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The High Court As The Model Superior Court: Design And Challenges

Paper presented during the Induction Training Course for newly-appointed Judges of the High Court of Kenya,

Nairobi, September 19, 2012

by The Hon. Justice (Prof.) J.B. Ojwang, Justice of the Supreme Court of Kenya


A. INTRODUCTION

 

The critical role of the High Court in Kenya’s judicial structure is a fact well depicted in the account of this country’s evolution as a State, from the onset of colonialism in the late nineteenth century, through the twentieth and into the twenty-first century.

This account, as regards my case, is clearer still from personal experience. From 28th October, 2003 to 16th June, 2011 when I served on the High Court Bench, I lived through this Court’s standing as the centrepiece of the machinery of justice: the model superior Court, with practically unlimited jurisdiction in all matters justiciable; the premier mechanism for the resolution of all grave and weighty matters; the first appellate Court from the raft of Magistrates’ Courts, as well as the various tribunals and Kadhi’s Courts; the national Constitutional Court, determining the numerous claims founded on the Constitution; the first and last Court, in practical terms, for all matters even where such matters are further appealable; the only superior Court – most significantly for the individual Judge – where a single, knowledgeable and experienced judicial officer, sitting as the Bench, has the opportunity to shape the path of jurisprudence in all spheres of the law.

Such an experience accords with the course of history: the High Court was, in the colonial period, formally known as the Supreme Court, which only at Independence in 1963, as part of a series of modifications attending the institutional changes, was rechristened. However, as Y.P. Ghai and J.P.W.B. McAuslan in their work, Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present (Nairobi: Oxford U.P., 1970) [p.366] remark, “the Supreme Court was renamed the High Court, but its jurisdiction remained unchanged…”

Even though the Constitution of Kenya, 2010 provides for two superior Courts above the High Court [Articles 163 and 164], namely the Supreme Court and the Court of Appeal, past experience suggests that the High Court will remain the focal point in the resolution of disputes of most types, in the new constitutional order. Special diligence, learning and professional commitment, thus, becomes the dedicated Judge of the High Court.

 

B. THE HIGH COURT AS THE CONSTITUTIONAL COURT

By the Constitution of Kenya, 2010 the sovereign power, which “belongs to the people of Kenya” [Article 1(1)], has, for functional purposes, been delegated to the three main branches of government, one of the recipients being “the Judiciary and independent tribunals” [Article 1(3)(c)].

While the Constitution sets out the system of Courts [Article 162(1)] as the Supreme Court, the Court of Appeal, the High Court, other superior Courts as may be established by Parliament, and the subordinate Courts, and specifies the applicable hierarchical arrangement, it is the wide-ranging role of the High Court that stands out.

Firstly, the Constitution provides [Article 165(3)(a)] that the High Court has “unlimited original jurisdiction in criminal and civil matters”. No other Court has such a wide jurisdiction, which covers virtually any justiciable matter brought by parties.

It is no less significant that the High Court, for most purposes, has the first bite at the cherry, in determining “the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened” [Article 165(3)(b)].

I have had occasion, judicially, to depict the essential design and character of the new Constitution; the relevant statement will shed light on the controlling function of the High Court, in relation to the Bill of Rights. This is recorded in Luka Kitumbi & Nine Others v. Commissioner of Mines and Geology & Another, Mombasa H.C.C.C. No. 190 of 2010:

 

“I take judicial notice that the Constitution of Kenya, 2010 is a unique governance charter, quite a departure from the two [1963 and 1969] earlier Constitutions of the post-independence period. Whereas the earlier Constitutions were essentially programme documents for regulating governance arrangements, in a manner encapsulating the dominant political theme of centralized (Presidential) authority, the new Constitution not only departs from that scheme, but also lays a foundation for values and principles that must imbue public decision-making, and especially the adjudication of disputes by the Judiciary.”

 

The values thus signalled, take their best form in the longest chapter [Chapter 4] of the Constitution [Articles 19-59], which declares the individual’s rights and fundamental freedoms, and confers locus standi before the High Court in broad terms [Article 22(1)]:

“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”

 

By recognizing the High Court as the main forum of realization of the guarantees of the Bill of Rights, the Constitution has reposed in this Court the role of custodian of a vital component of the grundnorm: and so, the destiny of the new Constitution, just as much as of the emerging governance profile, has been committed not just to the Judiciary but, more specifically, to the High Court, as the Constitutional Court.

