Judicial Service Act

Section 1. Short title Section This Act may be cited as the Judicial Service Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— “accounting officer” means an accounting officer appointed under section 67 of the Public Finance Management Act ( Cap. 412A ); “authorised officer” means the Chief Registrar ; “Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to the Judiciary; “Chairperson” includes the Vice Chairperson or any other member of the Commission when discharging the functions of the Chairperson; “Chief Registrar” means the Chief Registrar of the Judiciary referred to in Article 161 of the Constitution; “Commission” means the Judicial Service Commission established by Article 171 of the Constitution; “Committee” means a unit of the Commission formed to exercise any delegated power or perform any function of the Commission under the Constitution, this Act or any regulations made thereunder, and includes a Panel; “Council” means the National Council on the Administration of Justice established by section 34 ; “effective date” means the 27th of August, 2010; “Fund” means the Judiciary Fund established by Article 173 of the Constitution; “judicial officer” includes a regist...

Section 3. Object and purpose of Act Section be the organs of management of judicial services and, in that behalf, shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law;

Section 4. Standard of service Section have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled;

Section 5. Functions of the Chief Justice and the Deputy Chief Justice Section 5(1) The Chief Justice shall be the head of the Judiciary and the President of the Supreme Court and shall be the link between the Judiciary and the other arms of Government. Section 5(2)(a) assign duties to the Deputy Chief Justice, the President of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary; Section 5(2)(b) give an annual report to the nation on the state of the Judiciary and the administration of justice; and cause the report to be published in the Gazette , and a copy thereof sent, under the hand of the Chief Justice, to each of the two Clerks of the two Houses of Parliament for it to be placed before the respective Houses for debate and adoption; Section 5(2)(c) exercise general direction and control over the Judiciary. Section 5(3) As the Deputy Head of the Judiciary and the Vice-President of the Supreme Court, the Deputy Chief Justice shall be responsible to the Chief Justice in the exercise of the functions and duties of the office. Section 5(4) In the event of the removal, resignation or death of the Chief Justice, the Deputy Chief Justice...

Section 6. The President of the Court of Appeal, the Principal Judge of the High Court, County Judge and Division Heads Section 6(1) The President of the Court of Appeal and the Principal Judge shall serve for a non-renewable term of five years. Section 6(2) The President of the Court of Appeal and the Principal Judge shall, in consultation with the Chief Registrar , be responsible to the Chief Justice for the administration of the Court of Appeal and other superior courts respectively, other than the Supreme Court. Section 6(3) A presiding judge shall, in consultation with the Chief Registrar , be responsible to the Principal Judge of the High Court for the administration of their station or division. Section 6(4)(a) supervise the courts within the judicial region in which the High Court is situate; and Section 6(4)(b) present the necessary status reports to the Chief Justice through the Chief Registrar .

Section 7. Legal researchers Section Every Judge shall have a legal researcher who shall be an advocate of the High Court with at least one year post-qualification experience. [Act No. 20 of 2020 , Sch.]

Section 8. Functions and powers of theChief Registrar Section 8(1)(a) be responsible for the overall administration and management of the Judiciary; Section 8(1)(b) perform judicial functions vested in the office of the Chief Registrar by law; Section 8(1)(c) exercise powers vested in the office of the Chief Registrar by virtue of any law or regulation and give effect to the directions of the Chief Justice; Section 8(1)(d) account for any service in respect of which monies have been appropriated by Parliament and for which issues are made from the exchequer account; Section 8(1)(e) be the authorised officer for the Judiciary, who shall be responsible for the efficient management of the day-to-day operations and administration of human resources in the judicial service; Section 8(1)(f) be in charge of support services in the Judiciary and in particular planning, and development, and the organisation of staff; Section 8(1)(g) monitor and enhance administration and office procedures to maximise on efficiency and the quality of service; Section 8(1)(h) plan, prepare, implement and monitor the budget and collect, receive and account for revenue; Section 8(1)(i) prepare reports and propo...

