The Supreme Court Amendment Act 2022 - as Plain Text by MWakili

NATIONAL COUNCIL FOR LAW REPORTING LIBRARY SPECIAL TSSI TF.

Kenya Gazette Supplement No.

110 (Acts No.

26) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2022 NAIROBI, 27th June, 2022 CONTENT A ct Page The Supreme Court (Amendment) Act, 2022 327 NATiQNAL COUNCIL m REPORTING 12 JUL 2022 RO.

Cox NASROEi, KNYA TEL: 2719231 FAX: 2712694 prim ed and published by the government printer, NAIROBI' 327 THE SUPREME COURT (AMENDMENT) ACT, 2022 No.

26 of 2022 Date of Assent: 21st June, 2022 Date of Commencement: 11th July, 2022 AN ACT of Parliament to amend the Supreme Court Act and for connected purposes ENACTED by the Parliament of Kenya, as follows ti tl e.

1.

This Act may be cited as the Supreme Court short (Amendment) Act, 2022.

Amendment of 2.

The Supreme Court Act (hereinafter referred to as section 2 of No.

7 the principal Act) is amended in section 2 of 20 11.

(a) by deleting the definition of Chief Registrar; (b) by inserting the words of Kenya as established under Article 163 (1) of the Constitution at the end of the definition of Court; (c) by inserting the words and includes a deputy registrar at the end of the defi nition of Registrar; and (d) by inserting the following new defi nitions in their proper alphabetical sequence petition means a petition fi led under Articles 58(5), 163(3) and (4) and 168(8) of the Constitution; proceedings means presentation made before the Court under Article 163(2) of the Constitution for fi nal determination on a matter; preliminary procedures means presentation made before a single judge, a two-judge bench, or the Registrar, on a matter preparatory in nature; and president means the president of the Supreme Court.

of 3.

Section 3 of the principal Act is amended in Amendment parap ph (d) by deleting the words including matters S Tl " relating to the transition from the former to the present 328 2022 Supreme Court (Amendment) No.

26 after constitutional dispensation appeari ng immediately the words legal matters.

Insertion of new 4.

The pri ncipal Act is amended by inserting the section 3A in No.

7 of 20 11.

following new section immediately after section 3 Inherent powers of 3A.

Nothing in this Act shall be the Court.

construed to impair the powers of the Court to make such orders or provide such directions as may be necessary for the administration of justice.

5.

The pri ncipal Act is amended by repealing section section 4 of No.

74 and substituting therefor the following new section of 2011.

Vacancy not to affect 4.

Subject to Article 163 (2) of the jurisdiction.

Constitution, a vacancy in the Supreme Court shall not aff ect the juri sdiction of the Court.

Amendment of 6.

Section 6 of the pri ncipal Act is amended in section 6 of No.

7 the end of 20 11.

subsection (2) by inserting the following words at of the subsection and perform any administrative duty that may be necessary for the proper conduct of the affairs of the Court.

I nsertion of new 7.

The pri ncipal Act is amended by inserting the section 6A in No.

7 of 20 11.

following new section immediately after section 6 Functions of the 6A.

The president of the Court shall president.

(a) be the head of the Court and shall, in that regard, oversee the proper management and administration of the Court; (b) be responsible for the allocation of cases, constitution of benches, and determination of sittings of the Court; and (c) be responsible for giving general directions for the administration of the Court.

8.

The pri ncipal Act is amended by repealing section 8.

2011.

Amendment of 9.

Section 9 of the pri ncipal Act is amended by section 9 of No.

7 of 20 11.

deleting subsection (1) and substituting therefor the following new subsection 329 2022 Supreme Court (Amendment) No.

26 (1) There shall be a Registrar of the Supreme Court who shall be appointed pursuant to Article 161 (3) of the Constitution.

of 10.

Section 10 of the principal Act is amended in Amendment section 10 of No.

subsection (1) 7 of 20 11.

