BBM 106 Notes compiled by Njihia Kaburu1) Dispute Resolutioni) The various courts in Kenyaii) Jurisdiction iii) The appellate systemiv) Alternatives to court: Arbitrationv) Principles and Concepts: Rule of Law, Separation of Powers, Fundamental Rights

Whenever there is a dispute in commercial transactions, there are two options; either forward the dispute to court or resort to alternative dispute resolution methods.

COURT SYSTEM IN KENYAIt is the obligation of the state to make the necessary laws and to ensure just and efficient administration of the same by establishing adequate judicial systems, i.e. the courts. Every country has a variety of courts, these courts differ in powers and functions and they stand in a hierarchical relation to each other.

In Kenya, chapter ten of the constitution establishes the judiciary as follows.

SUPERIOR COURTS

SUPREME COURTEstablished in 2011, as the highest court of record. It’s established by Section 163 of the constitution.

Composition Consists of the Chief Justice, Deputy Chief Justice and five other judges.

JurisdictionIt has jurisdiction as follows;

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BBM 106 Notes compiled by Njihia Kaburu- exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.- Appellate jurisdiction to hear and determine appeals from—

(i) The Court of Appeal; and(ii) Any other court or tribunal either:-

(a) as of right in any case involving the interpretation or application of this Constitution; (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved.

- 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.

It is the highest court and all other courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. The Supreme Court Act 2011 was enacted to make further provisions for the operation of the Supreme Court.

COURT OF APPEALIt is a descendant of the defunct East African Court of Appeal. The Court of Appeal was established on 28th October, 1977, as a superior court of appellate jurisdiction.

CompositionIt is composed of the judges of the Kenya Court of Appeal referred to as Judges of Appeal. S.164(1)(a) of the Constitution states that ‘shall consist of the number of judges, being not fewer than twelve, as may be prescribed by an Act of Parliament '. The Judicature Act, 1967, s.7(2), as amended by the Statute Law (Miscellaneous Amendments) Act, 1986 provides that the number of judges of appeal shall be eight- this is then automatically amended by the constitution.

An odd number and not less than 3 judges sit to hear matters. Decision is made on majority basis. A full bench means 5 or more judges sitting to consider and determine a case. This is normally on application of a party. It is headed by a president of the Court of Appeal who shall be elected by the judges of the Court of Appeal from among themselves

Jurisdiction of the CourtIt is a Court of Record (i.e. it is required to keep a record of its proceedings). It thus has no original jurisdiction but purely appellate jurisdiction to hear appeals from the high court.

Power of the CourtAs an appellate court, it has wide powers. These include the power: -

i. To determine a case finallyii. To remand a caseiii. To order a new trialiv. To take additional evidence or require such evidence to be taken by the court of first instance.v. To frame issues and refer them for trial

HIGH COURTIt is established by section 165 of the constitution of Kenya as a superior Court of Record.

CompositionIt consists of a number of judges (called puisne judges) as prescribed by an Act of Parliament. The Judicature Act, 1967, s.7(2), as amended by the Statute Law (Miscellaneous Amendments) Act, 1986 provides that the number of puisne judges shall not exceed 70.

Recently 28 new judges were appointed to add to the existing 45, bringing the number to 73. It is headed by the Principal Judge of the High Court, who is elected by the judges of the High Court from among themselves.

JurisdictionIts jurisdiction is unlimited both in original and criminal matters and such jurisdictions and powers as may be conferred on it by the Constitution or any other law. It has dual jurisdiction on both Original and Appellate matters (from lower courts and other tribunals).

Other jurisdictions are: -

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BBM 106 Notes compiled by Njihia Kaburu Constitutional jurisdiction Election petitions Succession matters Matrimonial i.e. divorce maters Admiralty (Maritime) matters Supervisory jurisdiction – The High Court has a general power of supervision over all subordinate courts and

also over ministerial, administrative and quasi-judicial bodies. It does this by means of writs (orders) e.g. Habeas Corpus, Mandamus, Prohibition.

