REPUBLIC OF KENYA - The Judiciary

[33] Learned counsel adverted to the broad principle invoked by the
petitioners: that there can be no right without a remedy (ubi jus ibi
remedium). Whereas the principle is valid, Mr. Oraro submitted, its
application in a matter such as the instant one, was dependent on the
Court, in the first place, being possessed of jurisdiction – a principle
well exemplified in case law: Owners of Motor Vessel “Lillian S” v.
Caltex Oil (Kenya) Limited [1989] KLR 1.
[34] On the question whether or not under Articles 25 and 50 of the
Constitution the “right to a fair hearing” can be limited, learned
counsel urged that this was beside the point, on the facts of the instant
matter, as the Court must in the first place be a valid bearer of
jurisdiction. Counsel urged that although Section 3 of the Supreme
Court Act, 2011 entrusts certain roles to the Court, such as to “assert
the supremacy of the Constitution and the sovereignty of the people of
Kenya”, this presupposed, for any given question, that the Court had
been duly vested with jurisdiction – and the said Section 3 itself was
not designed to create jurisdiction. Thus, Section 14 of the Act was the
clear example of non-conformity with the Constitution, though the
remainder of the Statute, on the facts of the instant matter, had
occasioned no inconsistency with the terms of Article 163(9).
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