QUESTION: Critically discuss the

rule of law as applicable in Kenya.

The rule of law1 is a mechanism or process that supports the equality of all
citizens before the law, secures a non-arbitrary form of government and generally prevents
the arbitrary use of power. The rule of law thus implies that the creation of laws, their
enforcement and the relationships among legal rules are themselves legally regulated hence
no one including the entities at the apex of the power structure is above the law. The
government is subject to existing laws as much as the citizens are thus a closely related
notion is the idea of equality before the law which holds that, “ no legal person shall enjoy
privileges that are not extended to all and that no person shall be immune from legal
sanctions.”
The rule of law can also be defined as the legal principle that law should govern a nation, as
opposed to being governed by arbitrary decisions of individual government officials. It has its
origins in ancient Greece and more specifically in the philosophy of Aristotle. In his work
titled “politics”, Aristotle raised a question whether it is better to be ruled by the best leader
or best laws. In his exploration of this question, he found both advantages and disadvantages
to both governing methods. However, in his conclusion he suggested that laws were
appropriate for most societies since they were carefully thought out and could be applied to
most situations therefore people should be ruled by the best laws.
The rule of law has been applied in Kenya in accordance with the 2010 constitution in
various ways which include;
There’s applicable the principle of natural justice, procedural fairness and
administrative fairness. The essence of natural justice requires that a person receive a fair and
unbiased hearing before a decision is made. For natural justice to be met, there are three
important requirements which include,
1. The hearing principle: This states that the person or party who is affected by the
decision made by the panel of expert members that is to say judges should be given a
fair opportunity to express his point of view so as to defend themselves. In Kenya, the
citizens have a right to a fair hearing which is provided for under article 50(1)2 of the
2010 Kenya constitution.
2. The bias rule: This generally expresses that the panel of experts should be bias free
while taking decisions that is to say the decision should be given in a free and fair
manner which can fulfil the rule of natural justice.
3. Reasoned decision: This states that the order, decision or judgement of the court
given by the presiding authorities with a valid and reasonable ground.
The 2010 constitution of Kenya also provides for fair administrative action under
article 473 and access to justice in article 48 which specifies that, ‘ the state shall

1
Encyclopedia Britannica.
2
Article 50(1) of the 2010 Kenya constitution holds that, ‘ every person has the right to have
any dispute that can be resolved by the application of law, decided in a fair and public
hearing before a court or, if appropriate, another independent and impartial tribunal or body.
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1. Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
 ensure access to justice for all persons and, if any fee is required, it shall be
reasonable and shall not impede access to justice.’
The principle of natural justice is also backed up by to important cardinals that are phrased in
Latin namely, ‘Nemo Judex In Causa Sua’ which holds that, no one should be a judge in
there own case in which they have interest. The other, is the cardinal of ‘Audi Alteram
Partem’ which says that a judge must also listen to the other side or let the other side be heard
as well for example in the case of ‘Cooper v Board of works for the Wandsworth district
(1863) 143 ER 414 in which the board had to notify Mr. Cooper before taking any action.
The rule that a person should be heard before steps adverse to his property rights were taken
was fundamental. If the relevant legislation had not made it clear, then the court would take it
upon itself to do so.
The rule of law in Kenya has also been adhered to by establishment of an independent
judiciary in accordance with the 2010 constitution. There’s established the judiciary in
chapter 10 of the Kenya constitution. Its primary role is to exercise judicial authority given to
it by the people of Kenya. The institution is mandated to deliver justice in line with the
constitution and other laws. It is expected to resolve disputes in a just manner with a view to
protecting the rights and liberties of all, thereby facilitating the attainment of the ideal rule of
law. An independent judiciary means a justice system that is not influenced by either the
legislature or executive. It is free to make decisions based upon law. It is created to guarantee
equal justice to all. The judges and juries are free from influence and can make fair and
honest decisions about cases. They don’t act in the direction of the government or according
to the wishes of the party in power or partisan interests.
Judicial independence is important to the idea of separation of powers. The lack of the
independence of the judiciary under the 1963 constitution of Kenya has historically been one
of the greatest threats to the rule of law in Kenya. The lack of trust in the courts directly
contributed to the post-election violence of 2007/2008 and has undermined the rule of law in
all aspects of national life. This 1963 constitution4 gave the president complete discretion in
the appointment and dismissal of the chief justice, while the chief justice had extensive
administrative powers over the functioning of the courts. Together, these powers have
undermined the legitimacy of the judiciary and the decisional independence of judicial
officers thus in Kenya the independence of the judiciary is provided for under article 160 of
the new 2010 constitution which guarantees its independence. The judiciary in Kenya is
composed of the superior courts and the subordinate courts so as to facilitate and adhere to
the rule of law and natural justice. The superior courts in Kenya include;

