REPUBLIC OF KENYA - The Judiciary

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entertain any proceedings…..Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution.” [69] The Supreme Court, while considering the question of jurisdiction, inevitably took a position on the status of Section 14 of the Supreme Court Act, as follows [paras. 70 and 71]: “The Act contemplated by Article 163(9) is operational in nature….Such an Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution…. “Flowing from the foregoing, we hold that Section 14 of the Supreme Court Act is unconstitutional insofar as it purports to confer ‘special jurisdiction’ upon the Supreme Court, contrary to the express terms of the Constitution. Although we have a perception of the good intentions that could have moved Parliament as it provided for the ‘extra’ jurisdiction for the Supreme Court, we believe this, as embodied in Section 14 of the Supreme Court Act, 40
ought to have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule on ‘Transitional Provisions’.” [70] Inquiry about jurisdiction is always a preliminary issue that the Court is to entertain at the barest of indications. And in the Macharia Case all the indications were there, leading the Court to advert to the link between Section 14 of the Supreme Court Act, 2011 and the question of jurisdiction. A decision arising in such circumstances, we believe, is not to be regarded as obiter dictum, as learned counsel, Mr. Nowrojee had suggested. It follows, therefore, that the challenge to the Macharia Case founded on the obiter dictum concept, is not for sustaining. [71] The decision is still much less of an obiter dictum, in view of the provision of the Supreme Court Act, that the Supreme Court functions as “a court of final judicial authority” asserting “the supremacy of the Constitution and the sovereignty of the people of Kenya” (Section 3(a)). By this provision, the Supreme Court is empowered to evolve such essential laws and principles, as enable it to render all required interpretations to the Constitution – a task which is to be discharged in the context of matters litigious as well as non-litigious (such, for 41
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 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: [67] Apart from the status of Secti
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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