REPUBLIC OF KENYA - The Judiciary

[19] Counsel invoked the legal-redress maxim, ubi jus ibi remedium:
“there is no right without a remedy.” He urged that the petitioners
should not be left without a remedy, submitting that the petitioners
had a right to fair hearing before an impartial and independent Court:
and this, at the time of the incident, was true under Section 77 of the
1969 Constitution (now repealed) – just as it is today, under Article 50
of the Constitution of 2010. This right, counsel urged, was grossly
violated at the hearing and determination before the Court of Appeal –
yet the petitioners had no remedy by way of an overturning judicial
order. Counsel urged that the Constitution proffered Section 14 of the
Supreme Court Act, 2011 as the basis of redress which, however, the
Macharia decision had denied. Counsel submitted that the scope of a
party’s rights under Article 25 of the Constitution cannot be limited
despite any other provisions, including that relating to the Supreme
Court’s jurisdiction under Article 163(3). Learned counsel urged that,
by the Macharia decision, the Court had overlooked the terms of
Article 22(1) of the Constitution which thus read:
“Every person has the right to institute court proceedings
claiming that a right or fundamental freedom in the Bill of
11