Jurisdiction and Powers of the High Court

0. Introduction

As legal disputes arise by the day, litigants seek different avenues to solve their matters. One of the ways is by instituting these matters before a court. However, the basic and most important step is to go before a court of competent jurisdiction. According to the Black’s Law Dictionary, “jurisdiction”is the power and authority constitutionally conferred upon a court or a judge to pronounce the sentence in law, or to award remedies provided by law, upon a state of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be subject to investigation or action by tribunal, and in favor of or against persons who present themselves, or who are brought, before the court in some manner sanctioned by law as proper and sufficient.[1] Without jurisdiction, a court acts in vain. In Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd[2], the court stated that, “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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...” The various forms of jurisdictions conferred upon the courts include original jurisdiction, supervisory jurisdiction, and appellate jurisdiction among others. These forms of jurisdictions are discussed in relation to the High Court, Industrial Court and the Environment and Land Court. Reference is made to the Constitution of Kenya, and the statutes operationalizing these courts.

1. Jurisdiction of The High Court

Article 165(1) of the Constitution establishes the High Court. Subsequently, subsection 2 of the same article provides that there shall be a Principle judge elected by the judges of the High Court from among the High Court judges. The Jurisdiction of the High Court is as discussed as below:

1. Unlimited Original Jurisdiction of the High Court

Article 165(3) outlines the specific forms of the jurisdiction of the High Court. These include: unlimited original jurisdiction in civil and criminal matters, jurisdiction to hear matters on the interpretation of the Constitution, supervisory jurisdiction, reference jurisdiction, jurisdiction for the protection of fundamental rights, and, enforcement jurisdiction in respect of fundamental rights and freedoms.[3] Additionally, legislation may confer original or appellate jurisdiction to the High Court.[4] However, Article 165(3) refers to clause 5 of Article 165 as to the limitation of the High Court’s jurisdiction. The High Court is limited to matters reserved for the exclusive jurisdiction of the Supreme Court under the Constitution and matters falling within the jurisdiction of the Industrial Court, and the Environment and Land Court.

2. Supervisory Jurisdiction

Article 165 (6) of the Constitution confers upon the High Court supervisory jurisdiction over any civil or criminal proceedings or matters before a subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function but not over superior courts. Article 165(7) provides that for the purposes of sub-article 6, the High Court is vested with the powers to make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts. Such powers include calling for the record of any proceedings before the subordinate courts or person, body or authority referred to under clause 6. Article 160 of the Constitution provides that in exercising the judicial authority, the judiciary as constituted under Article 161 shall be subject to the constitution and the law and shall not be subject to the control or direction of any person or authority. It thus follows that the High Court is vested with supervisory jurisdiction over the subordinate courts. It is also overt that the High Courts generally has the supervisory jurisdiction over persons and authorities in observing there mandate in so far as it is not limited as indicated under Article 165 (5) of the Constitution.

3. Jurisdiction to determine matters relating to violation of the fundamental freedoms in the Bill of Rights

Article 23 of the Constitution provides that the High Court has jurisdiction pursuant to Article 165 of the Constitution. The fundamental rights are guaranteed under part two of Chapter four of the Constitution. Article 165 (3) (b), accords the High Court the power to determine any questions as to whether a right or a fundamental freedom in the Bill of Rights has been denied, infringed or threatened. The fundamental freedoms envisaged under the constitution include:

1. Freedom and security of person;
2. Freedom of conscience, religion, belief and opinion;
3. Freedom of expression;
4. Freedom of media;
5. Freedom of association; and
6. Freedom of movement and residence.

However, claims arising out of an interest or right in or over property must be brought for determination under the Environment and Land Court.[5] This position was supported by the case of Samuel Kamau Macharia & Another V Kenya Commercial Bank & 2 Others[6], the court observed that: “A court‘s jurisdiction flows from either the constitution, legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…where the constitution exhaustively provides for the jurisdiction of a court of law. The court must operate within the limits. It cannot expand its jurisdiction through a judicial craft or innovation.” Therefore, the High Court has no jurisdiction to determine questions as to the infringement, denial, violation or threat to rights or fundamental freedoms in the Bill of Rights that fall on the jurisdiction of the special courts. Article 162 of the Constitution contemplates a system of courts consisting of superior courts and subordinate courts. The two special courts are established by the parliament with status of the High Court to hear and determine matters relating to the environment, the use and occupation of and title to land.

