Civil Litigation 001-2

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ADVOCATES TRAINING PROGRAM 24/25

ASSIGNMENT 01

By

FIRM G01

CIVIL LITIGATION
Group Firm Members
NO NAME ADMISSION NUMBER

1. Vivian. M. Wokabi 20240002

2. Laura .M. Lwigado 20240003

3. Tabitha Wangari Wang’ombe 20240011

4. Boniface Mawira Karere 20240013

5. Bernard Omondi Otieno 20240017

6. Otieno Lavine Larry Noella 20240027

7. David Mamboleo 20240031

8. Njiraini Alvin 20240033

9. Kelvin Nzuki Muthini 20240862

10. Kipyegon Caleb 20241037

11. Tanui Sheila 20241463


Q. Discuss the Constitutional conferment of jurisdiction.
INTRODUCTION
Definition of Jurisdiction
The Black’s Law Dictionary defines Jurisdiction as the power and authority constitutionally
conferred upon (or constitutionally recognized as existing in) a court or judge to pronounce the
sentence of the law, or to award the remedies provided by law, upon a state of facts, proved or
ad- mitted, referred to the tribunal for decision, and authorized by law to be the subject of
investigation or action by that tribunal, and in favor of or against persons (or a res) who present
themselves, or who are brought, before the court in some manner sanctioned by law as proper
and sufficient.1

In the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR,
the importance of jurisdiction was captured by Justice Nyarangi in the following words ‘’ ….
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a
court has no jurisdiction, there would be no basis for a continuation of proceedings pending other
evidence. A court of law down tools in respect of the matter before it the moment it holds the
opinion that it is without jurisdiction”2

On the doctrine of jurisdiction, the Court of Appeal stated in Nakuru Civil Appeal No. 119 of
2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others 3 that
jurisdiction is everything, it is what gives a court or a tribunal the power, authority and
legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally
Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before
it or to take cognizance of the matters presented in a formal way for its decision. The limits of
this authority are imposed by the statute, charter, or commission under which the court is
constituted, and may be extended or restricted by the like means. If no restriction or limit is
imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature
of the actions and matters of which the particular court has cognizance, or as to the area over
which the jurisdiction shall extend, or it may partake of both these characteristics. If the
jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a
particular state of facts, the court or tribunal must inquire into the existence of the facts in order
to decide whether it has jurisdiction; but, except where the court or tribunal has been given
power to determine conclusively whether the facts exist. Where a court takes it upon itself to
exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction
must be acquired before judgment is given.
Overview and further discussion on jurisdiction
Jurisdiction of courts is sometimes classified as adjective or procedural law. But it would seem
desirable to classify it as a thing apart from either substance or procedure. In truth it is an
obvious distinct concept having little in common with either the substantive or adjective law.
1
https://thelawdictionary.org/jurisdiction/ accessed on 19 of February 2024
2
Motor Vehicle v Caltex Oil Kenya Limited [1989] eKLR
3
Public Service Commission & 2 others v Erick Cheruiyot & 16 Others [2017] eKLR
Substantive law deals with the rights, powers, privileges and immunities which persons may
legally enjoy and their so-called "correlatives.4"
Adjective laws deal with the rules governing the conduct of a judicial proceeding brought for the
purpose of securing judicial recognition of some part of the substantive law as between adverse
or possibly adverse parties. The law of the jurisdiction of courts deals with the power or capacity
of a court to deal judicially with the proceeding which has been or may be brought before it. Its
foundation and its function are quite separate and distinct from either the law of substance or the
law of procedure.
In dealing with judicial jurisdiction some confusion arises out of the fact that a large portion of
the specifically applied law of jurisdiction is stated in terms of the substantive law and
procedural law. A question of jurisdiction may be raised while an- action is pending, or it may be
raised after the action has been disposed of and a judgment has been rendered. Thus, the law-of
jurisdiction may be found in the law of "direct attack," and in the law of "collateral attack," in the
law of res judicata, of estoppel of record and in the law of domestic and foreign judgments
generally.
Jurisdiction is also divided into jurisdiction of actions in rem and jurisdiction of actions in
personam. The classification is a significant one, for the character of the process or notice
necessary in a given case depends upon it. The distinction between the two is usually stated in
terms of the results, that is, what is the theoretical character of the judgment the court will
render? If the judgment is self-executing it is said to be an action in rem, if it is not, it is an
action in personam.
It is possible to mark the distinction between jurisdiction and venue in a few words. As we have
seen specific jurisdiction is the capacity or power to deal with the case presented by the parties.
Venue is a restraint on that capacity or power for the benefit of the defendant. The theory is that
the court has jurisdiction but as against certain defendants it ought not to use its power. Courts
normally, for example, have jurisdiction throughout the country or counties, but a statute may
prescribe that certain actions shall be brought in certain courts. It is often said that the law of
venue is the law as to where actions "ought to be brought;" but that same statement applies
equally to the law of jurisdiction. Actions in truth ought to be brought in conformity to both the
law of jurisdiction and the law of venue.
What then about international law? The term jurisdiction in international law refers to two
aspects of the authoritative decision-making process; the first is rule-making and the second is
rule-enforcing5. Does a court like the International Criminal Court have jurisdiction all over the
world? First the statute creating it gives it jurisdiction, membership of the states affirming it
qualify it further and then the nature/threshold of the crime further defines it.

