REPUBLIC OF KENYA - The Judiciary

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[2] The petitioners, being aggrieved by the decision of Ransley, J appealed to the Court of Appeal, where a three-judge Bench presided over by Justice A.B. Shah (as he then was), dismissed the appeal under section 210 of the Companies Act (Cap. 486, Laws of Kenya). It is to be noted that at the time, the Court of Appeal was the final appellate Court. Subsequently, after judgment was delivered, certain facts came to light, indicating misconduct and/or misbehaviour on the part of the presiding Judge. Such facts indicated that there had been a collusive relationship between the Judge and one of the respondents. [3] This revelation prompted the petitioners to lodge their grievance before the Integrity and Anti-Corruption Committee, resulting in Justice Shah’s suspension, on 15 th October, 2003 (Gazette Notice No. 7280 of 2003). The President further initiated an inquiry on the Judge’s conduct. However, before the inquiry began, the Judge opted to retire. The said Court of Appeal judgment was the basis of the Judge’s suspension, and of his decision to retire. [4] Upon the promulgation of the Constitution of Kenya, 2010 and the enactment of the Supreme Court Act, 2011 (No. 7 of 2011), the petitioners moved the newly-established Supreme Court, seeking 2
edress, by invoking the Supreme Court’s ‘special jurisdiction’ under Section 14 of the Supreme Court Act, by way of petition. [5] While the petition was pending, this Court delivered pertinent Ruling in another matter, Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & Two Others, Supreme Court Application No. 2 of 2011 (Macharia Case). The burden of that Ruling, in relation to the present case, was the declaration of Section 14 of the Supreme Court Act to be unconstitutional, insofar as it purported to give the Supreme Court a ‘special jurisdiction’. [6] Soon after the Ruling in the Macharia Case, and as the petition herein was pending before the Supreme Court, the respondents raised a preliminary objection to the petitioners’ case. They contended that the Court lacked jurisdiction to entertain the matter. [7] Meanwhile, the petitioners lodged an application seeking the recusal of Tunoi, SCJ from sitting on the Bench hearing the matter. The application for recusal was heard first and dispensed with. The Court, in a Ruling of 6 th February, 2013 dismissed the application for recusal on grounds, inter alia, of necessity. 3
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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 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
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[91] Although I had categorized the
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(a) freedom from torture and cruel,
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sion. Each of those precedents has
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flexibility through the approach to
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points of law. The Court simply sai
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(3) Without prejudice to the powers
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Shikuku v R, Constitutional Referen
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[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
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of Kenya and the State; it is not a
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the litigants (present or prospecti
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the constitutionality of a legislat
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REPUBLIC OF KENYA - The Judiciary

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