Kenya Act or statute

Parliament of Kenya

Vetting of Judges and Magistrates Act, 2011

Jurisdiction: Kenya
Structure: 33 provisions
Citation: Act No. 2 of 2011
Dates: As at 11 Dec 2023

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Dates: As at 11 Dec 2023

Source attribution: Source: Kenya Law

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“This Act may be cited as the Vetting of Judges and Magistrates Act, 2011.”

This Act may be cited as the Vetting of Judges and Magistrates Act, 2011. Defines terms used in the Act including Board; chairperson; deputy chairperson; effective date (27th August of 2010); judge or magistrate; member; Minister; pending complaint; secretary; and vetting. Establishes mechanisms and procedures for vetting judges and magistrates and provides a definition of "vetting". The Act applies only to persons who were serving as judges or magistrates and who were in office on or before the effective date (the 27th August of 2010). The Board must at all times be guided by the principles and standards of judicial independence, natural justice and international best practice when exercising its powers or performing its functions under this Act.

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PRELIMINARY - 1. Short title

This Act may be cited as the Vetting of Judges and Magistrates Act, 2011.

Section 1

ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 13. Function of theBoard

The Board must vet judges and magistrates.

Section 13

VETTING PROCEDURES - 17. Panels

The chairperson may set up three or more panels to vet judges and magistrates; the chairperson must ensure each panel includes at least a non-citizen judge (serving or retired), a lawyer and a non-lawyer; vetting of judges is to be unde…

Section 17

GENERAL - 25. Allowances for members

The Board must pay its members allowances for expenses as determined by the Minister in charge of finance.

Section 25

GENERAL - 33. Inherent powers of theBoard

The Board may regulate its own procedure and make regulations to implement this Act; the chairperson may issue directions for efficient determination; the Board also has power to make orders to secure justice or prevent abuse.

Section 33

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Showing 33 of 33 provisions

Provision 26Commencement 3Interpretation 2Short title

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

This Act may be cited as the Vetting of Judges and Magistrates Act, 2011.

Section 1. Short title Section This Act may be cited as the Vetting of Judges and Magistrates Act, 2011.

Section 1Verify source

§ 2PRELIMINARY - 2. InterpretationInterpretation

Defines terms used in the Act including Board; chairperson; deputy chairperson; effective date (27th August of 2010); judge or magistrate; member; Minister; pending complaint; secretary; and vetting.

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "Board" means the Judges and Magistrates Vetting Board established by section 6 ; "chairperson" means the chairperson of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 9 ; "deputy chairperson" means the deputy chairperson of the Board ("the Judges and Magistrates Vetting Board established by;") elected under section 10 ; "effective date" means the 27th August of 2010; "judge or magistrate" means a judge or magistrate to whom this Act applies in accordance with section 3 , and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates; "member" means a member of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 9 , and includes the chairperson and the deputy chairperson; "Minister" means the Minister for the time being responsible for matters relating to the Judiciary; "pending complaint" means a complaint filed or registered with any person or body mentioned in section 18 (e) at least fourteen days before the judge or magistrate is vetted; "secretary" means the secretary of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 15 ; "vetting" means the process by which the suitability of a serving judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") to continue serving in the Judiciary is determined in accordance with this Act. Section 2(2) Despite subsection (1), after the first elections under the Constitution, references in this Act to the expression " Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") " shall be construed to mean "Cabinet Secretary". [Act No. 6 of 2011 , s. 2, Act No. 43 of 2012 , s. 2.]

Section 2Verify source

§ 3PRELIMINARY - 3. Object and purpose of the ActInterpretation

Establishes mechanisms and procedures for vetting judges and magistrates and provides a definition of "vetting".

Section 3. Object and purpose of the Act Section The object and purpose of this Act is to establish mechanisms and procedures for the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of judges and magistrates pursuant to the requirements of section of the Sixth Schedule to the Constitution.

Section 3Verify source

§ 4PRELIMINARY - 4. ApplicationProvision

The Act applies only to persons who were serving as judges or magistrates and who were in office on or before the effective date (the 27th August of 2010).

Section 4. Application Section For the avoidance of doubt, the provisions of this Act shall apply only to persons who were serving as judges or magistrates and who were in office on or before the effective date ("the 27th August of 2010;") .

Section 4Verify source

§ 5PRELIMINARY - 5. Guiding principlesProvision

The Board must at all times be guided by the principles and standards of judicial independence, natural justice and international best practice when exercising its powers or performing its functions under this Act.

Section 5. Guiding principles Section In the exercise of its powers or the performance of its functions under this Act, the Board ("the Judges and Magistrates Vetting Board established by;") shall at all times, be guided by the principles and standards of judicial independence, natural justice and international best practice.

