REPUBLIC OF KENYA - The Judiciary

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[146] Applying the foregoing principle to the instant matter, suffice it to say that the Court, in the Macharia Case, was satisfied that the issue of the unconstitutionality of Section 14 of the Supreme Court Act had been dealt with merely in passing – and it did not fundamentally intersect with the parties’ main arguments. [147] There is no record of any pleading that addresses the issue of the unconstitutionality of Section 14. The only time the word ‘unconstitutional’ appears in the pleadings is in the affidavit of one David Kiprop Malakwen, Company Secretary to the first respondent, in which he depones at paragraph 10 thus: “THAT with respect to Section 14 of the Supreme Court Act, 2001, I am advised by the said Advocate, which advice I verily believe to the true, that this provision has no application to the matters before this Honorable tribunal. There is a compelling argument that this section is unconstitutional as it is not anchored on Article 163 of the Constitution. Even assuming it passes constitutional muster and relief is sought under it, it assists the Applicants [not], as it does not come within its ambit as all the three judges who decided the Appeal are still serving, thus none of the three circumstances set out in Section 14(1) (a) which would trigger the operation of the so called Special jurisdiction obtains” [emphasis supplied]. 84
[148] It is my belief that this statement is categorical, that the witness is opposing the applicability of Section 14 to the application herein. As to the constitutionality of Section 14, the deponent depones that it is his advocate who holds the opinion that Section 14 is unconstitutional. There are no reasons, or further submissions given, on the constitutionality or otherwise of Section 14. The source the advocate alludes to, so as to form the opinion which he gives to the deponent, is clearly in another forum not privy to this subject-matter. [149] Suffice it to say that the respondents’ opposition on jurisdiction, was on the basis that Section 14 did not apply, and not that section 14 was unconstitutional. There is no single prayer, or relief sought, for the declaration of Section 14 of the Supreme Court Act as unconstitutional. [150] Consequently, I agree with the petitioners in the Jasbir Case, that in holding Section 14 to be unconstitutional, the Supreme Court acted suo motu. This was unnecessary, as it was never prayed for. [151] The declaration of a law as being unconstitutional is a weighty matter, that has a bearing on the doctrine of separation of powers. It amounts to holding that the legislature in exercise of its legislative mandate, as bestowed upon it by the Constitution, acted ultra vires. A 85
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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
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principle, or to be out of step wit
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“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
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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 77 and 78: steps to address the void left afte
Page 79 and 80: [135] The Supreme Court of India de
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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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