The Tribunals Bill, 2023

11 Aug 2023 domainNational Assembly No. 45 of 2023 Gazette: Supplement No. 131 of 2023

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Status Timeline

Proposed

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Public Review

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Debate

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Executive

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Final

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Creation of the Office of the Registrar of Tribunals

Establishes a centralized registry system under Clause 6 of the Bill:

Registrar and Deputies: Appointed by the Judicial Service Commission (JSC).
Qualifications: The Registrar must hold a degree in law and possess at least ten years of post-qualification experience, while Deputy Registrars require at least five years of experience.
Mandate: Responsible for day-to-day administration, managing registries, overseeing support services, preparing budget estimates, and facilitating the enforcement of tribunal decisions.

Strict Qualifications and Tenure for Tribunal Officers

Standardizes the criteria and terms for tribunal chairpersons and members under Clauses 12, 13, and 15:

Composition: Tribunals must consist of a minimum of three members, with one chairperson.
Chairperson Qualifications: Must be a Kenyan citizen and an advocate of the High Court of Kenya with at least ten years of post-qualification experience.
Member Qualifications: Must be a Kenyan citizen with at least five years of post-qualification experience in the respective field.
Tenure: Members serve for a term of five years and are eligible for reappointment for a single further term of five years.

Formalized Feasibility Criteria for New Tribunals

Introduces a rigorous process to prevent the unnecessary proliferation of administrative courts under Clause 11:

Requests: Any Ministry, Department, or Agency wishing to establish a new tribunal must submit a detailed justification and feasibility assessment to the JSC.
Assessments: The assessment must demonstrate the strategic viability of the proposed tribunal and evaluate if existing tribunals could absorb the mandate.
Treasury Review: The National Treasury must review the financial implications of the proposed tribunal.
Approval: Upon recommendation by the JSC and approval by the Cabinet, the tribunal must be established strictly via an Act of Parliament.

Financial Oversight and Budgeting via Judiciary Fund

Brings the financing of tribunals under the judiciary's main budget structure under Clauses 29, 30, and 31:

Judiciary Fund: The expenses of all tribunals will be charged directly on the Judiciary Fund.
Accounts: The Chief Registrar is authorized to open bank accounts on behalf of tribunals in accordance with the Public Finance Management Act.
Reporting: At the end of each financial year, the Chief Registrar must prepare consolidated annual reports, including financial statements and outcome descriptions, for submission to the Judicial Service Commission.

Criminal Penalties for Obstructing Tribunals

Establishes new criminal offenses and financial penalties under Clause 38 to protect the integrity of tribunal processes:

Obstruction and Disregard: Obstructing, hindering, or threatening any member or officer of a tribunal, or disregarding a tribunal order, carries a fine of not less than KSh 200,000, imprisonment for a term of not less than one year, or both.
False Information: Submitting false or misleading information to a tribunal is punishable on conviction by a fine of up to KSh 250,000, imprisonment for up to six months, or both.

Bill No.

No. 45 of 2023

Gazette No.

Supplement No. 131 of 2023

Sponsor

Kimani Ichung'wa

#Justice #Governance

Background

The Tribunals Bill, 2023 gives effect to Articles 1(3)(c), 20(4), 47(3), 159(1), and 169 of the Constitution of Kenya. The legislation is designed to resolve historical fragmentation in Kenya's administrative justice system, wherein various tribunals operated under conflicting structures, different parent ministries, and inconsistent rules. By centralizing administrative authority under the Judicial Service Commission (JSC), the Bill aims to guarantee independent, fair, efficient, and cost-effective resolution of specialized disputes.

Key Amendments

Centralization Under the JSC

The Judicial Service Commission is granted the policy and regulatory mandate over all tribunals. Under Clause 5, the Commission is tasked with:

Developing policies for tribunal regulation.
Recommending the establishment, merger, or abolition of tribunals to Parliament.
Developing a Code of Conduct and setting standards of service delivery.
Facilitating public education, training programs, and law reporting for tribunal decisions.

Establishment of the Office of the Registrar

Clause 6 creates the Office of the Registrar of Tribunals. Supported by Deputy Registrars, the Registrar handles registry management, records maintenance, asset procurement, enforcement facilitation, and library management.

New Obligations

Code of Conduct and Conflict of Interest

Oath of Office: Every chairperson and member of a tribunal must subscribe to the Oath/Affirmation of Office set out in the First Schedule before the Chief Justice (Clause 32).
Conflict of Interest: Under Clause 34, tribunal members must immediately disclose any direct or indirect personal interest in a matter before the tribunal and recuse themselves from deliberations. Failure to disclose is a statutory offence.
Confidentiality: Members and staff are barred from disclosing unauthorized information acquired in the course of their duties (Clause 35).

Establishment and Management of Disputes

Expeditious Determination: Every tribunal is obligated under Clause 28 to determine any matter filed before it within six months, unless the parent Act specifies a shorter period.
Evidentiary Rules: Tribunals are directed under Clause 17 to conduct proceedings with minimum formality and are not strictly bound by technical rules of evidence, instead leaning on equity, good conscience, and substantial merits.