Section 5Verify source

Part II

ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD

§ 10ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 10. Election ofdeputy chairpersonProvision

The chairperson must convene the Board's first meeting within seven days of members being appointed; the members must elect a deputy chairperson from among themselves at that meeting; the chairperson and deputy must be of opposite gender.

Section 10. Election ofdeputy chairperson Section 10(1) The chairperson ("the chairperson of the Board appointed under;") shall, within seven days of the appointment of the members, convene the first meeting of the Board ("the Judges and Magistrates Vetting Board established by;") at which the members shall elect the deputy chairperson ("the deputy chairperson of the Board elected under;") of the Board ("the Judges and Magistrates Vetting Board established by;") from amongst their number. Section 10(2) The chairperson ("the chairperson of the Board appointed under;") and the deputy chairperson ("the deputy chairperson of the Board elected under;") shall be of opposite gender.

Section 10Verify source

§ 11ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 11. Functions ofchairpersonProvision

The chairperson must preside over meetings, act as the Board's spokesperson, and supervise and direct the Board; when the chairperson is absent the deputy chairperson must perform those functions.

Section 11. Functions ofchairperson Section 11(1)(a) preside over all meetings of the Board ("the Judges and Magistrates Vetting Board established by;") ; Section 11(1)(b) be the spokesperson of the Board ("the Judges and Magistrates Vetting Board established by;") ; and Section 11(1)(c) supervise and direct the work of the Board ("the Judges and Magistrates Vetting Board established by;") . Section 11(2) In the absence of the chairperson ("the chairperson of the Board appointed under;") , the deputy chairperson ("the deputy chairperson of the Board elected under;") shall perform the functions of the chairperson ("the chairperson of the Board appointed under;") under subsection (1).

Section 11Verify source

§ 12ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 12. Tenure and vacancy of office ofchairpersonand membersOffence

Chairperson and members serve from appointment until the Board's dissolution unless a vacancy occurs earlier for listed reasons; the President must notify resignations, vacancies or removals in the Gazette within seven days; a replacement serves the unexpired term.

Section 12. Tenure and vacancy of office ofchairpersonand members Section 12(1) The term of office of the chairperson ("the chairperson of the Board appointed under;") or a member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") shall be from the date of appointment and shall, unless the office falls vacant earlier owing to any reason specified in the Constitution or in subsection (2), terminate on the dissolution of the Board ("the Judges and Magistrates Vetting Board established by;") . Section 12(2)(a) dies; Section 12(2)(b) by a notice in writing addressed to the President, resigns from office; Section 12(2)(c) is removed from office under subsection (3); Section 12(2)(d) is convicted of an offence and sentenced to imprisonment for a term of six months or more, without the option of a fine; Section 12(2)(e) is unable to discharge the functions of his office by reason of physical or mental infirmity; Section 12(2)(f) is absent from three consecutive meetings of the Board ("the Judges and Magistrates Vetting Board established by;") without good cause; or Section 12(2)(g) is adjudged bankrupt. Section 12(3) The chairperson ("the chairperson of the Board appointed under;") or a member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") may be removed from office for misbehaviour or misconduct incompatible with the functions of the Board ("the Judges and Magistrates Vetting Board established by;") . Section 12(4) The President shall notify every resignation, vacancy or removal from office in the Gazette within seven days thereof. Section 12(5) Where a vacancy occurs in the membership of the Board ("the Judges and Magistrates Vetting Board established by;") , the President shall, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") , nominate a candidate from the list of candidates forwarded by the Public Service Commission under section 9 (6), for approval by the National Assembly. Section 12(6) A member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") appointed to fill a vacancy under this section shall serve for the unexpired term of the member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") in respect of whom the vacancy arose. Section 12(7) No act or proceedings of the Board ("the Judges and Magistrates Vetting Board established by;") shall be invalid by reason only of a vacancy in the membership of the Board ("the Judges and Magistrates Vetting Board established by;") . [Act No. 43 of 2012 , s. 4.]

Section 12Verify source

§ 13ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 13. Function of theBoardProvision

The Board must vet judges and magistrates.

Section 13. Function of theBoard Section The function of the Board ("the Judges and Magistrates Vetting Board established by;") shall be to vet judges and magistrates in accordance with the provisions of the Constitution and this Act.

Section 13Verify source

§ 14ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 14. Powers of theBoardProvision

Section 14 lists powers of the Judges and Magistrates Vetting Board, including gathering information (requisitioning reports, records, documents), compelling production of information, conducting interviews, holding inquiries, receiving sworn statements, not being bound by strict rules of evidence, and not being subject to direction or control by any person or authority.

