These are bodies established by Acts of parliament to exercise judicial or quasi-judicial functions.
Tribunals supplement ordinary courts in the administration of justice.
All tribunals are governed by the principals of natural justice i.e.
a) Person shall be condemned unheard
b) No person shall be a judge in his own case
ADVANTAGES
Tribunals enjoy certain advantages over ordinary courts:
1.Cheap: It is relatively cheaper to see a dispute through a tribunal than an ordinary court
hence there is a saving on cost.
2.Policy and other matters: Tribunals incorporate policy considerations among other
matters in their decision making process and therefore arrive at balanced decisions.
3. Informality:Tribunals are less technical i.e are free from technicalities of procedure or otherwise which characterize ordinary courts.
4. Flexibility: Tribunals are not bound by previous decisions. This gives them the required flexibility to explore in decision-making.
5. Expert knowledge and specialization:Tribunals are specialized in that they deal with similar disputes all through. Expertise is built on experience.
6. Convenience: Tribunals in certain circumstances sit at the convenience of the parties.
They generally use languages familiar to the parties.
7. Relieve over burdened courts: Tribunals compliment ordinary courts in the administration of justice by dealing with certain disputes.
DISADVANTAGES
1. Legal representation: May be limited or non- existent
2. Tribunals generally exercise unregulated discretion
3. Decisions of certain tribunals may not be appealed against.
EXAMPLES OF TRIBUNALS
1. Industrial court
2. Rent tribunal
3. Business premises tribunal
4. Insurance appeals tribunal (Insurance Act2)
5. Land Tribunals (Sec. 9B of the Magistrates Court Act)
6. Capital Markets Tribunal (Capital Markets Act3)
INDUSTRIAL COURT
Establishment:It is established by section 14 (1) of the Trade Disputes Act.
Composition:The court consists of a judge appointed by the President. He sits with 2 other persons selected by him from a panel of 4 persons appointed by the Minister for Labour in consultation with the Central Organisation of Trade Unions (COTU) and Federation of Kenya Employers. Currently there are 2 industrial court judges.
Jurisdiction:It exercises limited original jurisdiction in relation to industrial disputes e.g. between employees and employers or between employers and their trade union.
Disputes may be referred to the court by the minister for labour or a registered trade union.
Decisions of the court are known as Awards and are final. Under section 17 (1) of the Trade
Disputes Act, an award cannot be appealed against, stayed, restrained or be reviewed.
An award must be published in the Kenya Gazette whereupon it is effective. The court maintains a register of all collective agreements registered by it.
The essence of the industrial court is to promote industrial harmony.
RENT TRIBUNAL
Establishment:It is established by Section 4 (1) of the Rent Restriction Act4.
Composition:It consists of the chairman and other persons appointed by the Minister in chargeof Housing. To qualify for appointment as chairman, one must be an advocate of not less than 5 years standing.
One of the other persons appointed by the Minister must be the deputy chairman.
Jurisdiction:It exercises original jurisdiction in civil cases between landlords and tenants ofresidential premises whose monthly rent does not exceed Kshs 2,500.00. Decisions of the Tribunal may be appealed against in the High Court.
POWERS AND FUNCTIONS OF THE RENT TRIBUNAL
1. To assess the standard rent of any premises on its own motion or on application.
2. To determine the date from which such rent is payable.
3. To apportion rent between tenants where tenancy is shared.
4. To facilitate vacant possession of premises to enable the landlord do repairs or erect additional buildings.
5. To facilitate recovery of rent arrears by the land lord.
6. To permit the levy of distress for rent.
7. To employ clerks, valuers and other persons to enable it discharge its obligations.
BUSINESS PREMISES TRIBUNAL
Establishment:It is established by section 11 (1) of the Land Lord and Tenant (shops, hotel sand catering establishments) Act5.
Composition:It consists of the chairman and other persons appointed by the Minister for Commerce. The chairman must be an advocate of not less than 5 years standing.
Jurisdiction:It exercises jurisdiction in civil cases between landlords and tenants of commercial premises where the tenancy is „controlled.‟
Under section 2 (1) of the Act, a controlled tenancy is a tenancy of a shop, hotel or catering establishment which has not been reduced into writing or has been reduced into writing but does not exceed 5 years and contains provision for termination.
Decisions of the tribunal may be appealed against in the High Court.
POWERS AND FUNCTIONS OF THE BUSINESS PREMISES TRIBUNAL
1.To determine whether the tenancy is controlled or not.
