REPUBLIC OF KENYA - The Judiciary

[129] By doing so, the Court would not only have manifested due
regard for the sovereign power of the people, which has only been
delegated to the Courts, (Article 159 of the Constitution), but would
also have lived up to its mandate, as the apex Court, to develop
robust, indigenous, transparent and accountable jurisprudence for
posterity, based on the principles set out in Section 3 of the Supreme
Court Act, and the readily-identifiable tenets of judicial independence,
natural justice, and international best practice.
[130] While remarking the foregoing considerations, I would like it to
be clear that the Supreme Court, being in the exalted position of an
apex Court, has the right, nay, the obligation, to develop jurisprudence
touching on issues of general public interest, as well as those that
touch on the interpretation of the Constitution. This right cannot be
curtailed by anyone.
[131] I am aware that my views, as expressed herein, have had the
benefit of hindsight; but this Court should not hesitate, in the interest
of developing an indigenous jurisprudence, to pave further paths that
will advance the rule of law. This could easily be accomplished by
taking certain minimal actions, that fall within our constitutional and
legislative mandate, such as asking Parliament to take comprehensive
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