Section 14. Powers of theBoard Section 14(1)(a) gather relevant information, including requisition of reports, records, documents or any information from any source, including governmental authorities, and to compel the production of such information as and when necessary; Section 14(1)(b) interview any individual, group or members of organisations or institutions and, at the Board ("the Judges and Magistrates Vetting Board established by;") ’s discretion, to conduct such interviews; and Section 14(1)(c) hold inquiries for the purposes of performing its functions under this Act. Section 14(2)(a) may inform itself in such manner as it thinks fit; Section 14(2)(b) may receive on oath, written or oral statements; Section 14(2)(c) shall not be bound by strict rules of evidence; and Section 14(2)(d) shall not be subject to the direction or control of any person or authority.

Section 14Verify source

§ 15ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 15. Secretary and secretariatProvision

Section 15 establishes a secretariat headed by a competitively recruited and appointed secretary, sets minimum qualifications and experience, requires the secretary to serve full‑time and perform administrative duties, and allows the Board to delegate functions.

Section 15. Secretary and secretariat Section 15(1) There shall be a secretariat of the Board ("the Judges and Magistrates Vetting Board established by;") which shall be headed by a secretary ("the secretary of the Board appointed under;") who shall be competitively recruited and appointed by the Board ("the Judges and Magistrates Vetting Board established by;") in accordance with this section. Section 15(2)(a) holds at least a degree from a university recognised in Kenya; Section 15(2)(b) has at least ten years’ post-qualification experience; Section 15(2)(c) has demonstrated competence in the performance of administrative duties for not less than five years; and Section 15(2)(d) was not serving as a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") on the effective date ("the 27th August of 2010;") . Section 15(3) The secretary ("the secretary of the Board appointed under;") shall be the administrator of the secretariat and shall serve on a full-time basis. Section 15(4)(a) the day to day administration of the affairs of the Board ("the Judges and Magistrates Vetting Board established by;") ; Section 15(4)(b) the co-ordination of the Board ("the Judges and Magistrates Vetting Board established by;") ’s studies, reviews, research and evaluations; Section 15(4)(c) the recording of the Board ("the Judges and Magistrates Vetting Board established by;") ’s proceedings; Section 15(4)(d) providing the Board ("the Judges and Magistrates Vetting Board established by;") with accurate information on the status of facilities and services required for the proper conduct of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process; Section 15(4)(e) securing the maintenance and provision of facilities and services required for the discharge of the Board ("the Judges and Magistrates Vetting Board established by;") ’s functions; Section 15(4)(f) providing the Board ("the Judges and Magistrates Vetting Board established by;") with accurate records and information regarding the judges and magistrates undergoing vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") ; Section 15(4)(g) maintaining accurate records on financial matters and resource use; Section 15(4)(h) ensuring the drawing up and approval of the required budget; Section 15(4)(i) the custody of all records and documents of the Board ("the Judges and Magistrates Vetting Board established by;") ; and Section 15(4)(j) performing any other duties as may be assigned by the Board ("the Judges and Magistrates Vetting Board established by;") from time to time. Section 15(5) Subject to the provisions of the Constitution or any other written law, the Board ("the Judges and Magistrates Vetting Board established by;") may delegate such of its functions as are necessary for the day to day management of its processes.

Section 15Verify source

§ 16ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 16. Assisting counsel and staffProvision

The Judges and Magistrates Vetting Board may appoint assisting counsel and staff; public officers may be seconded to the Board on its request; seconded public officers are during secondment deemed officers of the Board and subject to its direction and control.

Section 16. Assisting counsel and staff Section 16(1)(a) such number of assisting counsel and staff as the Board ("the Judges and Magistrates Vetting Board established by;") may appoint to assist it in the discharge of its functions under the Constitution and this Act; and Section 16(1)(b) such public officers as may, upon the request of the Board ("the Judges and Magistrates Vetting Board established by;") , be seconded to the Board ("the Judges and Magistrates Vetting Board established by;") . Section 16(2) A public officer who is seconded to the Board ("the Judges and Magistrates Vetting Board established by;") under subsection (1) shall, during the secondment, be deemed to be an officer of the Board ("the Judges and Magistrates Vetting Board established by;") and subject to its direction and control.

Section 16Verify source

§ 6ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 6. Establishment of theBoardProvision

Establishes the Judges and Magistrates Vetting Board, names it, grants it capacities such as suing and being sued, acquiring and disposing of property, and carrying out acts for its functions, and states that the State Corporations Act does not apply to the Board.

Section 6. Establishment of theBoard Section 6(1) There is established an independent board to be known as the Judges and Magistrates Vetting Board ("the Judges and Magistrates Vetting Board established by;") . Section 6(2)(a) suing and being sued; Section 6(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; and Section 6(2)(c) doing or performing all such other things or acts for the proper discharge of its functions under the Constitution and this Act as may be lawfully done or performed by a body corporate. Section 6(3) The provisions of the State Corporations Act ( Cap. 446 ) shall not apply to the Board.

