Jurisdiction, review and restraint: Re?Examining the High Court’s supervisory jurisdiction in Kenya

While the High Court is vested with unlimited original jurisdiction in criminal and civil matters, one of its roles includes supervisory jurisdiction over all other subordinate courts and any other persons, body or authority exercising a judicial or quasi-judicial function. This article examines the High Court’s application of the supervisory mandate, analyzing the inherent tension between the just need for judicial intervention and the doctrine of restraint. By exploring the High Court’s historical reluctance to interfere with subordinate courts and specialized administrative bodies, this paper argues for a balanced approach that respects the appellate & review process as well as the set procedure for enforcing the right to fair administrative action without collapsing the distinction between a review of process and a merits-based appeal. Further, the article provides a comparative analysis between the constitutional oversight of Article 165(6) and Review under Order 45 of the Civil Procedure Rules. It concludes that while the High Court must remain a reluctant 2 Constitution of Kenya 2010, Laws of Kenya. supervisor to preserve the autonomy of subordinate courts, its intervention remains a non-negotiable safeguard for the rule of law. High court’s supervisory jurisdiction provides a critical stop gap measure that provides a platform to avert civil rights leaders and philosophers compelling argument that individuals have a moral duty to deliberately defy unjust orders 

Introduction

The High Court of Kenya, as established under Article 165,2 serves a multifaceted jurisdictional function. Beyond its role as a court of unlimited original jurisdiction in both criminal and civil matters, the Court is uniquely positioned as the ‘constitutional sentinel’ of the legal system through its supervisory mandate. This power, codified under Article 165(6), provides that the High Court holds supervisory jurisdiction over all subordinate courts and any other person, body, or authority exercising a judicial or quasi-judicial function. Courts have held that this power is used sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction and that the High Court under the guise of Article 165 (6) cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. For it to interfere, there must be a case of fragrant abuse of fundamental principles of law or where the order has resulted in grave injustice.3 This constitutional supervisory jurisdiction confers on the High Court an extremely broad-based authority with which to call up proceedings of both civil and criminal matters from all subordinate courts, tribunals and authorities (except superior courts) without limitation of timeframe or nature of the case.4 However, the exercise of this power, although entrenched in the Constitution, is characterized by notable judicial reluctance. This hesitancy arises from the Court’s need to balance its oversight role and the fundamental distinction between a supervisory review and a merits-based appeal. Structurally, this paper will identify the general overview and application of supervisory jurisdiction, the reluctance of courts to apply this power and the procedural corrective of Review under Order 45 of the Civil Procedure Rules, which serves a distinct, self-corrective function within the same court read more...