REPUBLIC OF KENYA - The Judiciary

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[114] I have keenly perused the majority ruling of the Court and I do concur with the rendition of facts and relevant laws meticulously considered therein. I am in agreement with the conclusion of the majority Court that: “Such canvassing of Section 14 of the Supreme Court Act, and more particularly, the fact that it touched on jurisdiction … required the Court to consider the constitutionality of that Section; and the outcome, in the circumstances, would stand as a declaration of status in rem.” [115] I also concur that the Court, while considering the question of jurisdiction, looked into the relevant provisions of Article 163 and Section 23 of the Sixth Schedule of the Constitution of Kenya, 2010, and arrived at the only conclusion that it could – an affirmation that Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & Two Others, Supreme Court Application No. 2 of 2011 (Macharia Case), was rightly decided, and was correct in its finding on the unconstitutionality of Section 14 of the Supreme Court Act, 2011, insofar as it purported to give the Supreme Court a ‘special jurisdiction’. 66
[116] That being said, I am of the view that it is important to enter into the realm of the history of Article 163 and Section 23 of the Sixth Schedule of the Constitution, to bring home the cogent reasons behind this Ruling. In common-law countries, before interpreting a constitutional or statutory provision, it is legitimate to consider the history of its enactment, and the evil it was intended to remedy, or the mischief it was intended to address, and then ascertain whether the remedy provided therein is legitimate or appropriate. [117] It has been commonly perceived, in the past, that before the promulgation of this Constitution, the Judiciary was viewed by the general public as having impugned its core function of giving expeditious, transparent, fair and substantial justice, and this, essentially, culminated in a failure to uphold the rule of law. This widespread perception translated into a form of public demand for Government to take appropriate institutional measures to redress the unsavoury aspects of our judicial history. In response, the Government set up the Integrity and Anti-corruption Committee of the Judiciary in Kenya, 2003 to implement a strategy of “radical surgery” of the Judiciary. This led to the suspension, and in many 67
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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
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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
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Page 33 and 34: previous decisions of this House as
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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 and 64: (3) Without prejudice to the powers
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Page 69 and 70: question in, or review by, any cour
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Page 79 and 80: [135] The Supreme Court of India de
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Page 83 and 84: [144] Firstly: in the Concise Oxfor
Page 85 and 86: [148] It is my belief that this sta
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Page 89 and 90: the litigants (present or prospecti
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