JUDGES Judges of Supreme Court, Court of Appeal and High Court are appointed by the president, from the recommendations of the Judicial Service Commission. The Chief Justice and his Deputy must however undergo further vetting by parliament.

The appointment of Judges is permanent, but they must retire at the age of 74 years. The Constitution also provides for the removal of a Judge by a Tribunal upon misconduct.

SUBORDINATE COURTS

RESIDENT MAGISTRATE COURTThe Resident Magistrate's Court is is established by section 169(1)(a) of the constitution, and constituted/ operationalised by S.3 (1) of the Magistrate's Courts Act which provides that 'there is hereby established the Resident Magistrate's Court, which shall be a court subordinate to the High Court.

The court has an established hierarchy consisting of; Chief Magistrate, Senior Principal Magistrate, Principal Magistrate, Senior Resident Magistrate and Resident Magistrate. These have different levels of original criminal and civil jurisdiction depending with the level of seniority. They also have appellate jurisdiction to hear criminal appeals from district magistrate III.

The civil jurisdiction of the magistrate’s courts is defined thus in the Miscellaneous Amendments Act, 2012;

(a) ten million shillings for a Chief Magistrate;(b) eight million shillings for a Senior Principal Magistrate;(c) six million shillings for a Principal Magistrate;(d) four million shillings for a Senior Resident Magistrate, and(e) two million shillings for a Resident Magistrate

MAGISTRATE COURTSKenya is divided into Administrative Districts. S.7(1) of the Magistrate's Courts Act 1967 establishes in each district a District Magistrate Court (DM’s Court). These are established for every administrative district in the country. However the Chief Justice may designate any two or more districts as one district. Each DM Court is itself subordinate to the High Court and is duly constituted when presided over by a District Magistrate assigned to the district by the Judicial Service Commission.

There are three classes of District Magistrate courts namely: -- District Magistrate One- District Magistrate Two- District Magistrate Three

A district magistrate’s court has the jurisdiction through out the district. District magistrates have some limited power of Original jurisdiction. District Magistrate One has some limited Appellate jurisdiction, to hear civil appeals from DMIII.

KADHI COURTSThese courts were established by the Section 170 of the constitution and operationalised by the Kadhi’s Court Act Cap 11.

It consists of the Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being fewer than three in number) as may be prescribed under an Act of Parliament. These are appointed by the Judicial Service Commission. To be a Kadhi or a Chief Kadhi, one must: -

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BBM 106 Notes compiled by Njihia Kaburu i) Profess the Muslim religion.

ii) Possess such knowledge of the Muslim Law, which is applicable to any sect or sects of Muslims.

The jurisdiction of a Kadhis’ court is limited to the determination of questions of Muslim law relating to: personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Appeals from a Kadhi’s lie in the High Court. In such cases, the High Court sits with the Chief Kadhi or 2 other Kadhi’s as assessors.

COURT MARTIALSSection 169(1)(c) of the Constitution empowers Parliament to establish court martial which shall have such jurisdiction and powers as may be conferred by any law. Pursuant to this provision, the Armed Forces Act, S.85 (1) provides that 'a court-martial may be convened by the Chief of General Staff or by the Commander'. The court-martial is not a permanent court but is convened from time to time to try any person who has committed an offence which, under the Section 84 of the Armed Forces Act, is triable by a court martial. The court is dissolved as soon as the trial is over.

AppealsSection 115 of the Armed Forces Act allows a person who has been convicted by a court-martial to appeal to the High Court either against the conviction, sentence or both. The DPP may also appeal to the High Court within forty days of an acquittal. S.115 (3) of the Act states that the decision of the High Court on any appeal under the Act shall be final and shall not be subject to further appeal.

