The Constitution of Kenya gives two categories of courts. The first, the superior courts, consist of the Supreme Court, the Court of Appeal, the High Court, the Employment and Labour Relations court and the Environment and Land Court. The subordinate courts on the other hand consist of the Magistrates courts, the Kadhis’ courts, the Courts Martial and any other court or local tribunal established by law.
The courts that ordinarily have jurisdiction over civil matters are (1) the Court of Appeal, which hears matters on appeal from the High Court; (2) the High Court, which has jurisdiction to hear cases at the first instance (original jurisdiction) as well as on appeals from the Magistrates courts; and (3) the Magistrates courts. The courts have pecuniary limitations, with the highest ranking, the Chief Magistrates Court, limited to hear civil claims with a maximum value of Kshs. 20M.
The Supreme Court has jurisdiction to hear presidential election petitions, appeals from the Court of Appeal as of right in any case involving the interpretation or application of the Constitution and in any other case where a matter is of general public importance. As such, ordinary appeals in commercial disputes have no place before the Supreme Court, unless the appeal entails “a matter of general public importance.”
Procedure at the High Court and the Magistrates Courts is guided by the Civil Procedure Act and Rules. The procedure used for proceedings before specialized courts is, where the Civil Procedure Rules are not specified as applicable, the one specified under the laws under which the specialized courts are established. The procedure before the Court of Appeal and the Supreme Court is also set out in different Rules. The rules are premised on the “Overriding Objective” whose purpose is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes.
Litigation in courts is commenced by use of pleadings which vary depending on the cause. The rules contemplate the commencement of a suit by a plaintiff, responses to the claim, holding of pretrial conferences to confirm readiness for trial, trial/hearing of the case and judgment by the judicial officer. A right of appeal exists in the laws and one has to ensure the appeal is allowed under the relevant rules since the right is not unrestricted. Appeals from decisions of Magistrates Courts can be made at the High Court. Appeals from the decisions of the High Court are made at the Court of Appeal. And the Supreme Court hears appeals from the Court of Appeal and from any other court as prescribed by legislation on limited matters.
The Foreign Judgments (Reciprocal Enforcement) Act makes provisions relating to the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya.
Kenyan law also allows parties to submit their disputes to alternative forms of dispute resolution. These include reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. Where parties have by their agreement, agreed to resolve any disputes through the said forms of dispute resolution, the court may order parties to follow the agreed form of resolution. The judiciary has also been rolling a court annexed mediation program where cases are screened and those that can be resolved through mediation are referred to mediation.