2. To determine the rent payable in respect of a controlled tenancy upon application
3. To apportion rent between tenants where a controlled tenancy is shared.
4. To permit the levy of distress for rent.
5. To vary or rescind its own decisions
6. To compel the landlord to compensate the tenant for any loss occasioned by termination of the tenancy.
7. Facilitates vacant possession of the premises.
JUDICIAL SERVICE COMMISSION
Establishment:It is established by Section 68 (1) of the Constitution.
Composition /membership
Under section 68 (1) of the Constitution, the commission consists of:
1. The Chief Justice – Chairman
2. Attorney General
3. 2 persons who are at the time being judges of the High Court and Court of Appeal appointed by the president.
4. Chairman of the Public Service Commission
5. The High Court Registrar as the secretary
POWERS OF THE COMMISSION
1. To act independently, it must not be under the control or directions of any person or authority.
2. To make rules to regulate its procedure
3. To delegate powers to its members (judges)
4. To act not withstanding a vacancy in its membership.
5. To confer powers and impose duties on public service with the president‟s consent.
FUNCTIONS OF THE JUDICIAL SERVICE COMMISSION
1. Administration: It is the principal administrative organ of the judiciary i.e. administers the judicial department
2. Advisory: It advises the president on the appointment of judges of the High Court and Court of Appeal. Its vote is purely advisory.
3. Appointment: It engages magistrates, High Court registrars, Kadhis and judicial staff e.g. personnel, officers, clerks etc.
4. Discipline: It disciplines all judicial staff, magistrates, registrars, Kadhis and other staff of the department.
JUDGES
There are two types of judges namely:
1. Puisne.
2. Judges of appeal.
The office of judge is created by the Constitution.
Appointment
All judges are appointed by the president acting in accordance with the advice of the Judicial Service Commission.
Qualifications
To qualify for appointment as a judge, a person must:
1. Be an advocate of the High Court of not less than 7 years standing.
2. Be or has been a judge of a court with or unlimited jurisdiction in criminal and civil matters in some part of the commonwealth or the Republic of Ireland.
3. Be or has been a judge of a court with jurisdiction to hear appeals from a court with unlimited jurisdiction in criminal and civil maters in some part of the commonwealth or Republic of Ireland.
Once appointed, a judge must take and subscribe to the Oath of Allegiance and such other oath as may be prescribed by law.
Under section 62 (1) of the Constitution, judges retire at such age as may be prescribed by parliament which currently stands at 74 years.
Judges enjoy security of tenure of office under section 62 (3) of the Constitution, a judge can only be removed from office on the ground of either:
i. Inability to discharge the functions of his office.
ii. Misbehaviour
Provided a tribunal appointed by the President has investigated the allegations as a matter of fact and recommended that the judge be removed.
In the course of investigation, a judge may be suspended from discharging the functions of his office.
The president is bound by the recommendations of the tribunal.
CHIEF JUSTICE
The office of the Chief Justice was created by the Constitution.
Appointment
Under section 61 (1) of the Constitution, the Chief Justice is appointed by the president.
Qualifications
The Constitution does not expressly prescribe the qualifications of the holder of the office of the
Chief Justice. However, on appointment, the Chief Justice becomes a judge of the High Court and court of appeal. He is the paramount judicial officer or the Principal judicial functionary.
FUNCTIONS OF THE CHIEF JUSTICE
1. Administrative functions
a) He is the chairman of the Judicial Service Commission
b) He maintained discipline in the judiciary
c) Determines where the High Court sits
d) He appoints the duty judge
e) Allocates cases to judges.
2. Judicial functions
As a judge of the High Court and Court of Appeal he participates in the adjuratory process in the High Court and may preside over the court of appeal.
3. Legislative functions
The Chief Justice is empowered to make delegated legislation to facilitate administration of justice. The provisions of the Kadhi Courts Act and the Magistrate Courts Act confer upon the law making powers.
Under section 84 of the Constitution, he is empowered to make law to facilitate the enforcement of fundamental rights and freedoms.
4. Political functions
The chief justice administers the presidential oath to the person elected as president of Kenya.
He represents the judiciary at state functions.
5. Legal education and profession
The Chief Justice or his representative is the chairman of the council of legal education. He admits advocates to the bar.
He appoints Commissioners for Oaths and Notaries Public.
6. Enhancement of jurisdiction
The Chief Justice enhances the pecuniary jurisdiction of the Resident Magistrates court. He is empowered to enhance the territorial jurisdiction of the District Magistrate Court.
MAGISTRATES
They preside over the Resident and District Magistrate courts.
Appointment
They are appointed by the Judicial Service Commission. To qualify for appointment, one must be an advocate of the High Court. Magistrates retire at the age of 55 years.