4. Appellate Jurisdiction

The appeals from the subordinate courts and tribunals lie to the High Court. These include appeals from both the civil matters as well as criminal matters. Article 165(3) (c) of the Constitution vests the jurisdiction to hear an appeal from the decision of a tribunal appointed under the constitution to consider the removal of a person from office, other than the tribunal appointed under Article 144 of the Constitution.[7]

5. Jurisdiction to hear any question relating to the interpretation of the Constitution

Article 165(3) (d) vests the High Court with the jurisdiction to hear questions in respect to the interpretation of the Constitution. The High Court, subject to this Article, shall determine whether a law contravenes or is inconsistent with the Constitution, to determine matters on the constitutional powers of State organs.[8] In order to determine the questions raised under clause (3) (b) or (d), the bench shall consist of an uneven number of judges, being not less than three, assigned by the chief Justice.[9]

2. Environment and Land Court

Article 162(2) of the Constitution read together with Article 165(5) deprives the High Court jurisdiction to hear any matter reserved for the exclusive jurisdiction of either the Supreme Court or matters falling within the jurisdiction of the Courts contemplated under Article 162(2). Article 162 of the Constitution that establish superior courts provides as follows: 162. (1)“the superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2). (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) Employment and labour relations; and (b) The environment and the use and occupation of, and title to, land. (3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2). Article 162 in effect obligated the Parliament to establish superior courts namely the Industrial Court and the Environment and Land Court to hear and determine disputes contemplated under Article 162 (2) of the Constitution. Article 165(5) specifically provides that the High Court shall not have jurisdiction over disputes contemplated under Article 162((2) and these are labour disputes and land and environmental disputes. Legal practice tradition require that this being a jurisdictional clause, it had to be followed to the latter as held in the locus classicus case of Owner of Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd as explained above. The Environment and Land Court, as one of the Courts contemplated by article 162(2) is a Superior Court, has the same status as the High Court. Pursuant to article 162(3) of the Constitution, Parliament was empowered to determine the jurisdiction and the functions of the Environment and Land Court. Consequently, Parliament enacted the Environment and Land Court Act, 2011 that established the Land and Environment Court. Section 4 of the Environment and Land Court Act,[10]establishes the Environment and Land Court. The Act provides that: “4. (1) there is established the Environment and Land Court. (2) The Court shall be a superior court of record with the status of the High Court.(3) The Court shall have and exercise jurisdiction throughout Kenya and shall pursuant to section 26, ensure reasonable and equitable access to its services in every county.” Section 13 of the Act defines the jurisdiction of the Environment and Land Court. TheCourt has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of Act or any other written law relating toenvironment and land. In exercising its jurisdiction under Article 162 (2) (b) of the Constitution, and section 13 of the Environment and Land Court Act, the Court has power to hear and determine disputes relating to environment and land. It includes disputes relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources or disputes relating to compulsory acquisition of land.The court further has powers to deal with disputes relating to land administration and management. The court is also empowered to hear cases relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land. In this regard one will say that all disputes relating to securities and in particular any dispute dealing with the statutory power of sale by financial institutions will be dealt with by this court. Further, the Act states that the court has jurisdiction to hear any other dispute relating to environment and land. The court has jurisdiction to hear and determine matters relating to the right to clean environment.Section 13 (3) of the Environment and Land Court Act provides that, nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to the environment and land under Articles 42, 69 and 70 of the Constitution. The Court also exercises appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.[11] Additionally, the Court exercises supervisory jurisdiction over subordinate courts, local tribunals, persons or authorities in accordance with Article 165(6) of the Constitution. In exercise of the court’s supervisory jurisdiction the Court may call for the record of any proceedings before any subordinate court, body, authority or local tribunal exercising judicial or quasi-judicial functions, or a decision of any person exercising executive authorityand may make any order or give any direction the court considers appropriate to ensure the fair administration of justice. Section 13(7) of the Act provides that, in exercising its powers the court can grant the following orders:

1. interim or permanent preservation orders including injunctions;
2. prerogative orders;
3. award of damages;
4. compensation;
5. specific performance;
6. restitution;
7. declaration; or
8. costs.

