JUSTICE IN THE WAKE OF DISOBEDIENCE OF COURT ORDERS BY THE KENYAN LEGISLATURE: A THREAT TO THE PRINCIPLE OF SEPERATION OF POWERS IN THE CONSTITUTION?
Stephen W. Makau
Adjunct Researcher, The Mediterranean Programme for International Environmental Law and Negotiation (MEPIELAN CENTRE), Panteion University, Athens Greece - Remote
TABLE OF CONTENTS
THE PRINCIPLE OF AUTONOMY AND SEPERATION OF POWERS............................ 1
THE SEPERATION OF POWERS IN THE KENYAN CONSTITUTION 2010................... 4
INDEPENDENCE OF THE JUDICIARY..................................................................... 8
JUDICIAL INDEPENDENCE UNDER THE 2010 CONSTITUTION................................ 10
COURT ORDERS AND THE LEGISLATURE......................................................... 21
CONCLUSION AND RECOMENDATIONS............................................................ 30
INTRODUCTION
The transformative constitution of Kenya 2010 provides that the sovereign the Kenya people shall be vested in the executive, the legislature and the judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it is prone to misuse. This provision aims at most to safeguard against arbitrary and abuse of power by those in authority. In the new constitutional dispensation, there have been instances of rivalries between the judiciary and the other arms of the government, with the members of the legislature referring to court orders as idiotic and stupid hence going ahead to disobey such orders. The Judiciary’s main aim is to vindicate the legitimate power of the government of the day and cross-check its operations. However, in the recent days, the legislature, which is one of the three arms of the government has been disobeying and showing disrespect towards court orders.
THE PRINCIPLE OF AUTONOMY AND SEPERATION OF POWERS
From the experience of ages, it is now an established principle that the three arms of government
i.e. the Legislature, the Executive and the Judiciary have their own mandate dedicated to each arm. The powers granted to each arm of the government should not clash over the other arm. The principle of autonomy and separation of powers was perfectly and unambiguously recorded in ancient and continuing, respectable scholarship. It was classically articulated by Baron de Montesquieu (1689-1755) long ago (1748) a French jurist, in these terms “La liberté politique ne se trouve que dans les gouvernements modérés. Mais elle n’est pas toujours dans les états modérés; elle n’y est que lorsqu’on n’abuse pas du pouvoir; mais c’est une expérience éternelle que tout homme qui a du pouvoir est porté à en abuser; il va jusqu’ à ce qu’il trouve des limites…. “Pour qu’on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le
pouvoir arrête le pouvoir.” this translates to “Political liberty is alien, save in restrained governance. And even then, indeed, it is not always found in restrained governance; it abides in restrained governance only on the condition that abuse of power is kept at bay; yet it’s sheer human nature, that all persons entrusted with power, are inclined to abuse it – and such abuse proliferates illimitably…. “To arrest the very prospect of abuse of power, it is essential, in the very nature of things, that one power-agency be reined-in by another.”1
This paper aims at considering the disregard of court orders in line with the concept of separation of powers between the three arms of government. Thomas Hobbes illustrates a scenario of a society whose members live in a state of nature without laws or anyone with the power to back them up, you, like everyone else, would steal and murder when necessary. At least, you’d have to do that if you wanted to carry on living.2 In a world of scarce resources, particularly if you were struggling to find food and water to survive, it could actually be rational to kill other people before they killed you. In this kind of society, the members live in fear of the powerful hence the powerless continue to be oppressed and in this way they live in these situations almost for their entire lives. This, he argues becomes a struggle between the mighty and the powerless whereby the mighty get their way while the feeble have no redress for the injustices they face in the hands of the powerful class since there exists no law or even an authority to monitor their actions.3 Thomas Hobbes tries to allude that where there exists a law, the that law will be obeyed and followed to the latter and this would subject the mighty and the powerless to the same treatment and therefore no one will be above the law i.e. all the members in such a society will be under
1 Montesquieu, De l’Esprit des lois: Les grands thèmes (ed. J.P. Mayer and A.P. Kerr) (Paris: Editions Gallimard, 1970), p. 167.
2 Thomas Hobbes: ‘Solitary, poor, nasty, brutish, and short’ <https://yalebooksblog.co.uk/2013/04/05/thomas- hobbes-solitary-poor-nasty-brutish-and-short> Accessed on 15 May 2017
3 Ibid
the same umbrella regardless of their social status. A. V. Dicey conceptualizes this concept to be, not only is no man above the law but also every man should be subjected to the ordinary law.
