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Kenyans have been treated to courtroom dramas for the last few months, starring suspects in high-profile murder cases. The judges have been the focus of attention, owing to endless postponement of bail applications.
Judges and the Judiciary in Kenya have come a long way. When odieros decided to make Kenya part of the British Empire, they didn’t find any structured legal system. They thus imported English laws and those they had codified in India, and made blanket applications, mostly, to their benefit.
All judges were odieros for the 70 years Kenya was a colony until independence in 1963. The British, however, allowed ‘natives’ to have their traditional legal structures: African, Hindu and Muslim customary laws existed alongside English laws.
African elders, chiefs and headmen could settle disputes in what evolved into Native Courts and Tribunals which were officially recognised beginning 1907 when the first Chief Justice was Sir Robert William Hamilton. This lasted until 1962, when they were transferred to the Judiciary from the provincial administration.
Today, disputes are still solved this way in most rural and slum settings in Kenya.
But back then, odieros had their own courts separate from miros. A mzungu judge could issue very stiff sentences for misguided men accused of say, kissing a white chick! In fact, it was a capital offence for a black man to rape a white woman. When Charles Njonjo became Kenya’s first Attorney-General, he repealed that law!
Did you know the earliest judges were hired by a private company?
Well, the Imperial British East Africa Company (IBEACO) was mandated by the British government to hold the country, then called East Africa Protectorate in trust for the Crown. Since IBEACO was building the Uganda Railway and goods in stores could ‘change ownership,’ courts, magistrates and judges were required to deal with crooks and other forms of felony.
It thus hired ACW Jenner who became Kenya’s first judge in 1890 under the payroll of IBEACO. Five years later, a consular court was established to deal with odieros and other foreigners, mostly Somalis, Indians and Arabs.
In 1897, a court for all persons was established as Her Majesty’s Court of East Africa, later the High Court of East Africa, then the High Court and today, the Supreme Court.
Did you also know that World War II interrupted court cases in Kenya?
Well, the reason was that some magistrates had military backgrounds and went to serve in the war. This necessitated the need for special magistrates as a wartime measure. They operated by holding weekly court sessions around the country.
Njonjo, as Attorney-General, also abolished racially-segregated court systems, replaced passbooks with ID cards, but introduced the death penalty for robbery with violence convicts, which is still in force today.
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