3. Industrial Court of Kenya
   1. The Jurisdiction of the Industrial Court

Similar to the Environment and Land Court, the Industrial Court is established pursuant to Article 162(2) (a) of the Constitution of Kenya, which provides, “Parliament shall establish courts with the status of the High Court… to hear and determine disputes relating to employment and labour relations.’’ The purpose of this Article is to establish the Industrial Court as a superior court of record andose is 11111111111111111111111111111111111111111111111111111111111111111111111111111111111111 to confer jurisdiction on the Court with respect to employment and labour relations and other related purposes. Section 4 of the Industrial Courts Act,establishes the Industrial Court as Parliament was obliged by the Constitution to do so. The section provides that, “In pursuant to Article 162(2) of the Constitution, there is established the Industrial Court for the purpose of settling employment and industrial relations disputes, and the furtherance, securing and maintenance of good employment and labour relations in Kenya”. Similarly, the Act under the provision of Article 162(3) of the Constitution, defines the Jurisdiction of the Industrial Court. Section 12of the Industrial Court Act defines the jurisdiction of the Industrial Court as, The Court has, “exclusiveoriginal and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution, and the provisions of this Act, or any other written law which extends jurisdiction to the Court relating to employment and labour relations.’’ Among the other principal Acts of Parliament that extend the jurisdiction to the Industrial Court are the Employment Act[12] and the Labour Relations Act[13]. Section 87(1) of the Employment Act states “Subject to the provisions of this Act, whenever – (a) an employer or employee neglects to fulfill a contract of service; or (b) any question, difference or dispute arises as to the rights or liabilities of either party; or, (c) touching on any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court”. Section 87 (2) states “No other Court other than the Industrial Court shall determine any complaint or suit referred to in subsection (1).’’ This section is a ‘limitation clause’ with regards to jurisdiction. Despite it being one of the superior courts, no other court of the same status can preside over matters relating to the jurisdiction of the Industrial Court. Moreover, Section 73 of the Labour Relations Act extends jurisdiction to the Industrial Court as follows- “If a trade dispute is not resolved after conciliation, a party to the dispute may refer it to the Industrial Court in accordance with the Rules of the Industrial Court.’’ Subsequently, section 74 allows trade unions to refer to the Industrial Court as a matter of urgency, disputes concerning recognition, redundancy, and employees engaged in essential service. It thus follows that the Constitution, the Industrial Court Act and other written laws such as the Employment Act, and the Labour Relations Act govern the Industrial Court and confer jurisdiction on the Industrial Court.

4. Conclusion

As it is discussed, there is fundamental need to prove jurisdictionwhen instituting a matter before court. Considering the provisions outlining the jurisdiction of the three courts, it is important to note that these courts are of the same status. The Constitution, under Article 162, names the superior courts among them being the High Court, the Industrial Court, and the Environment and Land Court. However, this Article gives more details on the establishment of the last two courts. It mandates Parliament to enact legislation that establish and define the jurisdiction of these courts. Referring to the nature of matters brought before the Industrial Court and the Environment and Land Court, a special feature is common in both courts. They are courts of courts of a specialized nature and there are provisions that limit their jurisdiction. Subsequently, other courts are limited to hear and determine matters within the jurisdiction of these courts. As is noted above therefore, emphasis is on the establishment and jurisdiction of the Industrial and Environment and Land Court. The Article 162 (2) is specific as to the status of the courts. They are of the same status as the High Court, but conferred with different jurisdictions from that of the High Court. Professor Albert Mumma while presenting[14] his paper, The Jurisdiction of the Environment and Land Court said, “The ELC is a court sui generis- neither the High Court nor an administrative tribunal. It has a constitutional interpretation and human rights enforcement jurisdiction, appellate jurisdiction, supervisory and judicial review jurisdiction.” He based this reasoning on the unique nature of land disputes and that it was cumbersome for litigants due to the mainstream High Court judicial mechanisms. To echo Professor Mumma’s opinion, it is essential to distinguish the jurisdiction of the three courts. The jurisdiction of both the Environment and Land Court and the Industrial Court are specialized jurisdictions, which need judicial officers with the right expertise on the matters brought before them. In this case, Flotta needs to understand the nature of her matter. The definition of her relationship with the county assembly is essential to guide her under which court she should institute her complaint.in our subsequent discussions in this paper we shall also seek to explain the nature of the relationship she had with the County Government of Kiang’ombe.However not expressly defined in statute, we will also rely on various jurisprudence to show what kind of relationship it was. Having distinguished the various jurisdictions of the superior courts,the paper shall also identify which court to move by observing practice. Part 3, 4 and 5 of this paper shall discuss conclusively on this matter.

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[1] Black’s Law Dictionary Free Online Legal Dictionary 2nd Edition. [2] (1989) KLR 1 [3]Article 165(3)(a)- (d) [4]Article 165(3) (e) [5]Article 165 (5) (b) of the Constitution. [6] [2012]eKLR [7] Tribunal for the removal of the President of the President on grounds of incapacity. [8]This is in relation to the county governments and the relationship between the different levels of government defined by the constitution. [9] Article 165(4) of the Constitution [10] No. 19 of 2011 [11] Gazette Notice No. 16268. “Practice Directions on Proceedings relating to the Environment and the use and Occupation of, and Title to Land. [12]Number 11 of 2007 [13]Number 14 of 2007 [14]At a Seminar for Continuing Legal Education (CLE) held at The Imperial Hotel, Kisumu in 2013.

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