Baron Montesquieu suggested a pure separation of powers system. His publication, ‘spirit of laws’ is considered one of the great works of history of political theory and jurisprudence and it inspired the declaration of the rights of man and the constitution. In his paper, the political authority of the state is divided into the Executive, Legislature and the Judiciary. He further asserts that the powers of these three arms of the government must be separate and acting independently. Separation of powers therefore refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The main rationale behind the division of these responsibilities is to avoid concentration of power to one authority which can abuse that power and also to provide for checks and balances. The legislative branch is responsible or enacting laws of the state and appropriating budgets meant for the operation of the government. The Executive branch on the other side is responsible for implementing and administering public policy enacted and funded by the legislative arm of the government. The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it. In Montesquieu’s view, the concept of separation of powers may mean three things i.e.
a) That the same persons should not form part of more than one of the three organs of the government.
b) That one organ of the government should not control or interfere with the work of another organ, for example, that the judiciary should be independent of the executive.
c) That one organ of government should not exercise the functions of another organ, for example, that ministers currently referred to as cabinet secretaries in the new constitution should not have legislative powers.4
Furthermore, the renowned Professor B. O. Nwabueze elaborately notes that even the sternest critics of the doctrine of separation of powers deny its necessity as regards the judicial functions. For the Rule of Law as an element of constitutionality depends more upon how and by what procedure it is interpreted and enforced. The limitations which the law imposes upon the executive and legislative action cannot have much meaning or efficacy unless there is a separate procedure comprising a separate agency and personnel for an authoritative interpretation and enforcement of them. The necessity for a procedure to interpret the law with finality is underlined by the fact that both the executive and the legislature have also to interpret the law in the course of carrying out their primary function.5He implies that the last thing an arm of government can try to do is to try and perform the functions of the other arm of government as this would be a total disrespect of the constitution as t5he supreme law.
THE SEPERATION OF POWERS IN THE KENYAN CONSTITUTION 2010
The constitution of Kenya which is transformative in nature provides that the legislative authority of the Republic of Kenya is derived from the people and at the national level is vested and exercised by the parliament.6 The legislature is composed of the National Assembly and the senate.7 These two house must work together to ensure that laws passed are in conformity with public policy and not against the supreme law of the land, which is the constitution. The4 Morris Kiwanda Mbondenyi & John Osogo Ambani. ‘The New Constitution Of Kenya: PRINCIPLES, GOVERNMENT AND HUMAN RIGHTS’
5 Nwabuieze B.O, ‘Constitutionalism in the Emergent States’ Associated University Press (1973) P. 14
6 Constitution of Kenya Article 94(1)
7 Ibid Article 93(1)
constitution further moves on to state that no person or body other than parliament that has the power to make provision having the full force of the law in Kenya except under authority conferred by this constitution or by any other legislation.8 The Executive authority on the other hand is vested in the president, the Deputy President and the Cabinet.9 The constitution provides that the Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.10 Article 131(1)(2)11 provides for the powers of both President of Kenya and the deputy president.
It’s a well established principle of separation of powers or autonomy that the Cabinet secretaries shall not be Members of parliament.12 No person or body, other than the parliament that has the power to make provisions having the full force of the law in Kenya except under the authority conferred by the constitution. The constitution of Kenya vests judicial authority in courts and also tribunals established under it.13 The constitution clearly stipulates that the judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
Separation of powers denotes that power should not be vested in the hands of a few, but to the three arms of government so that power is not concentrated to one authority which is likely to abuse that power. This is based on Lord Atkin’s words that “power corrupts and absolute power corrupts absolutely. Article 1(3) of the constitution gives the people the sovereign power over the executive and the judiciary and that the legislature shall draw its ultimate power from the people. The legislature, the executive and the judiciary have their clear mandates in the constitution each8 Supra n 6 Article 94(5)
9 Ibid Article 130(1)
10 Ibid Article 129(1)
11 Ibid Article 131(1)(2)
12 Ibid Article 152(3)
13 Ibid Article 159(1)
having been allocated its distinct powers from the other arm in order to uphold the principle of autonomy.