Section 6Verify source

§ 7ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 7. Membership of theBoardProvision

The Board may co-opt members of the Judicial Service Commission (who are not serving magistrates) into its membership for the purpose of vetting magistrates.

Section 7. Membership of theBoard Section 7(1)(a) six shall be citizens of Kenya appointed in accordance with section 9 (1) to (12) and of whom three shall be lawyers; and Section 7(1)(b) three shall be non-citizens of Kenya appointed in accordance with section 9 (13). Section 7(2) Notwithstanding subsection (1), the Board ("the Judges and Magistrates Vetting Board established by;") may, for the purpose of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of magistrates, co-opt such members of the Judicial Service Commission as it considers necessary to its membership provided that such co-opted members are not serving magistrates. [Act No. 43 of 2012 , s. 3.]

Section 7Verify source

§ 8ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 8. Qualifications for appointmentProvision

Section 8(2) provides that a person shall not be qualified for appointment as the chairperson or deputy chairperson unless they have at least twenty years’ experience (or aggregate of twenty years) in specified senior legal roles in Kenya.

Section 8. Qualifications for appointment Section 8(1)(a) holds a degree from a university recognised in Kenya; Section 8(1)(b) has at least fifteen years’ distinguished post qualification experience in their field of study; and Section 8(1)(c) satisfies the requirements of Chapter Six of the Constitution. Section 8(2) A person shall not be qualified for appointment as the chairperson ("the chairperson of the Board appointed under;") or deputy chairperson ("the deputy chairperson of the Board elected under;") unless such person has at least twenty years’ or an aggregate of twenty years’ experience as a judge of a superior court, a distinguished legal academic, a judicial officer or other relevant legal practice in the public or the private sector in Kenya. Section 8(3)(a) Parliament; or Section 8(3)(a)(i) Parliament; or Section 8(3)(a)(ii) a local authority; or Section 8(3)(a)(iii) the executive organ of a political party; or Section 8(3)(b) was serving as a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") in Kenya on the effective date ("the 27th August of 2010;") .

Section 8Verify source

§ 9ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD - 9. Procedure for appointment of membersCommencement

Sets a step-by-step procedure for appointing the nine members of the Judges and Magistrates Vetting Board, including timelines for notices, nominations, approvals, forwarding of names and appointment, and requirements for regional/ethnic diversity and gender balance.

Section 9. Procedure for appointment of members Section 9(1) The President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") and with the approval of the National Assembly, shall appoint the nine members of the Board ("the Judges and Magistrates Vetting Board established by;") in accordance with the procedure set out in this section. Section 9(2) Within seven days of the commencement of this Act, the President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") shall, by notice in the Gazette and in at least two newspapers of national circulation, declare vacancies in the Board ("the Judges and Magistrates Vetting Board established by;") under section 7 (a) and call for applications. Section 9(3)(a) any qualified person; or Section 9(3)(b) any person, organisation or group of persons proposing the nomination of any qualified person. Section 9(4) The names of all applicants under sub-section (3) shall be published in the Gazette . Section 9(5)(a) Cabinet Office; Section 9(5)(b) Office of the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") ; Section 9(5)(c) Ministry for the time being responsible for matters relating to the Judiciary; Section 9(5)(d) office of the Attorney-General; Section 9(5)(e) Ministry for the time being responsible for matters relating to the public service; Section 9(5)(f) Public Service Commission; Section 9(5)(g) Judicial Service Commission, not being a serving judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") ; and Section 9(5)(h) Law Society of Kenya, for the purpose of considering the applications, interviewing and selecting at least three candidates qualified for appointment as chairperson ("the chairperson of the Board appointed under;") and eighteen candidates, of whom at least six shall be lawyers, qualified for appointment as members: Section 9(6) The Public Service Commission shall, within seven days of the selection of candidates under subsection (5), forward the names of the selected candidates to the President and the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") for nomination. Section 9(7) The President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") shall, within seven days of receipt of the names of the selected candidates under subsection (6), nominate a chairperson ("the chairperson of the Board appointed under;") and five other persons for appointment as members of the Board ("the Judges and Magistrates Vetting Board established by;") and forward the names to the National Assembly. Section 9(8) The National Assembly shall, within fourteen days of the receipt of the nominees under subsection (7), consider all the nominations received and may approve or reject any nomination. Section 9(9)(a) approves the nominees, the Speaker shall, within three days of the approval, forward the names of the approved nominees to the President for appointment; Section 9(9)(b) rejects any nomination, the Speaker shall, within three days of the rejection, communicate the decision to the President, who in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") , shall submit a fresh nominee from amongst the candidates selected and forwarded by the Public Service Commission under subsection (6). Section 9(10) If the National Assembly rejects all or any subsequent nominee submitted by the President for approval under subsection (9), the provisions of subsections (1) to (8) shall, with necessary modifications, apply. Section 9(11) The President shall, within seven days of the receipt of the approved nominees from the National Assembly, by notice in the Gazette , appoint the chairperson ("the chairperson of the Board appointed under;") and members approved by the National Assembly. Section 9(12) In selecting, nominating, approving or appointing the chairperson ("the chairperson of the Board appointed under;") and members of the Board ("the Judges and Magistrates Vetting Board established by;") , the selection Committee, the National Assembly, the President and the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") shall ensure that the Board ("the Judges and Magistrates Vetting Board established by;") reflects the regional and ethnic diversity of the people of Kenya and not more than two-thirds of the members are of the same gender. Section 9(13) The President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") and subject to the approval of the National Assembly shall, in respect of the vacancies in the Board ("the Judges and Magistrates Vetting Board established by;") under section 7 (b), appoint three distinguished non-citizen serving or retired judges, each of whom has served as a Chief Justice or judge of a superior court in the Commonwealth, to be members of the Board. Section 9(14) Despite the foregoing provisions of this section, the President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") may, by notice in the Gazette , extend the period specified in respect of any matter under this section by a period not exceeding twenty-one days. [Act No. 6 of 2011 , s. 3.]