Types of jurisdictions that courts can exercise:


4
The Jurisdiction Of Courts, Bernard C. Gavito, 1936, page 1-10
5
Theories Of Jurisdiction And Their Application In Extradition Law And Practice, M. Cherif Bassiouni, 1975, page
Courts can exercise the following jurisdiction for matters brought before it and the same is
provided for under the enabling statute that creates the said court or the jurisdiction can also be
as provided for in the constitution:

1. Pecuniary Jurisdiction:

Pecuniary jurisdiction refers to the monetary limits of the claims or disputes that a court
can hear and adjudicate upon. In Kenya, different courts are allocated specific pecuniary
jurisdictions based on the amount of money involved in civil claims. For example, magistrates'
courts may have jurisdiction over smaller monetary claims, while the High Court may have
jurisdiction over larger claims

2. Territorial Jurisdiction:

Territorial jurisdiction defines the geographical area within which a court has the authority to
hear and determine cases. Courts in Kenya are typically assigned territorial jurisdictions based on
administrative boundaries, such as counties or regions. For example, a magistrate's court may
have jurisdiction over matters within a particular district or division.

3. Subject Matter Jurisdiction:

Subject matter jurisdiction refers to the authority of a court to hear cases of a particular type or
category. Different courts in Kenya have jurisdiction over specific subject matters, such as
family law, commercial disputes, criminal matters, or constitutional issues. Specialized courts,
such as the Environment and Land Court or the Employment and Labour Relations Court, have
subject matter jurisdiction over specific types of cases.
Conferment of Jurisdiction
Conferment of jurisdiction refers to the allocation of authority or power to courts or judicial
bodies to arbitrate on specific matters. This allocation of jurisdiction is a critical aspect of the
constitutional framework as it ensures the proper functioning of the judicial system and the
protection of rights and liberties of individuals.
Under the constitution of Kenya 2010, the issue of conferment of jurisdiction from a constitution
imperative has been well laid out in the architecture and design of the constitution. In this regard,
for one to appreciate this, the starting point would be article 1 of the constitution that recognizes
that the people are sovereign and they wield the power. Article 1(1) provides as follows; All
sovereign power belongs to the people of Kenya and shall be exercised only in accordance with
this Constitution6. Article 3 on the delegation of sovereign power states as follows;
Sovereign power under this Constitution is delegated to the following State organs, which shall
perform their functions in accordance with this Constitution-
a) ….
b) ….

6
Article 1 of the constitution of Kenya 2010
c) the Judiciary and independent tribunals7
It is from the above foundation that the judicial authority and the legal system in Kenya has been
established. Article 159 (1) of the Constitution provides as follows;
1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts
and tribunals established by or under this Constitution. Flowing from the establishment of the
judiciary in the constitution, its independence has also been provided for in the following terms
in article 160(1); In the exercise of judicial authority, the Judiciary, as constituted by Article 161,
shall be subject only to this Constitution and the law and shall not be subject to the control or
direction of any person or authority8
Under the constitution of Kenya 2010, various Articles of the constitution have conferred
jurisdiction to the hierarchy of the courts system and subject matter issues. In this regard the
starting point would be article 23 on Authority of courts to uphold and enforce the Bill of Rights.
The article provides;
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine
applications for redress of a denial, violation or infringement of, or threat to, a right or
fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to
subordinate courts to hear and determine applications for redress of a denial, violation or
infringement of, or threat to, a right or fundamental freedom in the Bill of Rights9.
The constitution has also established the system of courts in Kenya and provided for their
respective jurisdiction in the following articles:
1) The supreme court
The court is established under article 163 and the Supreme Court Act (No. 7 of 2011).
The Court is headed by Chief Justice, who is the president of the court and deputized by
the Deputy Chief Justice. The number of Judges of the Supreme Court is 7.