 

C. CHALLENGE TO THE HIGH COURT JUDGE

The challenges facing the High Court Judge, thus, are so well defined; and they assure a lively career engagement to the dedicated Judge. The new Constitution has only added on to an already interesting and engaging setting of judicial work. This point is readily appreciated in the light of the recorded experience of the great English Judge, the late Lord Denning – the essence of which may be gleaned from his remarkable works: (i) The Discipline of Law (London: Butterworths, 1979); (ii) The Due Process of Law (London: Butterworths, 1980).

Lord Denning’s professional life as a Judge is compellingly inspirational, this being the exemplar who fully grasped the creative role of the Judge in a common-law setting, in which the community looked to the Judiciary to protect its rights; to define the bounds of legitimate exercise of public power; to administer equity; and to resolve social dispute in a just manner. He was endowed with the knowledge, verve and gusto to deliver generously on this intellectual and public-spirited mission.

It will be recalled that Lord Denning, who joined the Bench in 1944, in his modesty as to reputed symbols of office-glory, winced at the prospect of elevation to the Court of Appeal Bench, as the challenges of the High Court gave him distinct fulfilment. The basis of this fulfilment was the High Court Judge’s unlimited and original space in the making of the common law: and a reading of his works and his numerous judgments and rulings, shows him to have been one of the greatest Judges of all time.

Kenya’s High Court Judges, though operating in a differing context and, in particular, within a detailed constitutional framework, have just as rich a setting of creative opportunities as Lord Denning had in England, a country with no like Constitution. I would suggest that neither Kenya’s Constitution with its detailed prescriptions, nor the large body of statutes covering a wide range of social, economic and political spheres in this country, has taken away the scope for jurisprudential creativity available to the dedicated Judge.

The Judge’s calling, especially in the common law system which abides in Kenya, is both pragmatic and intellectual. At the pragmatic level, social discords arise which must be adjudicated: but the tools of resolution, in many cases, are not forged from scrap; often, the question ties up with identifiable social scenarios, guided by long-established principles and intellectual perspectives. In such cases, the good Judge is a learned Judge, in the sense of habitually examining relevant ideas; considering the historical paths of the law; reading relevant material; undertaking analysis; and perceiving different scenarios in the resolution of legal problems. This is particularly important for the High Court Judge, whose mandate is the widest, as compared to the more circumscribed jurisdictions of the other Judges.

In my own experience on the High Court Bench, I was able to determine causes and motions, and to render considered judgments and rulings on a wide range of justiciable claims:
(i) administrative law;
(ii) admiralty matters;
(iii) child maintenance and adoption;
(iv) civil law – in its various spheres;
(v) constitutional law;
(vi) corporate transactions;
(vii) marriage and divorce;
(viii) probate and administration of estates;
(ix) trusts;
(x) criminal appeals – of all kinds;
(xi) murder cases.

Some of these spheres of judicial work provided me with a remarkable learning experience; and others exhilarated me intellectually, empowering me to examine the law with focus and to render judgments which, I trust, would lay signposts for later decision-making.

D. THE HIGH COURT’S FUNCTION: IMPACTS ON KENYA’S ECONOMIC, SOCIAL AND POLITICAL DEVELOPMENT

 

It is clear that the elemental role of the Judiciary – and particularly of the High Court – in Kenya’s constitutional dispensation speaks for itself. It is no less clear that Kenya’s destiny as a successful nation-State, committed to the enhancement of its citizens’ welfare, is hinged on the full-scale implementation of the Constitution.

In this context, it is to be appreciated that the judicial role in efficiently and justly resolving economic disputes, will redound to successful economy, by promoting brisk and productive enterprise; and such economics will return material and social advantage to significant portions of the national population.

In a parallel scenario, the country’s social stability will partly depend on the efficiency and fairness of the Courts, in resolving family and related social-arrangement disputes that tend to undermine social order, and having the potential to cast ominous shadows over the political integrity of the nation.

The entire purpose of the present constitutional dispensation, is to launch and consolidate a progressive and socially-rewarding governance-direction, as a basis of stability, peace, order, and international respectability. The main political questions, therefore, which take immediate expression in leadership styles and in the configuration of political units, mainly in the shape of political parties, have to be modulated at the points of dissent. The Courts, and in particular the High Court, must employ efficient, lawful, and public-spirited yardsticks of conflict resolution, in this sphere.

 

E. CONCLUSION

It bears restating, that the Judiciary is the midwife for the safeguards of Kenya’s

new Constitution. The delivery role, for certain, rests with the High Court Bench in the first instance, and in most cases. The abiding challenge calls for a rearmament with outcomes of creativity; of consistent study and reflection; and of focused learning on principles relevant to goals of social welfare and the public interest.

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