The first court in British East Africa was established by the Imperial British East Africa Company in 1890 with A.C.W Jenner as its first judge.
In 1895, the East Africa Protectorate was established with Consular court to serve British and other foreign persons. However a court with jurisdiction over all persons in the territory was first established in 1897 — Her Majesty’s court of East Africa, which was later renamed ‘the High Court of East Africa’.
The Kenya’s Judiciary has roots in the East African Order in Council of 1897 and the Crown regulations. The Kenyan legal system was shaped by English legal system occasioned by the British administration that lasted over six decades where judges and the bar, were exclusively European.
Before 1895, when Kenya was declared a British Protectorate, the country had no structured legal system. The territory was administered via the Imperial British East Africa Company, which carried out all the obligations undertaken by the British Government under any treaty or agreement made with another State. In 1896, the territory became known as the East African Protectorate. It was then renamed Kenya Colony and Protectorate in 1920 and remained so until 1963 when Kenya became an independent state.
With the settlement of the British in the East African Protectorate, there arose a need for a legislative and administrative system to govern the inhabitants. For ease of administration, the British settlers imported laws and systems of governance from Britain, and British laws that had been codified in India, to apply to the East African Protectorate. These laws were mainly for the benefit of the settlers and were applied without regard to the already existing native society.
The natives were allowed to practice African Customary law while the Hindus who had emigrated from India, to practice Hindu Customary law in the area of personal law as the Muslims and Arabs communities practiced Muslim Law. Kenya’s Judiciary was hence based on a tripartite division of subordinate courts; that is, Native courts, Muslim courts and those staffed by administrative officers and magistrates. A dual system of superior courts that lasted for only five years was also established – one court for Europeans, and the other for Africans.
The colonial authorities empowered village elders, headmen and chiefs to settle disputes as they had done in the pre-colonial period. These traditional dispute settlement organs gradually evolved into tribunals. They were accorded official recognition in 1907, when the Native Courts Ordinance was promulgated. This ordinance established native tribunals that were intended to serve each of the ethnic groups in Kenya.
How the Court System worked
The Chief Native Commissioner could set up, control and administer the tribunals. Similar African tribunals at the divisional level of each district were established. The Governor was authorized to appoint a Liwali at the Coast to adjudicate matters in the Muslim Community.
Appeals against the decisions of tribunals were filed to the D.O, (District/Divisional Officers) D.C, (District Commissioner) or the PC (Provincial Commissioner), while the final appeal lay with the Supreme Court. In cases where non-Africans were involved, the administration of justice was entrusted to expatriate judges and magistrates.
Appeals lay from subordinate courts to the Supreme Court. The head of the system was the Chief Justice while the administrative duties were carried out by the Registrar of the Supreme Court.
Main courts were established in large urban centres – Nairobi, Mombasa and Kisumu. Judges and magistrates on circuit served other centres. The segregated system of administration of justice prevailed until 1962 when the African courts were transferred from the Provincial Administration to the Judiciary. The independence Constitution established a Supreme Court with unlimited original criminal and civil jurisdiction over all persons, regardless of racial or ethnic considerations. When Kenya became a Republic in 1964, the Supreme Court was renamed the High Court.
In 1967, the Judicature Act, the Magistrates’ Courts Act and the Kadhis Courts Act were enacted to streamline the administration of justice.
Public Information on the Supreme Court Building
The Supreme Court of Kenya sits at the intersection of Taifa Road and City Hall Way in the capital Nairobi. It is located in the Central Business District, next to the Kenyatta International Conference Centre (KICC), and the Office of Governor of the Nairobi County Government.
The Supreme Court Building was built in 1931 and is the official seat of the Chief Justice, the Chief Registrar and the Supreme Court itself. It has played host to many high-profile visitors including Hilary Clinton, who visited in 2012 as Secretary of State, and HE Kofi Annan, who has visited several times.
The building is of national heritage value by virtue of its rich history and architecture. It is classified as a national monument under the Antiquities and Monuments Act.
The building has three floors and a basement. It can be accessed via two gates: the main gate on City Hall Way and the other on Taifa Road, opposite Kenya Re Plaza. Other gates for special access exist.
