Business/commercial law question and answer

(a) Highlight the establishment and jurisdiction of the following:
(i) The Land tribunals. (4 marks)
(ii) The Kadhi‟s court. (4 marks)
(iii) The Court martial
(i) The Land Tribunals
• These are tribunals created the Land Disputes Tribunals, Act, 1990, to entertain civil disputes relating to:
o Division of land
o Determination of boundaries to land including land held in common
o Claim to occupy or work land
o Trespass to land.
• The jurisdiction of these tribunals is restricted to disputes relating to agricultural land.
• Cannot entertain statute barred actions or disputes which have been heard and determined any court.
• There is a land disputes tribunal for every district (registration district)in Kenya. It consists of:
o A chairman appointed the District Commissioner from a KASNEB PANEL of elders appointed the minister for each district.
o Either two or four elders selected the district commissioner from a KASNEB PANEL of elders appointed the minister.
o The tribunals applies African customary law.
o Decisions are written, signed all members and filed with the Resident or Distric t Magistrates court.
o Appeal lies to the Land Disputes Appeals Committee.

(ii) Kadhi Court
• It is established the Constitution and the Kadhis Court Act as a court subordinate to the High Court.

• The court is duly constituted when held the chief Kadhi or Kadhi. It exercises original jurisdiction in civil cases only. Under the constitution, its jurisdiction is limited to the determination of questions of Muslim law relating to marriage, divorce or personal status or succession in proceeding in which all parties profess Muslim faith.
• However, the court has no exclusive jurisdiction hear such cases. The High court, Resident Magistrates court and the District Magistrates court have jurisdiction to hear and determine such matters.
• The evidence applicable is governed Islamic law of evidence. All witnesses must be heard without discrimination.
• A decision of the court may be appealed against in the High court.

(iii) The Courts Martial:

• It is established section 85(1) of the Armed Forces Act as a Sub-ordinate court.

• The court is presided over an officer who sits with not less than 2 other persons or not less than four if an officer is being tried or where the maximum penalty for the offence is death.

The court is assisted a judge/advocate who advice on questions of procedure.

The court exercises original jurisdiction in criminal cases relating to offence committed the members of the armed forces within the jurisdiction of the court, for example, mutiny, disobeying lawful orders or desertion.

The court has jurisdiction to impose the following sentences:
• Imprisonment
• Fine
• Dismissal from the armed forces
• Reprimand
• Reduction of rank.
• Capital punishment.

• A decision of the court may be appealed against in the High Court. The convict may be appealing against conviction or sentence or both.

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