REPUBLIC OF KENYA - The Judiciary

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[79] The costs shall be in the cause. THE CONCURRING OPINION OF MUTUNGA, CJ & PRESIDENT [80] I concur with the decision of the majority in this matter. I write separately, however, to expand on four issues that I deem useful in this matter. A. WAS THE DECISION IN THE MACHARIA CASE CORRECT? [81] In the Macharia Case, this Court held that Section 14 of the Supreme Court Act was unconstitutional. In the case before us, the constitutionality of Section 14 was, indeed, the essence of the application and the resulting arguments before the Court. I suggest that going forward it will be good practice for this Court to take every opportunity a matter affords it to pronounce on the interpretation of a constitutional issue that is argued either substantively or tangentially by the parties before it. [82] In addition to the reasons already articulated by this Court, I am convinced that Section 14 of the Supreme Court Act is unconstitutional on two additional grounds: one, it is discriminatory, contrary to 46
Articles 10(1)(b), 10(2)(b), and 27 of the Constitution; and two, it violates private property rights contrary to Article 40 of the Constitution. Article 27 calls for equal protection under the law: “27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.” Additionally, the Constitution binds Parliament in the enacting of law not to pass discriminatory laws: “10. (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them– (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include– (a) …; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; (c) …; and (d) ...” 47
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 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: [77] The remarkable element in the
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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