Baron Montesquieu argues that, the accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self– appointed, or elective, may justly be pronounced the very definition of tyranny.14 Madison moves on to stipulate that the accumulation of power by a single authority or even person poses a great threat to liberty. James Madison in his theory endeavors to set the records clear by stating that as it is the Constitution that grants each branch its power, honorable ambition and zeal by all the three arms of government that ultimately serves the highest interests of the people could work to maintain the separation.
Madison advocates for three distinct but yet interdependent arms of government whereby no arm collides with the other arm or performs the functions of another arm of government whether knowing or unknowingly as this would be a subversion of the constitution which the three arms of government are supposed to uphold. On the flipside of the coin, Aristotle, a great Greek philosopher argues that in every political organization or set up every government, no matter its form, has got to perform three main functions which include the enforcement power by the executive magisterial, and the judicative.” In modern terminology these activities correlate, respectively, to the legislative power which is exercised by the courts and the tribunals, the executive on the other side is ultimately mandated to enforce the laws enacted and passed by the legislative arm or rather the parliament. Lastly is the judiciary which mainly interprets the law. All these are said to be the main functions of any modern government functions of any government. These are main functions that Aristotle attributes. Madison argues that the great14 James Madison, Federalist No. 51 1978
security against a gradual concentration of the several powers in the same branch consists in giving to those who administer each branch, the necessary constitutional means, and personal motives, to resist encroachments of the others…Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.15
John Locke on the other side tries to shade light and expedite on the doctrine of separation of powers. Although Locke explains that there are three authorities in a government i.e. the executive, judiciary and the legislature, in his paper he insists that the powers of any government are mostly vested in the judiciary and that the executive and the judiciary are subordinate to it.16 Scholars have inferred from this that Locke regarded the separation of powers as a convenient arrangement which would not amount to anything important at all.17 Carl Ernst referred to John Locke “the creator of the false theory of the English state”. So, John Locke’s theory of separation of powers differs from that of Montesquieu in the sense that Locke only recognizes the legislature as the only powerful arm of the government compared to the other two. His theory cannot be adopted because he treats judicial power as part of the executive power which is not the case hence making his theory questionable by many countries and legal scholars.18 M.J.C Vile in his book, ‘Constitutionalism and the Separation of Powers’ 19 argues that Vile argues that the doctrine of separation of powers and constitutionalism act as a guide to the proper organization and functioning of government. Vile uses the examples of the ancient world, where the concepts of governmental functions and theories of mixed and balanced government were evolved which played a key role in the development of the doctrine of separation of powers amongst states.
15 Ibid
16 See, John Locke, ‘Two Treaties on Government’ by Peter. Laslett, Ed 1970 pg 384
17 J. Gough, ‘John Locke’s Political Philosophy’ pg 108; M. Vile Constitutionalism & and separation of powers(1967), pg 61
18 Ibid
19 M.J.C. Vile, ‘Constitutionalism and the Separation of Powers’ 2nd edit.(1967)
Checks and balances also envisaged in the doctrine of separation of powers provides that each arm of government works interdependently with the other to ensure that one arm of government does not exceed its authority or act ultra vires. This ensures that the courts do not abuse their power. This guarantees that independent courts and judges remain faithful to the rule of law and do not render their judgments maliciously without following the law as it were.
INDEPENDENCE OF THE JUDICIARY
Chief Justice Brian Dickson of the Supreme Court of Canada in The Queen v. Beauregard20 states that, “the role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system”
The concept of the independence of the judiciary implies that the Judiciary be free from the Executive and also the legislature. It is not only in Kenya that the judiciary orders have been ignored by other state organizations but also in Africa as a continent.21 Some of the countries governed by dictatorial governments do not recognize the judiciary orders and also at times harass the judges which lead to poor dispensation of justice.22 Judicial Independence also implies that judges are protected from the influence of the other branches, as well as shifting popular opinion. And it allows them to make decisions based on what is right under the law, without facing political consequences for example not getting re-elected or even getting fired, having
20 (1986) 2 S.C.R. 56 at para. 30 [Beauregard]
21 N Udombana, ‘The Africa Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’ (2006) 6 Africa Human Rights Law Journal 312.