Section 9. Qualifications for appointment asChief Registrar Section become eligible for appointment as a Judge of the High Court;

Section 10. DeputyChief Registrar, etc. Section 10(1) There shall be appointed a Deputy Chief Registrar and such other Deputy Registrars and Assistant Registrars as may be necessary for the discharge of judicial service. Section 10(2) Of the Registrars appointed under subsection (1), there shall be a Registrar for each Superior Court, the Commission and Subordinate Courts. Section 10(3) All the Registrars appointed under subsection (2) shall be responsible to the Chief Registrar in the performance of their duties.

Section 11. Temporary vacancy in the office of theChief Registrar Section Where the office of the Chief Registrar temporarily falls vacant or if, for any reason, the Chief Registrar is unable to exercise the functions of the office, the Deputy Chief Registrar , and in their absence, any officer who for the time being is qualified to perform the duties of the Chief Registrar under section 9 , shall have and may exercise all the functions, duties and powers of the Chief Registrar , subject to such conditions, exceptions or qualifications as the Commission may, in writing, direct.

Section 12. Suspension or removal of theChief Registrar Section 12(1)(a) inability to perform the functions of the office, whether arising from infirmity of body or mind; Section 12(1)(b) misbehaviour; Section 12(1)(c) incompetence; Section 12(1)(d) violation of the prescribed code of conduct for judicial officers; Section 12(1)(e) bankruptcy; Section 12(1)(f) violation of the provisions of Chapter Six of the Constitution; or Section 12(1)(g) any other sufficient cause. Section 12(2) Before the Chief Registrar is removed under subsection (1), the Chief Registrar shall be informed of the case against him or her in writing and shall be given reasonable time to defend himself or herself against any of the grounds cited for the intended removal.

Section 13. Powers and functions of theCommission Section 13(1)(a) purchase or otherwise acquire, hold, charge and dispose of movable or immovable property; Section 13(1)(b) borrow and lend money; Section 13(1)(c) enter into contracts; Section 13(1)(d) do or perform all such other things or acts necessary for the proper performance of its functions under the Constitution and this Act which may be lawfully done or performed by a body corporate. Section 13(2) Members of the Commission shall be guided in the discharge of their responsibilities by the principles contained in the Constitution and in this Act. Section 13(3) The Commission shall have all the necessary powers for the execution of its functions under the Constitution and this Act.

Section 14. Delegation by theCommission Section Subject to the provisions of the Constitution or any other law, the Commission may hire such experts or consultants, or delegate such of its functions as are necessary for the day-to-day management of the judicial service to subcommittees or to the secretariat.

Section 15. Procedure of appointment Section 15(1)(a) until after the first elections under the Constitution, the President shall, subject to the National Accord and Reconciliation Act, 2008 and after consultation with the Prime Minister, within seven days of the commencement of this Act, submit the names of the nominees to the National Assembly; Section 15(1)(b) consider the nominees and either approve or reject the nominees; and Section 15(1)(b)(i) consider the nominees and either approve or reject the nominees; and Section 15(1)(b)(ii) notify the President as to the approval or rejection; Section 15(1)(c) if the National Assembly approves the nominees under Article 171(2)(h), the President shall, within three days after receiving the notification from the National Assembly, appoint the nominees as members of the Commission ; Section 15(1)(d) if the National Assembly rejects a nominee submitted by the President, the President shall, within three days after receiving the notification from the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of this subsection shall apply with necessary modifications with respect to the new nominee. Se...

Section 16. Election of nominees Section Where it is required that a nominating body conducts an election to identify its nominee, such election shall be by secret ballot: Provided that the nominating body shall ensure that its nominees comply with the requirements set out in the Constitution.

Section 17. Vacancies in theCommission Section Within seven days after any vacancy arises in the membership of the Commission , the Commission shall request the respective nominating body to submit the name of a fresh nominee within twenty-one days of the request.