Section 9Verify source

Part III

VETTING PROCEDURES

§ 17VETTING PROCEDURES - 17. PanelsProvision

Section 17. Panels Section 17(1) The chairperson ("the chairperson of the Board appointed under;") may, for the purpose of ensuring the expeditious disposal of matters, constitute three or more panels to work concurrently in the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of judges and magistrates. Section 17(2) The chairperson ("the chairperson of the Board appointed under;") shall ensure that each panel constituted under subsection (1) consists of at least a non-citizen serving or retired judge, a lawyer and a non- lawyer. Section 17(3) Notwithstanding subsection (1), the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of judges shall be undertaken solely by the members of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 7 (1). [Act No. 43 of 2012 , s. 5.]

Section 17Verify source

§ 18VETTING PROCEDURES - 18. Relevant considerationsProvision

Section 18 lists the relevant considerations for vetting judges and magistrates, including meeting constitutional appointment criteria, past work record, criminal matters, prosecutorial recommendations, and input from listed bodies, and then enumerates personal and professional qualities to assess.

Section 18. Relevant considerations Section 18(1)(a) whether the judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") meets the constitutional criteria for appointment as a judge of the superior courts or as a magistrate; Section 18(1)(b) the past work record of the judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") , including prior judicial pronouncements, competence and diligence; Section 18(1)(c) any pending or concluded criminal cases before a court of law against the Judge or Magistrate; Section 18(1)(d) any recommendations for prosecution of the Judge or Magistrate by the Director of Public Prosecutions or the Kenya Anti-Corruption Commission; and Section 18(1)(e) Law Society of Kenya; Section 18(1)(e)(i) Law Society of Kenya; Section 18(1)(e)(ii) Ethics and Anti-Corruption Commission; Section 18(1)(e)(iii) Advocates Disciplinary Tribunal; Section 18(1)(e)(iv) Advocates Complaints Commission; Section 18(1)(e)(vi) Commission on Administrative Justice; Section 18(1)(e)(vii) Kenya National Human Rights and Equality Commission; Section 18(1)(e)(viii) National Intelligence Service; Section 18(1)(e)(ix) National Police Service Commission; or Section 18(1)(e)(x) Judicial Service Commission. Section 18(2)(a) intellectual capacity; Section 18(2)(a)(i) intellectual capacity; Section 18(2)(a)(ii) legal judgment; Section 18(2)(a)(iii) diligence; Section 18(2)(a)(iv) substantive and procedural knowledge of the law; Section 18(2)(a)(v) organisational and administrative skills; and Section 18(2)(a)(vi) the ability to work well with a variety of people; Section 18(2)(b) the ability to communicate orally and in writing; Section 18(2)(b)(i) the ability to communicate orally and in writing; Section 18(2)(b)(ii) the ability to discuss factual and legal issues in clear, logical and accurate legal writing; and Section 18(2)(b)(iii) effectiveness in communicating orally in away that will readily be understood and respected by people from all walks of life; Section 18(2)(c) a demonstrable consistent history of honesty and high moral character in professional and personal life; Section 18(2)(c)(i) a demonstrable consistent history of honesty and high moral character in professional and personal life; Section 18(2)(c)(ii) respect for professional duties, arising under the codes of professional and judicial conduct; and Section 18(2)(c)(iii) ability to understand the need to maintain propriety and the appearance of propriety; Section 18(2)(d) a demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and Section 18(2)(d)(i) a demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and Section 18(2)(d)(ii) open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views; Section 18(2)(e) demonstrable possession of compassion and humility; Section 18(2)(e)(i) demonstrable possession of compassion and humility; Section 18(2)(e)(ii) history of courtesy and civility in dealing with others; Section 18(2)(e)(iii) ability to maintain composure under stress; and Section 18(2)(e)(iv) ability to control anger and maintain calmness and order; Section 18(2)(f) good judgment, including common sense, elements of which shall include a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles; Section 18(2)(g) the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other courtroom experience and administrative skills; and Section 18(2)(g)(i) the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other courtroom experience and administrative skills; and Section 18(2)(g)(ii) broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field; and Section 18(2)(h) demonstrable commitment to public and community service, the elements of which shall include the extent to which a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") has demonstrated a commitment to the community generally and to improving access to the justice system in particular.