Penalties

General Contempt and Obstruction: Under Clause 38(1), obstructing, threatening, or hindering a tribunal member or officer, or disregarding an order, results in a fine of at least KSh 200,000 or imprisonment for not less than one year, or both.
Misleading Information: Under Clause 38(2), presenting false documents or misleading information is punishable by a fine not exceeding KSh 250,000, imprisonment for up to six months, or both.

Transitional Provisions

Tenure of Existing Members: Chairpersons and members serving immediately before the Act commences will remain in office for their unexpired terms or for 18 months, whichever is shorter (Clause 43).
Transfer of Staff: Within 18 months of commencement, the JSC may employ existing staff of tribunals who apply and are deemed fit and proper (Clause 45).
Asset Disposal: Within 18 months, the JSC, in consultation with relevant ministries, will audit, transfer, or dispose of existing tribunal assets and liquidate outstanding debts (Clause 46).

Consequential Amendments

The Second Schedule systematically amends several Acts to align them with the Tribunals Act, 2023, replacing ministerial appointments with JSC control, transferring administrative budgets to the Judiciary Fund, and establishing consistent appeal routes. The affected Acts include:

Rent Restriction Act (Cap. 296): Establishes the Rent Tribunal under the JSC, setting qualifications for the Chairman (advocate of 10+ years' experience) and members (3 members with degrees and 5+ years' experience).
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301): Replaces the previous tribunal appointment mechanisms with the JSC framework and places expenses under the Judiciary Fund.
Standards Act (Cap. 496): Establishes the Standards Tribunal under the JSC.
Seeds and Plant Varieties Act (Cap. 326): Aligns the Seeds and Plant Varieties Tribunal with the JSC structure.
Insurance Act (Cap. 487): Reorganizes the Insurance Appeals Tribunal under the JSC.
State Corporations Act (Cap. 446): Establishes the State Corporations Appeals Tribunal.
Capital Markets Act (Cap. 485A): Reconstitutes the Capital Markets Tribunal under the JSC.
Retirement Benefits Act (Cap. 496): Establishes the Retirement Benefits Appeals Tribunal.
Co-operative Societies Act (No. 12 of 1997): Reconstitutes the Co-operative Tribunal.
Kenya Information and Communications Act (No. 2 of 1998): Reconstitutes the Communications and Multimedia Appeals Tribunal.
Environmental Management and Co-ordination Act (No. 8 of 1999): Aligns the National Environment Tribunal.
Industrial Property Act (No. 3 of 2001): Aligns the Industrial Property Tribunal.
Copyright Act (Cap. 130): Establishes the Copyright Tribunal under the JSC.
Privatization Act (No. 2 of 2005): Establishes the Privatization Appeals Tribunal.
HIV and AIDS Prevention and Control Act (No. 14 of 2006): Aligns the HIV and AIDS Tribunal under the JSC.
Biosafety Act (No. 2 of 2009): Reconstitutes the Biosafety Appeals Board.
Competition Act (No. 12 of 2010): Aligns the Competition Tribunal.
Political Parties Act (No. 11 of 2011): Aligns the Political Parties Disputes Tribunal under the JSC.
Tourism Act (No. 28 of 2011): Aligns the Tourism Tribunal.
Kenya Citizens and Foreign Nationals Management Service Act (No. 31 of 2011): Reconstitutes the Citizenship and Immigration Service Appeals Tribunal.
National Construction Authority Act (No. 41 of 2011): Aligns construction appeal disputes under the new framework.
Land Act (No. 6 of 2012): Amends land dispute reference structures.
Legal Education Act (No. 27 of 2012): Establishes the Legal Education Appeals Tribunal.
Kenya National Examinations Council Act (No. 29 of 2012): Establishes the National Examinations Appeals Tribunal.
National Transport and Safety Authority Act (No. 33 of 2012): Aligns transport appeal structures.
Micro and Small Enterprises Act (No. 55 of 2012): Establishes the Micro and Small Enterprises Tribunal.
Basic Education Act (No. 14 of 2013): Establishes the Education Appeals Tribunal.
Public Benefits Organizations Act (No. 18 of 2013): Establishes the Public Benefit Organizations Disputes Tribunal.
Civil Aviation Act (No. 55 of 2012): Establishes the National Civil Aviation Administrative Review Tribunal.
Sports Act (No. 25 of 2013): Establishes the Sports Disputes Tribunal.
Tax Appeals Tribunal Act (No. 40 of 2013): Aligns Tax Appeals structures, deploying Deputy Registrars under the JSC.
Water Act (No. 43 of 2016): Reconstitutes the Water Tribunal under the JSC.
Public Procurement and Asset Disposal Act (No. 33 of 2015): Reconstitutes the Public Procurement Administrative Review Board.
Nairobi International Financial Centre Act (No. 25 of 2017): Establishes the Financial Centre Tribunal.
Energy Act (No. 1 of 2019): Aligns the Energy and Petroleum Tribunal.
Kenya Accreditation Service Act (No. 17 of 2019): Establishes the Accreditation Appeals Tribunal.
Refugees Act (No. 10 of 2021): Reconstitutes the Refugee Status Appeals Committee under the JSC.
Public Private Partnerships Act (No. 14 of 2021): Reconstitutes the Public Private Partnerships Petition Committee.

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