The Constitution of Kenya
Chapter IV: The Judicature
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Chapter 3 | Chapter
The High Court and the Court of Appeal
Establishment of High Court.
Appointment of Judges of High Court.
Tenure of Office of Judges of High Court.
Oaths to be Taken by Judges of High Court.
Establishment of Court of Appeal.
Establishment of Other Courts.
References and Appeals on Interpretation of Constitution.
The Judicial Service Commission
Judicial Service Commission.
Appointment, etc., of Judicial Officers.
The High Court and the Court of Appeal
- 60. Establishment of High Court
- There shall be a High Court, which shall be a
superior court of record, and which shall have unlimited
original jurisdiction in civil and criminal matters and such
other jurisdiction and powers as may be conferred on it by
this Constitution or any other law.
- The judges of the High Court shall be the Chief
Justice and such number, not being less than eleven, of other
judges (hereinafter referred to as puisne judges) as may be
prescribed by Parliament.
- The High Court shall be duly constituted notwithstanding
a vacancy in the office of a judge of that Court.
- The office of a puisne judge shall not be abolished
while there is a substantive holder thereof.
- The High Court shall sit at such places as the Chief
Justice may appoint
- 61. Appointment of Judges of High Court
- The Chief Justice shall be appointed by the
- The puisne judges shall be appointed by the President
acting in accordance with the advice of the Judicial Service
- A person shall not be qualified to be appointed a
judge of the Hish Court unless-
- he is, or has been, a judge of a court having unlimited
jurisdiction in civil and criminal matters in some
part of the Commonwealth or in the Republic of
Ireland or a court having jurisdiction in appeals
from such a court; or
- he is an advocate of the High Court of Kenya of not
less than seven years standing; or
- he holds, and has held for a period of, or for periods
amounting in the aggregate to, not less than seven
years, one or other of the qualifications specified in
paragraphs (a), (b), (c) and (d) of section 12 (1) of
the Advocates Act as in force on 12th December,
- If the office of Chief Justice is vacant, or if the Chief
Justice is for any reason unable to discharge the functions of
his office, the President may appoint a puisne judge to act as
Chief Justice, and a puisne judge so appointed shall exercise
the functions of that office until a person is appointed to and
assumes the functions of that office, or until the Chief Justice
resumes those functions, as the case may be, or until his
appointment is sooner revoked by the President
- If the office of a puisne judge is vacant or if a puisne
judge is appointed to act as Chief Justice or is for any reason
unable to discharge the functions of his office, or if the Chief
Justice advises the President that the state of business in the
High Court so requires, the President acting in accordance
with the advice of the Judicial Service Commission, may
appoint a person who is qualifled to be appointed a judge of
the High Court to act as a puisne judge; and a person may
act as a puisne judge notwithstanding that he has attained
the age prescribed for the purposes of section 62 (1).
- A person appointed under subsection (5) to act as a
puisne judge shall, subject to subsections (4) and (7) of section
62, continue to act for the period of his appointment or, if
no period is specified, until his appointment is revoked by the
President, acting in accordance with the advice of the Judicial
Service Commission, and may continue to act thereafter for
so long as may be necessary to enable him to deliver judgment
or to do any other thing in relation to proceedings that have
already been commenced before him.
- 62. Tenure of Office of Judges of High Court.
- Subject to this section, a judge of the High Court
shall vacate his office when he attains such age as may be
prescribed by Parliament.
- Notwithstanding that he has attained the age pro-
scribed for the purposes of subsection (1), a judge of the High
Court may continue in office for so long after attaining that
age as may be necessary to enable him to deliver judgment or
to do any other thing in relation to proceedings that were
commenced before him before he attained that age.
- A judge of the High Ckurt may be removed from
office only for inability to perform the functions of his office
(whether arising from infirmity of body or mind or from any
other causes) or for misbehaviour, and shall not be removed
except in acardance with this section.
