The courts have power to hear and determine disputes, primarily of criminal and civil nature. Criminal cases are those in which the State prosecutes a person or an organization for committing an act which is not in the interest of the public, and therefore considered to be an offence against the State.
Civil cases originate from a person who seeks redress for a private wrong such as breach of contract, trespass, or negligence; or to enforce civil remedies such as compensation, damages or to stop some action.
The courts under the Constitution operate at two levels, namely; Superior and Subordinate courts.
1. Superior Courts
a) Supreme Court,
b) Court of Appeal,
c) High Court,
d) An Employment and Labour Relations Court and;
e) A court to hear matters concerning the Environment, and the use of, occupation of and title to land.
2. Subordinate Courts
a) Magistrates’ Courts
b) Kadhis Courts
c) Court Martial, and
d) Any other court or local Tribunal established by an Act of Parliament
The Supreme Court
The Supreme Court is the highest Court in the Judiciary while the lowest Court is the Magistrates court.
The court hears and determines cases relating to presidential elections. It hears appeals on cases that have been concluded by the Court of Appeal, issues advisory opinions on matters concerning County Governments, in any cases involving the interpretation or application of the Constitution and in matters of general public importance.
Further, the Supreme Court hears appeals from any other court or tribunal as prescribed by national legislation and determines the validity of a declaration of a state of emergency.
It comprises the Chief Justice (President of the Court), the Deputy Chief Justice (Vice-President) and five judges. The court sits in Nairobi.
The Court of Appeal
The Court of Appeal handles appeals arising over the decisions of the High Court as well as any other court or Tribunal as provided for in Law. The court comprises a maximum of 30 Judges. The Judges of the Court of Appeal elect a President from among themselves. The Court of Appeal has been decentralized and currently has a total of six registries namely; Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret.
The High Court
The High Court has jurisdiction to hear all criminal and civil cases as well as appeals from the lower courts. The High Court comprises a maximum of 150 judges and has original jurisdiction in all criminal and civil matters. The High Court is a premier court in interpreting the Constitution, hears appeals from subordinate courts and tribunals and supervises all administrative bodies (judicial review).
High Court divisions include Family, Commercial and Admiralty, Constitutional and Judicial Review, Land and Environment, Criminal, Industrial and Environmental and Land Court. There are at least 20 High Court stations countrywide.
The Constitution has also established the Industrial Court and the Land and Environment Court at the same level as the High Court. Industrial Court deals with labour and employment matters while the Land and Environment Court deals with land and environment matters and appeals from all tribunals dealing in land and environment matters.
Magistrates’ Courts deals with the majority of cases in Kenya. There are 116 court stations manned by at least 455 magistrates. A Magistrate’s Court has the authority to hear all criminal cases except murder, treason and crimes under international criminal law. Magistrates’ courts also hear all civil cases except those limited by statute. Other lower courts include, Kadhis courts, Courts martial and Tribunals.
Kadhis Courts deal with cases such as family and succession, while appeals go to High Court. They have authority to hear cases on marriage, divorce and inheritance where those involved are Muslims.
The Court Martial hears cases involving people serving in the Military. They are established under the Armed Forces Act.
Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.
Tribunals, like the courts, have to respect the Bill of Rights in their decisions and not be repugnant to justice and morality or be inconsistent with the Constitution or other laws of the land. Most tribunals are subject to the supervision of the High Court. All tribunals fall under the Judiciary.