The office of the chief justice is established by the Constitution. It is a constitutional office and therefore one of the important offices in a country.
The occupant of the office is appointed by the president. The Constitution does not expressly prescribe the qualification for the holder of the office. However, once appointed he becomes a judge of the High court and Court of Appeal.
Under the provisions of the constitution, the chief justice is the most senior judge. The importance of the office may be exemplified by a discussion of its function:
• The chief justice is the chairman of the Judicial Service Commission
• He is the principal administrative officer of the judiciary.
• Determines where the High court sits
• Overseas administration of courts
• He is responsible for the efficiency delivery of judicial services
• He appoints the duty judge
• He makes judges available for various duties.
• As a judge of the High court and Court of Appeal he participates in the adjudicatory process.
• The chief justice is empowered to make law by various statutes.
• Under the Judicature Act, Kadhis Court Act and the Magistrate Court Act, he is empowered to make law to regulate the practice and procedure of courts.
• Under section 84 of the Constitution, he is empowered to make law to facilitate the enforcement of fundamental rights and freedoms of the individual.
• He administers oath to the person elected to the office of the president.
• He represents the judiciary in all state functions.
Legal education and profession
• The chief justice or his nominee is the chairman of the Council of Legal Education
• He admits advocates to the bar
• He issues practicing certificates to advocates
• He appoints commissioner for oath and notaries public.
Enhancement of jurisdiction
Under the provision of the Magistrates Court Act, the chief justice is empowered to increase the civil jurisdiction of the Resident Magistrates Court. This is effected by a notice in the Kenya Gazette.
The chief justice retires at the age of 74 and enjoys some security of tenure. He can only be removed from office on the ground of either;
• Misbehaviour, or
• Inability to discharge functions of his office,
Provided a tribunal appointed by the president has investigated the allegations and recommended that he be removed.
Our discussion clearly demonstrates that the office of the Chief Justice is an important one.