The Court’s jurisdiction includes:


(i) Exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President; and
(ii) Appellate jurisdiction to hear and determine appeals from the Court of Appeal;
and any other court or tribunal as prescribed by national legislation.
(iii) Appeals from the Court of Appeal lie to the Supreme Court - For cases involving
the interpretation or application of the Constitution at the Court of Appeal an
appeal lies as of right to the Supreme Court. In other cases where the Supreme
Court or the Court of Appeal certifies that a matter of general public importance is
involved, an appeal will lie to the Supreme Court.
(iv) The Supreme Court may give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any
matter concerning county government.

7
Article 3 of the constitution of Kenya 2010
8
Article 160 of the constitution of Kenya 2010
9
Article 23 of the constitution of Kenya 2010
In Re the Matter of Commissioner for the Implementation of the Constitution
(Application No. 1 of 201110, the Supreme Court affirmed its jurisdiction to hear matters
related to the date of the first elections under the 2010 Constitution but referred the case
to the High Court at the first instance since it was also seized with an appellate
jurisdiction were the matter to proceed beyond the High Court and Court of Appeal. All
courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
In Peter Oduor Ngoge v Hon. Francis Ole Kaparo and 5 Others 11, the issue was
whether the Supreme Court could entertain an application where the Court of Appeal has
either not determined such motion by the petitioner for leave under s.19 of the Supreme
Court Act, 2011, or, has entertained such an application but declined to grant leave; and
whether an ordinary subject of leave-to-appeal can trans-mutate to a meritorious theme
involving the interpretation or application of the Constitution. It was held that the
appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of
the Constitution, and s.19 of the Supreme Court Act and the petitioner’s case which had
been brought without the leave of the Court of Appeal was outside the jurisdiction of the
Supreme Court. According to the Court, the petitioner in this case had not rationalized the
transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious
theme involving the interpretation or application of the Constitution – such that it
becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme
Court. The Court further held that, in the interpretation of any law touching on the
Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of
Courts in the Constitutional set-up, running up to the Court of Appeal, have the
professional competence, and proper safety designs, to resolve all matters turning on the
technical complexity of the law; and only cardinal issues of law or of jurisprudential
moment, will deserve the further input of the Supreme Court.
In the SK Macharia Case12, an application for leave to appeal against the judgement of
the Court of Appeal where the Appeal judge had been removed through the vetting of the
Supreme Court of Kenya at Nairobi Petition No. 2 Of 2012 judiciary post the 2010
Constitution, pursuant to section 14 of the Supreme Court Act, the Supreme Court
declared section 14 of the Act unconstitutional insofar as it purported to confer “special
jurisdiction” upon the Supreme Court contrary to the express terms of the Constitution.
Recognizing the good intention of Parliament, the Court nevertheless found that where
the constitution exhaustively provides for the jurisdiction of a court of law, the court must
operate within the constitutional limit. It cannot expand its jurisdiction through judicial
craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond
the scope defined by the Constitution
2) Court of Appeal
The court is established under article 164 of the constitution and its jurisdiction provided
as; The Court of Appeal has jurisdiction to hear appeals from—
a) the High Court; and
b) any other court or tribunal as prescribed by an Act of Parliament.

10
[2012] eKLR
11
Supreme Court of Kenya at Nairobi Petition No.2 of 2012
12
[2012] eKLR
3) High Court.
The High Court and its jurisdiction is provided for in article 165 and its jurisdiction has
been captured in the following terms: Subject to clause (5), the High Court shall have-
a) unlimited original jurisdiction in criminal and civil matters;
b) jurisdiction to determine the question whether a right or fundamental freedom in the
Bill of Rights has been denied, violated, infringed or threatened;
c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office, other than a tribunal
appointed under Article 144;
d) jurisdiction to hear any question with respect to the interpretation of this Constitution
including the determination of—
i) the question whether any law is inconsistent with or in contravention of this
Constitution;
ii) the question whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with, or in contravention of, this
Constitution
iii) any matter relating to constitutional powers of State organs in respect of county
governments and any matter relating to the constitutional relationship between the
levels of government; and
iv) a question relating to conflict of laws under Article 191; and
v) any other jurisdiction, original or appellate, conferred on it by legislation.13

e) supervisory jurisdiction over the subordinate courts and over any person, body or
authority exercising a judicial or quasi-judicial function, but not over a superior court.
f) Any other jurisdiction, original or appellate, conferred on it by legislation.
In addition to the ordinary civil and criminal jurisdiction of the High Court there are certain
matters which can only be heard by the High Court exclusively. These include:
(i) Interpretation of the Constitution art 165(3)(d).
(ii) Cases involving enforcement of fundamental rights and freedoms of the individual which
are set out in Chapter 4 of the Constitution (art 165(3)(b).
(iii) Election Petitions involving Parliamentary election (for presidential, the exclusive
jurisdiction is with the Supreme Court).
(iv) Judicial Review - Under Order 53 of the Civil Procedure Rules, the High Court has
powers of Judicial Review of administrative action and can grant orders of Certiorari,
Mandamus and Prohibition.
(v) Supervisory Jurisdiction: The High Court exercises supervisory jurisdiction over
subordinate courts and in this regard can transfer cases from one subordinate court to
another if it deems it fit.
(vi) Admiralty jurisdiction - Section 4 of the Judicature Act provides that the High Court
shall be a court of admiralty i.e. the court shall entertain cases of High Seas, Territorial
Waters, Lakes and other navigable inland waters. 42

