REPUBLIC OF KENYA - The Judiciary

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guide it when so moved. I am agreeable to these principles and I will fully adopt them. [134] I would, however, add that these principles should not be deemed to be exhaustive. The process of development of jurisprudence will occasionally give birth to novel principles that, after a conscientious and detailed consideration, may be adopted by this Court when moved to depart from its precedent. I would draw from the jurisprudence of the Indian Supreme Court in The Bengal Immunity Case, where the Court quoted from Australian jurisprudence as set out in the Tramways Case [1939] A.C. 215, 245 [per Griffith, C.J. at p. 58]: "In my opinion, it is impossible to maintain an abstract proposition that the Court is either legally or technically bound by previous decisions. Indeed, it may, in a proper case, be its duty to disregard them. But the rule should be applied with great caution, and … only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow …” [emphasis supplied] 78
[135] The Supreme Court of India departed from its previous decision in The Bengal Case, and added thus: “In considering the applicability of the principles laid down in the decisions hereinbefore mentioned….an erroneous interpretation of the Constitution may quite conceivably be perpetuated or may at any rate remain unrectified for a considerable time to the great detriment of the public well-being. The considerations adverted to in the decisions of the Supreme Court of America quoted above are, therefore, apposite and apply in full force in determining whether a previous decision of this Court should or should not be disregarded or overruled.” [136] Therefore, the Court should, in addition, take into account the following principles, when considering whether to depart from its precedents: i) A decision that is manifestly wrong on the face of it will occasion a departure by the Court. What is manifestly wrong will depend on a conscientious determination by the Court, and will vary from case to case. ii) Whether a decision is erroneous, and severely affects the lives of people, and impacts negatively on the general welfare of the public. 79
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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
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the law gives scope for regularity
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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
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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
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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
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Page 73 and 74: due regard to the circumstances, hi
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Page 77: steps to address the void left afte
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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
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Page 89 and 90: the litigants (present or prospecti
Page 91 and 92: the constitutionality of a legislat
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REPUBLIC OF KENYA - The Judiciary

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