OTHERSThis includes;

Industrial CourtThis court has been established by the “Trade Dispute Act” (Cap 234). Its main purpose is the settlement of disputes between employers and employees i.e. trade disputes e.g. dismissal of employees, non-payment of dues of employees, working period of employees, fringe benefits of employees, etc. The court upon a dispute being referred to it by the Minister for Labour or application being made to it by the parties to a trade dispute, take notice of such dispute and may hear and determine the award thereon.

It consists of a Judge of the Court who shall be an advocate of the High Court of Kenya of not less than 7 years experience and whom the President shall appoint for a term not less than 5 years. The Minister of Labour appoints four other members for term for less than 4 years. After consultation with the Finance Minister, the Central Organization of Trade Unions (COTU) and Federation of Employers (FKE) One of the afore said member is appointed by the Minister of Labour to be the Deputy Judge. The judge of the court also had powers to appoint assessors, one to represent employers and one to represent employees from a panel of assessors appointed by the Minister of Labour.

Other Administrative TribunalsThese are quasi-judicial bodies which decide on specialized matters. They do not strictly follow court rules, thus the name quasi-judicial. Examples include:

- The Rent Restriction Tribunal: Established by “The Rent Restriction Act” (Cap 296) to address rent disputes for dwelling and residential housing.

- Business Premises Rent Tribunal: established under “The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act” Cap 301 to deal with rent dispute for business premises.

- National Environmental Tribunal established under the Environmental Management Co-ordination Act to deal with disputes on matters concerning environment and NEMA.

- Capital Markets Tribunal established under the Capital Markets Act to deal with disputes concerning the capital markets.

- Land Disputes Tribunal, established under the Land Disputes Tribunal Act 1990 to deal with disputes arising from dealings in land Etc.

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BBM 106 Notes compiled by Njihia KaburuALTERNATIVES TO COURTThis refers to any type of procedure or combination of procedures voluntarily used to resolve differences other than court based adjudication. These include the following;

MEDIATIONMediation is an informal dispute settlement process run by a trained third party, called a mediator. Mediation is intended to bring two parties together to clear up misunderstandings, find out concerns, and reach a resolution.

During the mediation, each side will present its view of the issue, and the mediator will work with each side in a caucus to attempt to work out a settlement. At the end of the process, the mediator can present his or her findings and present a potential solution to the issue. The mediation process, unlike arbitration, is non-binding; that is, the mediator does not impose a decision on the parties, but he/she attempts to present a solution that is acceptable to both parties.

CONCILIATIONThe process of adjusting or settling disputes in a friendly manner through extra judicial means. Conciliation means bringing two opposing sides together to reach a compromise in an attempt to avoid taking a case to trial.

Conciliation is less structured, and the conciliator does not make any proposals, but allows the parties to reach the compromise themselves amicably. Conciliation is used in labor disputes before arbitration and may also take place in several areas of the law.

ARBIRTATIONArbitration is the procedure whereby parties in dispute refer the issue to a third party for resolution, rather than take the case to the ordinary law courts. In arbitration the two parties in controversy agree in advance to abide by the decision made by a third party called in as an arbitrator.

The statute that deals with arbitration in Kenya is the Arbitration Act (1995) Act No. 4 of 1995 Cap 49 Laws of Kenya. This statute commenced on the 2nd of January 1996 by virtue of Legal Notice No. 394 of 1995. This date is important because prior to this statute we had an Arbitration Act that was based on different legal principles for instance under the repealed or previous Acts, the courts had a wider role in Arbitration than they do under the current Act.

The arbitration agreementSection 3 of the Arbitration Act states that Arbitration Agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not. An Arbitration Agreement shall be in writing, it is a requirement that it be not oral. Section 4 (3) an arbitration agreement is in writing if it contains

1. a written document by the parties;2. an exchange of letters; telex, telegram or other means of telecommunications which provide a record of the

agreement;3. an exchange of statements of claim and defence in which the existence of the agreement to arbitrate is alleged by

one party and not denied by the other party.