13
Article 165 of the constitution of Kenya 2010
(vii) Appellate Jurisdiction - The High Court has appellate jurisdiction i.e. appeals from all
subordinate courts and tribunals exercising quasi-judicial powers can properly be
entertained by the High Court.
(viii) Winding up of Companies - This can only be filed at the High Court.
(ix) Probate Jurisdiction - under the Laws of Succession
(x) Bankruptcy petitions
(xi) Matters dealing with Intellectual property.
4) Specialised Courts
Under article 159(1), judicial authority is exercisable by courts and tribunals established by or
under the Constitution. Some specialised courts have thus been established by the Constitution
and are ranked alongside the High Court. These include:
1) Employment and Labour Relations Court
The Constitution of 2010 has now created the Employment and Labour Relations Court, art
162, which is at the same status as the High Court to determine industrial disputes.

In United States International University (USIU) v Attorney General & 2 others 14, the
question was whether the Industrial Court is competent to interpret the constitution and
enforce matters relating to breach of fundamental rights and freedoms and whether
employment and labour relations matters which raise constitutional issues filed in the High
Court prior to establishment of the Industrial Court should be handled by the High Court. It
was held that:
(i) The Industrial Court Act 2011 is silent on the jurisdiction of Industrial Court to
interpret the Constitution or to enforce fundamental rights and freedoms. Likewise,
Art 165 of the Constitution is silent whether the courts of the status of the High Court
have jurisdiction to interpret the constitution, and enforce fundamental rights and
freedoms under the Bill of rights.
(ii) The Industrial Court as constituted under the Industrial Court Act, 2011 as a court
with the status of the High Court, is competent to interpret the Constitution and
enforce matters relating to breach of fundamental rights and freedoms, in matters
arising from disputes falling within the provisions of section 12 of the Industrial
Court Act, 2011.
(iii) The Industrial Court, having been established to deal with employment and labour
matters. It follows that all employment and labour relations matters pending in the
High Court, shall be heard by the Industrial Court which is a court of the status of the
High Court. The High Court therefore lacks jurisdiction to deal with matters of
employment and labour matters whether filed in the High Court before or after the
establishment of the Industrial Court. Both matters were thus transferred to the
Industrial Court for hearing and disposal.
In Kenyatta University v. Industrial Court of Kenya & another (Misc. Civil Appl. No.
430 of 200715, the question before the High Court was whether the High Court had
jurisdiction to entertain an application pertaining to issues of employment and labour
relations and to supervise the Industrial court. It was held that the jurisdiction of the High
Court vis-à-vis the Industrial Court has now been settled by Article 165 (5) of the
14
High Court, Nairobi, Petition No 170 of 2012.
15
[2012] eKLR
Constitution which provide that the High Court shall not have jurisdiction to determine
matters pertaining to employment and labour relations. Jurisdiction over such matters is now
vested by Article 162(2) in the Industrial Court, a court with the status of the High Court
established under the provisions of the Industrial Court Act, 2011. However, it was noted
that neither the Constitution nor the Industrial Court Act operates retrospectively and the
High Court had jurisdiction to supervise the Industrial Court as it existed in February, 2007
when the decision impugned in this application was made. Thus, had it found that the
Industrial Court acted in excess of its jurisdiction, then the High Court would have had the
jurisdiction to quash the decision if it was reached ultra vires the jurisdiction of the
respondent.
2) Environment and Land Court Environment and Land Court is a court established by the
Environment and Land Court Act (No 19 of 2011) pursuant to the Constitution of 2010. The
court is at the same level as the High Court as per art 162(2)(a) & (b))
5) Subordinate courts
The Constitution further establishes Subordinate Courts including; Magistrate Courts, Kadhis’
courts and Court Martial and confers upon Parliament the powers to enact legislation conferring
jurisdiction of these courts.16 For Kadhis’ courts the jurisdiction is limited to the determination if
Muslim law relating either to personal status, marriage, divorce or inheritance in proceedings in
which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhis’
courts.17

16
Article 169(2) and 170(3) of the Constitution of Kenya, 2010
17
Article 170(5) of the Constitution of Kenya, 2010

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