REPUBLIC OF KENYA - The Judiciary

flexibility through the approach to interpretation suggested in this concurring
opinion.
D. RIGHT WITHOUT REMEDY
[104] I do not know how many cases in our judicial system will go
down in the annals of history as a reflection of gross injustice, meted
out in the very temple of justice. It is perhaps easy to understand, in
the constitution-making, why Kenyans clamoured for the Judiciary to
be closed down, all judges and magistrates sent home and asked to
re-apply for their positions. To the minds of many, that was the only
way to clean up the judiciary, separate the wheat from the chaff, and
rebuild a new judiciary that would reflect the values to be set out in
the Constitution. This matter before us also reflects the impunity of
the judiciary, and the unacceptable face of the jurisprudence of technicalities
– technicalities that had become the handmaiden of gross
injustice. It is apposite to recall the unfortunate details of this injustice,
that will be forever remain a glaring stain on our justice system.
[105] Senior Counsel Nowrojee summoned his renowned brilliant faculties
to confront the position that, in the temple of justice there can
be a right without a remedy. The injustice in this case stemmed from a
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