REPUBLIC OF KENYA - The Judiciary

[98] Under Article 259(3), there is a general interpretative principle,
“the doctrine of interpretation that the law is always speaking
…”, with four specific rules, to guide the Kenyan courts towards relevant
interpretation, by interrogating principles of common-law rootage
and the international jurisprudence founded upon it.
C. STARE DECISIS: WHEN SHOULD A SUPERIOR COURT DEPART
FROM ITS EARLIER DECISION?
[99] In this matter, we were asked to depart from our decision in the
Macharia Case. Article 163(7) of the Constitution provides that
“All
courts,
other than the Supreme Court, are bound by the decisions of the Supreme
Court.” We have cited, distinguished, and applied decisions
from the Commonwealth (Kenya, India, the United Kingdom, Trinidad
and Tobago, Canada) and the United States, in arriving at the answer
to the question of when the Supreme Court may depart from its earlier
decision.
[100] In the development and growth of our jurisprudence, Commonwealth
and international jurisprudence will continue to be pivotal.
However, the Supreme Court will have to avoid mechanistic approaches
to precedent. It will not be appropriate to pick a precedent
from India one day, Australia another day, South Africa another, the
U.S. yet another, just because they seem to suit the immediate occa-
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