KENYAN LEGAL SYSTEM
The Kenyan Legal System is based on English Common Law. The Kenyan Constitution is the supreme law of the land, and any other law that is inconsistent with the Constitution, shall, to the extent of the inconsistency, be null and void. The Constitution of Kenya is divided into eleven parts. The independence Constitution was enacted on the 12th of December 1963. There have been several amendments to the Constitution since then, and a failed attempt to have the whole constitution amended
The Government
The Government is divided into 3 functions: executive function, legislative function and the judicial function.
The Executive
The Executive consists of the President, the vice-President, Prime Minister and two Deputy Prime Ministers, Ministers and the Assistant Ministers, who are all members of the National assembly (Parliament). The Executive implements all the laws made by parliament. The Executive authority is vested in the President. Kenya has a Parliamentary system, where the president is both the Head of State and Government, and also a member of parliament. The Prime Minister is tasked with the responsibility of coordination of the executive functions of government. At the same time, the whole government can, by law, be dismissed from office by a vote of no confidence in parliament. The Cabinet consists of the president, vice-president, prime minister, two Deputy Prime ministers and ministers. Its function is to aid and advice the president. The Ministers are appointed by the President and are charged with responsibility over a ministry, over which they are to exercise general direction and control. The President has power to dissolve and prorogue parliament, but he has to summon it into session not later than 12 months from the end of the preceding session, if parliament has been prorogued, or three months from the end of that session if parliament is dissolved.
The Legislature
The main function of the legislature is to make laws. The legislature consists of the president and the National Assembly. The National Assembly is currently composed of 224 members, 222 being Members of parliament and 2 ex-officio members, the Attorney General, and the Speaker of the National Assembly. The Speaker presides over the meetings of the National Assembly.
Most of the laws in Kenya emanate from an act of Parliament. These are introduced into Parliament as Bills. The Bill has to be published, in the Kenya Gazette, fourteen days before its introduction. It then has its First Reading, which is a formal reading of the title of the Bill. This is followed by a Second Reading, which is an occasion for debate on the general principles of the Bill, after which it is referred to a Committee of the National Assembly for debate and discussion on the detailed provisions. If the Committee reports favorably to the Assembly, then the Bill has its Third and final reading, where the debate, if any, is restricted to a general statement or reiteration of objections. If approved, the Bill is ready for the Presidential assent, after which it becomes an Act of Parliament. The date of commencement of the Act is either the date it received the Presidential Assent, or a date shortly afterwards, or it can be brought into operation by order made by the appropriate Minister.
Parliament also plays an important, but not exclusive, role in the financial control of Government expenditure. Parliament control over revenue and expenditure is secured by the establishment of the Consolidated Fund, into which all revenue of the Government must be paid. However, Parliament may authorize the establishment of other funds for specified purposes, and may also provide that some of the revenue need not be paid into any established fund but may be retained by the authority which received it, for offsetting the expenses of that authority.
Parliament also acts as a control and criticism of the Government, in that it can pass a vote of no confidence, which can lead, depending on the decision of the president, either to the dissolution of Parliament or the resignation of the Government.
The Judiciary
The judiciary consists of the Courts and all officers of the Courts including, the Chief Justice, the Attorney General, Judges and Magistrates. The judiciary determines disputes which arise between individuals, and those arising between individuals and the State.
The Structure and Jurisdiction of the Courts
The Court of Appeal
It is the highest Court in Kenya. It has only appellate jurisdiction, in both civil and criminal cases, it has no inherent jurisdiction. It is presided over by the Judges of Appeal, who are appointed by the President. The decisions of the Court of Appeal are binding on all other subordinate courts, including the High Court. The Court of Appeal sits mainly in Nairobi, the capital of Kenya, but travels on circuit to other principal towns in Kenya to hear appeals.
The High Court
It is presided over by, judges of the High Court, who are appointed by the president. The High Court has unlimited original jurisdiction in civil matters and judicial review matters. In Criminal matters, it only hears cases of murder and treason. It also has appellate jurisdiction in both civil and criminal matters, in that appeals from the subordinate courts are preferred to the High Court.
Subordinate Courts
The jurisdiction of these courts is determined on a territorial and pecuniary basis. They are presided over by magistrates. The magistrate's courts are in order of hierarchy, with the Chief Magistrate's court being the highest, followed by the Senior Principal Magistrate's Court, Principal Magistrate's Courts, Senior Resident Magistrate's Courts, Resident Magistrate's Courts and the District Magistrate's courts. The Kadhis Court and the Children’s Court also form a part of the subordinate courts in Kenya. The legal system has also made for provision of Tribunals which are quasi judicial bodies that listen to matters specifically allocated to them.
Sources of Kenyan Law
The primary sources are enumerated in Section 3 of the Judicature Act (Chapter 8 Laws of Kenya), and they include:
I. The Constitution
II. Acts of Parliament
III. Specific Acts of Parliament of the United Kingdom
IV. Certain Acts of Parliament of India
V. English Statutes of General application in Force in England on 12th August 1897
VI. The Substance of Common Law and Doctrines of Equity
VII. African Customary Law
VIII. Islamic Law
IX. International Instruments