REPUBLIC OF KENYA - The Judiciary

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add that the labour of judges would be increased almost to breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” [40] This is a clear perception of the doctrine of precedent in the functioning of the superior Courts in the common law tradition. The message is simply this. As a matter of consistent practice, the decisions of the higher Courts are to be maintained as precedent; and the foundation laid by such Courts is in principle, to be sustained. This, of course, leaves an opening for the special circumstances which may occasionally dictate a departure from previous decisions. [41] Whether or not the apex Court will adhere to its precedent, or depart therefrom, is dependent on that Court’s perception of the claims of justice and equity, or of the fundamental constitutional or related principles coming to bear upon the issues raised. [42] The immediate pragmatic purpose of such an orientation of the judicial process, is to ensure predictability, certainty, uniformity and stability in the application of law. Such institutionalization of the play of 24
the law gives scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marks also other spheres of social and economic relations. [43] In principle therefore, it follows that this Court, an apex Court, can indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight. [44] Such a latitude for departure from precedent exists not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution. Article 163(7) of the Constitution of Kenya 2010 thus stipulates: “All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.” [45] Such a position in the law is supported also by comparative judicial experience. In The Bengal Immunity Company Limited v. The State of Bihar and Others [1954] INSC 120, the Indian Supreme Court thus held: 25
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 and 22: [33] Learned counsel adverted to th
Page 23: C. ANALYSIS (a) Preamble [38] The u
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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