22 See ‘Resolution on the Right to Recourse and Fair Trial’ Ninth Annual Activity Report of the African Commission on Human and People’s Rights.
their salary lowered consequences for the decisions they make.23 Ahmednasir Abdullahi, an Advocate of the High Court of Kenya, He gives two reasons why the drafters of the Constitution saw it fit to reform the judiciary ahead of the other two arms of Government: “First, the Constitution, having reformed the judiciary, intends the judiciary to oversee the reform program. This guardian angel role for the judiciary has a textual constitutional underpinning. It empowers the judiciary to look into the very constitutionality of the proposed amendments. Second, the new Constitution has entrusted the fate of Kenya and its people to the law and not men24
ELEMENTS OF JUDICIAL INDEPENDENCE
The independence of the judiciary may be secured and realized through for example charging judges’ salaries from the consolidated fund, separating it from the other two arms of government, facilitating security of tenure and also judicial immunity.
Appointment of judges
On the issue of appointment of judges, the criteria used should be objective as divorced from subjective mode which is always motivated by ulterior motives25
Security of tenure
A judge cannot be removed from his/her office during a term of office, except for good cause. Of which their removal from office attracts formal proceedings in court. Security of tenure simply means that only in exceptional circumstances that are prescribed by the law may a judge be23 See, <https://judiciallearningcenter.org/judicial-independence/ >an impartial Federal Court. Accessed on 15 May 2017
24 Ahmednasir Abdullahi (2010) ‘Politicians should let judiciary deal with law reforms, ‘He is a member of JSC, representing LSK. He is a former chair of LSK, a former lecturer at the University of Nairobi Law School, and has been consistent in criticizing the judiciary for what he terms as (intellectual) incompetence and corruption 25Morris Kiwanda Mbondenyi & John Osogo Ambani, ‘The New Constitution of Kenya: Principles Government and Human Rights’ 2013
removed from office and this should be accompanied by enough satisfying grounds why the judge is being removed from office for example on account of abuse of office or even gross violation of the constitution
Financial Security
A Judge may compromise the dispensation of justice for fear of reduction of his/her salary and also it would be difficult for a judge to administer justice effectively and without delay if their bank accounts are being controlled by other different government entities.
JUDICIAL INDEPENDENCE UNDER THE 2010 CONSTITUTION
Article 159(1)26 of the constitution of Kenya provides that, Judicial authority is derived from the people and vests and shall be exercised by the courts and tribunals established by or under the constitution.
Article 159(2)27 of the same constitution provides that, in exercising judicial authority, the courts and tribunals shall be guided by the following principles
a) Justice shall be done to all, irrespective of status
b) Justice shall not be delayed
c) Justice shall be administered without undue regard to procedural technicalities
d) The purpose and the principles of this constitution shall be protected and promoted
Also judicial independence is also evident in the constitution in that, in the process of the appointment of the President and the Deputy President, it shall require approval of the National
26 Supra n 6 Article 159(1)
27 Ibid Article 159(2)
Assembly.28 The transformative constitution of Kenya 2010 also provides for a judiciary fund administered by the chief registrar of the judiciary.29 This established fund helps in administrative expenses of the Kenyan judiciary and also other functions of the judiciary. 30
For judiciary to be independent in modern times and age and within the constitution, the judiciary should ensure that the executive’s undertakings for example are constitutional and uphold the principle of constitutionality. All the provisions discussed above on judicial independence should be upheld by everyone including those in authority in order to foster effective and proper dispensation of justice.
The Supreme Court
The Supreme Court is the highest court in Kenya and is composed of the Chief justice, deputy Chief justice and 5 other judges appointed by the president after the Judicial Service Commission has done its recommendations on the same. Supreme Court has exclusive original jurisdiction to hear and determine questions relating to the validity of presidential elections.31.The Supreme Court’s decision in Marbury v Madison32, the court stated that the judiciary has the right to interpret the Constitution with finality and determine the constitutionality of executive and legislative actions. Article 163(7)33 gives the Supreme Court power to make rules for the exercise of its jurisdiction. The Supreme Court may hear and determine appeals from the Court of Appeal and any other court or tribunal subject to conditions set out by the Constitution and the
28Supra n 6 Article 166(1)
29 Ibid Article 173(1)
30 Ibid
31 Ibid Article 163(3)(a)
32 Marbury v Madison (1803) 1 Cranch 137
33 Ibid Article 163(7)
Supreme Court Act No. 7 of 2011.34 Appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution. The Supreme Court may deliver advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.35 National Gender and Equality Commission warned that in delivering this Advisory Opinion, the Court might overstep its purview and violate the principle of separation of powers. It stated that the duty to determine whether a principle has been, is being, or will be realized is an executive function that requires clear standards to be developed. It argued that the role of the Court is to determine whether a legal principle or obligation has been enacted, complied with or implemented.36 The Supreme Court interprets the Constitution and statutes in order create common law that will achieve the appropriate balance between the people among themselves, and ensure that all parties are treated equally and that justice is served.
