REPUBLIC OF KENYA - The Judiciary

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cases, subsequent resignation, of several Judges and Magistrates, due to findings of judicial corruption, misconduct or misbehaviour. [118] In order to further correct and transcend the past deficiencies, and to restore public confidence in the <strong>Judiciary</strong>, provisions relating to judicial transformation consequently featured, quite prominently, in the text of the new Constitution. Among these was the enactment of Section 23 of the Sixth Schedule of the Constitution, which reads as follows: “23. (1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159. 2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to 68
question in, or review by, any court.” Section 24 of the Sixth Schedule went on to provide, thus: “24. (1) <strong>The</strong> Chief Justice in office immediately before the effective date shall, within six months after the effective date, vacate office and may choose either — (a) to retire from the judiciary; or (b) subject to the process of vetting under section 23, to continue to serve on the Court of Appeal. (2) A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly. (3) Subsection (2) also applies if there are further vacancies in the office of Chief Justice before the first general elections under this Constitution.” [119] I have detailed out these provisions to show the seriousness with which the people of Kenya perceived past problems in the 69
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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
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[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 and 64: (3) Without prejudice to the powers
Page 65 and 66: Shikuku v R, Constitutional Referen
Page 67: [116] That being said, I am of the
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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