REPUBLIC OF KENYA - The Judiciary
REPUBLIC OF KENYA - The Judiciary
REPUBLIC OF KENYA - The Judiciary
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iii)<br />
Upon consideration of such elements, the Court will be ready<br />
and willing to depart from an erroneous decision, where the<br />
decision is a recent one and the decision has not as yet created<br />
property rights around which individuals’ interests have<br />
vested.<br />
[137] <strong>The</strong> majority have ruled that the Macharia Case does not pass<br />
the test for departure as set out above. However, with tremendous<br />
respect to their decision, I would have allowed a departure from the<br />
Macharia Case, on the basis of the principles just proposed.<br />
[138] It is true that the issue of jurisdiction was fundamental in the<br />
determination of the Macharia Case. To my mind, a question of<br />
jurisdiction when raised, occasionally by way of a preliminary<br />
objection, does not necessarily address the issue of the<br />
constitutionality of a piece of legislation. It may be questioning the<br />
applicability of that law to the issues forming the subject-matter under<br />
consideration.<br />
[139] My brothers and sisters have rightfully asserted that jurisdiction<br />
is everything, and without it a Court cannot make a single step. This<br />
position was well captured in the Lillian S Case (above), which was<br />
referred to by counsel for the respondents. In the Lillian S Case, the<br />
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