REPUBLIC OF KENYA - The Judiciary

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[14] Counsel relied on a decision of the Court of Appeal in England, Morelle v. Wakeling [1955] 1 All E.R. 708, in proposing those circumstances in which a decision would have been given per incuriam, namely, where a decision is given in ignorance or forgetfulness of some inconsistent legislation or binding authority, consequently causing part of the reasoning, or some steps in arriving at the decision, to be wrong. [15] Counsel urged that the Macharia decision was given per incuriam, insofar as the Court, in finding Section 14 of the Supreme Court Act, 2011 to be unconstitutional, held that Article 163 of the Constitution provided for the jurisdiction of the Supreme Court exhaustively. <strong>The</strong> Court had stated (at paragraph 69): “Article 163 of the Constitution provides for the jurisdiction of the Supreme Court in exhaustive terms, though leaving room for Parliament to prescribe further appellate jurisdiction.” Counsel urged that this statement of law was wrong, because the jurisdiction of the Supreme Court is not stipulated in Article 163 only, but it is also found in other Articles in the Constitution: for instance, 8
Article 58(5) which confers jurisdiction on the Supreme Court to determine the validity of a declaration of a state of emergency. [16] Another example cited by counsel was Article 168(8) of the Constitution, which confers jurisdiction on the Supreme Court to hear an appeal from a tribunal that has recommended the removal of a Judge. Counsel submitted that it was per incuriam to state that Article 163 exhaustively provided for the jurisdiction of the Court, while Articles 58 and 168 also provide for the same. Counsel urged that, to harmonize these three Articles that provide for the jurisdiction of the Court, the Court ought to review the Macharia decision, for that decision wrongly attributes exhaustiveness to Article 163, on the question of jurisdiction. [17] Counsel urged a further ground of per incuriam in the Macharia Case: the Court had failed to notice that no determination on Section 14 of the Supreme Court Act was sought, and that the matter before the Court had been instituted by application and not by petition. Counsel submitted that the Macharia Case was not instituted to seek relief under Section 14 of the Supreme Court Act, and that the Court proceeded on a misconception in arriving at its determination; and so its decision was per incuriam. 9
Page 1 and 2: REPUBLIC OF KENYA IN THE SUPREME CO
Page 3 and 4: edress, by invoking the Supreme Cou
Page 5 and 6: “(1) To ensure that the ends of j
Page 7: depart from a previous decision whe
Page 11 and 12: [19] Counsel invoked the legal-redr
Page 13 and 14: operational situations, and adminis
Page 15 and 16: [24] Learned Senior Counsel, Mr. Or
Page 17 and 18: power of Parliament to enact legisl
Page 19 and 20: [28] On retrospective application o
Page 21 and 22: [33] Learned counsel adverted to th
Page 23 and 24: C. ANALYSIS (a) Preamble [38] The u
Page 25 and 26: the law gives scope for regularity
Page 27 and 28: 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
Page 75 and 76:
Constitution, or under Section 23 o
Page 77 and 78:
steps to address the void left afte
Page 79 and 80:
[135] The Supreme Court of India de
Page 81 and 82:
issue for determination was whether
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
Page 93:
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REPUBLIC OF KENYA - The Judiciary

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