REPUBLIC OF KENYA - The Judiciary

[156] It is worth noting that the Macharia Case was a private dispute:
between S.K. Macharia and Kenya Commercial Bank. The onus of
enacting laws rests with Parliament. I strongly hold that a Court of law
should be hesitant to declare legislation unconstitutional in a private
matter, where Parliament is not a party. Where such an application is
made, the Court should move to invite all stakeholders on board. As
earlier stated, this enhances fidelity to the doctrine of separation of
powers, and contributes to respect for all constitutional organs, and for
their mandates. This way, the principle of checks and balances will be
seen to be truly operational, within the constitutional framework, in the
terms of Article 2 of the Constitution.
[157] The broad perspective that this Court, as an apex Court, ought
to take when dealing with issues touching on the constitutionality or
otherwise of a law, is well captured in the concurring opinion of Lady
Justice Rawal, DCJ. The learned Judge thus remarks:
“…this Court as an iconic Court in the land, should have
approached the issue of the constitutionality, or lack
thereof, of Section 14 of the Supreme Court Act, in the
Macharia Case, in a more comprehensive manner and
strived to explain its background and context extensively,
or even painstakingly, so that the people of Kenya, and
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