KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
1. General 1.1 General Characteristics of the Legal System Kenya’s legal system is based on English common law which is founded on the Constitution, legal prec- edents established by courts and statutes as primary sources of law. The Kenyan judicial system follows an adversarial model for resolving cases where the court acts as an impartial arbiter between opposing parties who pre- sent evidence and arguments, and challenge each other’s positions. The legal process is generally conducted through a combination of written submissions and oral argu- ments. Trials feature oral evidence via witness tes- timony and cross-examination. In some instances, such as constitutional matters, this viva voce hearing style is waived, and matters proceed by way of affi- davit evidence. Judges typically allow litigants to prepare written submissions and then present oral arguments on the same issue. However, in less complex disputes, a judge has the discretion to determine a matter based on written submissions alone. 1.2 Court System Kenya’s court system is a unified national judiciary organised hierarchically into superior and subordinate courts. The Supreme Court is the apex and final appellate court, which also exercises exclusive original jurisdic- tion over presidential election disputes. Beneath it is the Court of Appeal, which hears appeals from the High Court. The High Court enjoys unlimited original jurisdiction in criminal and civil matters and exercises supervi- sory authority over subordinate courts. It also hears appeals from the magistrate’s courts and tribunals. The Constitution establishes specialised superior courts with the status of the High Court, namely the Employment and Labour Relations Court and the
Environment and Land Court, which deal exclusively with disputes in their respective areas. At the lower tier are the subordinate courts, primarily the magistrates’ courts and tribunals. The subordinate courts also include specialised tri- bunals such as the Kadhis’ Courts, with jurisdiction over Muslim personal law matters, the Courts Mar- tial, Children’s Courts and the newly established Small Claims Court. The typical timeframe from the commencement of proceedings to trial varies depending on the nature and complexity of the matter; however, reforms such as Active Case Management guidelines have been introduced to reduce delays and promote efficiency. 1.3 Court Filings and Proceedings Court proceedings and filings in Kenya are open to the public, as the Constitution of Kenya guarantees every person the right to a fair and public hearing before a court or another independent and impartial body. However, there are established procedures for pro- tecting certain court filings and proceedings from pub- lic disclosure under specific circumstances, eg, if it is necessary to protect witnesses or vulnerable persons, morality, public order or national security. Procedural- ly, the court has the discretion to direct that a hearing be conducted in chambers rather than in open court. 1.4 Legal Representation in Court Legal representatives are qualified to act as advo- cates only if they have been formally admitted as an Advocate of the High Court of Kenya, their name is currently on the Roll of Advocates and they have a valid practising certificate in force. Advocates are considered officers of the court and are subject to its jurisdiction. Foreign lawyers are permitted to conduct cases in Kenyan courts, but their participation is regulated and subject to specific conditions. To be eligible, the individual must be a practitioner entitled to appear before the superior courts of a Commonwealth coun- try and must not be disqualified or suspended under Kenyan law.
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