REPUBLIC OF KENYA - The Judiciary

Court being moved to undertake such a declaration must proceed with
utmost caution and care. Such caution does not in any way bear the
stigma of timidity on the part of the Court; but it evidences fidelity to
the doctrine of the separation of powers.
[152] The Court must be clear, that what is being sought is a
declaration of a particular provision of the law as unconstitutional; and
all interested parties must be given ample notice and time to make
submissions on the question of constitutionality, or otherwise. It is my
humble view that the Attorney-General, as the chief legal adviser of
the Government, ought to be given an opportunity to be heard. He
advises the Government on the various Bills which the executive arm
originates, some of which once enacted as Acts, may form the subject
of a declaration of unconstitutionality.
[153] It is my opinion that the Supreme Court, or even the High Court,
ought not to decide upon the constitutionality or unconstitutionality of
a statutory provision, without the involvement of the Attorney-General
as a respondent or as amicus curiae. The constitutionality of
legislative provisions ought not to be determined as between private
parties alone: because statutory laws belong to, and affect the people
86