Newly sworn-in commissioners of the CAJ at the Supreme Court in August 2018, source:ombudsman.go.ke

Supreme Court

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The Supreme Court is the highest court in Kenya and is established under article 163 of the Constitution. It is composed of seven judges: the Chief Justice, the Deputy Chief Justice, and five other Judges. The court’s quorum is reached when at least 5 judges are present. All courts are bound by the decisions of the Supreme Court apart from itself. As article 163 (5) states, only the Supreme Court can review cases from the Court of Appeal (the closest court to Supreme Court in ranking) and either affirm, vary or overturn it.

Mandates and objectives of the Supreme Court:

Article 163 of the Constitution details the Supreme Court as having the following key mandates:

  • to exclusively and originally hear and determine disputes relating to the election of the President (also see article 140),
  • to hear and determine appeals from the Court of Appeal and any other court or tribunal as set out by parliament.
  • Such appeals according to article 163 (4) may also be heard and determined
    “in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved.”
  • The court may give advisory opinions at the request of the national government, any state organ, or any county government with respect to any matter concerning county governments.
Role in Declaration of State of Emergency

Article 58 of the Constitution gives the Supreme Court another peculiar role: that of taking part in the declaration of a State of Emergency. Note that only the President according to Article 132 (4)(d) can make such a declaration (for an understanding of how a resolution on a state of emergency is arrived at check Article 58 (1-4).

Article 58 (5) states that the Supreme Court can decide on the validity of the following issues in as far as a state of emergency is concerned:

  • the very declaration of a state of emergency;
  • any extension of a declaration of a state of emergency;
  • any legislation enacted,
  • other action taken, in consequence of a declaration of a state of emergency.”

In a way, these mandates are amplified under the Supreme Court Act (No. 7 of 2011 – external link)

Presidential Election Petitions

Since it came into existence in 2013, the Supreme Court has come to be known for its role in the presidential election petitions. In 2013, the petition to nullify the presidential election was dismissed, whereas in 2017, it was considered to be a sensation and a bold proof of judicial independence when the Court judged that the election was void and had to be repeated. Article 140 of the Constitution states that any person can file a petition challenging the election of the president elect. That has to happen within seven days after the date of the declaration of the results of the presidential election. Once a petition has been filed it must be heard and determined within fourteen days (two weeks).

The days include weekend days. Thus, the Supreme Court is alert and busy with a petition challenging a presidential election results each day of the three weeks after the results have been announced by the Independent Electoral and Boundaries Commission (IEBC).

Hierarchy and Administration of the Court

The Supreme Court is headed by the Chief Justice who is its President and the Deputy Chief Justice who is its Vice President. After the Chief Justice and the Deputy Chief Justice, the pecking order among the Judges of the court is such that those who were employed first at the court take precedence. If two or more judges were employed at the court on the same day, then the pecking order among them is determined by professional seniority (Section 5 of the Supreme Court Act, external link).

Another key office is that of the Chief Registrar of the Supreme Court who is its Administrator and the Chief Accounting Officer. For the mandates of the Chief Registrar, read Section 10 of the Supreme Court Act. Since the Registrar is a powerful person, any other affected citizen can apply to any Supreme Court Judge for a review of the Chief Registrar’s decision (Section 11 of the SC Act).

How the Supreme Court judges

The Supreme Court is not bound by its own decisions, whereas all other courts are (Article 163 (7) of the Constitution). If the Supreme Court changes the principles upon which it judges, it is called a “landmark decision”

The Supreme Court Act puts it clear that the rulings of the court shall be made based on the decisions of the majority of the Judges. However, judges of the court with dissenting views are always given a chance to present this dissenting view. This is what we witnessed in 2017 when Judges Njoki Ndung’u and Jackton Ojwang presented contrary opinion to that of their colleagues on the petition of the first round of the 2017 presidential election petition. See Raila Amolo Odinga & Another V Independent Electoral And Boundaries Commission & 2 Others [2017] EKLR (external link)

The Supreme Court is autonomous in setting is own rules of operation. The court has done it with the Supreme Court Rules, 2012 (external  link) , where  journalists can find the reasons why a proceeding is happening the way it does.

How to Dig out surprising recent Cases

It is worthwhile searching for Supreme Court cases that are not about election issues. And even if the Supreme court denies to hear a case because it is not deemed to be of public importance, you may find that the case itself is of public interest. A journalist can easily find these cases through advanced search on http://kenyalaw.org/caselaw/.  Click onto the “advanced search” tab and then limit the search to ‘Supreme Court of Kenya’ in the dropdown search field named “Court”.

Then you might find cases like the Civil Application 10 of 2018a succession battle among the family of one Peter Mbiyu Koinange, a prominent politician and Cabinet Minister in the days of Kenya’s first President Jomo Kenyatta. Koinange had lived a polygamous life and upon his death there arose a battle for his wealth among his heirs. The case dragged in courts for 30 years arose mainly because he had died without a will. The issues in this case were about the number of wives that Peter Mbiyu Koinange had legally, as well as who his biological children are. The Supreme Court did not find that this family feud was of public importance, no matter how much the public might be interested in it. So the court did not hear the matter but instead sent it back to the High Court.

by Kioko Kivandi

 

 

 

 

 

 

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