(a) by deleting the opening statement and substituting therefor the following new opening statement 'll ) The Registrar shall be responsible for (b) by deleting paragraph (c) and substituting therefor the following new paragraph (c) taxing costs of any proceedings before the Court as between the parties; I nsertion of new 11.

The principal Act is amended by inserting the section 11A In following new section immediately after section 11 No.

7 of 2011.

Case management.

IIA.

The Court shall implement and promote measures to maintain the integrity and efficient operation of the registry, including (a) case management; (b) automation of records and business processes of the Court; (c) protection and management of information; and (d) promotion of the use of information, and communication technology.

Amendment of the 12.

The principal Act is amended in the heading to heading to Part HI Part III by inserting the word ORIGINAL immediately of No.7 of 20 Il.

before the word JURISDICTION.

Repeal and 13.

The principal Act is amended by repealing section 13 and substituting therefor the following new section - sS lTof No.

7 of 20 11.

Advisory opinion.

13.

(1) The Court may give an advisory opinion under Article 163 (6) of the Constitution at the request of (a) the national government; (b) a State organ; or 330 2022 Supreme Court (Amendment) No.

26 (c) a county government with respect to a matter concern ing the county government.

(2) A request for an advisory opinion shall clearly state the specific questions on which the opinion of the Court is being sought.

(3) The nature of opinion sought shall not be adversarial, abstract, or hypothetical.

(4) The Court may, on its own motion, invite an expert whose opinion on the subject matter it deems relevant.

(5) The Court may decline to assume jurisdiction on the subject matter in question, and state its reasons.

(6) An advisory opinion has the same binding effect as any other decision of the Court.

Insertion of new 14.

The principal Act is amended by inserting the section 13A in No.

7 of 20 11.

following new section immediately after section 13 Determinations in a 13A.

(1) Pursuant to Article 58(5) of state of emergency.

the Constitution, a person may petition the Supreme Court for determination of the validity of (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; or (c) any legislation enacted or other action taken in consequence of a declaration of a state of emergency.

(2) A petition under subsection (1) shall be made in accordance with the Rules made under this A ct.

15.

The principal Act is amended by repealing section ^4^^ 14.

2011.

331 2022 Supreme Court (Amendment) No.

26 and 16.

The pri ncipal Act is amended by repealing the Repeal heading to Part IV and substituting therefor the following h^^'ng'tolp^ rv new heading ofNo.7of20ii.

ii APPELLATE JURISDICTION OF THE SUPREM E COURT.

I nsertion of new 17.

The pri ncipal Act is amended by inserting the sections in No.

7 following new sections immediately aft er section IS of 20 11.

Appeal as of right.

ISA.

Pursuant to Article 163 (4) (a) of the Constitution, appeals shall lie from the Court of Appeal to the Supreme Court as of ri ght in any case involving the interpretation of the Constitution.

Appeal upon 15B.

(1) Any appeal to the Supreme certification.

Court involving a matter of general public importance shall only be made (a) upon certift cation by the Court of Appeal; or (b) upon certification by the Supreme Court in accordance with A rticle 163 (4) (b) of the Constitution.

(2) An application for certift cation shall be filed before, and determined by the Court of Appeal at the fi rst instance.

Dire ct appeals from 15C.

(1) A judge of a superi or court tri bunals.

aggri eved by the decision of a tri bunal made under Article 168 of the Constitution may appeal directly to the Supreme Court, within ten days aft er the tri bunal makes its recommendations.

(2) The appeal shall be heard and determined in accordance wi th t he procedure set out under the Rules.

18.

The pri ncipal Act is amended by repealing section 16.

2011.

19.

The pri ncipal Act is amended by repealing section 1 / Ol INO.

/ Oi 17.

2011.

20.

The pri ncipal Act is amended by repealing section , replacement of section 18 of No.

18, and substituting therefor the following new section 7 of 20 11.

1 332 No.