- A judge of to High Court shall be removed from
office by the President if the question of his removal has been
referred to a tribunal appointed under subsection (5) and the
tribunal has recommended to the President that the judge
ought to be removed from office for inability as aforesaid or
- If the Chief Juisidue represents to the preseident that
the question of removing a puisne judge under this section
ought so be investigated, then-
- the President shall appoint a tribunal which shall
consist of a chairman and four other members selected
by the President from among persons-
- who hold or have held the office of judge of the
High Court or judge of appeal ; or
- who are qualified to appointed as judges of
- the High Court under section 61 83); or
upon whom the President has conferred the rank
of Senior Counsel under section 17 of the
- the tribunal shall inquire into the matter and report
on the facts thereof to the President and recomemded
to the president whether that judge ought to be
removed under this section
- Where the question of removing a judge from office
has been referred to a tribunal under this section, the President,
acting in accordance with the advice of the Chief Justice,
may suspend the judge from exercising the functions of his
office and any suct suspension may at any time he revocked
by the President, acting in accordance with the advice of
Chief Justice, and shall in any case cease to have effect if the
tribunal recommend to the President that the judge ought
not to be removed from office.
- Where the question arises as whether the Chief Justice
has become unable by reason of physical or mental infirmity
to exercise the functions of his office or that his conduct ought
to he investicated, then the President shall appoint a tribunal
consisting of five members appointed by him in the manner provided under subsection (8).
- The tribunal appointed under subsection (7) shall
consist of the following members-
- a person who holds or has held the office of Speaker
of National Assembly who shall be the chairman;
- two persons who holds or have held office as judges of
- one person upon whom the rank the rank of Senior Counsel
has been conferred by the President under section 17
of the Advocates Act; and
- the chairman of the Public Service Commission.
- When the question of removing the Chief Justice has
been referred to a tribunal under this section he shall not
exercise any of to functions of his office pending the decision
of the tribunal; but he will resume those functions if the
tribunal recommends to the President that the Chief Justice
ought not be removed from office
- 63. Oaths to be Taken by Judges of High Court.
A judge of the High Court shall not enter upon the
duties of his office until he has taken and subscribed the oath
of allegiance and such oath for the due execution of his office
as may be prescribed by Parliament.
- 64. Establishment of Court of Appeal.
- There shall be a Court of Appeal which shall be
a superior court of record, and which shall have such juris-
diction and powers in relation to appeals from the High Court
as may be conferred on it by law.
- The judges of the Court of Appeal shall be the Chief
Justice and such number, not being less than two, of other
judges (herein referred to as judges of appeal) as may be
prescribed by Parliament.
- The foregoing provisions of this Part shall apply in
respect of the judges of appeal as they apply to puisne judges.
- Where a puisne judge has been appointed as a judge
of appeal he may continue to exercise the functions of a puisne
judge to enable him to complete proceedings in the High Court
that were commenced before him prior to his being so appointed.
- 64. Establishment of Other Courts.
- Parliament may establish courts subordinate to
the High Court and courts-martial, and a court so established
shall, subject to this Constitution, have such jurisdiction and
powers as may be conferred on it by any law.
- The High Court shall have jurisdiction to supervise
any civil or criminal proceedings before a subordinate court
or court-martial, and may make such orders, issue such writs
and give such directions as it may consider appropriate for
the purpose of ensuring that justice is duly administered by
- The Chief Justice may make rules with respect to the
practice and procedure of the High Court in relation to the
jurisdiction and powers conferred on it by subsection (2).
- 66. Katchis' Courts.
- There shall be a Chief Kadhi and such number,
not being less than three, of other Kadhis as may be pro-
scribed by or under an Act of Parliament.
- A person shall not be qualified to be appointed to
hold or act in the office of Kadhi unless-
- he professes the Muslim religion; and
- he possesses such knowledge of the Muslim law
applicable to any sect or sects of Muslims as qualifies
him, in the opinion of the Judicial Service Commission, to hold a Kadhi's court.