Section 18Verify source

§ 19VETTING PROCEDURES - 19. Vetting procedureProvision

The Board must consider interview information and records; information obtained is confidential; judges and magistrates to be vetted must be given sufficient notice; hearings are not public unless the concerned judge or magistrate requests a public hearing; the rules of natural justice shall apply to the Board's proceedings.

Section 19. Vetting procedure Section 19(1) The Board ("the Judges and Magistrates Vetting Board established by;") shall consider information gathered in the course of personal interviews with the affected judges and magistrates as well as their records. Section 19(2) All information obtained by the Board ("the Judges and Magistrates Vetting Board established by;") during personal interviews and records of the Judge or Magistrate being vetted shall be confidential. Section 19(3) Every judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") to be vetted shall be given sufficient notice. Section 19(4) The notice referred to under subsection (3) shall include a summary of complaints, if any, against the Judge or Magistrate. Section 19(5) The hearing by the Board ("the Judges and Magistrates Vetting Board established by;") shall not be conducted in public, unless the concerned judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") requests a public hearing. Section 19(6) The rules of natural justice shall apply to the Board ("the Judges and Magistrates Vetting Board established by;") ’s proceedings.

Section 19Verify source

§ 20VETTING PROCEDURES - 20. Order of priorityProvision

Specifies the order in which judges and magistrates are to be vetted: Court of Appeal Judges first, then High Court Judges, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates, and other magistrates.

Section 20. Order of priority Section The first judges and magistrates to be vetted shall be the Court of Appeal Judges, followed by Judges of the High Court, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates and others magistrates, in that order.

Section 20Verify source

§ 21VETTING PROCEDURES - 21. DeterminationProvision

If the Board determines a judge or magistrate is unsuitable, it must inform that judge or magistrate in writing within thirty days specifying reasons; once informed the judge or magistrate shall be deemed removed from service subject to section 22.

Section 21. Determination Section 21(1) The Board ("the Judges and Magistrates Vetting Board established by;") shall, upon determining the unsuitability of a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") to continue serving in the Judiciary, within thirty days of the determination, inform the concerned judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") of the determination, in writing, specifying the reasons for the determination. Section 21(2) Once informed of the decision under subsection (1), the Judge or Magistrate shall, subject to section 22 , be deemed to have been removed from service. Section 21(3) The decision to remove a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") from service shall be made public.

Section 21Verify source

§ 22VETTING PROCEDURES - 22. ReviewProvision

A vetted judge or magistrate dissatisfied with the Board's determination may request a review within seven days on specified grounds; while a request is pending the judge or magistrate shall be suspended; removals under the Act are not reviewable by any court; the Board's decision under this section is final.

Section 22. Review Section 22(1) A judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") who has undergone the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process and is dissatisfied with the determination of the Board ("the Judges and Magistrates Vetting Board established by;") may request for a review by a new panel to be constituted by the Chairperson of the Board ("the Judges and Magistrates Vetting Board established by;") within seven days of being informed of the final determination under section 21 (1). Section 22(2)(a) on the discovery of a new and important matter which was not within the knowledge of, or could not be produced by the Judge or Magistrate at the time the determination or finding sought to be reviewed was made, provided that such lack of knowledge on the part of the Judge or Magistrate was not due to lack of due diligence; or Section 22(2)(b) on some mistake or error apparent on the face of the record. Section 22(3) A judge or a magistrate, who requests for review shall, pending the decision of the Board ("the Judges and Magistrates Vetting Board established by;") under this section, be suspended from office. Section 22(4) A removal or a process leading to the removal of a magistrate from office under this Act shall not be subject to question in, or review by, any court. Section 22(5) The decision by the Board ("the Judges and Magistrates Vetting Board established by;") under this section shall be final. [Act No. 43 of 2012 , s. 7, Act No. 43 of 2013 , s. 2.]

