REPUBLIC OF KENYA - The Judiciary

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It was counsel’s submission that the legislative power of Parliament was as specified in the long title to the relevant enactment; in the case of the Supreme Court Act: “to make further provision with respect to the operation of the Supreme Court pursuant to Article 163(9) of the Constitution and for connected purposes.” Counsel also relied on the High Court of Trinidad and Tobago case, Trinidad & Tobago Civil Rights Association & Another v. Attorney-General [2006] 3 LRC, where the Court, alluding to the doctrine of separation of legislative, executive and judicial powers, observed: “…it is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.” It was counsel’s submission that Parliament cannot grant jurisdiction to the Supreme Court as it purported to do in Section 14 of the Supreme Court Act. 18
[28] On retrospective application of Section 14 aforesaid, it was counsel’s submission that, as a general rule, all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective; and any retrospective effect can only be given by express words, or necessary implication, if that appears to be the intention of the Legislature. Such prospective application, it was urged, is anchored on the acknowledgement that the rights of parties accrue at the time of occurrence of the event. [29] It was counsel’s submission that, by Section 14, Parliament had enacted a statute which not only creates “special jurisdiction”, but extends it to apply to a period prior to the promulgation of the new Constitution, by using the words “before or after the commencement of this Act.” Sections 14(1)(a) and 14(1)(c), thereby purport to create a special jurisdiction applying well before the Constitution came into force, and before the Supreme Court was established; and this operates to affect rights which accrued before the Constitution was promulgated. [30] Learned counsel contested the petitioners’ contention that the Court’s statement in the Macharia Case, regarding Article 163 of the 19
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 and 14: operational situations, and adminis
Page 15 and 16: [24] Learned Senior Counsel, Mr. Or
Page 17: power of Parliament to enact legisl
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
Page 69 and 70:
question in, or review by, any cour
Page 71 and 72:
“Some of those judgments have led
Page 73 and 74:
due regard to the circumstances, hi
Page 75 and 76:
Constitution, or under Section 23 o
Page 77 and 78:
steps to address the void left afte
Page 79 and 80:
[135] The Supreme Court of India de
Page 81 and 82:
issue for determination was whether
Page 83 and 84:
[144] Firstly: in the Concise Oxfor
Page 85 and 86:
[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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