Section 18. Commissioners to relinquish certain offices Section a member of Parliament;

Section 19. Structure of theCommission Section 19(1) There shall be such sections, departments or divisions of the Commission , and such categories and classifications of staff under the Commission as the Commission may, from time to time, determine. Section 19(2) The units referred to in subsection (1) shall be set up with specific mandates. Section 19(3)(a) allocate functions to any such units; and Section 19(3)(b) make such arrangements as may appear to the Commission to be expedient in connection with the division, amalgamation or abolition of any such units. Section 19(4) Nothing in this section shall be construed as precluding the Commission from constituting such Committees or Panels for the effective discharge of its mandate.

Section 20. Secretariat and staff Section 20(1)(a) such judicial officers and other staff as the Commission may appoint to assist it in the discharge of its functions under the Constitution and this Act; and Section 20(1)(b) such public officers as may, upon the request of the Commission , be seconded to the Commission . Section 20(2) A public officer who is seconded to the Commission under subsection (1), shall, during the secondment, be deemed to be an officer of the Commission and subject to its direction and control.

Section 21. Functions of theSecretary Section 21(1)(a) the acceptance, transmission, service and custody of documents in accordance with this Act; Section 21(1)(b) the enforcement of decisions of the Commission ; Section 21(1)(c) certifying that any order, direction or decision is an order, direction or decision of the Commission , the Chairperson or a member, as the case may be; Section 21(1)(d) causing to be kept records of the proceedings and minutes of the meetings of the Commission and such other records as the Commission may direct; and Section 21(1)(e) undertaking any duties assigned by the Commission . Section 21(2) With the authorization of the Commission , the Secretary may consider and dispose of procedural or administrative matters in accordance with this Act. Section 21(3) Any administrative function of the Secretary under this Act may in the Secretary ’s absence, be performed by any member of staff of the Commission whom the Chairperson may authorise for that purpose.

Section 22. Meetings Section 22(1) The Chairperson shall convene a meeting of the Commission at least once every three months. Section 22(2) There shall be given to members a notice of seven clear days for every meeting called by the Commission . Section 22(3) Despite the provisions of subsection (1), the Chairperson may, at any time, convene a special meeting of the Commission and shall, within seven days of the receipt of a written requisition therefor signed by at least three members, convene a special meeting. Section 22(4) Subject to subsection (5), the Commission shall hold such number of meetings, in such places, at such times and in such manner as the Commission shall consider necessary for the discharge of its functions under the Constitution and this Act. Section 22(5) The quorum of the Commission and any of its Committees shall be six and three members respectively. Section 22(6) The Commission may invite any person, whose presence is in its opinion desirable, to attend and to participate in the deliberations of the meeting of the Commission , but such person shall have no power to vote. Section 22(7) All the questions before the Commission or a Committee thereof shall b...

Section 23. Records of theCommission Section The Commission shall keep a record of the proceedings of every meeting of the Commission and its Committees.

Section 24. Seal of theCommission Section 24(1) The seal of the Commission shall be such device as may be determined by the Commission and shall be kept by the Secretary . Section 24(2) The affixing of the seal shall be authenticated by the Chairperson or any other person authorised in that behalf by a resolution of the Commission . Section 24(3) Any document purporting to be under the seal of the Commission or issued on behalf of the Commission shall be received in evidence and shall be deemed to be so executed or issued, as the case may be, without further proof, unless the contrary is proved.

Section 25. Retirement and resignation of judicial officers and staff of theCommission Section 25(1) A judicial officer or member of staff of the Commission shall retire on attaining the mandatory retirement age for public officers. Section 25(2) A person in respect of whom subsection (1) applies may, after attaining the age of fifty five years, elect to retire at any time. Section 25(3) Despite the provisions of subsection (2) the Commission may, in such manner and for such reasons as may be prescribed by regulations under this Act, require a judicial officer or member of staff to retire or resign from service at any time.

Section 26. Expenses of theCommissionand the Judiciary Section 26(1) The expenses of the Commission and the Judiciary incurred in the execution of their functions under the Constitution and this Act shall be charged on and issued out of the Consolidated Fund . Section 26(2) Without prejudice to subsection (1), there may be made to the Commission and the Judiciary grants, gifts, donations or bequests towards the achievement of the objects of the Commission and the Judiciary. Section 26(3) The Commission and the Judiciary shall not accept any grant, gift, donation or bequest made on any condition that the Commission and the Judiciary performs any function or discharges any duty or obligation other than duties under this Act.

