REPUBLIC OF KENYA - The Judiciary

have delved into it. The Court rightly recognised this position when it
declared (at paragraph 66) that:
“This holding would have been enough to dispose of
the application save that there remains the question
as to whether section 14 of the Supreme Court Act is
unconstitutional.”
It is my conviction that the Court should have stopped at that
point.
[142] Again the Court acknowledges that the constitutionality of
Section 14 was not expressly pleaded or sufficiently canvassed, when
it stated that:
“(67) Although counsel for the third Respondent
urged the issue of the constitutionality of section 14
only tangentially, the deposition on behalf of the
first and second respondents brings the issue to the
fore…” [emphasis supplied].
[143] The use of the term “tangentially” in the Ruling correctly
captures the position that the issue of constitutionality or otherwise of
Section 14, was not directly an issue for determination by the Court.
This point has further dimensions that merit focussed attention, as
follows.
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