Structure of the Judiciary

The Judiciary is one of the three State organs established under Chapter 10, Article 159 of the
Constitution of Kenya. It establishes the Judiciary as an independent custodian of justice in
Kenya. Its primary role is to exercise judicial authority given to it, by the people of Kenya. The
institution is mandated to deliver justice in line with the Constitution and other laws. It is
expected to resolve disputes in a just manner with a view to protecting the rights and liberties of
all, thereby facilitating the attainment of the ideal rule of law. The structure of the judiciary in
Kenya is as follows:

Supreme Court

The Supreme Court of Kenya is established under Article 163 of the Constitution of Kenya. It
comprises of Seven judges: The Chief Justice, who is the president of the Court, the Deputy
Chief Justice, who is the deputy to the Chief Justice and the vice-president of the Supreme Court
and five other judges

The Court of Appeal

The court of Appeal is established under Article 164 of the Constitution. The article stipulates
that the court should consist of the number of judges, being not fewer than twelve, as an Act of
Parliament may prescribe and should be organized and administered in the manner prescribed by
an Act of Parliament (Court of Appeal (Organization and Administration) Act). Further, it is
established that there should be a president of the Court of Appeal who should be elected by the
judges of the Court of Appeal from among themselves.

The High Court

The High court is established under article 165 of the constitution. The article stipulates that the
court should consist of the number of judges prescribed by an Act of Parliament (currently no
more than 200 judges according to the High Court (Organization and Administration) Act).
Further, the court should be organized and administered in the manner prescribed by an Act of
Parliament (High Court (Organization and Administration) Act). Moreover, there should be a
Principal Judge of the High Court, who should be elected by the judges of the High Court from
among themselves. For purposes of promoting effectiveness and efficiency in the administration
of justice and promoting judicial performance, the High court has several divisions which
include civil division, criminal division, and commercial division among others.

Employment and Labor Relations Court

The Employment and Labor Relations Court is established under Article 162 (2) (a) of the
Constitution of Kenya 2010. The Court is operationalized under the Employment and Labor Act
No.20 of 2011. The Employment and Labor Relations Court should consist of the Principal
Judge of the Court; and such number of Judges as may be determined and recruited by the
Judicial Service Commission and appointed under Article 166(1) of the Constitution. The
Principal Judge should be elected following the procedure prescribed in Article 165(2) of the
Constitution.

Environment and Land Court

The Environment and Land Court is established under the Environment and Land Court Act 19
of 2011.

Subordinate Courts

The subordinate courts are established under Article 169. They consist of the Magistrates’
Courts, Kadhis Courts, Court Martial, and any other court or local Tribunal established by an Act
of Parliament.

Independence of the Judiciary

The independence of the Judiciary began to be actualized following the passing of the 2010
constitution. A key process that aided in this was the setting of judges and magistrates vetting
board which forced the Judiciary to transform into its new era.

There are a number of Constitutional Safeguards that Protect the Independence of the Judiciary.
Under Article 160, the following measures are used to ensure the independence of the Judiciary:

1. It shall only be subject to the Constitution and the law and not controlled by any person
or authority.
2. The office of a judge of a superior court shall not be abolished while there is a
substantive holder in office.
 3. Remuneration and benefits payable to a judge shall not be weird to their disadvantage
4. Reputation and Benefits paid to judges is the charge on the Consolidated Fund.
5. A member of the Judiciary is not liable in an action or suit in respect of anything done or
omitted to be done in good faith in the lawful performance of a judicial function.

In the last decade, the judiciary has asserted its independence in a number of prominent
decisions. Chief among them include declaring the BBI process illegal and nullifying the 2017
presidential elections.

Reforms

The former chief justice outlines a number of reforms which are still being implemented.
However, there is need to make courts more open and to increase funding of the judiciary in
order to guarantee its continued independence.