REPUBLIC OF KENYA - The Judiciary

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[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 76
steps to address the void left after this Court struck out Section 14 of the Supreme Court Act in the Macharia Case. After all, Articles 25 and 48 of the Constitution require the State to ensure the right to a fair trial, and access to justice for all. THE DISSENTING OPINION <strong>OF</strong> IBRAHIM, SCJ. [132] I have read the majority decision in totality, and agree that the decisions of the Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, will stand as the binding reference-point in the norms governing the judicial process. Indeed, such a position is vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustain the principles of the Constitution, and the rights and duties flowing from the legal set-up, which provide sanctity for the legitimate actions of the people. [133] I agree with the majority of the Court that the Supreme Court do retain a competence and discretion, when properly moved, and on weighty grounds, to reconsider its precedents, and to vary them as may be appropriate. <strong>The</strong> Court has already laid down principles to 77
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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
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[28] On retrospective application o
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[33] Learned counsel adverted to th
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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 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
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Page 79 and 80: [135] The Supreme Court of India de
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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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