CHAPTER IV

THE JUDICATURE

PART 1

The High Court and the Court of Appeal

Establishment of High Court.

60.  (1)  There shall be a High Court, which shall be a superior court of record, and which shall have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.

(2)     The judges of the High Court shall be the Chief Justice and such number, not being less than eleven, of other judges (hereinafter referred to as puisne judges) as may be prescribed by Parliament.

(3)    The High Court shall be duly constituted notwithstanding a vacancy in the office of a judge of that Court.

(4)      The office of a puisne judge shall not be abolished while there is a substantive holder thereof.

(5)      The High Court shall sit at such places as the Chief Justice may appoint.

Appointment of judges of High Court.

4 of 1988, s. 2,

17 of 1990, s. 3.

Cap. 16 (1986).

61. (1)  The Chief Justice shall be appointed by the President.

(2)   The puisne judges shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission.

(3)   A person shall not be qualified to be appointed a judge of the High Court unless :-

(a)  he is, or has been, a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in the Republic of Ireland or a court having jurisdiction in appeals from such a court; or

(b)  he is an advocate of Kenya of not less than seven years standing; or

(c)  he holds, and has held for a period of, or for periods amounting in the aggregate to, not less than seven years, one or other of the qualifications specified in paragraphs (a), (b), (c) and (d) of section 12 (1) of the Advocates Act as in force on 12^th December, 1963.

(4)   If the office of Chief Justice is vacant, or if the Chief Justice is for any reason unable to discharge the functions of his office, the President may appoint a puisne judge to act as the functions of that office until a person is appointed to and assumes the functions of that office, or until the Chief Justice resumes those functions, as the case may be, or until his appointment is sooner revoked by the President.

(5)   If the office of a puisne judge is vacant or if a puisne judge is appointed to act as Chief Justice or is for any reason unable to discharge the functions of his office, or if the Chief Justice advises the President that the state of business in the High Court so requires, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualified to be appointed a judge of the High Court to act as a puisne  judge; and a person may act as a puisne judge notwithstanding that he has attained the age prescribed for the purposes of section 62 (1).

(6)   A person appointed under subsection (5) to act as a puisne judge shall, subject to subsections (4) and (7) of section 62, continue to act for the period of his appointment or, if no period is specified, until his appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission, and may continue to act thereafter for so long as may be necessary to enable him to deliver judgement or to do any other thin in relation to proceedings that have already been commenced before him.

Tenure of office of judges of High Court.

4 of 1988, s. 3,

17 of 1990, s. 4.

Cap. 16.

62.  (1)  Subject to this section, a judge of the High Court shall vacate his office when he attains such age as may be prescribed by Parliament.

(2)   Notwithstanding that he has attained the age prescribed for the purposes of subsection (1), a judge of the High Court may continue in office for so long after attaining  that age as may be necessary to enable him to deliver judgement or to do any other thing in relation to proceedings that were commenced before him before he attained that age.

(3)   A judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be removed except in accordance with this section.

(4)   A judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehaviour.

(5)   If the Chief Justice represents to the President that the question of removing a puisne judge under this section ought to be investigated, then :-

(a)   the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the president from among persons:-

(i)                 who hold or have held the office of judge of the High Court or judge of appeal; or

(ii)               who are qualified to be appointed as judges of the High Court under section 61 (3); or

(iii)              upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act, 1989; and

(b)  the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether  that judge ought to be removed under this section.

(6)   Where the question of removing a judge from office has been referred to a tribunal under this section, the President, acting in accordance with the advice of the Chief Justice, may suspend the judge from exercising the functions of his office and may at any time be revoked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommend to the President that the judge ought no to be removed from office.

(7)   Where the question arises as whether the Chief Justice has become unable by reason of physical or mental infirmity to exercise the functions of his office or that his conduct ought to be investigated, then the President shall appoint a tribunal consisting of five members appointed by him in the manner provided under subsection (8).

(8)   The tribunal appointed under subsection (7) shall consist of the following members:-

(a)  a person who holds or has held the office of Speaker of the National Assembly who shall be the chairman;

(b)  two persons who hold or have held office as judges of appeal;

(c)  one person upon whom the rank of Senior Counsel has been conferred by the President under section (17 of the Advocates Act; and

(d)  the chairman of the Public Service Commission.

(2)   When the question of removing the Chief Justice has been referred to a tribunal under this section he shall not exercise any of the functions of his office pending the decision of the tribunal; but he will resume those functions if the tribunal recommends to the President that the Chief Justice ought  not be removed from office.

Oaths to be taken by judges of High Court.

63. A judge of the High Court shall not enter upon the duties of his office until he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.

Establishment of Court of appeal.

13 of 1977, s. 2,

7 of 1984, s. 3.

64.  (1)  There shall be a Court of Appeal which shall be a superior court of record, and which shall have such jurisdiction and power in relation to appeals from the High Court as may be conferred on it by law.

(2)   The judges of the Court of Appeal shall be the Chief Justice and such number, not being less than two, of other judges (herein referred to as judges of appeal) as may be prescribed by parliament.

(3)   The foregoing provisions of the Part shall apply in respect of the judges of appeal as they apply to puisne judges.

(4)   Where a puisne judge has been appointed as a judge of appeal he may continue to exercise the functions of a puisne judge to enable him to complete proceedings in the High Court that were commenced before him prior to his being so appointed.