REPUBLIC OF KENYA - The Judiciary

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Judiciary, and to portray their concerted efforts, via the Constitution, to restore the credibility, integrity and independence of the Judiciary. [120] Other central tenets to the new constitutional dispensation’s commitment to restore public confidence in the judicial system include: re-affirming the sovereignty of the Kenyan people, and declaring that judicial authority derives from them; and that, Courts are required to exercise such judicial authority in a manner that ensures that justice is done to all, irrespective of status; that justice is not delayed; and that justice is administered without undue regard to procedural technicalities (Article 159); the guarantee of judicial independence (Article 160); and the establishment of an apex Supreme Court (Articles 162 and 163), to provide fresh leadership to a Judiciary that would be guided by the values and principles set out in Article 10. [121] After the establishment of the Supreme Court, Parliament enacted the Supreme Court Act, 2011, in accordance with Article 163(9) of the Constitution; the Act included the contentious Section 14, titled “Special Jurisdiction”. The Court takes cognizance of Parliament’s intention to enact Section 14 of the said Act, from the relevant Hansard, which carries the following passage: 70
“Some of those judgments have led to [the] removal of some judges and magistrates, yet the ramifications of the same continue to exert untold suffering on quite a number of Kenyans. Hence I encourage Honourable Members to carefully study Clause 14, and if they deem it fit, allow it to exist. In conferring this special jurisdiction on the Supreme Court, we are remedying the wrongs that may have been perpetrated on the Kenyan people in the previous dispensation.” [122] This short venture into the history of the Constitution, as well as of Section 14 of the Supreme Court Act, is simply meant to illustrate that the people of Kenya not only expected to get a clean Judiciary on the dawn of the Constitution, 2010, but also sought an avenue through which past injustices, inflicted upon the people by corrupt judicial officers, would be addressed. That expectation was, in part, actualised by the enactment of Section 23 of Sixth Schedule (“Transitional Provisions”). The result thereof was the Vetting of Judges and Magistrates Act, 2011, which came into force on 22 nd March, 2011, 71
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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
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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
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: question in, or review by, any cour
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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
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