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Legal System

The Kenyan legal system consists of a combination of Kenyan statutory law, and English Common Law, mixed with elements of tribal and Islamic law. In civil matters which concern people of the same ethnic group, customary law is used as a guide, so long as it does not conflict with statutory law. A new constitution promulgated on 27 August 2010 provided for an independent judiciary and a supreme court. The courts operate on two levels Superior and Subordinate Courts, with Superior consisting of the Supreme Court and the High Court, while all other courts are subordinate. The Supreme Court has sole jurisdiction over cases concerning presidential elections and acts as the final court of appeal. It is presided over by the Chief Justice, the president of the Supreme Court, and five other judges. The Chief Justice is the head of the judiciary and was appointed by the president on the recommendation of the Judicial Service Commission, subject to the approval of the National Assembly. However, in 2012 a new Chief Justice was appointed by public vote for the first time.

The High Court deals with the most serious cases under civil and criminal law, serving as a court of first instance in some cases, as well as handling appeals from the lower courts. It sits continuously at Nairobi, Mombasa, Nakuru and Kisumu, and periodically at Eldoret, Kakamega, Nyeri, Kitale, Kisii and Meru. Less serious cases are heard by magistrates’ courts, presided over by resident magistrates and district magistrates. Appeals from the High Court are heard by the Kenya Court of Appeal which comprises 12 judges. The new constitution recognises Kadhi courts to administer Islamic law.

Profession

Lawyers are known as advocates and can practice as both solicitors and barristers as there is no formal distinction between the two. An advocate is required to have Kenyan, Tanzanian or Ugandan citizenship, a law degree and have successfully completed exams set by the Council of Legal Education. Foreign lawyers, who must have qualifications to appear before superior courts of a Commonwealth country, may be admitted by the Attorney General to appear in particular cases. The Law Society of Kenya is the professional body for lawyers, with membership of all practicing advocates, with a membership of over 8000 (2012). By law one must be a member of the Law Society in order to practice as an advocate. Its members are also members of the East Africa Law Society and the African Bar Association.

Kenya has seen numerous high-value cross-border deals, alongside the continued strong presence of the ‘Magic Circle’ law firms in East Africa. The Legal 500 noted that 2012 was a particularly strong year for Anjarwhalla and Khanna, whilst Chambers Global ranked Kaplan and Stratton as the top firm in Kenya in 2012.

Development

Information from the World Economic Forum, The Global Competitiveness Report 2012-2013