Colonial Era Chief Justices
In colonial Kenya, the office of the Chief Justice was exclusively occupied by British nationals. The first Chief Justice of the Kenyan Judiciary, Sir Robert William Hamilton was appointed in 1906. At independence, Sir John Ainley was the Chief Justice who presided over the swearing in of founding President Jomo Kenyatta.
The colonial era Chief Justices are:
1). Sir Robert William Hamilton (1867- 1944) Chief Justice from 1906 to 1920
2). Lt. Col. Jacob William Barth (1871-1941) Chief Justice from 1920 to 1934
3). Sir Joseph Sheridan (1882-1964) Chief Justice from 1934 to 1946
4). Sir John Harry Barclay Nihill (1892-1975) Chief Justice from 1946
5). Sir Harace Hector Hearne (1892-1962) Chief Justice from 1951 to 1954
6). Sir Kenneth Kennedy O’connor (1896-1985) Chief Justice from 1954 to 1957
7). Sir Ronald Ormiston Sinclair (1803-1996) Chief Justice from 1957 to 1962
8). Sir John Ainley From 1962 to post independence
Independent Kenya Chief Justices
At independence, Sir John Ainley was the Chief Justice who presided over the swearing in of the founding president, Jomo Kenyatta. He served until 1968 when he was replaced by Justice Dennis Farrel in an acting capacity. Farrel served for a very short time.
The first African of Kenyan origin to occupy the office of the Chief Justice was the late Mr Justice Kitili Mwendwa who was appointed in July 1968 and served until July 1971. Sir James Wicks then took over office in 1971 and served until January 1982 when he was replaced by Sir Alfred Simpson. Simpson served until 1985.
After Simpson, Mr Justice Chunilal B. Madan who in pre-independence Kenya had come into the limelight for his agitation for independence, was appointed in October 1985 and served for only a year before being replaced by Justice Cecil Henry Ethelwood Miller in 1986. He served until 1989.
Justice Robin Allan Winston Hancox replaced Miller and occupied the office during the turbulent period of the agitation for multi party democracy. He served as the Chief Justice from 1989 to April, 1993.
Justice Fred Kwasi Apaloo who replaced Hancox, had the distinction of serving as Chief Justice in two different countries. He was the Chief Justice of Ghana between 1977 and 1986. In Kenya, he served for a year between 1993 and 1994 when he was replaced by Abdul Majid Cockar who then occupied the office until his retirement from the Judiciary in 1997.
Justice Zachaeus Richard Chesoni, previously the Chairman of the Electoral Commission of Kenya (ECK), took over office and served until his untimely demise in 1999. He was replaced by Justice Bernard Chunga who resigned from the office in 2003 paving way for the appointment of Justice Evans Gicheru. Justice Gicheru served until the promulgation of the new Constitution in 2010 when Dr Willy Mutunga was appointed in an unprecedented public recruitment exercise.
Sir John Ainley 1962-1968
Sir John Ainley was the first independent Kenya Chief Justice after having assumed office in 1962, a year before independence. Sir Ainley who served in several British colonial territories before coming to Kenya, had the singular honour of having sworn in the last Governor General of Kenya, Sir Malcolm MacDonald, in 1963, and Kenya’s founding President, Jomo Kenyatta, in 1964.
He served until 1968 when he was replaced by Justice Dennis Farrel. Sir Ainley is remembered as the judge who convicted Kisilu Mutua for the assassination of Pio Gama Pinto, a Kenyan journalist, politician and freedom fighter.
Ainley sentenced Mr Mutua to death on July 15, 1965.
Arthur Dennis Farrel 1968
Justice Arthur Dennis Farrel, the second Chief Justice of post independence Kenya, was appointed to the post in an acting capacity in May 1968. He occupied the office of the CJ for the shortest period in history. It is believed that he was sent home because of his handling of the criminal appeal of Bildad Kaggia, the former freedom fighter and a fiery nationalist who agitated for the poor and the landless. Kaggia at one time, served as a Minister in Jomo Kenyatta’s Cabinet. He had been convicted of holding a political meeting without a license and sentenced to one year imprisonment. He appealed and his case came up before acting CJ Farrell and a Mr Justice Dalton. They upheld the conviction, but reduced the sentence to six months. Farrell was immediately retired after having served for only two months.
