EDUCATION 101: Kadhi Courts and Martial Courts

Principles of Law: Courts

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Principle of Law: Kenyan legal system; Kadhi’s Court and Court Martial 

KADHI’S COURT

Established by the Kadhis Court Act (cap 11) as well as section 170 of the constitution

The Kadhis court Act provides the chief Justice in consultation with the chief Kadhi, shall determine the number of Kadhi courts in Kenya.

Kadhi courts are presided over by the chief Kadhi or a Kadhi appointed by the JSC (Judiciary Service Commission)

To be appointed as a kadhi or chief kadhi, a person must;

#Profess Muslim faith or religion

#Possess knowledge of Muslim law applicable to any sect of Muslims

Kadhi courts have powers to deal with civil cases only in which all the parties to the dispute are Muslims and the dispute is relating to personal matters like marriage, divorce, separation, maintenance, dowry or inheritance.

Appeal from Kadhis court can be made to the high court. In this case the high court judge may call the chief kadhi or to other kadhis to act as assessors in advising the court on any questions of Muslim law that may arise

It is important to note that even the high court and other subordinate courts also have powers to deal with Muslim personal matters and in doing so, they are not bound to follow Muslim personal laws.

COURT MARTIAL

Established by section 169 of the constitution which empowers parliament to make laws to regulate court martial. Parliament therefore enacted the armed forces Act that which regulates the functions of court Martial.

A court martial is not a permanent court but it is a temporary military court which is convened from time to time to deal with persons accused of offences under military law. Such offences include mutiny, insubordination, concordance, neglect of duty, aiding the enemy, espionage (being a spy) among others.

The main function of a court martial is to ensure there is maximum discipline in the armed forces.

The court is established by the chief of general staff or the commander. It consists of a presiding office and at least two other members. However when matters dealt with may result to death sentence; the presiding officer is required to seat with at least four members.

There shall also be a judge advocate at each court martial who shall be an advocate or magistrate and whose duty is to advise the court on relevant law to adopt and the procedure to follow. However with the permission of the attorney general, the presence of the judge Advocate may be done away with.

Appeals from court martial can be made to the high court with the high court’s permission. The appeal must be based on a constitutional matter. It must be lodged within forty days from the date of the sentence or order of the court martial. This appeal is final hence it is not subject to further appeal.

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