REPUBLIC OF KENYA - The Judiciary

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[8] In response to the preliminary objection on jurisdiction, as lodged, the petitioners applied to the Court for a review of the Macharia Ruling, on the basis that the declaration of Section 14 of the Supreme Court Act, 2011 as unconstitutional was “wrong”, and ought to be reversed. Consequently there were, technically, two applications before the Court: one by the respondents contesting jurisdiction, and the other by the petitioners, urging the Court to depart from the Macharia decision. [9] The petitioners invoked the Supreme Court’s jurisdiction under Section 14 of the Supreme Court Act, 2011 which clothed the Supreme Court with a ‘special jurisdiction’. The respondents, by contrast, have sought to strike out the petition, on the basis of the Macharia decision, in which the Court thus held: “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”. It was the perception of the applicants herein that the said Section 14 of the Supreme Court Act stood to their advantage, as it had thus provided: 4
“(1) To ensure that the ends of justice are met, the Supreme Court shall, within twelve months of the commencement of this Act, either on its own motion or on the application of any person, review the judgments and decisions of any judge – …. (c) who resigns or opts to retire, whether before or after the commencement of this Act, in consequence of a complaint of misconduct or misbehaviour.” [10] Meanwhile, the Law Society of Kenya applied to the Court to be admitted as amicus curiae, in the proceedings. LSK’s position was that, whether the declaration of Section 14 as being unconstitutional was proper or not, was a matter of constitutional significance, and, in line with its objectives under Section 4 of the Law Society Act (Cap. 18 Laws of Kenya), it had an obligation to assist the Court in determining the matter. The Court, on 13 th June, 2013 allowed LSK’s application and admitted it as amicus curiae, on terms that it confines its submissions to the validity of Section 14, and whether the Supreme Court could review its earlier decision. B. LAW, PRINCIPLES, AND ISSUES OF MERIT: ESSENCE OF THE SUBMISSIONS 5
Page 1 and 2: REPUBLIC OF KENYA IN THE SUPREME CO
Page 3: edress, by invoking the Supreme Cou
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 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
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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
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[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
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due regard to the circumstances, hi
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Constitution, or under Section 23 o
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steps to address the void left afte
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[135] The Supreme Court of India de
Page 81 and 82:
issue for determination was whether
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[144] Firstly: in the Concise Oxfor
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[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
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REPUBLIC OF KENYA - The Judiciary

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