Section 4 (4) … the reference in a contract to a document containing an arbitration clause shall constitute an arbitration agreement if the record is in writing and the reference is to make that arbitration clause part of the contract. This is talking of incorporation of an arbitration agreement by reference.

Constituents of a properly worded arbitration clauseFor expediency in resolving disputes, it is advised that a basic arbitration agreement or clause should provide some essential details. For if an arbitration clause simply provides that disputes to be settled by arbitration questions would arise as to how the arbitrator is to be appointed, what qualifications the arbitrator should have, where the arbitration should take place, how many arbitrators, what substantive law is to apply to that contract, what procedural law is to apply to that contract etc.

Essential ingredients1. Provisions with regard to the number of arbitrators

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BBM 106 Notes compiled by Njihia KaburuSection 11 of the Arbitration Act provides that the parties are free to determine the number of Arbitrators and section 11(2) failing a determination by the parties on the number of arbitrators, the number shall be one. The nature of the dispute should dictate how many arbitrators to go for.

2. Method of appointmentA lot of time can be spent and wasted between parties on this question once a dispute has arisen. The default position is that if the parties do not agree on the method of appointing then they can apply to the court to appoint Section 12 of the Arbitration Act. There is a drawback in doing that, firstly time is of the essence and you will lose so much time like a few months. Then there is the question of the costs to be paid to court over the process. So if the procedure for appointment had already been provided for in the arbitration clause one can avoid the delay and the cost. Parties will choose an institution if they are not agreeable on an arbitrator, they can approach another institution i.e. the chartered institute of arbitrators to appoint. They can for example decide if there is a dispute as to method the chairman of LSK becomes the appointing authority.

3. Choice of the rules to apply if anyThe Arbitrator has power to control the preparations for hearing. He is obliged to exercise that power and to do so by reference to demanding standards. Also an arbitrator is involved in each case during its interlocutory stages. If he makes proper use of his powers he can and should shape the preparations so as to eliminate unnecessary costs. In particular he can direct the advocates, the experts and even the parties to get to grips with identifying what the issues really are and how best to present them. He can decide a preliminary issue quickly; or it may be enough if he merely indicates his provisional views. In this way both the issues themselves and the costs that have to be incurred in preparing for them, can be greatly reduced.

4. Time framesTime frames are matters that should be spelt out in the Arbitration Agreement for the following:

(i) the time limit for the giving of the notice of claim(ii) the time limit for giving of notice to appoint an arbitrator;(iii) and the time limit for the commencement of arbitration.

Time frames give certainty in any industry and a time frame within which the parties should agree is essential.

5. RemunerationParties may decide how the arbitration costs are to be shared, whether the loser in the dispute bears the cost or both parties provide for the costs.

Advantages of Arbitration There are numerous advantages to be gained from using arbitration rather than the court system:– Privacy. Arbitration tends to be a private procedure. This has the twofold advantage that outsiders do not get access to any potentially sensitive information and the parties to the arbitration do not run the risk of any damaging publicity arising out of reports of the proceedings.– Informality. The proceedings are less formal than a court case and they can be scheduled more flexibly than court proceedings.– Speed. Arbitration is generally much quicker than taking a case through the courts. Where, however, one of the parties makes use of the available grounds to challenge an arbitration award the prior costs of the arbitration will have been largely wasted.– Cost. Arbitration is generally a much cheaper procedure than taking a case to normal courts. Nonetheless, the costs of arbitration and the use of specialist arbitrators should not be underestimated.– Expertise. The use of a specialist arbitrator ensures that the person deciding the case has expert knowledge of the actual practice within the area under consideration and can form their conclusion in line with accepted practice.– Finality. Appeals on arbitration decisions are limited and once the arbitrator has reached a decision the parties are bound by it and any award can be enforced through court action.