HIGH COURT REGISTRARS
These are magistrates who in addition to administration of justice perform administrative functions. They are appointed by the Judicial Service Commission to assist the chief Justice in the administration of the Judicial department. However, there is only one High Court registrar based in Nairobi. He is the custodian of the Roll of advocates.
KADHIS COURT
The office of the Chief Kadhi and Kadhi is created by section 66 (1) of the Constitution. Kadhis preside over Kadhi courts and administer Islamic law only.
Appointment
They are appointed by Judicial Service Commission
To qualify for appointment one must:
a) Profess Muslim faith
b) Possess adequate knowledge of Islamic law applicable to any sect or sects of Muslims which in the opinion of the Judicial Service Commission qualifies him for appointment
ATTORNEY GENERAL
Establishment:It is established by section 26 (1) of the Constitution. It is an office in the publicservice.
Appointment:Under section 109 (1) of the Constitution the Attorney General is appointed bythe president.
To qualify for appointment, a person must be an advocate of not less than 5 years standing.
The Attorney General enjoys security of tenure of office.
POWERS OF THE ATTORNEY GENERAL
Under section 26(3) and (4) of the Constitution, the Attorney General has the following powers in relation to criminal cases:
1. To institute and undertake criminal proceedings against any person in any court other than courts-martial for any alleged offence.
2. To take over and continue any criminal proceedings institutes over and undertaken by
any other person or authority.
3. To discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by any other person or authority or himself by entering the so-called nolle prosqui means „ I refuse to prosecute.‟
4. To require the commissioner of police to investigate criminal the Commissioner of Police must oblige and report to the Attorney General.
%. To delegate his functions to other officers in his department.
FUNCTIONS OF ATTORNEY GENERAL
1. Under section 26 (2) of the Constitution, the Attorney General is the principal advisor of the government.
2. Under the Constitution he must act independently.
3. He is an ex-officio member of the National Assembly.
4. He drafts all government bills.
5. He is the head of the bar i.e most senior lawyer.
6. He is the public prosecutor.
7. He represents the state in all civil cases.
8. He services the legal needs of other government departments.
9. He is the only amicus curie i.e. friend of the court.
10. He is a member of the Judicial service Commission
11. He is a member of the committee of Prerogative of Mercy
The Attorney General retires at such age as parliament may prescribe.
ADVOCATES
Definition:Under section 2(1) of the Interpretation and General Provisions Act and the AdvocatesAct6 an advocate is „any person whose name has been duly entered as an advocate in the Roll of Advocates.‟
He has also been defined as a person who has been admitted as an advocate by the Chief
Justice.
The law relating to Advocates is contained in the Advocates Act
QUALIFICATIONS FOR ADMISSION
To qualify for admission as an advocate, one must:
1. Be a citizen of Kenya
2. Hold a law degree from a recognized University
3. Satisfy the Council of Legal Education‟s examination requirement.
PROCEDURE FOR ADMISSION
1. A formal petition must be made to the Chief Justice through the High Court registrar.
2. Copies of the petition must be sent to the Council of Legal Education and the Law Society of Kenya
3. Notice of the petition must be given.
4. The petition must be published in the Kenya Gazette
5. The Chief Justice hears the petition in chambers.
6. The petitioner then takes the oath of office in open court
7. The admitted person then signs the roll of Advocates.
DUTIES OF AN ADVOCATE
1. Duty to the court: As an officer of the court, an advocate is bound to assist in the administration of justice by arguing the law as it is.
2. Duty of client: An advocate owes a legal duty of care to his clients. He must argue his client‟s case in the best manner possible.
3. Duty to his profession: As a member of a profession, an advocate is bound to maintain the highest possible standards of conduct and integrity by observing the law and other rules.
4. Duty to society: As a member of the society, he is bound to assist in its social, political and economic development.
THE LAW SOCIETY OF KENYA
Establishment:It is established by section 3 of the Law Society of Kenya Act7, as a body corporate by the name Law Society of Kenya. It has perpetual succession, can sue or be sued and has a common seal.
Composition / Membership It consists of:
a) Practicing advocates
b) Non-practicing advocates
c) Special members
d) Honorary members
The affairs of the society are managed by a Council elected by the members.
Objectives Of The Law Of Society
Under Section 4 of the Law Society of Kenya Act, its objects include:
1.To maintain and improve the standards of conduct and learning of the legal profession.
2.To facilitate acquisition of legal knowledge by members and others.
3.To assist the government and the courts in all matters relating to legal and administration of the law.
4.To represent, protect and assist members of the legal profession in relation to conditions of practice of the law.
5. To assist and protect members of the public in all matters touching or incidental to law.
6. To raise or borrow money for its purposes
7. To acquire land and other property.