- Without prejudice to section 65 (1), there shall be
such subordinate courts held by Kadhis as Parliament may
establish and each Kadhi's court shall, subject to this Con
stitution, have such jurisdiction and powers as may be
conferred on it by any law.
- The Chief Kadhi and the other Kadhis, or the Chief
Kadhi and such of the other Kadhis (not being less than three
in number) as may be prescribed by or under an Act of
Parliament, shall each be empowered to hold a Kadhi's court
having jurisdiction within the former Protectorate or within
such part of the former Protectorate as may be so prescribed:
Provided that no part of the former Protectorate shall be
outside the jurisdiction of some Kadhi's court.
- The jurisdiction of a Kadhi's court shall extend to
the determination of questions of Muslim law relating to per-
sonal status, marriage, divorcc or inheritance in proceedings
in which all the parties profess the Muslim religion
- 67. References and Appeals on Interpretation of Constitution.
- Where a question as to the interpretation of
this Constitution arises in proceedings in a subordinate
court and the court is of the opinion that the question involves
a substantial question of law, the court may, and shall if a
party to the proceedings so requests, refer the question to the
- Where a question is referred to the High Court in
pursuance of subsection (1), the High Court shall give its
decision upon the question and the court in which the question
arose shall dispose of the case in accordance with that decision.
- When the High Court is determining a matter in
connexion with a reference to it under subsection (1) (other
than an interlocutory matter) it shall be composed of an
uneven number of judges, not being less than three.
- Where a subordinate court or a court-martial has
given a final decision in civil or criminal proceedings on
a question as to the interpretation of this Constitution, and
the question has not already been referred to the High Court
under subsection (1) of this section or under section 84 (3), an
appeal shall lie against that decision as of right to the High
- direct; or
- an appeal lies as of right from the decision to
another subordinate court or court-martial; or
- an appeal lies from the decision to another
subordinate court or court-martial with the leave
of the court that gave the decision or of some
other court, and that leave has not been
by way of that other subordinate court or court-martial.
The Judicial Service Commission
68. (1) There shall be a Judicial Service Commission
which shall consist of-
(a) the Chief Justice as chairman;
(b) the Attorney-General;
(c) two persons who are for the time being designated by
the President from among the puisne judges of the
High Court and the judges of the Court of Appeal;
(d) the chairman of the Public Service Commission.
(2) In the exercise of its functions under this Constitution,
the Commission shall not be subject to the direction or control
of any other person or authority.
(3) Subject to this Chapter, the Commission may make
regulations regulating its own procedure and, with the consent
of the President, may confer powers or impose duties on any
public officer or authority for the purpose of the discharge of
(4) Subject to any regulations made under subsection (3),
the Commission may act notwithstanding a vacancy in its
membership or the absence of a member, and its proceed-
ings shall not be invalidated by the presence or participation
of a person not entitled to be present at or to participate in
Provided that a decision of the Commission shall
require the concurrence of a majority of all the members
69. (1) The power to appoint persons to hold or act in
an office to which this section applies (including the power to
confirm appointments), the power to exercise disciplinary
control over persons holding or acting in those offices and the
power to remove those persons from office shall vest in the
Judicial Service Cornmission
(2) The Judicial Service Commission may, by directions
in writing and subject to such conditions as it thinks fit, dele-
gate any of its powers under subsection (1) to any one or more
of its members or to any judge of the High Court or to any
person holding or acting in an office to which this section
Provided that a power that relates to an office the holder
of which is required to possess legal qualifications may not be
delegated under this subsection except to one or more
members of the Commission.
(3) The offices to which this section applies are-
(a) the office of Registrar or Deputy Registrar of the High
(b) the office of the Chief Magistrate, the Principal
Magistrate, the Senior Resident Magistrate, Resident
Magistrate or District Magistmte;
(c) the office of any other person empowered to hold or
be a member of a subordinate court exercising
(d) the office of Chief Kadhi and Kadhi; and
(e) such other offices of member of any court or con
nected with any court as may be prescribed by
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