REPUBLIC OF KENYA - The Judiciary

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iii) Upon consideration of such elements, the Court will be ready and willing to depart from an erroneous decision, where the decision is a recent one and the decision has not as yet created property rights around which individuals’ interests have vested. [137] The majority have ruled that the Macharia Case does not pass the test for departure as set out above. However, with tremendous respect to their decision, I would have allowed a departure from the Macharia Case, on the basis of the principles just proposed. [138] It is true that the issue of jurisdiction was fundamental in the determination of the Macharia Case. To my mind, a question of jurisdiction when raised, occasionally by way of a preliminary objection, does not necessarily address the issue of the constitutionality of a piece of legislation. It may be questioning the applicability of that law to the issues forming the subject-matter under consideration. [139] My brothers and sisters have rightfully asserted that jurisdiction is everything, and without it a Court cannot make a single step. This position was well captured in the Lillian S Case (above), which was referred to by counsel for the respondents. In the Lillian S Case, the 80
issue for determination was whether the High Court was properly seized of admiralty jurisdiction under Sections 20 and 21 of the Supreme Court Act, 1981 [UK]. The Court of Appeal held that the High Court had no jurisdiction, as the matter that forming the subject of the issues before the Court did not fall under the threshold set by Sections 20 and 21 of the Act. [140] Consequently, the issue of jurisdiction in the Macharia Case was framed not on the question of the constitutionality of Section 14 of the Supreme Court Act, but on whether the case as presented by the Applicant had met the threshold set by Section 14 of the Act: that a judge had been removed, retired or resigned; secondly, whether the procedural requirement of moving the Court by way of petition, provided for by the rules, had been followed; and if not, whether that was fatal to the application before the Court. These are the issues that formed the crux of the application which the Court addressed and determined. [141] With tremendous respect to my brothers and sisters, I am not convinced that the issue of the constitutionality of Section 14 ever formed part of the jurisdictional challenge, and the Court should not 81
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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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The inference is to be drawn that t
Page 29 and 30: principle, or to be out of step wit
Page 31 and 32: “I confess that from the start of
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 77 and 78: steps to address the void left afte
Page 79: [135] The Supreme Court of India de
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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REPUBLIC OF KENYA - The Judiciary

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