REPUBLIC OF KENYA - The Judiciary

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[83] Article 10 of the Constitution requires Parliament to be non-discriminatory when it enacts laws. Parliament violated Article 10 when it enacted Section 14 of the Supreme Court Act because it limited the remedy of a new trial only to those who could prove that the judge in their case had been removed, retired or resigned on the basis of their complaints. The right to a fair trial, however, applies to everyone, not just those who were denied the right because of the misconduct of judges who then voluntarily or involuntarily left the bench. It also applies to those litigants whose rights were violated even though their respective judges had been found suitable by the Judges and Magistrates Vetting Board, or who did not have to be vetted under the Act. If the right to a fair trial belongs to everyone, the remedy must also belong to everyone. Therefore, based on the provisions of Article 10 that promote and protect the principle of non-discrimination and the equal protection afforded by Article 27, I find no basis for this discrimination and I would have declared Section 14 unconstitutional. [84] Additionally, there are crystallized property rights arising out of the judgments that vest such rights on the successful party. This flows from Article 260 and Article 40 of the Constitution. Article 260 on the 48
Interpretation of the Constitution defines “property” to include the physical asset itself but also the vested or contingent right: “ 260. “property” includes any vested or contingent right to, or interest in or arising from— (a) land, or permanent fixtures on, or improvements to, land; (b) goods or personal property; (c) intellectual property; or (d) money, choses in action or negotiable instruments...” [85] Article 40(2) deals with the protection of the right to property, and states that no law can be passed that arbitrarily takes away property rights: “40. (2) Parliament shall not enact a law that permits the State or any person — (a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).” [86] Therefore, Parliament, in enacting Section 14 of the Supreme Court Act failed to appreciate that in taking away crystallized rights of citizens, it was violating their protection under Article 40 of the Consti- 49
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 and 46: [77] The remarkable element in the
Page 47: Articles 10(1)(b), 10(2)(b), and 27
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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