Section 27.[Repealed by ActNo. 16 of 2016, s. 15]

Section 28. Bank accounts Section The Commission shall open and maintain such bank accounts as are necessary for the exercise of its functions. [Act No. 16 of 2016 , s. 16.]

Section 29. Financial estimates Section 29(1) At least three months before the commencement of each financial year, the Chief Registrar shall cause to be prepared, estimates of all the expenditure required for the purposes of this Act for that year, and shall present such estimates to the Commission for review. Section 29(2) The Commission shall review the estimates forwarded under subsection (1) and may make such alterations thereto as it may consider necessary, and shall thereafter forward them to the National Assembly for approval. Section 29(3) Upon the approval of the estimates by the National Assembly, all monies from time to time required for the purposes of this Act shall be paid from the Consolidated Fund into the Judiciary Fund .

Section 30. Appointment of Judges Section 30(1) For the purposes of transparent recruitment of judges, the Commission shall constitute a selection panel consisting of at least five members. Section 30(2) The function of the selection panel shall be to shortlist persons for nomination by the Commission in accordance with the First Schedule. Section 30(3)(a) the Secretary shall, within three days of the Commission 's vote, forward the names of three qualified persons for each vacant position to the President; Section 30(3)(b) the President shall, within fourteen days of receipt of the names forwarded select the person to fill the each vacant position and forward the name of the person to the National Assembly for approval; Section 30(3)(c) the National Assembly shall, within twenty-one days of the day it next sits after receipt of the name of a person nominated for appointment to the post of Chief Justice or Deputy Chief Justice vet and consider the person; Section 30(3)(d) where the National Assembly approves of the appointment of a person to the post of Chief Justice or Deputy Chief Justice, the Speaker of the National Assembly shall forward the name of the person to the President...

Section 31. Removal of Judges Section 31(1) The procedure governing the conduct of a tribunal set up for the purposes of removing the Chief Justice, Deputy Chief Justice or a judge shall be as set out in the Second Schedule. Section 31(2) If the tribunal referred to in subsection (1) is for the removal of a judge , other than the Chief Justice, the appointing authority shall appoint the chairperson and the members shall elect a vice-chairperson of the tribunal from amongst their number. Section 31(3) The Chairperson and Vice- Chairperson appointed for purposes of removal of a Chief Justice or Deputy Chief Justice or elected under subsection (2) shall be persons of opposite gender. Section 31(4) The appointing authority may appoint a counsel to assist the tribunal. Section 31(5) Subject to the provisions of the Second Schedule, the tribunal may determine its own procedure.

Section 32. Appointment, discipline and removal of judicial officers and staff Section 32(1) For the purposes of appointment, discipline and removal of judicial officers and staff, the Commission shall constitute a Committee or Panel which shall be gender representative. Section 32(2)(a) is an advocate of the High Court of Kenya; Section 32(2)(b) has high moral character, integrity and impartiality; Section 32(2)(c) has demonstrable management skills; Section 32(2)(d) has proficiency in computer applications; and Section 32(2)(e) has no pending complaints from the Advocates Complaints Commission or the Disciplinary Committee . Section 32(3) The procedure governing the conduct of a Committee or Panel constituted under this section shall be as set out in the Third Schedule. Section 32(4) Members of the Committee shall elect a chairperson from amongst their number. Section 32(5) Subject to the provisions of the Third Schedule, the Committee or Panel may determine its own procedure.

Section 33.Commissionto provide secretariat Section The Commission shall provide secretariat services to the Committee or Panels constituted under this Part.

