Article 162 of the Constitution of Kenya

(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. Appointment of Chief Justice, Deputy Chief Justice and other judges. 166. (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 (6) as applicable, irrespective of whether that experience was gained in Kenya or in another Commonwealth common-law jurisdiction; and99 Constitution of Kenya, 2010 (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. Tenure of office of the Chief Justice and other judges. 167. (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 100 Constitution of Kenya, 2010 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. Removal from office. 168. (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; (c) bankruptcy; (d) incompetence; or (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 judges 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;101 Constitution of Kenya, 2010 (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.102 Constitution of Kenya, 2010 PART 3—SUBORDINATE COURTS Subordinate courts. 169. (1) The subordinate courts are— (a) the Magistrates courts; (b) the Kadhis’ courts; (c) the Courts Martial; and (d) any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162 (2). (2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1). Kadhis’ Courts. 170. (1) There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament. (2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person— (a) professes the Muslim religion; and (b) possesses such knowledge of the Muslim law applicable to any sects of Muslims as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court. (3) Parliament shall establish Kadhis’ courts, each of which shall have the jurisdiction and powers conferred on it by legislation, subject to clause (5). (4) 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, shall each be empowered to hold a Kadhi’s court having jurisdiction within Kenya. (5) The jurisdiction of a Kadhis’ court shall be 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.103 Constitution of Kenya, 2010 PART 4—JUDICIAL SERVICE COMMISSION Establishment of the Judicial Service Commission. 171. (1) There is established the Judicial Service Commission. (2) The Commission shall consist of— (a) the Chief Justice, who shall be the chairperson of the Commission; (b) one Supreme Court judge elected by the judges of the Supreme Court; (c) one Court of Appeal judge elected by the judges of the Court of Appeal; (d) one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; (e) the Attorney-General; (f) two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates; (g) one person nominated by the Public Service Commission; and (h) one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. (3) The Chief Registrar of the Judiciary shall be the Secretary to the Commission. (4) Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years. Functions of the Judicial Service Commission. 172. (1) The Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and shall— (a) recommend to the President persons for appointment as judges;104 Constitution of Kenya, 2010 (b) review and make recommendations on the conditions of service of— (i)judges and judicial officers, other than their remuneration; and (ii)the staff of the Judiciary; (c) appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament; (d) prepare and implement programmes for the continuing education and training of judges and judicial officers; and (e) advise the national government on improving the efficiency of the administration of justice. (2) In the performance of its functions, the Commission shall be guided by the following— (a) competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and (b) the promotion of gender equality. Judiciary Fund. 173. (1) There is established a fund to be known as the Judiciary Fund which shall be administered by the Chief Registrar of the Judiciary. (2) The Fund shall be used for administrative expenses of the Judiciary and such other purposes as may be necessary for the discharge of the functions of the Judiciary. (3) Each financial year, the Chief Registrar shall prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval. (4) On approval of the estimates by the National Assembly, the expenditure of the Judiciary shall be a charge on the Consolidated Fund and the funds shall be paid directly into the Judiciary Fund. (5) Parliament shall enact legislation to provide for the regulation of the Fund.105 Constitution of Kenya, 2010 CHAPTER ELEVEN—DEVOLVED GOVERNMENT PART 1—OBJECTS AND PRINCIPLES OF DEVOLVED GOVERNMENT Objects of devolution. 174. The objects of the devolution of government are— (a) to promote democratic and accountable exercise of power; (b) to foster national unity by recognising diversity; (c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; (d) to recognise the right of communities to manage their own affairs and to further their development; (e) to protect and promote the interests and rights of minorities and marginalised communities; (f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; (g) to ensure equitable sharing of national and local resources throughout Kenya; (h) to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and (i)to enhance checks and balances and the separation of powers. Principles of devolved government. 175. County governments established under this Constitution shall reflect the following principles— (a) county governments shall be based on democratic principles and the separation of powers; (b) county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively; and (c) no more than two-thirds of the members of representative bodies in each county government shall be of the same gender.106 Constitution of Kenya, 2010 PART 2—COUNTY GOVERNMENTS County governments. 176. (1) There shall be a county government for each county, consisting of a county assembly and a county executive. (2) Every county government shall decentralise its functions and the provision of its services to the extent that it is efficient and practicable to do so. Membership of county assembly. 177. (1) A county assembly consists of— (a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year; (b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender; (c) the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and (d) the Speaker, who is an ex officio member. (2) The members contemplated in clause (1) ( b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90. (3) The filling of special seats under clause (1) ( b) shall be determined after declaration of elected members from each ward. (4) A county assembly is elected for a term of five years. Speaker of a county assembly. 178. (1) Each county assembly shall have a speaker elected by the county assembly from among persons who are not members of the assembly. (2) A sitting of the county assembly shall be presided over by— (a) the speaker of the assembly; or (b) in the absence of the speaker, another member of the assembly elected by the assembly.107 Constitution of Kenya, 2010 (3) Parliament shall enact legislation providing for the election and removal from office of speakers of the county assemblies. County executive committees. 179. (1) The executive authority of the county is vested in, and exercised by, a county executive committee. (2) The county executive committee consists of— (a) the county governor and the deputy county governor; and (b) members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly. (3) The number of members appointed under clause (2) ( b) shall not exceed— (a) one-third of the number of members of the county assembly, if the assembly has less than thirty members; or (b) ten, if the assembly has thirty or more members. (4) The county governor and the deputy county governor are the chief executive and deputy chief executive of the county, respectively. (5) When the county governor is absent, the deputy county governor shall act as the county governor. (6) Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers. (7) If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2) (b) cease to hold office. Election of county governor and deputy county governor. 180. (1) The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year. (2) To be eligible for election as county governor, a person must be eligible for election as a member of the county assembly. (3) If only one candidate for county governor is nominated, that candidate shall be declared elected.108 Constitution of Kenya, 2010 (4) If two or more candidates are nominated, an election shall be held in the county and the candidate who receives the greatest number of votes shall be declared elected. (5) Each candidate for election as county governor shall nominate a person who is qualified for nomination for election as county governor as a candidate for deputy governor. (6) The Independent Electoral and Boundaries Commission shall not conduct a separate election for the deputy governor but shall declare the candidate nominated by the person who is elected county governor to have been elected as the deputy governor. (7) A person shall not hold office— (a) as a county governor for more than two terms; or (b) as a deputy county governor for more than two terms. (8) For the purposes of clause (7), a person who has assumed the office of county governor shall be deemed to have served a full term, subject only to Article 182 (3) ( b). Removal of a county governor. 181. (1) A county governor may be removed from office on any of the following grounds— (a) gross violation of this Constitution or any other law; (b) where there are serious reasons for believing that the county governor has committed a crime under national or international law; (c) abuse of office or gross misconduct; or (d) physical or mental incapacity to perform the functions of office of county governor. (2) Parliament shall enact legislation providing for the procedure of removal of a county governor on any of the grounds specified in clause (1). Vacancy in the office of county governor. 182. (1) The office of the county governor shall become vacant if the holder of the office— (a) dies;109 Constitution of Kenya, 2010 (b) resigns, in writing, addressed to the speaker of the county assembly; (c) ceases to be eligible to be elected county governor under