26 2022 Supreme Court (Amendment) Summaiy dismissal.

18.

The Court may make an order for summary dismissal of a petition, a reference or an application, where it is apparent on the face of it that it is wholly defective.

Repeal of section 21.

The principal Act is amended by repealing section 19 of No.

7 of 19.

20 11.

Repeal and 22.

The principal Act is amended by repealing section replacement of 20, and substituting therefor the following new section section 20 of No.

7 of 20 11.

Further evidence in 20.

(1) The Court may admit furt her appeals.

evidence in determining an appeal, where the Court considers it necessary and appropriate in the circumstances.

(2) The Court , in admitting additional evidence, shall consider whether the additional evidence (a) is directly relevant to the matter before the Court ; (b) is capable of influencing or impacting on the decision of the Court ; (c) could not have been obtained with reasonable diligence for use at the trial; (d) was not widiin the knowledge of the party seeking to adduce the addition^ evidence; (e) removes any vagueness or doubt over the case; (f) is credible and bears merit; (g) would not make it difficult or impossible for the other party to respond effectively; and (h) discloses a case of wilful deception to the Court.

Amendment of 23.

Section 21 of the principal Act is amended section 21 of No.

7 of 20 11.

(a) by deleting subsection (1), and substituting therefor the following new subsection 333 2022 Supreme Court (Amendment) No.

26 (1) On an appeal in proceedings heard in any court or tribunal, the Supreme Court may make any order, or grant any relief, that could have been made or granted by that court or tribunal; (b) in subsection (3), by deleting the words and may amend any defect or eto r in the record of appeal appearing immediately after the words issue in the appeal; and (c) in subsection (4), by deleting the words within fourteen days of delivery of its judgment, ruling, or order appearing at the beginning of the subsection.

I nsertion of new 24.

The principal Act is amended by inserting the section 2 1A in following new section immediately after section 21 No.

7 of 20 11.

Review of own 21A.

The Supreme Court may review decision.

its own decision, either on its own motion, or upon application by a party in any of the following circumstances (a) where the judgment, ruling or order was obtained through fraud, deceit or misrepresentation of facts; (b) where the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent; (c) where the court was misled into giving a judgment, ruling or order under the belief that the parties have consented; or (d) where the judgment, ruling or order was rendered on the basis of repealed law, or as a result of a deliberate concealment of a statutory provision.

25.

Amendment of Section 23 of the principal Act is amended section 23 of No.

7 of 20 11.

(a) by deleting subsection (2) and substituting the following new subsections (2) A single judge may hear and determine an application for the following preliminary procedures 334 2022 Supreme Court (Amendment) No.

26 (a) change of representation; (b) admission of consent; (c) consolidation of matters: (d) correction of errors on the face of the record; (e) review of a decision of the Registrar; (f) substitution of service; (g) withdrawal of an advocate to cease acting for a party; (h) withdrawal of a document; or (i) certification of a matter as urgent.

(2A) Any two or more judges may conduct preliminary procedures to determine (a) the manner of hearing an application; (b) extension of time; or (c) leave to file additional documents.

(2B) The following preliminary procedures shall only be heard and determined by the Court (a) admission of parties, friend of the Court, and any interested party; (b) substitution of parties; (c) dismissal of a matter for want of prosecution; (d) summary dismissal of proceedings; or (e) application for certification.

(2C) A party aggrieved by the decision of a single judge or two judges may apply for review of the decision by fi ve or more judges of the Court.

of new 26.

The principal Act is amended by inserting the insertion 23 No.

7 of 20 11.

following new section immediately after subsection Stay of proceedings.

23A.

(1) The Court may issue an order for stay of execution, an injunction, a stay of further proceedings or any other tT conservatory or interim orders, on such 335 2022 Supreme Court (Amendment) No.