Disadvantages The foregoing has emphasized the advantages of arbitration over court-based proceedings, but there are alternative grounds for the parties to prefer the latter procedure. These are;- Expertise: judges are experts in the law and have particular expertise in evaluating evidence and the statements of witnesses. - Certainty/predictability: Court decisions are also taken within the framework of the doctrine of precedent and therefore are not ad hoc decisions made on a case-by-case basis, as is the situation with arbitration. It might actually be to the advantage of one of the parties to have a particular issue determined by the courts in order to set a precedent for the future.

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BBM 106 Notes compiled by Njihia Kaburu- Appeals: Finally it should also be mentioned that the court-based procedure allows much more scope for appeal within its structure. It has an entrenched system of appeals with unsatisfactory decisions being challenged more than once if necessary.

PRINCIPLES AND CONCEPTS

THE DOCTRINE OF SEPARATION OF POWERSFor purposes of constitutional analysis, the powers of government are traditionally divided into 3 broad classes.

(i) The executive function(ii) The legislative function(iii) The judicial function

In any ordered form of government, there must be the distinction of these organs of government such that the different functions are run exclusively. This line of thought was suggested by various political thinkers who believed that the liberty of citizens would be jeopardised if more than one of these powers was in the same hands. They believed that if the same person or body exercised all three functions noted above, then there would be tyranny and arbitrary government. It is therefore desirable that the powers of government should be vested in different persons or bodies. It should be noted that strict separation is still not desirable. What different philosophers believed in summary is that it is highly undesirable that the persons who make the laws should execute them, for they may exempt themselves from obedience of the laws they make, and shut the law, both in it’s making and execution of their own private advantage and thereby come to have distinct interest from the rest of the community. The three organs should therefore have separate functions. The acts or deeds of each arm of government may have adverse effects on the citizens and hence for the purpose of liberty and good governance of the people, each arm should have it’s own role to play and none of these arms should usurp the role of the other.

A more obvious importance is that is would be tyrannical and a miscarriage of justice for one arm of government to perform all three functions being legislation, execution and judicial practice. The authority on this importance is found in the constitutions of various countries, including Kenya, which arguably vests judicial, legislative and executive powers respectively.

In Kenya, we have a separation of powers to the extent that we have an independent judiciary and this is of cardinal importance. The legislature which makes the laws, contains certain members of the executive ministers, who are responsible for carrying out the laws – who also participate in the legislative functions. There is nothing particularly wrong with this because those ministers who are elected members of parliament, are responsible, both financially and collectively, to the legislature for the administration of their departments. It is arguable that the link here between the executive and the legislature is essential for the efficient administration of government services.

Criticisms of the doctrine of separation of powersOne of the difficulties in separating the powers of government is that these divisions become blurred when one strictly examines the powers of the different organs of government. For example, ministers are given statutory power to legislate-delegated legistation; for example, ministers are given statutory power to legislate delegated legislation; legislation is the function of parliament, but the delegation of this function is necessary as parliament doesn’t nave the time to make all laws. In addition, there must be flexibility in administration; statutes are mere skeletons, the flesh is provided by subsidiary legislation.

There are in existence several administrative tribunals e.g. the rent tribunals, which exercise a quasi-judicial function in determining disputes between landlords and tenants. The exercise of a judicial function by these tribunals is not a usurpation of the powers of the judiciary. It is not recognition of the fact that there are certain functions which are better administered by other bodies.

In it’s pure form, the doctrine has also been criticised on the following grounds amongst others:The government is an organic whole and therefore its work cannot be divided into completely distinct or separate organs. Every organ of the state needs the assistance and cooperation of other organs. Such artificial separation may therefore be a practical impossibility.

It was also realised that complete separation of powers would give rise to a spirit of competition rather than cooperation in the functioning of government. Competition between the organs of government would lead to frequent disputes, deadlocks and inefficiency thereby injuring public interest. Separation of powers is therefore desirable only to the extent of promoting specialization is therefore desirable only to the extent of promoting specialisation of functions, division of labor and enhancing efficiency. The policies of government can succeed only if the three organs of government work in unison.

