REPUBLIC OF KENYA - The Judiciary

D. CONCLUSION
[73] From the design of the application herein and from its detailed
mode of
prosecution, it has emerged, in our perception, that the essence of the
case is that the Macharia Case was wrongly decided, and the decision
should be reversed.
The nub of the applicant’s case is that this Court came to its decision
per incuriam, in declaring Section 14 of the Supreme Court Act, 2011
to be unconstitutional. We do not find this contention to rest on any
grounds of cogency. A decision per incuriam is one rendered in
ignorance of a constitutional or statutory prescription, or of a binding
precedent: but if a decision be such, this, by and of itself, does not,
perforce, render it “inappropriate”, or “mistaken”, or “wrong” – for the
decision could still rest upon its own special merits, and be in every
respect sustainable as a matter of principle.
[74] The per incuriam contention is made on the ground that this
Court had let fall the words: “Article 163 of the Constitution provided
for the jurisdiction of the Supreme Court exhaustively” – and that this
was “wrong”, because, as an instance, the Court’s jurisdiction is also to
43