Court of Appeal
The Constitution, 2010 provides that an Act of Parliament will determine the number of judges, organization and administration of the Court of Appeal. The court shall be composed of not less than twelve judges who shall elect a President of the Court of Appeal from among themselves. The court’s is jurisdiction to hear appeals from the High Court and from any other court prescribed by law.
34 Supreme Court Act No. 7 of 2011
35 Supra n 6 Article 163 (4) (6)
36 IN THE MATTER OF AN APPLICATION FOR ADVISORY OPINION UNDER ARTICLE 163(6) OF THE CONSTITUTION
The High Court
The High Court of Kenya is established under Article 165 of the Constitution, 2010.37 The court shall have unlimited original jurisdiction in criminal and civil matters.38 The High Court shall also have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.39 The High Court also has jurisdiction to hear appeal from a decision of a tribunal appointed under the Constitution that considers the removal of a person from office, other than a tribunal appointed under Article 144 that makes provision for the procedure for removal of the President for reason of incapacity.40
Further, the High Court shall have jurisdiction to hear any question respecting the interpretation of the Constitution which include the determination of—
a) The question whether any law is inconsistent with or in contravention of the Constitution;
b) The question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution;
c) Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government;
d) A question relating to conflict of laws under Article 191 – relating to between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government
37 Supra n 6 Article 165
38 Ibid Article 165(5)
39 Supra n. 32
40 Ibid Article 165(1)(c)
INJUNCTIONS BY COURT
An injunction arose from the common law as an equitable remedy and has grown and developed into a reputable remedy that prevents the happening of a certain action or to compel and individual. Article 2241 of the constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. Article 23(3)42 provides that, The High Court has jurisdiction, in accordance with Article165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Article 23(3) provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including injunctions which will form the basis of my discussion.
Lord Templeman43 describes an injunction as an order of the court directing a person to refrain from doing or continuing some particular act or thing complained of, or less often, to do some particular act or thing. Templeman sets four requirements to be met when granting an order of injunction
a) That, in granting an injunction, a court acts in personam and will not suffer anyone within its reach to do what is contrary to the notions of equity, merely because the act to be done may be in point of locality beyond its jurisdiction. This was stated by Cranworth LC in the case of Carron Iron co Ltd v Maclaran.44
b) Granting of an injunction is discretionary
41 Supra n 6 Article 22
42 Ibid Article 23(3)
43 Margaret Halliwell, ‘Equity and Trusts’. Pg 375
c) An injunction will be refused if damages are considered to be an adequate remedy. In Elliot v Islington Borough Council,45the Times 6 July, the court of Appeal held that damages in lieu of an injunction should not be awarded where this would in effect be depriving an individual of specific private rights
d) Any refusal to obey an injunction will usually lead to criminal penalty of contempt of court.
Types of Injunctions
The various types of injunctions include;
a) Mandatory Injunction
b) Interim or interlocutory injunctions
c) Prohibitory injunctions
d) Structural interdict
There are several types of injunctions these are: Mandatory injunction, Interim or Interlocutory injunction, prohibitory injunction and finally structural injunction or structural interdict. An injunction is an order46 of the court directing a person or persons to refrain from doing some particular act or thing, or less often, directing a person to do some particular act or thing.47 It is usually an equitable remedy that originally could only be obtained in the court of chancery or the Court of Exchequer in equity.48
45 Elliot v Islington Borough Council(1990)
46 The Supreme Court Act 1981
47 Philip H. Pettit, ‘Equity and the Law of Trusts’ 11th Ed pg 555
Mandatory Injunctions
Mandatory injunctions order the defendant to d some positive act. Mandatory injunctions are mostly used to undo something that has already been done.49 Mandatory injunctions are uncommon and will not be issued when damages would be an appropriate or adequate remedy.50 These injunctions will normally be issued when only when it is possible to frame the order very precisely. These injunctions are granted at hearing on an interlocutory application and the court he has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted as was stated in Locabail International Finance Ltd v Agro Export & Another.51The court held in this case that, “ A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction, the court has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted, that being a different and higher standard than required for a prohibitory injunction.”
