REPUBLIC OF KENYA - The Judiciary

Constitution, or under Section 23 of the Sixth Schedule on
‘Transitional Provisions’.”
[128] In my opinion, the conclusion arrived at in the Macharia Case
is correct, in that Section 14 of the Supreme Court Act is
unconstitutional, insofar as it purported to give the Supreme Court a
‘special jurisdiction’. Still, I am convinced that this Court, as an iconic
court in the land, should have approached the issue of the
constitutionality, or lack thereof, of Section 14 of the Supreme Court
Act, in the Macharia Case, in a more comprehensive manner, and
strived to explain its background and context extensively, or even
painstakingly, so that the people of Kenya, and the litigants (present or
prospective), could fully grasp the reasons behind its refusal to
exercise jurisdiction as purportedly provided under Section 14 of the
Supreme Court Act. The promise of justice embedded in Section 14,
was undoubtedly an issue close to the hearts of the Kenyan people;
and this, thus, provided an opportunity for the Supreme Court to seek
the parties’ participation by way of detailed submissions, as a basis for
full justice on the issue. This would especially have been advisable, in
view of the well established presumption, of the constitutionality of a
statute, and of its provisions.
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