Section 34. Establishment and composition of theCouncil Section 34(1) There is established an unincorporated body to be known as the National Council on the Administration of Justice. Section 34(2)(a) the Chief Justice who shall be the Chairperson ; Section 34(2)(b) the Cabinet Secretary for the time being responsible for matters relating to the Judiciary, or his or her representative appointed in writing; Section 34(2)(c) the Attorney-General, or his or her representative appointed in writing; Section 34(2)(d) the Director of Public Prosecutions, or his or her representative appointed in writing; Section 34(2)(e) the person for the time being exercising command over the National Police Service, or his or her representative appointed in writing; Section 34(2)(f) the Commissioner of Prisons, or his or her representative appointed in writing; Section 34(2)(g) the President of the Law Society of Kenya, or his or her representative appointed in writing; Section 34(2)(h) the Principal Secretary for the time being responsible for matters relating to the Cabinet and the public service, or his or her representative appointed in writing; Section 34(2)(i) the Principal Secretary for the time...

Section 35. Purpose and functions of theCouncil Section 35(1) It shall be the duty of the Council to ensure a co-ordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system. Section 35(2)(a) formulate policies relating to the administration of justice; Section 35(2)(b) implement, monitor, evaluate and review strategies for the administration of justice; Section 35(2)(c) facilitate the establishment of court user committees at the county level; and Section 35(2)(d) mobilize resources for purposes of the efficient administration of justice. Section 35(3)(a) liaise with the Council of the National Crime Research Centre in carrying out its mandate; Section 35(3)(b) review and implement the reports of the Court users committees; and Section 35(3)(c) oversee the operations of any other body engaged in administration of justice. Section 35(4) The Council shall have all the necessary powers for the execution of its functions under this Act.

Section 36. Meetings of theCouncil Section 36(1) The Council shall meet at least once every three months. Section 36(2) Subject to the provision of this Part, the Council may regulate its own procedure.

Section 37. Reports of theCouncil Section The Council shall prepare and submit annual reports on its activities to the Cabinet Secretary for onward transmission to the National Assembly.

Section 38. Annual report Section 38(1) The Commission and the Judiciary shall each cause an annual report to be prepared for each financial year. Section 38(1A) The Commission shall submit the annual report to the President and Parliament within six months after the end of the year to which it relates. Section 38(2)(a) the financial statements of the Commission and the Judiciary; and Section 38(2)(b) a description of the activities of the Commission and the Judiciary. Section 38(3)(a) the information set out in the reports of the committees to which the annual report relates; Section 38(3)(b) a summary of the steps taken during the year, in the identification, selection and appointment of judicial officers and staff; Section 38(3)(c) information relating to disposal of cases; Section 38(3)(d) information on issues of access to justice; Section 38(3)(e) information relating to performance of the judiciary and attendant challenges; and Section 38(3)(f) such other statistical information as the Commission and the Judiciary considers appropriate relating to their functions and judicial activities. Section 38(4) The Commission and the Judiciary shall cause the annual report to be publi...

Section 39. Accounts and audit Section 39(1) The Chief Registrar shall ensure that proper books and records of accounts of the Commission and Judiciary are kept and maintained. Section 39(2) Within three months after the end of each financial year, the Chief Registrar shall submit to the Auditor-General the accounts of the Commission and the Judiciary for the year. Section 39(3) The accounts of the Commission and the Judiciary shall be audited annually and shall form part of the annual report. Section 39(4) The accounts of the Commission and the Judiciary shall be audited and reported on in accordance with the provisions of the Public Audit Act ( Cap. 412B ).

Section 40. Oath of office of members,Chief Registrar, other judicial officers and staff Section 40(1) The Chairperson and members of the Commission shall, on first appointment, make the oath or affirmation in the form prescribed in the Third Schedule to the Constitution. Section 40(2) The Chief Registrar and such other judicial officers and staff of the Commission as the Commission may require so to do, shall, on first appointment, make the oath or affirmation in the prescribed form.

Section 42. Powers of theCommissionand the duty to co-operate Section The Commission may summon any public officer or other person to appear before it or its committee or to produce any document or thing or information that may be considered relevant to its functions and it shall be the duty of any such public officer or person to co-operate with the Commission .

