REPUBLIC OF KENYA - The Judiciary

cases. What does not come out clearly in those decisions, is the basis
of the persistent tension between adherence to precedent on the one
hand, and development of the law, on the other: the two are both required,
because societies are not static in their growth. Indeed, such
growth is dynamic, and it is dialectic in nature.
[103] The basic justification for adherence to precedent is the need to
have stability of economic and social development, in any society;
while flexibility in precedent (which takes the form of distinguishing
cases; not allowing them because the socio-economic, cultural and
political contexts have radically changed; and recognising that fidelity
to the rule of law can be harmed by decisions that reflect gross injustice,
etc) mitigates the unwanted disruptions of developments that
those who rule societies do not want to see. Such flexibility is also a
basis for necessary reforms that the law can bring about. Finding a balance
to the tension I have mentioned has, in the experience of courts
in various jurisdictions, been categorized as judicial restraint, innovation,
invention, creativity, or activism. In our case, the Constitution
provides this balance in Article 163(7), and by underlining transformation
through mitigation of the status quo. Given early age of the Constitution,
the Supreme Court may find it wise to strike the balance and
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