for indigent criminal defendants and the constitutionality of certain regulations designed to accelerate the disposal of juvenile trials.

Division of Matrimonial Property

In a five-judge opinion delivered on 2nd January, 2007 in the case of Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, the Court considered the question of how property acquired during a marriage and registered in the name one spouse should be distributed. Ordinarily, appeals are heard and decided by a bench of 3 judges but in cases where a strong case is made for the Court of Appeal to overrule a previous case decided by it, as it was in this case, the Chief Justice will constitute a bench having a higher number of judges.

At the heart of the controversy in this case was a 1991 decision of the Court in Kivuitu v Kivuitu (1991), 2 KAR 241. In the opinion of the appellant’s counsel, to the extent that the decision held that equal division of matrimonial assets is the rule to be applied in all cases irrespective of the varying contributions of each spouse, and that non-monetary contributions are to be taken into account in determining the share of each spouse, then the decision was per incuriam (made through want of care).

In a unanimous opinion in which they reviewed English and local precedents, Appeal Judges Tunoi, O’Kubasu, Githinji, Waki & Deverell observed that where the disputed property is in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution, either direct or indirect, towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” and regard them as being entitled to a half of the share each. However, the fact of marriage alone does not entitle a spouse to a beneficial interest in the property registered in the name of the other, nor is the performance of domestic duties. The Judges found that Kivuitu v Kivuitu was correctly decided both on the law and facts and that it did not lay any general principle of equal division.

The Indigent Criminal Defendant and his Choice of a State Attorney

Although there has been a long-standing practice in Kenya’s criminal justice system to give legal aid to indigent accused persons charged with murder and to appellants convicted of robbery with violence and attempted robbery with violence , legal aid is not enshrined in the Constitution or in any statute and the Government has no obligation to give it. In the Court of Appeal, however, the Chief Justice or the Presiding Judge (acting under Court of Appeal Rule 24(1) made under the Appellate Jurisdiction Act, Cap. 9 of the Laws of Kenya) may assign an advocate to represent an applicant or appellant in a criminal application or appeal if it appears desirable in the interest of justice.

In November of 2006, in the case of Alloys Omondi Nanga v Republic [2006] eKLR, the Court considered how the constitutionally guaranteed right of a defendant to a legal representative of his own choice may apply where the legal representative in question is a state-sponsored attorney. Appeal Judges Bosire, Githinji & Onyango-Otieno were of one mind in finding that the right to a legal representative of one’s own choice only arises where an accused person has the means to engage an attorney of his own choice. Where, however, an accused person is given legal aid by the State, he has no choice of the counsel who is to represent him. He only has a right of election to decide whether he should accept the attorney assigned to him or reject him and conduct his own defence.

Children Rights: The Constitutionality of Regulations Providing for Time-Bound Juvenile Trials

Kenya’s The Children Act, c 141, which was passed in 2001, has been hailed as an innovative and comprehensive piece of legislation embodying contemporary principles on the protection of the child. Section 197 of the Act donates a general power to the Minister of government for the time being in charge of children’s affairs, to enact rules and regulations for the carrying out of the provisions of the Act.

Acting under the authority of this power, the Minister for Home Affairs enacted the Child Offenders Rules which contained provisions regulating the trial of juvenile offenders. Among other things, the Rules —particularly Rule 12(4)—seemed to provide that a child is entitled to have a case against it dismissed where the trial is not concluded within twelve months. Because there was no provision in the substantive Act referring to a time-limit within which juvenile trials should be conducted, section 186 of the Act merely stating that a child was entitled to have the case against it “determined without delay,” it was only a matter of time before the question of the constitutionality of these rules was raised in the Courts.

In July of 2006, Appeal Judges Omolo, Bosire & Githinji stated in Kazungu Kasiwa Mkunzo & another v Republic, [2006] eKLR, that whereas section 77(1) of the Constitution provided that an accused person shall be afforded a fair hearing “within a reasonable time”, quite wisely, it did not set out what amounted to such reasonable time because there was a whole lot of factors to consider, such as the diary of the particular court and the number of judicial officers available to hear such cases. Similarly, the Children Act did not set any time limits for juvenile trials and if it had made such a provision, it would have been contrary to the Constitution. The particular provisions of the Child Offenders rules were therefore declared ultra vires the Children Act and unconstitutional.


Whereas the bulk of the litigation carried out in Kenya’s judicial system originates and terminates in the subordinate Magistrates’ courts, cases that come before the Court of Appeal after wending their way through the lower echelons of the court system quite frequently raise matters bearing considerable social, economic and cultural implications. In the determination of such cases, the Court of Appeal has established a rich tradition of advancing the frontiers of Kenya’s jurisprudence.

Further information on Kenya’s legal and judicial system, including legislation and judicial opinions can be found on

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