REPUBLIC OF KENYA - The Judiciary

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[22] Mr. Gichuhi urged the position of the amicus curiae as resting on the foundations of Articles 159(1) [which declares that “Judicial authority is derived from the people”] and 259 [which declares the manner of interpretation of the Constitution: for instance, a manner that “promotes its purposes, values and principles”; that “advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights”] of the Constitution. Counsel invoked the provision of the Constitution (Article 25 (c)) to support the argument that the right to a fair trial cannot be limited; and he relied on Article 48 which provides that: “The State shall ensure access to justice for all persons…” Counsel urged that the provision in question, Section 14 of the Supreme Court Act, 2011 had been intended for ensuring access to justice in cases where a fair hearing was denied, in the previous political dispensation. [23] Counsel submitted that evidence of lack of impartiality on the part of a Judge raises a constitutional question, namely, denial of the right to a fair hearing: and that, on this account, this Court should depart from the earlier decision in the Macharia Case. (d) Is it tenable in Law for the Supreme Court to depart from its earlier Decision?: The Case of the Second and Third Respondents 14
[24] Learned Senior Counsel, Mr. Oraro urged the Court not to depart from the decision in the Macharia Case. It was counsel’s submission that, this being the final Court, it is bound by its decision and, under Article 163 of the Constitution, it is not given a free hand to depart from its previous decisions; it may only do so where there are compelling reasons. [25] Learned counsel urged that his client’s position was, in fact, the one supported by some of the authorities relied on by the petitioner: Dodhia v. National & Grindlays Bank Ltd [1970] E.A. 195; Kiriri Cotton Co. v. Ranchhodass Devani [1958] E.A. 239; Young v. Bristol Aeroplane Co. Ltd [1944] 2 All E.R. 293 (CA), [1946] A.C. 163 (HL). That position is consistent with the Court of Appeal decision in England which was supported on appeal to the House of Lords – as rendered by Lord Greene, MR [1944] 2 All ER 293 at p.300: “On a careful examination of the whole matter we have come to the conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are [as may be summarized]: (i) the court is entitled, and bound to decide which of two conflicting decisions of its own it will follow. (ii) The court 15
Page 1 and 2: REPUBLIC OF KENYA IN THE SUPREME CO
Page 3 and 4: edress, by invoking the Supreme Cou
Page 5 and 6: “(1) To ensure that the ends of j
Page 7 and 8: depart from a previous decision whe
Page 9 and 10: Article 58(5) which confers jurisdi
Page 11 and 12: [19] Counsel invoked the legal-redr
Page 13: operational situations, and adminis
Page 17 and 18: power of Parliament to enact legisl
Page 19 and 20: [28] On retrospective application o
Page 21 and 22: [33] Learned counsel adverted to th
Page 23 and 24: C. ANALYSIS (a) Preamble [38] The u
Page 25 and 26: the law gives scope for regularity
Page 27 and 28: The inference is to be drawn that t
Page 29 and 30: principle, or to be out of step wit
Page 31 and 32: “I confess that from the start of
Page 33 and 34: previous decisions of this House as
Page 35 and 36: (iv) whether the facts have signifi
Page 37 and 38: (iv) the Court will not depart from
Page 39 and 40: [67] Apart from the status of Secti
Page 41 and 42: ought to have been anchored under A
Page 43 and 44: D. CONCLUSION [73] From the design
Page 45 and 46: [77] The remarkable element in the
Page 47 and 48: Articles 10(1)(b), 10(2)(b), and 27
Page 49 and 50: Interpretation of the Constitution
Page 51 and 52: learned Senior Counsel Nowrojee and
Page 53 and 54: [91] Although I had categorized the
Page 55 and 56: (a) freedom from torture and cruel,
Page 57 and 58: sion. Each of those precedents has
Page 59 and 60: flexibility through the approach to
Page 61 and 62: points of law. The Court simply sai
Page 63 and 64: (3) Without prejudice to the powers
Page 65 and 66:
Shikuku v R, Constitutional Referen
Page 67 and 68:
[116] That being said, I am of the
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question in, or review by, any cour
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“Some of those judgments have led
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due regard to the circumstances, hi
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Constitution, or under Section 23 o
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steps to address the void left afte
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[135] The Supreme Court of India de
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issue for determination was whether
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[144] Firstly: in the Concise Oxfor
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[148] It is my belief that this sta
Page 87 and 88:
of Kenya and the State; it is not a
Page 89 and 90:
the litigants (present or prospecti
Page 91 and 92:
the constitutionality of a legislat
Page 93:
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REPUBLIC OF KENYA - The Judiciary

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