REPUBLIC OF KENYA - The Judiciary
REPUBLIC OF KENYA - The Judiciary
REPUBLIC OF KENYA - The Judiciary
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the constitutionality of a legislative activity. I would hold that the<br />
declaration of Section 14 as being unconstitutional, lacked the<br />
procedural substantive requirement, and it ought not to be left to stand<br />
as a precedent.<br />
[160] It is pertinent to emphasize that the declaration of Section 14 as<br />
being unconstitutional was made when the current matter was pending<br />
before the Court.<br />
In my view, this premature declaration in<br />
proceedings which did not call for such a determination, prejudiced<br />
litigants who were properly before the Court, given, now with clear<br />
hindsight, that the prima facie threshold requirement under Section 14<br />
had been attained – as the particular judge at the centre of this case<br />
retired as a consequence of the allegations made against him. <strong>The</strong><br />
petitioners herein stand to suffer, by being denied the right to a fair<br />
hearing on the basis of a decision of the Court which was made while<br />
they had properly moved the Court – yet it was made in a matter<br />
that had not correctly invoked Section 14 of the Supreme Court.<br />
[161] Consequently, I would have allowed the application to depart<br />
from the Macharia Case, where it declares Section 14<br />
unconstitutional, and would have admitted this petition to hearing, on<br />
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