REPUBLIC OF KENYA - The Judiciary

operational situations, and administrative matters. By no means, in the
circumstances, it was urged, had Article 163 constrained the legislative
initiative in the enactment of Section 14 of the Supreme Court Act.
(c) Retired Judge’s Decision should not Remain Standing: The
Position of the amicus curiae
[21] Learned counsel, Mr. Gichuhi urged the Court to depart from the
decision in the Macharia Case. He urged that the Macharia decision
was bad, and that a bad judgment cannot be allowed to stand, where
the Judge who made it was removed. Counsel submitted that the Sixth
Schedule to the Constitution (Section 23) provides for a vetting
process for Judges and Magistrates, and Article 10 gives the guiding
principles to be applied during the vetting. Counsel submitted that
Article 10(2)(b) (which includes in the declared “national values and
principles of governance,” human dignity, equity, social justice,
inclusiveness, equality, human rights, non-discrimination and
protection of the marginalized) was not considered in the Macharia
Case. The amicus curiae cited the Vetting of Judges and Magistrates
Act 2012 (No. 2 of 2012), particularly Section 18, in support of his
submission that Judges had an obligation to evince fairness and
impartiality.
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