Section 43. Confidentiality Section 43(1) A member or staff of the Commission shall not without the consent in writing given by, or on behalf of, the Commission , publish or disclose to any person otherwise than in the course of the person’s duties the contents of any document, communication, or information which relates to, and which has come to the person’s knowledge in the course of the person’s duties under this Act. Section 43(2) The limitation on disclosure referred to under subsection (1) shall not be construed to prevent the disclosure of criminal activity by a member or staff of the Commission .

Section 44. Conflict of interest Section 44(1) If any member is present at a meeting of the Commission or any committee at which any matter is the subject of consideration and in which matter that person or that person’s associates or family members are directly or indirectly interested in a private capacity, that person shall as soon as is practicable after the commencement of the meeting, declare such interest and shall not, unless the Commission or Committee otherwise directs, take part in any consideration or discussion of, or vote on any question touching such matter. Section 44(2) A disclosure of interest made under subsection (1) shall be recorded in the minutes of the meeting at which it is made.

Section 45. Protection from personal liability Section 45(1) A member, the Chief Registrar , Registrar or judicial officers or a member of staff of the Commission shall not be liable to any civil action or suit for or in respect of any matter or thing done or omitted to be done in good faith as a member, Registrar, judicial officer or member of staff of the Commission . Section 45(2) A member of the Commission or the Chief Registrar shall not be liable to arrest under civil process while participating in any meeting of the Commission or of any Committee thereof. Section 45(3) A person who appears before the Commission shall not, whether such appearance is in pursuance of any summons by the Commission under this Act or not, be liable to any criminal or civil proceedings, or to any penalty or forfeiture whatsoever in respect of any evidence or information given to the Commission by such person.

Section 46. Offences and penalties Section 46(1)(a) in connection with an application by the person or by any other person for employment, appointment or promotion by the Commission , or in connection with any matter on which it is the duty of the Commission to inquire, wilfully gives to the Commission or to any member of the Commission any information which is false or misleading in any material particular; or Section 46(1)(b) without the consent, in writing, of the Chairperson , publishes or discloses to any unauthorised person or otherwise than in the course of duty, the contents or any part of the contents of any document, communication or information which has come to their knowledge in the course of their duties under this Act, and any person who knowingly acts in contravention of this section; or Section 46(1)(c) otherwise than in the course of duty, directly or indirectly by themselves or by any other person in any manner influences or attempts to influence any decision of the Commission or of any member thereof; or Section 46(1)(d) disobeys any order made by the Commission or a committee for attendance or for production of papers, books, documents or records, Section 46(2)...

Section 47. Regulations Section 47(1) The Commission may make regulations for the better carrying out of the purposes of this Act. Section 47(2)(a) the code of conduct and ethics for judges, other judicial officers and staff; Section 47(2)(b) the administration and management of the services and facilities of the Commission for the discharge of judicial functions; Section 47(2)(c) preliminary procedures for making any recommendations required to be made under the Constitution; Section 47(2)(d) the financial procedures of the Commission ; Section 47(2)(e) orientation and training for judicial officers and staff; Section 47(2)(f) the management of issues of conflict of interest; Section 47(2)(g) performance appraisal system of the Judiciary; Section 47(2)(h) the security of judicial officers and staff; and Section 47(2)(i) mainstreaming of gender and regional equity in the Judiciary. Section 47(3) Regulations made under this section shall be presented to the National Assembly for debate and approval before they take effect.

Section 48. Transition and saving Section 48(1) Every valid contract entered into before the commencement of this Act shall continue to be in force to the extent that the terms and conditions thereof are not inconsistent with the provisions of this Act or any other written law. Section 48(2) All movable and immovable property and all the rights and liabilities previously attaching to the Judiciary, and all the property movable or immovable held by any person on behalf of the Judiciary, before the commencement of this Act shall vest in the Judiciary or where applicable, the Commission , after the commencement of this Act. Section 48(3) Until after the first elections under the Constitution, references in this Act to the expressions “ Cabinet Secretary ” or “Principal Secretary ” shall be construed to mean “Minister” or “Permanent Secretary ” respectively.