2. If a right or fundamental freedom of a person has been or is likely to be adversely

affected by administrative action, the person has the right to be given written reasons for the
action .
3. Parliament shall enact legislation to give effect to the rights in clause (1) and that
legislation shall;
a. provide for the review of administrative action by a court or, if appropriate, an
independent and impartial tribunal, and
b. promote efficient administration.
4
This was Kenya’s first constitution also called the independence constitution and was based
on the standard Lancaster House Template used by the former British colonies in Africa but
later replaced in 1969 and then recently in 2010.
 1. The supreme court: It is established under article 163 of the 2010 Kenya
constitution. The supreme court consists of 7 judges and is headed by the Chief
Justice who is the president of the court, the deputy chief justice who is the deputy to
the chief justice and 5 other judges. It has exclusive original jurisdiction to hear and
determine disputes relating to the elections of the office of the president under article
1405. It has also got appellate jurisdiction to hear and determine appeals from the
court of appeal and any other court or tribunal as prescribed by national legislation.
2. The court of appeal: This court is established under article 164 and consists of a
number of judges not fewer than 12. It handles appeals arising over the decisions of
the high court as well as any other court or tribunal as provided for in the
constitution. It comprises of a maximum of 30 judges. The judges of the court of
appeal elect a president from among themselves. The court of appeal has been
decentralized in Kenya and has a total of 6 registries which include; Nairobi, Nyeri,
Nakuru, Eldoret, Mombasa and Kisumu.
3. The high court: This court is provided for under article 165 and consists of a number
of judges to be prescribed by an act of parliament. It has a principal judge who is
elected by judges of the high court from among themselves. The high court has got
appellate jurisdiction in both civil and criminal cases but its original jurisdiction is
limited. It has the power of judicial review6 and supervises the subordinate courts and
tribunals.
4. The subordinate courts are established in article 169. They consist of the
Magistrates court, Khadi’s courts, courts martial and any other court or local tribunal
established by an act of parliament as provided for in clause (d).
Under the system of courts in Kenya article 162(2) states that parliament shall establish
courts with the status of the high court to hear and determine disputes relating to;
a. Employment and Labor relations
b. The environment and the use and occupation of, and title to land.
The separation of powers in Kenya has also ensured the realization of the rule of law. It is a
fundamental principle of law that maintains that all three organs of government remain
separate. This requires that the judiciary, the executive and legislature all remain distinct
from each other to ensure that they do not encroach upon each other. The rationale of the
separation of powers is often elided with the rationale of checks and balances and the
dispersal of power generally in a constitutional system. The constitution of Kenya provides
that the sovereign power of the people shall be vested in the executive, the legislature and the
judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it
is therefore prone to misuse, arbitration and a capricious governance. The three arms of
government are provided for in the constitution of Kenya and include;
a. The executive: It is specified in chapter 9 of the constitution and consists of the
president, deputy president and the rest of the cabinet. The president is the head of
the state and government, he exercises the executive authority of the republic and

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The questions as to validity of the presidential election.
6
Judicial review in this sense means the power to scrutinize laws and executive acts, the
power to test their conformity with the constitution and the power to strike them down if they
are found to be inconsistent with the constitution.
 with the assistance of the deputy president and cabinet secretaries. The president is
the commander in chief of the Kenya Defence Forces and a symbol of national
unity as provided for in article 131 of the constitution.
b. The legislature: It is the supreme law making body that controls the financial
appropriation of government departments, and examines government proposals
with a view to improving them. It is specified under chapter 8 of the constitution
with article 93 establishing a parliament. It consists of the National assembly which
has 210 elected members including the head of state, each representing a
constituency, 12 nominated members and 2 ex-officio members namely; the
speaker who is elected by the National assembly to preside over its meetings, and
the Attorney General appointed by the president. There’s an electoral commission
consisting of a chairman and not less than four and not more than 21 members
appointed by the president. The commission whose members enjoy security of
tenure is responsible for;
i. The registration of voters and the maintenance, revision of the voter
registries.
ii. Directing and supervising the presidential, National assembly and local
government elections.
iii. Promoting voter education throughout Kenya and,
iv. Any other electoral functions the law may prescribe.
c. The judiciary: This is a system of courts and a body that is responsible for
determining disputes and interpreting statutes. It is independent of both the
executive and legislature. The constitution provides for it in chapter 10. The
judiciary in Kenya consists of superior courts and subordinate courts for instance
the supreme court, the court of appeal, the high court and the subordinate courts
which include the magistrates court, kadhis courts and the courts martial. There’s
established courts with the status of the high court to solve issues of employment
and labor relations and the environment.
The equality of all citizens and the status of human rights. The rule of law entails that all
citizens are equal before the law including the government with its officials that is to say
everyone is subject to the same law. Human rights can be defined as principles or norms that
determine certain standards of human behavior and are enforced by laws. Human rights are
protected by municipal and international bodies such as constitutions, The United Nations
Charter and the Universal Declaration of Human Rights. Article one of the Universal
Declaration of Human Rights holds that, ‘All human beings are born free and equal in dignity
and rights’. Article 28 of the 2010 Kenya constitution also specifies that, ‘Every person has
got inherent dignity and the right to have that dignity respected and protected.’ The principle
of equality is further entailed in article 27 clause (4) which says that, ‘The state shall not
discriminate directly or indirectly against any person on any ground including race, sex,
pregnancy, marital status, health, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth.’ The constitution of Kenya has the Bill of
rights included so as to provide for a variety of rights and fundamental freedoms for the
people of Kenya as well as protect them. The Kenya National Commission for Human rights
is responsible for monitoring government institutions and carries out investigation on alleged
human rights violation. The 2010 constitution of Kenya provides for a variety of rights and
fundamental freedoms ranging from articles 26 to 59.