Kitili Mwendwa 1968-1971
Justice Kitili Mwendwa, the third Chief Justice in independent Kenya, was appointed to assume office at the age of 39. Mwendwa, is the first black African of Kenyan origin, to hold the office of the CJ. He obtained a Bachelor of Laws degree from Exeter University and a Masters degree in law from Oxford University. Justice Mwendwa was admitted to the Bar in England and was a barrister of Lincoln’s Inn. He joined the civil service in 1962 quickly rising to become Permanent Secretary in 1963 and Solicitor General in 1964. He became the Chief Justice of Kenya in July 1968 after the retirement of the then acting CJ Arthur Farrell. Mwendwa resigned in 1971 following accusations that he was part of a military plot to overthrow the Government of President Jomo Kenyatta. He later came back to public service as a Member of Parliament for Kitui Central after more than a decade in private business. Justice Mwendwa died in a road accident in September 1985.
Sir James Wicks 1971- 1982
Sir James Wicks was appointed the fourth Chief Justice of Kenya after the resignation of Justice Mwendwa. Sir Wicks, a conservative Englishman and a former surveyor before he shifted to law, goes down in history as Kenya’s longest serving CJ and the only one to have served two Heads of State, Presidents Jomo Kenyatta and Daniel arap Moi.
During his leadership at the Judiciary, it is said that the Executive did not lose any critical case and judges were known to consult with the Government whenever the Executive had an interest in a case. Sir Wicks who strongly supported the Government, is said to have rewritten a judgment in favor of the Executive. For his loyalty, the law on retirement age was amended three times to retain him until he was 74 years old. This happened when he attained the age of 68, 70, and finally 72, when the Constitution was amended to set the retirement age at 74 years.
Chunilal Bhagwandas Madan 1985-1986
Justice Chunilal Madan was the second Kenyan to be appointed the sixth Chief Justice of Kenya. Madan is among public officers who served at different times, in all three branches of the government; the Judiciary, the Legislature and the Executive. A former student of Jamhuri High School, he was called to the Bar in London at the Middle Temple Inn at the age of 21. He was later to be recognised by the Queen of England with the prestigious honour of Queen’s Counsel. He was appointed a judge of the High Court in 1961. At 74 years old, he was the longest serving member of the Judiciary to be appointed CJ by President Daniel arap Moi in 1985. He is best remembered for saving Stanley Munga Githunguri, a politician, when he prohibited the Attorney General from prosecuting him. He ruled that prosecutorial powers were being used in an oppressive manner. Madan is remembered for his brilliance, sound understanding of the law and independence from the Executive. In the short period he served, Madan did a lot to restore the reputation of the institution which had until then, often acted at the behest of the Executive. He was the first person to take steps over corruption in the Judiciary. Madan is arguably both the best judge to ever sit on the Kenyan Judiciary and also the best CJ to ever head it after his predecessors. He served for only 13 months before reaching the mandatory retirement age.
Cecil Henry Ethel wood Miller 1986- 1989
Cecil Henry Ethelwood Miller is the second black person to be appointed to the office of the Chief Justice after Justice Mwendwa and the seventh since independence. Born in Guyana, Justice Miller served as a fighter pilot for the Royal Air Force in England during World War II before studying law and being called to the Bar at the Middle Temple Inn.
He came to Kenya in 1964 at the invitation of Prime Minister Jomo Kenyatta shortly after independence and joined the High Court as the first judge of African origin. He was promoted to the Court of Appeal in 1978 after 14 years at the High Court. He shot to national prominence in 1983 when he was appointed to head a judicial commission of inquiry to investigate allegations that the former Attorney General, Charles Njonjo, was plotting to overthrow the government of President Daniel arap Moi.
During his tenure, the Judiciary became more emasculated by the Executive and the Government removed the security of tenure for judges and that of the Chief Justice. He was however instrumental in the africanisation of the Judiciary. Justice Miller was the first chairman of the Law Reform Commission.
