REPUBLIC OF KENYA - The Judiciary

More documents

Recommendations

Info

sound principle of constitutional construction as will make it operative and not inoperative. Fourthly, since, as stated a short while ago, there is a presumption of constitutionality of a legislation, save where a clawback or exclusion clause is relied upon as a basis for constitutionality of the legislation, the onus is upon those who challenge the constitutionality of the legislation; they have to rebut the presumption. Fifthly, where those supporting a restriction on a fundamental right rely on a clawback or exclusion clause in doing so, the onus is on them; they have to justify the restriction. [emphasis supplied]. [159] The Constitution of Kenya is emphatic on the disregard of procedural technicalities. It provides: ”159 (2) (d) justice shall be administered without undue regard to procedural technicalities.” However, an issue touching on a procedure challenging the constitutionality of statutory law is not a matter of procedural technicality. It is a matter of procedural substance. The procedure towards the declaration of Section 14 of the Supreme Court Act to be unconstitutional is a substantive procedure, that goes to the core of 90
the constitutionality of a legislative activity. I would hold that the declaration of Section 14 as being unconstitutional, lacked the procedural substantive requirement, and it ought not to be left to stand as a precedent. [160] It is pertinent to emphasize that the declaration of Section 14 as being unconstitutional was made when the current matter was pending before the Court. In my view, this premature declaration in proceedings which did not call for such a determination, prejudiced litigants who were properly before the Court, given, now with clear hindsight, that the prima facie threshold requirement under Section 14 had been attained – as the particular judge at the centre of this case retired as a consequence of the allegations made against him. The petitioners herein stand to suffer, by being denied the right to a fair hearing on the basis of a decision of the Court which was made while they had properly moved the Court – yet it was made in a matter that had not correctly invoked Section 14 of the Supreme Court. [161] Consequently, I would have allowed the application to depart from the Macharia Case, where it declares Section 14 unconstitutional, and would have admitted this petition to hearing, on 91
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 and 8:
depart from a previous decision whe
Page 9 and 10:
Article 58(5) which confers jurisdi
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: the litigants (present or prospecti
Page 93: …..………………………..
show all

REPUBLIC OF KENYA - The Judiciary

Create successful ePaper yourself

Delete template?

Save as template?