Sweeping changes in Kenya’s disputes’ regime: The new Magistrates’ Courts Act, 2015

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Changing times beckon in the Kenyan Magistrates Courts, as marked by the enactment of the Magistrates’ Courts Act, 2015 (the Act) which came into commencement on 2nd January, 2016. The Act confers jurisdiction, functions and powers on the magistrates’ courts and provides for the procedure of the magistrates’ courts

According to the law, in exercising its authority, a magistrate’s court shall be guided by the principles specified under the Constitution in Article 10 on the national values and principles of governance, Article 159 on the principles guiding the exercising of judicial authority and Article 232 – with regards to the values and principles of public service.

In light of the backlog that has otherwise become synonymous with the Kenyan Courts the Act’s new objective  to enable the Magistrate courts to facilitate just, expeditious, proportionate and accessible judicial service in the exercise of criminal and civil jurisdiction is obviously a welcome relief towards easing the backlog of cases.

A magistrate’s court shall be subordinate to the High Court and shall be presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate. The Court shall exercise criminal jurisdiction as conferred on it by the Criminal Procedure Code or any written law. This is in line with the general principle that any crime and its punishment must be prescribed by written law.

One of the most notable changes in terms of the expansion of the jurisdiction of the Magistrates Courts is with regard to the increase of the pecuniary jurisdiction in relation to proceedings of a civil nature. For instance, the pecuniary jurisdiction where the Court is presided over by a chief magistrate has been increased from KES 7 million to KES 20 million shillings. The Chief Justice is however empowered to revise the pecuniary limits of the civil jurisdiction by a Gazette notice, by taking into account inflation and prevailing economic conditions.

The Act retains the jurisdiction of the magistrate’s court in proceedings of a civil nature regarding African customary Law on specified matters such as land held under African customary tenure; marriage, divorce, maintenance or dowry; Seduction or pregnancy of an unmarried woman or girl; enticement of, or adultery with a  married person; matters affecting status and, in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and Intestate succession and administration of intestate estates, so far as they are not governed by any written law.

The Court now has jurisdiction over claims relating to violation of human rights only on rights guaranteed under Article 25 (a) of the Constitution dealing with freedom from torture and cruel, inhuman or degrading treatment or punishment; and Article 25 (b) of the Constitution dealing with freedom from slavery or servitude.

Presently, the magistrates’ courts can hear claims in employment and labour relations subject to the pecuniary limits under the Act.  They can also hear and determine environment and land cases subject to the pecuniary limits. The type of environment and land cases that can be heard include claims relating to environmental planning and protection, climate issues, land use planning , title, tenure, boundaries, rates, rents, valuation, mining, minerals and other natural resources; compulsory acquisition; land administration and management.

Furthermore, the court can now adjudicate over matters relating to contempt of court other than contempt that occurs in the face of the court. A person who commits contempt can be sentenced to imprisonment for a term not exceeding five days or a fine not exceeding KES 100,000 or both.

The Act introduces a court administrator to be appointed by the Judicial Service Commission and shall be responsible for among others, the day to day administration of the Court. The Chief Justice is expected to make rules for the effective organization and administration of the Magistrates courts to cover among others, the automation of court records, case management, protection and sharing of court information and the use of information communication technology.

Whereas the Chief Justice is expected to take measures as may be necessary for the supervision and inspection of magistrates’ courts, including prescribing a code of conduct for magistrates within six months of the Commencement of the Act, it must always be borne in mind at all times that the courts are subject to the supervisory jurisdiction of the High Court as a check mechanism.

A copy of the new Act, can be found here

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