Robin Allan Winston Hancox 1989-1993
Allan Robin Winston Hancox served as the eighth independent Kenya Chief Justice between 1989 and 1993 during the turbulent period of the agitation for multiparty democracy. Born in England, where he attended school, Hancox came to Kenya after being called to the Bar and joined the colonial Judiciary as a resident magistrate in 1957. He was transferred to Nigeria in the same capacity but came back to Kenya in 1963 as a senior resident magistrate. Hancox was appointed High Court judge in 1969 and later in 1982, joined the Court of Appeal. He served as the chairman of the law Reform Commission from 1987 until his appointment as Chief justice. Hancox is well known for the Kenya Appeal Reports referred to as the Hancox Reports, published under his editorship.
Fred Kwasi Apaloo 1993-1994
Justice Fred Kwasi Apaloo, the ninth Chief Justice of independent Kenya, has the distinction of serving as Chief Justice in two countries. First, he served in Ghana between 1977 and 1986 and later in Kenya in 1993. Born in the Volta Region of Ghana, Apaloo studied law in England and was admitted to the Bar at the Honorary Society of the Middle Temple Inn. He returned home to practice law and in 1964 he was appointed a High Court Judge after the independence of Ghana in 1957. As a judge in Ghana, he distinguished himself by acquitting five persons, including three associates of President Kwame Nkurumah, who had been charged with treason against his regime. Despite the bad blood it created with the Government, he was appointed to the Court of Appeal in 1966 and later, to the Supreme Court of Ghana in 1971. In 1977, he was appointed Chief Justice of Ghana. He joined the Kenyan Judiciary in the early 1980s as a High Court judge and rose to become a Court of Appeal Judge in the late 1980s. He left the court to work for the World Bank Administrator Tribunal where he served until his appointment as Chief Justice of Kenya in 1993.
Abdul Majid Cockar 1994-1997
Justice Abdul Majid Cockar was appointed the 10th Chief Justice of independent Kenya in 1994. Cockar who first trained as teacher, enrolled as a Barrister in Law in 1946 and qualified with a Post Graduate Diploma. He started his legal career taking briefs in the Mau Mau trials during the emergency. He joined the judicial service as a Resident Magistrate in 1961 rising through the ranks to serve as High Court Judge and Judge of Appeal and later appointed in 1994 as the Chief Justice. To his credit, he is the only former CJ who has published his memoirs, “Doing, non-Doings and Mis-Doings by Kenya Chief Justices, 1963-1998.” Cockar served on the bench for over 35 years, before retiring in 1997 as a Chief Justice.
Zachaeus Richard Chesoni 1997-1999
Justice Zacchaeus Chesoni was serving as chairman of the Electoral Commission of Kenya (ECK) when he was appointed the 11th Chief Justice by President Daniel arap Moi in December 1997. He was the second indigenous Kenyan after Justice Mwendwa to hold the office of the Chief Justice in Kenya since it gained independence from Britain. After qualifying as a lawyer, Chesoni started out at the lands office. He later joined the Judiciary as Registrar, succeeding J. Nyarangi. He was first appointed to the bench in 1974. Chesoni served as Chief Justice until his untimely demise in 1999.
Bernard Chunga 1999-2003
Bernard Chunga was a surprise appointment as the 12th Chief Justice of the independent Kenya. Chunga previously worked as Deputy Public Prosecutor and was the lead counsel in the Commission of Inquiry into the death of Robert Ouko. He was the last Chief Justice of Kenya during President Daniel arap Moi’s reign, but his name is more associated with his earlier role as the country’s Deputy Public Prosecutor when he was one of Moi’s principal instruments in dealing with political dissident, academics and activists in the 1980s. He is best known for his aggressive prosecutions against members of Mwakenya Movement, an outfit that was accused of fanning anti-government ideals in the early 1980s, and other underground movements.
A product of the old Kenya School of Law, Chunga began his career as a policeman and later joined the Attorney General’s Chambers where he rose to the position of Deputy Director of Public Prosecutions (DPP). He was promoted to CJ in 1999. A strict disciplinarian and excellent administrator, Chunga was known to attend to complaints in the Judiciary and to effectively resolve them. Chunga was feared by court personnel, magistrates, and even some judges for his no-nonsense approach to administration.