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BBM 106 Notes compiled by Njihia Kaburu

The great political thinkers advocated for this doctrine in order to protect the rights and liberties of the individual. In reality, it is known that liberty is not achieved merely by strict separation of powers under the laws of any country. Liberty is best protected through political will, political consciousness and vigilance by the governed. Even with separation of powers, the liberty of the individual is still threatened ad the legislature may pass laws oppressive to the people, which the executive must enforce and the judiciary must apply to particular cases.

The doctrine has also been based on the false assumption that all three arms of the government are equally important. In actual fact, the legislature emerges as the more superior arm of government, as it is the main law making body in the government and it also controls public funds thereby giving it control over the executive and the judiciary. The legislature can also pass a vote of no confidence and thereby remove the then government from power.

However, it is important to note that it has been said that the above and other criticisms of this doctrine is based on a misconception of the doctrine. It has been said that the philosophers never thought to separate the powers completely, but rather to modify the concentration of powers. That, in actual fact, the theory really implies a partial separation.

ConclusionThe solution might be in a compromise to ensure that the legislative, executive and judicial powers are not vested in one man or one group. These should be separate and independent of one another in such a way that they provide checks and balances and thereby act as safeguards against tyrannical abuse of power.

The solution does not lie in a complete and airtight separation, It is about avoiding concentration of governing power in any one arm of government as would enable that arm to become despotic.

This end could best be achieved, not by a theoretically pure separation of the legislative, executive and judicial power, but by a judicious blending and overlapping which would permit each branch to check and balance the tyrannical tendencies of the others.

THE RULE OF LAWThe supremacy of the rule of law has since the middle ages been a principle of the constitution. It means that the exercise of powers of government shall be conditioned by law and that the subject shall not be exposed to the arbitrary will of his ruler.

In the middle ages, the theory was held that there was a universal law which ruled the world. Bracton, writing in the first half of the 13th century, deduced from this theory the proposition that rulers were subject to law.

Dicey’s exposition of the rule of lawsOf all the writers on the constitution since Blackstone, the most influential has been the late A. V. Dicey, whose lectures delivered as Vinerian Professor of English Law at Oxford and first published in 1885 under the title Introduction to the study of the law of constitution have been studied by successive generations of statesmen, lawyers and a large section of those interested in public life.

Dicey gave the rule of law three meanings.(i) Absence of arbitrary power:

This means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government… a man may be punished for a breach of law, but he can be punished for nothing else.

This interpretation conveyed that no man is punishable or can be punished or made to suffer in body or goods, except for a distinct breach of law established in ordinary legal manner before the ordinary court of the land. In this sense, the rule of law is contrasted with systems of government based on the exercise by persons in authority of wide or discretionary powers of constraint.

(ii) Subjection of officials to the ordinary courts: [The rule of law] means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.

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BBM 106 Notes compiled by Njihia KaburuIn this sense, the rule of law conveys that no man is above law; that officials, like private citizens are under a duty to obey the same law, and (though this does not necessarily follow) that there are no administrative courts to which are referred claims by the citizen against the state or it’s officials.

(iii) Constitution the result of ordinary law of the land: [Lastly, the rule of law means] that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts, that, in short, the principles of private law have with us been the action of the courts and parliament so extended as to determine the position of the crown and of it’s servants; thus the constitution is the result of the ordinary law of the land.

This meant that the legal rights of the subject, e.g. his freedom of action and speech, are secured not by guaranteed rights proclaimed in a formal code but by the operation of the ordinary remedies of private law available against those who unlawfully interfere with his liberty of action, whether they be private citizens or officials. A person libeled may sue his defamer. Free access to courts of justice is an efficient guarantee against wrongdoers.

Dicey’s exposition of the rule of law must now be briefly examined in the light of conditions prevailing in Kenya today.

