163. Supreme Court
(1)There is established the Supreme Court, which shall consist of—(a)the Chief Justice, who shall be the president of the court;(b)the Deputy Chief Justice, who shall—(i)deputise for the Chief Justice; and(ii)be the vice-president of the court; and(2)The Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.(3)The Supreme Court shall have—(a)exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and(b)subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from—(i)the Court of Appeal; and(ii)any other court or tribunal as prescribed by national legislation.(4)Appeals shall lie from the Court of Appeal to the Supreme Court—(a)as of right in any case involving the interpretation or application of this Constitution; and(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, subject to clause (5).(5)A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.(6)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.(7)All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.(8)The Supreme Court shall make rules for the exercise of its jurisdiction.(9)An Act of Parliament may make further provision for the operation of the Supreme Court.164. Court of Appeal
(1)There is established the Court of Appeal, which—(a)shall consist of the number of judges, being not fewer than twelve, as may be prescribed by an Act of Parliament; and(b)shall be organised and administered in the manner prescribed by an Act of Parliament.(2)There shall be a president of the Court of Appeal who shall be elected by the judges of the Court of Appeal from among themselves.(3)The Court of Appeal has jurisdiction to hear appeals from—(b)any other court or tribunal as prescribed by an Act of Parliament.165. High Court
(1)There is established the High Court, which—(a)shall consist of the number of judges prescribed by an Act of Parliament; and(b)shall be organised and administered in the manner prescribed by an Act of Parliament.(2)There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.(4)Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.(5)The High Court shall not have jurisdiction in respect of matters—(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or(b)falling within the jurisdiction of the courts contemplated in Article 162(2).(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.166. Appointment of Chief Justice, Deputy Chief Justice and other judges
(1)The President shall appoint—(a)the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and(b)all other judges, in accordance with the recommendation of the Judicial Service Commission.(2)Each judge of a superior court shall be appointed from among persons who—(a)hold a law degree from a recognised university, or are advocates of the High Court of Kenya, or possess an equivalent qualification in a common-law jurisdiction;(b)possess the experience required under clause (3) to (5) as applicable, irrespective of whether that experience was gained in Kenya or in another Commonwealth common-law jurisdiction; and(c)have a high moral character, integrity and impartiality.(3)The Chief Justice and other judges of the Supreme Court shall be appointed from among persons who have—(a)at least fifteen years’ experience as a superior court judge; or(b)at least fifteen years’ experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant legal field; or(c)held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the aggregate, to fifteen years.(4)Each judge of the Court of Appeal shall be appointed from among persons who have—(a)at least ten years’ experience as a superior court judge; or(b)at least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field; or(c)held the qualifications mentioned in paragraphs (a) and (b) for a period amounting, in the aggregate, to ten years.(5)Each judge of the High Court shall be appointed from among persons who have—(a)at least ten years’ experience as a superior court judge or professionally qualified magistrate; or(b)at least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field; or(c)held the qualifications specified in paragraphs (a) and (b) for a period amounting, in the aggregate, to ten years.167. Tenure of office of the Chief Justice and other judges
(1)A judge shall retire from office on attaining the age of seventy years, but may elect to retire at any time after attaining the age of sixty-five years.(2)The Chief Justice shall hold office for a maximum of ten years or until retiring under clause (1), whichever is the earlier.(3)If the Chief Justice’s term of office expires before the Chief Justice retires under clause (1), the Chief Justice may continue in office as a judge of the Supreme Court.(4)If, on the expiry of the term of office of a Chief Justice, the Chief Justice opts to remain on the Supreme Court under clause (3), the next person appointed as Chief Justice may be selected in accordance with Article 166(1), even though that appointment may result in there being more than the maximum permitted number of Supreme Court judges holding office.(5)The Chief Justice and any other judge may resign from office by giving notice, in writing, to the President.168. Removal from office
(1)A judge of a superior court may be removed from office only on the grounds of—(a)inability to perform the functions of office arising from mental or physical incapacity;(b)a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;(e)gross misconduct or misbehaviour.(2)The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.(3)A petition by a person to the Judicial Service Commission under clause (2) shall be in writing, setting out the alleged facts constituting the grounds for the judge’s removal.(4)The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President.(5)The President shall, within fourteen days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission—(a)in the case of the Chief Justice, appoint a tribunal consisting of—(i)the Speaker of the National Assembly, as chairperson;(ii)three superior court judges from common-law jurisdictions;(iii)one advocate of fifteen years standing; and(iv)two other persons with experience in public affairs; or(b)in the case of a judge other than the Chief Justice, appoint a tribunal consisting of—(i)a chairperson and three other members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such but who, in either case, have not been members of the Judicial Service Commission at any time within the immediately preceding three years;(ii)one advocate of fifteen years standing; and(iii)two other persons with experience in public affairs.(6)Despite Article 160(4), the remuneration and benefits payable to a judge who is suspended from office under clause (5) shall be adjusted to one half until such time as the judge is removed from, or reinstated in, office.(7)A tribunal appointed under clause (5) shall—(a)be responsible for the regulation of its proceedings, subject to any legislation contemplated in clause (10); and(b)inquire into the matter expeditiously and report on the facts and make binding recommendations to the President.(8)A judge who is aggrieved by a decision of the tribunal under this Article may appeal against the decision to the Supreme Court, within ten days after the tribunal makes its recommendations.(9)The President shall act in accordance with the recommendations made by the tribunal on the later of—(a)the expiry of the time allowed for an appeal under clause (8), if no such appeal is taken; or(b)the completion of all rights of appeal in any proceedings allowed for under clause (8), if such an appeal is taken and the final order in the matter affirms the tribunal’s recommendations.(10)Parliament shall enact legislation providing for the procedure of a tribunal appointed under this Article.
