REPUBLIC OF KENYA - The Judiciary

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it had been held by a majority that Section 22 (4) of the Human Rights Act, 1998 as read alongside Section 7(6), made a distinction between criminal trials and appeals, and did not permit a defendant in proceedings lodged by a public authority to rely on “Convention rights” after 2 nd October, 2000 in cases in which trial had taken place before that date but appeal was lodged after. Although a number of the Law Lords were of the opinion that the decision in Lambert was wrong, a majority of four to one declined to overturn it. [53] It is apparent there were policy and practical considerations for the majority decision in the Kansal Case. This emerges from the following statement by Lord Slynn: “As Lord Steyn has written in his speech we are dealing ‘only with a transitional provision on which the House has very recently given a clear-cut decision’ and I do not think it right because there is one change in the composition of the Appellate Committee, and despite the skilled arguments on behalf of the intervenors, for the House to depart from the decision in Lambert.” [54] Such a pragmatic perception in the Kansal Case clearly emerges from the opinion of another Judge, Lord Lloyd of Berwick: 30
“I confess that from the start of the hearing in the present appeal, I have had grave doubts whether the majority decision in Lambert could be supported. Had I been a party to the hearing in Lambert, I would have found myself in the embarrassing position of not agreeing with anyone, even though three different views were expressed. I should not have been able to agree with the majority.” But Lord Lloyd of Berwick saw no cause for the House of Lords to overturn the Lambert decision. Apart from making suggestions on how such a disturbed state of the law could have been addressed, Lord Lloyd of Berwick thus remarked: “Justice [to the parties] requires that the present appeal be reheard, and the conflict finally resolved. But it seems that a rehearing before a panel of seven Law Lords cannot be arranged in time. So the conflict remains unresolved, and the only question is whether, as a panel of five, we should depart from the decision in Lambert. I am quite clear that we should not.” [55] <strong>The</strong> Kansal Case gives a singular example on the considerations that attend the reversal of the decision of an ultimate Court. It is clear 31
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 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: principle, or to be out of step wit
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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