The first part of Dicey’s definition: It is correct to say that ordinary law of Kenya is supreme. A person will only be punished for a breach of law; he can also normally foresee the consequence of his conduct. There are no special courts in Kenya for the trial of certain offences. All persons are tried by the ordinary courts. Judges and magistrates have a discretion in most cases as to the sentence they will impose but this discretion is exercised within well defined limits; this does not detract from the principle. The police have a discretion as to whether they will undertake a prosecution in criminal cases, but this power is not abused. Certain persons, particularly members of the armed forces and professional people, like advocates and doctors, are subject to special rules which regulate their conduct and to domestic disciplinary action. There is no danger here as such persons are subject to the ordinary laws; they do not occupy a privileged position in the legal system.

The second part of the definition – Equality before the law: This is perfectly true, all persons, including government ministers and officials, are equal before the law. It does not mean that all persons have the same powers. The government officials have, of necessity, more powers than the ordinary citizen, but they are all equal before the courts. Diplomats, organizations like trade unions and infants enjoy certain privileges that others do not, but there are acceptable reasons for this.

The third part of the definition has no application to Kenya. It is true in the United Kingdom that fundamental rights and liberties stem from the ordinary law of the land, but in Kenya these rights are contained in the constitution.

The rule of law applies in Kenya, but this does not affect the sovereignity of parliament. Parliament can always alter the law and the new law will be supreme and will be administered in the same way as other laws by the courts.

Legislation is the main instrument for implementing government policy, it provides for law and order, it imposes controls, but the main effect is to increase the discretionary powers of the government and this means that more powers are also given to the public authorities. There is nothing particularly harmful in this, so long as checks and balances exist.

The government departments and private individuals are treated equally, except that no order of specific performance, certiorari, prohibition or injunction can be awarded against the government; only a declaratory order. The function of the courts here is to ensure that these bodies exercise their powers within the limits prescribed by parliament, An excess of power must be curbed; an abuse of power must be remedied; illegal acts must be challenged, and the citizen must have redress in the courts.

Apart from the courts determining disputes as noted by Dicey, Administrative tribunals are increasingly becoming important. An administrative tribunal is a body established by statute which is given powers of an administrative or quasi-judicial nature. Such tribunals have been set up piecemeal to deal with specific matters. There have been debates as to whether these tribunals are an extension of the judiciary, or an extension of the administration, or whether they can be regarded as a distinct branch of the machinery of government. What must be realized on the outset is that where tribunals are given quasi-judicial powers, it is a clear recognition of the fact that the courts, with their strict rules of procedure and evidence, are not always the ideal for the settlement of disputes. There is no usurpation of the judicial function. Without doubt, these administrative tribunals have advantages. They are more accessible than the courts, they are cheaper; they are free from the technicality of the courts; they can sometimes call upon expert knowledge. On the other hand, there is no proper appeal structure in the field of administrative tribunals, as there is in the judiciary. An excess of jurisdiction on the part of tribunals can still be remedied by the courts by

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BBM 106 Notes compiled by Njihia Kaburumeans of an order of prohibition for an injunction, but this form of control is no substitute for a proper appeal structure. Examples of tribunals are the industrial court and the rent tribunals.

FUNDAMENTAL RIGHTS AND FREEDOMSThese are guaranteed by the constitution under Chapter Four. They can be broken down as follows: (i) Right to life.(ii) Right to personal liberty.(iii) Freedom from slavery or forced labor.(iv) Freedom from inhuman treatment.(v) Right to own of property.(vi) Freedom from arbitrary search.(vii) Right to protection by the law.(viii) Freedom of conscience.(ix) Freedom of expression.(x) Freedom of assembly and association.(xi) Freedom of movement.(xii) Freedom from discrimination

COMPILED BY: Francis Njihia Kaburu. IMIS, LL.B (Hons.), LL.M, Ph.D (cont),

Lecturer, Business Department, MMUST.

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