THE AFRICAN COURT SYSTEM IN KENYA
| Author | Arthur Phillips |
| Published date | 01 October 1952 |
| DOI | http://doi.org/10.1002/j.1099-162X.1952.tb00955.x |
| Date | 01 October 1952 |
THE AFRICAN COURT SYSTEM IN KENYA
THE
AFRICAN COURT SYSTEM IN KENYA
135
By Arthur Phillips.
"
To
make better provision for the administration of justice in African
Courts"
-such
is the declared purpose of a new Kenya Ordinance which supersedes a
21-year-old enactment dealing with
"Native
Tribunals."! While the change
of terminology is of some significance, this Ordinance does not represent a
complete re-orientation of policy (such as is envisaged by the Khorsah report in
the Gold Coast),"
but
rather another landmark in a progressive course of develop-
ment.
It
is proposed to deal briefly in this article with the following topics:
(i) the history of the native tribunals up to 1930;
(ii) the changes introduced in 1930;
(iii) developments during the period 1930-51;
(iv) the African Courts Ordinance, 1951.
History 01 the N alive Tribunals up to
1930.
From the earliest years of the East Africa Protectorate (as it was called until
1920) the traditional jurisdiction of the
"tribal
authorities" received statutory
recognition." But in the majority of Kenya tribes these authorities were of the
ｬＮｯｯｾ･ｬｾ
?rganized! uncentralized type and it proved
､ｪｦｦｩｾｵｬｴ
to maintain
ｾ･ｩｲ
jurisdiction effectively under the changed conditions resulting from the establish-
ment of British administration. Adominating influence, extending to the
judicial sphere, came to be exercised by the Goverment headmen or
"chiefs"
(whose authority was largely non-traditional). In spite of renewed attempts (e.g.
by
Sir
Percy Girouard from 1911 onwards) to restore and reinforce the authority
of the indigenous judicial bodies, it gradually became apparent that, if satisfactory
standards of efficiency and integrity were to be achieved, there was no alternative
to substantial modernization.
Until 1930 the native tribunals were integrated with the main judicial system
of the Colony to the extent that there was a normal avenue of appeal leading
from them through the magisterial courts up to the Supreme Court. At the
hearing of appeals, both before magistrates and in the Supreme Court, advocates
were permitted to appear. .
Changes Introduced in
1930.
The
principal object of the changes embodied in the Native Tribunals
Ｙｲ､Ｎｩｾ｡ｮ｣･Ｌ
1930, was to provide a remedy for the technicality, costliness, and .hablhty to
abuse entailed by proceedings in the existing appellate courts, especially where
advocates were engaged. In pursuance of this object, the tribunal system was
removed almost entirely from the control of the Supreme Court
a?d
ｾｰｰ･ｬｬ｡ｾ･
jurisdiction was practically confined to administrative officers actmg m their
capacity as such. In other words, there was a change-over from the "integrated"
system to the "parallel" system." Moreover, advocates were debarred fr?m
appearing in a native tribunal or before an administrative officer on the hearing
of an appeal from a native tribunal.
1
The
African Courts Ordinance 1951 repealing and replacing the Native Tribunals
Ordinance, 1930. "
I
SeeJ.A.A.,
Vol. IV,
No.3,
p, 118.
aCf.
The
Native Courts Regulations, 1897, made
under
powers conferred by the East
Africa
Order
in Council, 1897.
.
'Cf.
R. E. Robinson,
The
Administration of African Customary Law,
J.A.A.,
Vol. I,
No.4
(October, 1949), pp. 158-176, esp, pp. 165, 168.
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