REPUBLIC OF KENYA - The Judiciary

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[35] To the petitioners’ contention that it was incumbent on the Supreme Court to deploy inherent powers to ensure that their grievance found just redress, Mr. Oraro submitted that inherent powers were girded with limitations: they are for ensuring that ends of justice are met – but not for conferring jurisdiction, where it is not granted. [36] Learned counsel submitted that the petitioners’ case against the Macharia decision amounts to a quest for alternative meanings and perspectives to the concept of “fair trial”: but in principle, the mere existence of alternative meanings is not a proper ground for the Court to depart from its earlier decision. He submitted that this Court should not depart from its decision in the Macharia Case. [37] And consequently, counsel urged, that as Section 14 of the Supreme Court Act had been declared unconstitutional, the petitioners cannot ground their case upon it. Besides, counsel submitted, the Court though having the power to depart form its previous decision, it had not been shown that there were any substantial or exceptional circumstances warranting such departure. Counsel, thus, prayed for a dismissal of the petition. 22
C. ANALYSIS (a) Preamble [38] The ultimate questions for determination in this matter fall in a limited set, namely: (i) whether the Supreme Court can depart from its earlier decision? (ii) If yes, in what circumstances is such a departure tenable? (iii) On the facts and determination of the Macharia Case, does it call for departure? (iv) Does the Macharia Case, on the merits, meet the baseline of principles for a departure? (b) Can the Supreme Court depart from its previous Decision? [39] It is perhaps too late in the day to pose this question which has been repeatedly addressed by scholars and jurists in the past, and the answer to which is now clear enough. The following passage in Benjamin Cardozo’s The Nature of the Judicial Process (New Haven: Yale University Press, 1921) [p. 149] illuminates today’s reality: “In these days, there is a good deal of discussion whether the rule of adherence to precedent ought to be abandoned altogether. I would not go so far myself. I think adherence to precedent should be the rule and not the exception. I have already had occasion to dwell upon some of the considerations that sustain it. To these I may 23
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 and 18: power of Parliament to enact legisl
Page 19 and 20: [28] On retrospective application o
Page 21: [33] Learned counsel adverted to th
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
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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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