Prohibitory Injunctions
Prohibitory injunctions order the defendant to refrain from doing something A prohibitory injunction requires the other party to refrain from doing something. They are obtained for example to prevent a breach of contract; or to stop a party taking legal proceeding.
49 Sara Wilson, ‘Trusts’ 7th Edition pg 401
50 Ibid
51 Locabail International Finance Ltd v Agro Export & Another (1986), ALI ER 901
The court will only grant an injunction if it is satisfied on the facts that;
a) there is a serious issue to be tried
b) it appears to the court to be just and convenient to do so and the applicant has ‘clean hands’ for example a party to a suit has not delayed unreasonably or acted improperly
c) Damages would not be an adequate remedy to resolve the dispute.
Interim or Interlocutory Injunctions
An interlocutory or an interim injunction was explained by Lord Diplock in the case of American Cyanamid Co v Ethicon Ltd. Lord Diplock,52 explained the rationale of interlocutory injunction as “When an application for an interlocutory injunction to restrain a defendant from doing acts alleged t be in violation of the plaintiff’s legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex-hypothesis the existence of the right or violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction…The object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial.” In Smith v Peters,53 Jessel MR stated that there is no limit to the practice of the court with regard to interlocutory applications so far as they are necessary and reasonable applications ancillary to the due performance of its functions, namely, the administration of justice at the hearing of the cause and that whether these orders are granted or not depend on the
52 American Cyanamid Co v Ethicon Ltd. Lord Diplock (1975) 1 ALL ER 505, HL
53 Smith v Peters(1838)
special circumstances of the case. In Potter v Chapman,54An interlocutory injunction is a discretionary order by the court and is never granted as a matter of course. The plaintiff usually has harder task on an ex parted application for this order of court as was stated in Eothen Films Ltd v Industrial and Commercial Education Macmillan Ltd.55
In Metall and Roshstoff A G v ACLI Metals(London) Ltd,56 the court in this case held that since the reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge’s decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge mindful of his duty to act judicially could have reached it. A limited power to grant injunctions was first given to the common law courts by patent law Amendment Act of 1852 and also the Common Law Procedure Act of 1854,57 the common law courts were given a wide jurisdiction to grant injunctions in all cases of breach of contract or other injury that Baggalay L.J. observed, they had a more extensive jurisdiction as regards the granting of injunctions than the court of chancery itself. However, in Re M,58 it was held that the Act was unqualified in its terms in that there was no warrant for restricting its application. So, the remedy of an interim injunction was not applicable and available to ministers and other officers of the crown, or in other words, it was available in very limited circumstances.
54 Potter v Chapman(1750) Amb 98
55 Eothen Films Ltd v Industrial and Commercial Education Macmillan Ltd (1966) FSR 356 CA
56 Metall and Roshstoff A G v ACLI Metals (London) Ltd (1984) 1 Lloyds Rep 598, CA.
57 Common Law Procedure Act 1854 Sec 79 read together with Sec 82
58 Re M(1994) 1 AC 377
Structural Interdicts or Injunctions
Structural Interdicts or injunctions on the other hand empowers the judiciary to craft just and equitable remedies for breaches of all constitutional rights. This form of an injunction is not so common like the other types of injunctions. It is only applicable in limited circumstances but may accompany the other orders of the court. In Pretoria City Council v Walker,59 the court held that litigants seeking either a declaratory or mandatory order to vindicate a constitutional right could also obtain a court order that the sphere of government in question take appropriate steps as soon as possible to eliminate the violation of rights and to report back to the court in question. Structural interdicts require the violator to rectify the breach of a fundamental right under the supervision of the court. In Democratic Alliance v Speaker of the National Assembly and Others60, Mogoeng C.J. noted that structural interdicts clarify and affirm several well entrenched constitutional principles relating to the powers and duties of the President and Parliament.
In the land mark case of Giella v Cassman Brown & Co Ltd,61 an interim injunction was granted by the court to stop the appellant from competing with the respondent, his former employer on the basis of a covenant by him not to engage in a similar undertaking in any of the six major towns of East Africa. On appeal, the appellant argued that the judge should have allowed adjournment for in order for him to file an affidavit, that the order was defective in that it did not specify the period for which it was granted, that no reasonable probability of success had been shown by the respondent and that it had not been shown that damages would be an adequate remedy.