He established special divisions of courts for specific issues, thereby addressing structural causes behind delays. In 2001 he crafted rules for applications to the High Court for enforcement of fundamental rights. He revived the publication of written Law Reports in 2002. On February 26, 2003, rather than face a tribunal established by newly elected President Mwai Kibaki to investigate alleged misconduct, Justice Chunga resigned paving way for the appointment of Justice Evans Gicheru.
Johnson Evans Gicheru 2003-2011
Johnson Evans Gicheru was appointed to hold the office of the Chief Justice by President Mwai Kibaki upon his election in 2003. He is the second longest serving CJ and the 13th to hold the office. Early in his career, he worked as a Senior State Counsel in the Office of the Attorney General and as an administrative officer in the Office of the President.
Justice Gicheru was appointed a Judge of the High Court in 1982 and on June 8, 1988, to the Court of Appeal. His tenure as CJ, begun on February 21, 2003. Justice Gicheru secured national admiration in 1991 when he chaired the judicial commission of inquiry into the disappearance and death of the then Minister for Foreign Affairs, Dr Robert Ouko. He retired on February 27, 2011, upon the promulgation of the new Constitution.
Dr Willy Mutunga 2011- 2016
Justice Willy Mutunga was appointed the 14th Chief Justice of the independent Kenya on June 22, 2011. Mutunga is the first Chief Justice to be appointed competitively and publicly under the new Constitution, with the mandate of first President of the newly established Supreme Court. Dr Mutunga obtained a bachelor’s degree in law and master’s degree from the University of Dar-es-Salaam, Tanzania, in 1971 and 1974, respectively, and a PhD from York University (Osgoode Hall Law School) in Toronto, Canada in 1992. He taught law at the University of Nairobi, where he was also Secretary-General of the University Staff Union.
He also served as chairman of the Law Society of Kenya (LSK) and Executive Director of Kenya Human Rights Commission (KHRC) and Kituo Cha Sheria – Legal Advice Centre. His work in the pro-democracy movement put him at loggerheads with President Moi’s regime. As a result, Dr Mutunga was detained in 1982 to 1983. He is widely published and until his appointment as the CJ, Dr Mutunga was the representative for the Ford Foundation, Eastern Africa Regional in Nairobi.
Dr Mutunga is a lawyer, intellectual, human rights advocate, reform agent, writer and philanthropists. He is a firm believer in positive masculinity and mentorship. His career spans a rich experience in litigation, civil society, academia and government.
Dr Mutunga is credited for spearheading wide ranging reforms in Kenya’s Judiciary and the justice sector thereby laying the foundation for a responsive, open and independent Judiciary, and one that is conscious and committed to delivering on its constitutional mission.
David Kenani Maraga 2016 –
Justice David Kenani Maraga is the 15th and the current Chief Justice of the Republic of Kenya. Maraga replaced Dr Willy Mutunga in 2016 after the retirement in June 2016. Prior to his appointment as Chief Justice, Maraga was the Presiding Judge of the Court of Appeal at Kisumu and the Chairperson of the Judiciary Committee on Elections. He served as Chairperson of the Tribunal appointed by the President to investigate the conduct of a Judge of the High Court. He served as the Presiding Judge of the Family Division of the High Court at Nairobi and Resident Judge at the High Court at Nakuru.
Before joining the Judiciary, Justice Maraga was a legal practitioner for 25 years in conveyancing, civil and criminal litigation. He also served as the Chairman of the Rift Valley Law Society and as a member of the Constitutional Review Task Force of the Seventh-day Adventist Church, East African Union.
Justice Maraga holds a Master of Laws (LLM) Degree from the University of Nairobi a Bachelor of Laws (LLB) Degree from the same University and a Diploma in Legal Practice from the Kenya School of Law. He was admitted onto the Roll of Advocates in October 1978. He is a member of the Law Society of Kenya and the Chartered Institute of Arbitrators, London.
Justice Maraga is an accomplished trainer and facilitator who has facilitated in several capacity-building workshops at the Judiciary Training Institute and the Law Society of Kenya’s Continuous Legal Education (CLE) workshops. He has presented papers in numerous local and international seminars and conducted trainings in Law.