Section 22Verify source

Part IV

GENERAL

§ 23GENERAL - 23. Time frameCommencement

The vetting process, once commenced, must be concluded by 31st December, 2015 (and certain categories by 28th March, 2013); the Board shall stand dissolved within thirty days of execution of its mandate and files are to be preserved and transferred.

Section 23. Time frame Section 23(1) The vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process once commenced shall not exceed the period specified by this section. Section 23(2) The vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process, once commenced, shall be concluded not later than the 31st December, 2015 and any review of a decision of the Board ("the Judges and Magistrates Vetting Board established by;") shall be heard and concluded within the above specified period. Section 23(3) Despite subsection (2), the Board ("the Judges and Magistrates Vetting Board established by;") shall conclude the process of vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") all the judges, chief magistrates and principal magistrates not later than the 28th March, 2013 and any review of a decision of the Board ("the Judges and Magistrates Vetting Board established by;") shall be heard and concluded within the above specified period. Section 23(4) The Board ("the Judges and Magistrates Vetting Board established by;") shall stand dissolved within thirty days of the execution of its mandate upon which this Act shall lapse. Section 23(5)(a) those aspects of its work that will be of value to other institutions are preserved, documented and transferred to the relevant institutions; and Section 23(5)(b) its files and records are preserved and transferred to the Kenya National Archives and Documentation Service.

Section 23Verify source

§ 24GENERAL - 24. Voluntary retirement and terminal benefitsProvision

Judges or magistrates who voluntarily leave service or are found unsuitable after vetting are entitled to terminal benefits for early retirement.

Section 24. Voluntary retirement and terminal benefits Section 24(1)(a) whether to be subjected to the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process; or Section 24(1)(b) to leave the judicial service voluntarily. Section 24(2) A judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") who elects to leave the judicial service voluntarily or is found unsuitable after vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") shall be entitled to terminal benefits for early retirement. Section 24(3) For the avoidance of doubt, a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") who voluntarily leaves service or is found unsuitable after vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") shall be deemed qualified for early retirement.

Section 24Verify source

§ 25GENERAL - 25. Allowances for membersProvision

The Board must pay its members allowances for expenses as determined by the Minister in charge of finance.

Section 25. Allowances for members Section The Board ("the Judges and Magistrates Vetting Board established by;") shall pay to its members such allowances for expenses as may be determined by the Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") in charge of finance.

Section 25Verify source

§ 26GENERAL - 26. Annual estimatesCommencement

The Board's financial year runs for twelve months ending 30 June each year; at least three months before each financial year the Board must prepare and submit its expenditure estimates to the Minister, who must present them to the National Assembly for consideration and approval.

Section 26. Annual estimates Section 26(1) The financial year of the Board ("the Judges and Magistrates Vetting Board established by;") shall be the period of twelve months ending on the 30th of June in each year. Section 26(2) At least three months before the commencement of each financial year, the Board ("the Judges and Magistrates Vetting Board established by;") shall cause estimates of the expenditure of the Board ("the Judges and Magistrates Vetting Board established by;") for that year to be prepared and submitted to the Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") who shall present them for consideration and approval by the National Assembly. Section 26(3) The annual estimates shall make provision for all the estimated expenditure of the Board ("the Judges and Magistrates Vetting Board established by;") for that year.

Section 26Verify source

§ 27GENERAL - 27. Funds of theBoardProvision

The Board must not accept any grant, gift, donation or bequest that is conditional on the Board performing any function or discharging any duty or obligation other than duties under this Act.

Section 27. Funds of theBoard Section 27(1) The expenses incurred by the Board ("the Judges and Magistrates Vetting Board established by;") in accordance with this Act shall be charged on and issued out of the Consolidated Fund and the appropriation for the expenses shall be included in the Appropriation Bill introduced in the National Assembly to authorise the withdrawal from the Consolidated Fund. Section 27(2) Without prejudice to subsection (1), there may be made to the Board ("the Judges and Magistrates Vetting Board established by;") grants, gifts, donations or bequests towards the achievement of the objects of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process specified in section 3 . Section 27(3) The Board ("the Judges and Magistrates Vetting Board established by;") shall not accept any grant, gift, donation or bequest made on any condition that the Board ("the Judges and Magistrates Vetting Board established by;") performs any function or discharges any duty or obligation other than duties under this Act.

Section 27Verify source

§ 28GENERAL - 28. Accounts and auditProvision

The Board must keep proper books and records of accounts and must have its annual accounts prepared, audited and reported in accordance with the Public Audit Act (Cap. 412B).

Section 28. Accounts and audit Section 28(1) The Board ("the Judges and Magistrates Vetting Board established by;") shall cause to be kept proper books and records of accounts of its income, expenditure, assets and liabilities. Section 28(2) The annual accounts of the Board ("the Judges and Magistrates Vetting Board established by;") shall be prepared, audited and reported upon in accordance with the Public Audit Act ( Cap. 412B ).