26 terms as the Court may deem fit where a party has (a) instituted a petition of appeal as of right under Article 163 (4) (a) of the Constitution; or a certification under (b) obtained Article 163 (4) (b) of the Constitution and i nstituted a petition.

(2) An application under subsection (1) shall only be made aft er filing the petition before the Court.

Repeal and 27.

The principal Act is amended by repealing section replacement of 24 and substituting therefor the following new section section 24 of No.

7 of 20 11.

Interlocutory 24.(1) Subject to this Act, in rections.

conducting any preliminary procedures, a single judge may issue interlocutory orders or directions as the judge deems fit, but such orders or directions shall not dispose of issues reserved f or determination in proceedings.

(2) An interlocutory order or direction issued by a single judge shall lapse after fourteen days, unless confi rmed by the Court.

Amendment of 28.

Section 25 of the principal Act is amended by section 25 of No.

af ter inserting the following new subsections immediately 7 of 20 11.

subsection (2) (3) Where a judge presiding over a matter is not able to deliver a judgment on account of death, suspension, removal from offi ce, retirement or infi rmity, which occasions a lack of prescribed quorum in the Court, the Chief Justice may substitute such judge.

(4) The incoming judge, in terms of subsection (3), shall rely on submissions and proceedings on record, as a basis for delivering j udgment.

336 2022 Supreme Court (Amendment) No.

26 Amendment of 29.

Section 26 of the pri ncipal Act is amended section 26 of No.

7 of 20 11.

(a) by deleting subsection (1) and substituting therefor the following new subsection (1) The Supreme Court may deliver aj udgment (a) in open court; or (b) by physical or electronic service of the same to the parties, (b) by deleting subsection (3); and (c) by deleting subsection (4).

Amendment of 30.

Section 28 of the pri ncipal Act is amended section 28 of No.

7 of 20 11.

(a) by deleting subsection (3) and substituting therefor the following new subsection (3) The Supreme Court may sentence a person who commits an offence under subsection (1) to impri sonment for a peri od not exceeding six months, or to pay a fine not exceeding one million shillings, or to both, for every offence , (b) by deleting subsection (4) and substituting therefor the following new subsection (4) For avoidance of doubt, the Court has inherent powers to punish any person for contempt, in any other case to which this section does not apply, (c) by deleting subsection (5) and substituting therefor the following new subsection (5) The Court shall not initiate any contempt of court proceedings on its own motion after expiry of twelve months from the date on which the contempt is alleged to have been committed, (d) by i nserting the following new subsection immediately after subsection (5) (6) The Court may make an order denying audience to the contemnor for any peri od, as the Court may deem fit, but not exceeding eighteen months.

337 2022 Supreme Court (Amendment) No.

26 I nsertion of new 31.

The pri ncipal Act is amended by inserting the sections in No.

7 following new sections immediately after section 29 of 20 11.

Nomination of Court 29A.

The Court may make Rules in representatives.

respect of the (a) conduct of the election of the representative of the Court to the Judicial Service Commission; and (b) conduct of the election or nomination of any person that the Court may, under any wri tten law, be required to elect or nominate.

Committees of the 29B.

The Court may establish Court.

committees for the purpose of effi cient management of its affairs, including the welfare of the judges and staff of the Court.

Alternative Dispute 29C.

(1) In the conduct of proceedings, Resolution mechanisms.

the Court shall promote and encourage alternative dispute resolution mechanisms, in accordance with Article 159(2)(c) of the Constitution.

(2) Reference of a matter to alternative dispute resolution may be initiated by the Court on its own motion, or at the request of the parties.

Court sittings and 29D.

(1) The Court shall have three re cess.

sittings in every year.

(2) The sittings of the Court shall be (a) from the 14th January to the second Wednesday before Good Fri day; (b) from the first Wednesday after Easter Week to the 31st July; and (c) from the 16th September to the 20th D ecember.

Ethics and integrity.

29E.

Every judge of the Court shall sign and ascri be to the Judicial Code of Conduct.

1 ).