REPUBLIC OF KENYA - The Judiciary

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(a) Is the Supreme Court bound by its earlier Decisions?: The Petitioners’ Case [11] Learned counsel, Mr. Nowrojee for the petitioners, submitted that the Supreme Court is not bound by the Macharia decision. He urged that the Constitution anticipates that the Court may need to depart from its judgment, Article 163(7) stipulating that: “all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.” [12] Counsel cited Dodhia v. National & Grindlays Bank Ltd [1970] EA 195, in which the former Court of Appeal for East Africa had thus observed [per Sir William Duffus, V.-P. at p. 207G]: “I entirely agree with my Lord President that this Court must, as the ultimate Court of Appeal, have a similar power to that formerly exercised by the Privy Council when it was the final Court of Appeal for Kenya. The duty of this Court in Kenya is to decide any case coming before it according to the laws of Kenya and this Court may be unable to do so if it is bound to follow a previous decision, which is clearly contrary to law and which this Court feels that it would be wrong to follow, and the Court must, therefore, as the ultimate Court of Appeal, be able to 6
depart from a previous decision when it appears right to do so.” The Court, in that case, held that as the final Court of Appeal for East Africa, it would normally regard its previous decisions as binding, while remaining free in both civil and criminal cases to depart from such previous decisions when it was right to do so. [13] Counsel further invoked the case, Kiriri Cotton Co. v. Ranchhodass Devani [1958] EA 239, in which the East African Court of Appeal stated that it was not bound to follow its own previous decision if such decision was given per incuriam. The Court in that case, remarked that the principle of stare decisis was subject to certain qualifications: the Court could choose to rely on either of its previous decisions, where two of its decisions are conflicting; the Court would not follow its previous decision if it was inconsistent with a decision of the Privy Council or of the House of Lords (which were higher Courts in the colonial judicial hierarchy); and it was not bound to follow a decision given per incuriam. 7
Page 1 and 2: REPUBLIC OF KENYA IN THE SUPREME CO
Page 3 and 4: edress, by invoking the Supreme Cou
Page 5: “(1) To ensure that the ends of j
Page 9 and 10: Article 58(5) which confers jurisdi
Page 11 and 12: [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 and 64:
(3) Without prejudice to the powers
Page 65 and 66:
Shikuku v R, Constitutional Referen
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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