REPUBLIC OF KENYA - The Judiciary

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jurisdiction. In my view, this lack of jurisdiction settles and answers Mr. Nowrojee’s third question. I now turn to his two other questions. As stated above, the Supreme Court of India has the power to redress all violations of fundamental rights. The High Court of Kenya has similar jurisdiction. This jurisdiction has been donated to the High Court under Articles 23 and 165(3)(b) of the Constitution: “23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.” [111] Therefore, while accepting Senior Counsel Nowrojee’s contentions that there have been injustices in this case, the choice of forum is in question. The Kenyan Constitution has given the High Court the exclusive jurisdiction to deal with matters of violations of fundamental rights (Article 23 as read with Article 165 of the Constitution). The High Court, on this point, has correctly pronounced itself in a judgment by Justices Nambuye and Aroni, in Protus Buliba 64
Shikuku v R, Constitutional Reference No. 3 of 2011, [2012] eKLR. [112] The Shikuku Case fell within the criminal justice system; it involved a claim of violation of the petitioner’s fundamental rights by the Court of Appeal, in a final appeal. The trial Court failed to impose against the petitioner the least sentence available in law, at the time of sentencing. On the issue of jurisdiction, the learned judges, relying on Articles 20, 22, 23 and 165 of the Constitution, rightly held that the High Court had jurisdiction to redress a violation that arose from the operation of law through the system of courts, even if the case had gone through the appellate level. In so holding, the High Court stated with approval the dicta of Shield J, interpreting the provisions of the 1963 Constitution in Marete v. Attorney General [1987] KLR 690: “The contravention by the State of any of the protective provisions of the Constitution is prohibited and the High Court is empowered to award redress to any person who has suffered such a contravention.” [113] Thus, in answer to Mr. Nowrojee’s first two questions posed to the Supreme Court, my answer is this: There is no injustice that the Constitution of Kenya is powerless to redress. THE CONCURRING OPINION OF RAWAL, DCJ & VICE-PRESIDENT 65
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REPUBLIC OF KENYA IN THE SUPREME CO
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edress, by invoking the Supreme Cou
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“(1) To ensure that the ends of j
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depart from a previous decision whe
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Article 58(5) which confers jurisdi
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[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
Page 61 and 62: points of law. The Court simply sai
Page 63: (3) Without prejudice to the powers
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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REPUBLIC OF KENYA - The Judiciary

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