59 Pretoria City Council v Walker (1998) 3 BCLR 257 (CC).
60 Democratic Alliance v Speaker of the National Assembly and Others (CCT86/15) [2016] ZACC 8; 2016 (5) BCLR 577 (CC); 2016 (3) SA 487 (CC) (18 March 2016)
61Giella v Cassman Brown & Co Ltd (1973) E.A. 358.
The court held that the court’s discretion to grant an injunction will not be interfered with unless it has not been exercised judicially. This was stated in the case of Sargent v Patel.62 The case set requirements to be met for the injunction to be granted
a) The applicant must show a prima facie case with a probability of success
b) The injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm
c) That, when the court is in doubt, it will decide the matter on a balance of convenience
In East Africa Industries Ltd v. Trufoods Ltd,63 In this case, both parties were manufacturers of fruit drinks. The Appellant applied to the High Court for an interlocutory injunction to restrain the passing off of the Respondent’s product as that of the Appellant. The Appellant claimed that the Respondent had changed the shape of the bottles which the Respondent used and the shape and design of the labels it affixed to the bottles in such a way that they so nearly resembled those of the Appellant’s Company as to be likely to deceive. In dismissing the application, the High Court judge directed his attention to the names on the labels and not to the overall impression created by the bottles and labels. The judge also stated that he took judicial notice that the vast majority of customers for the products would be sophisticated and able to read English. The judge then concluded that the Appellant company was unlikely to succeed in the suit because, in his opinion, no reasonable ordinary shopper would be misled by the resemblance of the two product it was stated that, a plaintiff has to show a prima facie case with a probability of success and if the court is in doubt it will decide the application on the balance of convenience.64 An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer
62Sergeant v Patel(1949), 16 E.A.C.A 63
63East Africa Industries Ltd v. Trufoods Ltd (1972) EA 420
64 Ibid
irreparable injury which would not adequately be compensated by an award of damages. Also in Cascade Company Limited v. Kenya Association of Music Production (KAMP) & 3 others,65 the High Court of Kenya stated that conservatory orders could be granted in conformance with the following principles:
a) Prima facie case with a chance of success.
b) Prima facie case with a chance of success.
c) Existence of real danger that would prejudice the applicant if the conservatory orders are not granted.
d) Public interest to grant it.
e) Consistency with the Constitutional values.
f) Proportionality
g) Priority depending on the circumstance of the case.
COURT ORDERS AND THE LEGISLATURE
Court orders are meant to be obeyed and followed by everyone to the latter, whether it is an individual or a state cooperation or department. In Judicial Service Commission v Speaker of the National Assembly and the Attorney General,66 Justice Odunga vehemently quoted Article 10(1) of the constitution that binds all state organs, state officers, public officers and all persons when applying and interpreting the constitution, enacting, making or implementing any public policy decision. He clearly stated in his ruling of the case that if anyone is aggrieved by a particular order of the court or he is of the opinion that the order was made without respect to the rule of law, then he can appeal the same to a higher court. What Justice Odunga meant here is that if one65 Cascade Company Limited v. Kenya Association of Music Production (KAMP) & 3 others(2015) eKLR
66Judicial Service Commission v Speaker of the National Assembly and the A.G (Petition 518 of 2013) eKLR
is aggrieved by an order issued by a court of law, then the best he can do is to seek higher opinion from another court.
