REPUBLIC OF KENYA - The Judiciary

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Constitution, among other articles, in striking down a government-liberalized pension scheme as discriminatory. <strong>The</strong> Supreme Court interpreted the state directive on socialism to encompass various attributes – the creation of a welfare state in India being one of them. And in Kenya, in interpreting the Constitution, the aspirations captured in two preambular paragraphs are relevant: “COMMITTED to nurturing and protecting the wellbeing of the individual, the family, the communities and the nation; and “RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law…” [95] Article 20(4) requires Courts and other relevant authorities, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights. Senior Counsel Nowrojee emphasized the provisions of Article 25, as pivotal and fundamental injunctions in the interpretation of the Constitution. That Article lists the fundamental rights and freedoms that may not be limited: “25. Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited – 54
(a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to a fair trial; and (d) the right to an order of habeas corpus”. [96] In my opinion, Articles 22 and 23 give the Courts a special, and wide responsibility for the enforcement of the Bill of Rights. Article 24 requires the Courts to determine whether the limitations on rights and freedoms are valid. More generally, the Courts have to interpret the scope of numerous rights and freedoms under Chapter 4 of the Constitution. [97] Article 191 deals with conflicts of laws of the national legislature and the county legislature, on matters falling within Schedule 4 to the Constitution, and sets out a complex procedure for determining the primacy of the national legislation on matters otherwise falling to the counties. Article 191(5) directs the Court on the exercise of its powers under Article 191: “in considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.” 55
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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 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: [91] Although I had categorized the
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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