The establishment of the Supreme Court is one of the key changes introduced by the Constitution of Kenya 2010, which came into force on August 27 2010. The court is the highest in the country, above the Court of Appeal, the High Court, the magistrates courts and other tribunals.

The establishment, constitution and operations of the Supreme Court are governed by the Constitution and the recently enacted Supreme Court Act 2011. Section 163 of the Constitution provides that the Supreme Court shall consist of the chief justice, the deputy chief justice and five other judges. However, the court shall be considered to be properly constituted for the purposes of its proceedings provided that it is composed of five judges.

The rationale behind the establishment of the Supreme Court is outlined in Section 2 of the Supreme Court Act. It aims to:

  • assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
  • provide authoritative and impartial interpretation of the Constitution;
  • develop rich jurisprudence that respects Kenya's history and traditions and facilitates its social, economic and political growth;
  • improve access to justice; and
  • enable important constitutional matters and other legal matters to be determined with due regard to the circumstances, history and culture of the people of Kenya.

Section 163 of the Constitution provides that the court shall have:

  • exclusive original jurisdiction to hear and determine disputes relating to the election of the president;
  • jurisdiction to determine appeals from the Court of Appeal. However, the court is to hear appeals only as they relate to the interpretation of the Constitution and any other matter in which the Supreme Court or the Court of Appeal certifies that a point of general public importance is involved; and
  • power to give an advisory opinion at the request of the national government, any state organ or county government with respect to any matter concerning county government.

Section 14 of the act further gives the Supreme Court power to review judgments and decisions of judges who may be removed from office following the imminent vetting of judges and magistrates (another development introduced by the new Constitution), or who may be removed due to misconduct or misbehaviour. However, that review shall be restricted to the decisions which formed the basis for the removal of such judges.

Since the enactment of the new Constitution, seven prominent lawyers – two of them female – have been appointed to the positions of Supreme Court judges, including the chief justice and the deputy chief justice. However, several human rights organisations have initiated an action in the High Court questioning the composition of the court. Their argument is based on Section 27(8) of the Constitution, which requires that no more than two-thirds of the members of elective or appointive bodies be of the same gender. Thus, the human rights groups argue that in line with the section, there should be at least three female judges.

The High Court has since issued orders barring the swearing in of five of the appointees. The other two appointees – the chief justice and the deputy chief justice – have already been sworn in and have assumed office.

The case is pending in the High Court. Lawyers for the parties are engaged in seemingly endless legal manouevring. The latest controversy has arisen over the constitution of the bench of three judges who will hear and determine the dispute. In the meantime, the country continues to function without a substantive Supreme Court.

For further information on this topic please contact Grishon Ng'ang'a Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).