Section 28Verify source

§ 29GENERAL - 29. Protection from personal liabilityProvision

Members, officers, employees and agents of the Board acting in good faith in execution of the Board's functions are protected from personal liability; subsection (2) preserves the Board's liability to pay compensation for damage caused by exercise of powers or failure of works.

Section 29. Protection from personal liability Section 29(1) No matter or thing done by a member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") of the Board ("the Judges and Magistrates Vetting Board established by;") , or any officer, employee or agent of the Board ("the Judges and Magistrates Vetting Board established by;") shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the Board ("the Judges and Magistrates Vetting Board established by;") , render the member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") , officer, employee or agent personally liable to any action claim or demand whatsoever. Section 29(2) The provisions of subsection (1) shall not relieve the Board ("the Judges and Magistrates Vetting Board established by;") of liability to pay compensation for damage to any person for any personal or proprietary interest sustained by the person as a result of the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works.

Section 29Verify source

§ 30GENERAL - 30. Oath or affirmation of officeProvision

Before assuming office the chairperson, deputy chairperson, members and secretary must make and subscribe the oath or affirmation prescribed in the Schedule before the Chief Justice.

Section 30. Oath or affirmation of office Section The chairperson ("the chairperson of the Board appointed under;") , the deputy chairperson ("the deputy chairperson of the Board elected under;") , the members and the secretary ("the secretary of the Board appointed under;") shall, before assuming office, make and subscribe, before the Chief Justice, the respective oath or affirmation prescribed in the Schedule.

Section 30Verify source

§ 31GENERAL - 31. Disclosure of personal interestProvision

Members of the Board who have a direct or indirect personal interest must promptly disclose the nature of that interest to the Board; such members must not be present for, or take part in deliberations or voting on, that matter.

Section 31. Disclosure of personal interest Section 31(1) A member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") of the Board ("the Judges and Magistrates Vetting Board established by;") who has a direct or indirect personal interest in a matter being considered or to be considered by the Board ("the Judges and Magistrates Vetting Board established by;") shall, as soon as reasonably practicable after the relevant facts concerning the matter have come to their knowledge, disclose the nature of the interest to the Board ("the Judges and Magistrates Vetting Board established by;") . Section 31(2) A disclosure of any such interest in a matter shall be recorded in the minutes of the meeting of the Board ("the Judges and Magistrates Vetting Board established by;") and the member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") shall not be present while that matter is being dealt with by the Board ("the Judges and Magistrates Vetting Board established by;") and shall not take part in any deliberations or vote relating to the matter.

Section 31Verify source

§ 32GENERAL - 32. Conflict of interestProvision

Persons who serve on the Board as chairperson, deputy chairperson, member or secretary are precluded from being appointed as a judge or judicial officer for five years from the close of the vetting process.

Section 32. Conflict of interest Section A person who serves on the Board ("the Judges and Magistrates Vetting Board established by;") as the chairperson ("the chairperson of the Board appointed under;") , deputy chairperson ("the deputy chairperson of the Board elected under;") , member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") or secretary ("the secretary of the Board appointed under;") shall be precluded from being appointed as a judge or judicial officer for a period of five years from the close of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process.

Section 32Verify source

§ 33GENERAL - 33. Inherent powers of theBoardProvision

Section 33. Inherent powers of theBoard Section 33(1) Subject to the provisions of this Act, the Board ("the Judges and Magistrates Vetting Board established by;") may regulate its own procedure and make regulations generally for the better carrying into effect the provisions of this Act. Section 33(2)(a) the conduct of the Board ("the Judges and Magistrates Vetting Board established by;") ’s operations and proceedings; Section 33(2)(b) the manner of receiving and processing complaints; Section 33(2)(c) any summary procedure the Board ("the Judges and Magistrates Vetting Board established by;") may adopt under sections 19 and 23; and Section 33(2)(d) the steps that may be taken by the Board ("the Judges and Magistrates Vetting Board established by;") before a determination. Section 33(3) The chairperson ("the chairperson of the Board appointed under;") may issue directions for the just, efficient and economical determination of proceedings in relation to the procedures provided for by the regulations made under subsection (1). Section 33(4) Nothing in this Act shall limit or otherwise affect the power of the Board ("the Judges and Magistrates Vetting Board established by;") conferred by the Constitution or under this Act, either on its own motion or on the application of a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") , to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Board ("the Judges and Magistrates Vetting Board established by;") .

Section 33Verify source

Legislative relationships

4 referenced instruments

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A–F

2 instruments

Act Section The object and purpose of this Act
Section 3
Constitution and this Act
Section 13

G–M

1 instrument

Judges and Magistrates Act, 2011
Section 1

N–S

1 instrument

State Corporations Act
Section 6

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