In Kariuki & 2 Others v Minister For Gender, Sports, Culture & Social Services & 2 others,67 the applicants in this case had moved to court to seek orders that one Hon Najib Balala, Minister for Gender, Sports, Culture and Social Services be committed and detained in prison for a period of six (6) months for disobeying court orders issued by the court. The facts were that on 26th March 2004, the High Court of Kenya issued orders that leave be granted to the applicants to institute judicial review proceedings to challenge the Minister’s decision to remove the applicants as officials of the Kenya Football Federation (KFF) and appoint a Stakeholders Transitional Committee in its place. In this particular case the Minister for Tourism was aware that an injunction had been issued against him but ignored the court order. In D T Kampanje Banda vs. Hon Gwanda Chakuamba,68 the defendants, members of the Malawi Congress Party, had given instructions to their counsel to ignore a court order issued against them. Justice Mkandawire stated that this only meant that those members had knowledge of the injunction yet they had ignored it. The learned judge had this to say that by the mere fact that the defendants had given instructions to counsel to vacate the order, they were estopped from claiming that they had knowledge of the injunction. Justice Lenaola clearly stipulated that Court orders are supposed to be adhered to whether you agree with them or not, and that blatant disregard of court orders is thus an underestimation and belittlement of the Judiciary as a whole. The courts are established to uphold the rule of law and protect the citizens from abuse of power by other by other established authorities. In Njenga Mwangi & Another v the Truth, Justice and
67 Kariuki & 2 Others v Minister For Gender, Sports, Culture & Social Services & 2 others(2004) eKLR
68 D T Kampanje Banda v Hon Gwanda Chakuamba, Civil Cause No 1841 of 2001 (High Court of Malawi) (unreported)
Reconciliation Commission & 4 others,69 Where respondents in this case contented that the High Court has no jurisdiction to hear the Application filed against the Speaker of the National Assembly, the Clerk of the National Assembly and the leader of the Majority Party in respect of acts of their respective offices in exercise of the powers conferred and vested in them by the Constitution of Kenya, the National Assembly Powers and Privileges Act and the Standing Orders. The court held that, it can make a determination of the constitutionality, or the lack of it, of actions of members of the Legislative. Also in Dr. Christopher Murungaru v Kenya Anti- Corruption Commission & another,70 the court stated that Since the Kenyan nation has chosen the path of democracy rather than dictatorship, the courts must stick to the rule of law even if the public may in any particular case be of a contrary opinion. The courts must continue to serve Justice to all irrespective of their status. In Wildlife Lodges Ltd Vs County Council of Narok and Another,71 it was held that a party is not at liberty to disobey a court order merely because the order appears to be invalid or irregular. If for any reason, a party is unclear about the import of a court order, there are avenues for interpretation or review before the issuing court and if a party is dissatisfied with the order altogether, there is an avenue for appeal to a higher court. The same position was emphasized in the case of Clarke and Others Vs Chadburn & Others,72 where the court held that just by the mere fact that a party thinks that an order was improperly obtained is no excuse for disobeying it. The remedy is to vary or discharge it. To sum up, defiance of a court order is never an option open to any party.
69 Njenga Mwangi & Another v the Truth, Justice and Reconciliation Commission & 4 Others, Nairobi High Court (2014) eKLR.
70 Dr. Christpher Murungaru v Kenya Anti-Corruption Commission & another [2006] 1 KLR 77.
71 Wildlife Lodges Ltd Vs County Council of Narok and Another [2005] 2EA 344
72 Clarke and Others Vs Chadburn & Others [1985] 1All E.R (PC), 211
In Martin Nyaga Wambora and the County Government of Embu v Speaker, County Assembly of Embu & 4 others (2014)73. The court gave orders restraining the speaker of the senate from proceeding with any motion for the removal of the petitioner and the Deputy Governor. The decision of the court in this particular case raised questions on whether the court had the powers to give directions on the operations of the legislature. After a push and pull by the parliament, the high court defended its decision in the matter stating that under Article 165(3)(d),74 gave the court the jurisdiction to hear any matter relating to any question with respect to the interpretation of the Constitution including the determination of contravention of the constitution and any matter relating to the constitutional relationship between the levels of Government. The court explained in this case that notwithstanding parliamentary sovereignty, it had jurisdiction to hear the matter, stating that the main bone of contention in the case by the petitioner is that there have been violations of his Constitutional rights as enshrined under the Constitution by the County Assembly and the Senate, hence making the high court the most appropriate forum to resolve the dispute. The court in this case stated that The President’s actions were predicated on actions taken by the National Assembly resulting in a petition to the President under Article 251(3)75 on removal of a holder of an independent office. The validity and bona fides of this petition is in contention. If, as the Petitioner contends, it was invalid for having been the result of a process in Parliament that took place in violation of a Court order, then the President’s acts would have been based on an invalid act. In Republic v. National Assembly Committee of Privileges and 2 Others, ex parte Ababu Namwamba,76 In this particular case, there had been a
73 Martin Nyaga Wambora v Speaker of the County of Assembly of Embu & 3 Others [2014] eKLR
74 Supra 6 Article 165(3)(d)
75 Ibid Article 251(3)
76 Republic v. National Assembly Committee of Privileges and 2 Others, ex parte Ababu Namwamba J.R. Case No. 129 of 2015, (2016)eKLR.
violation of provisions of Article 103(1)(b)77 of the Constitution do not apply in respect of Standing Order 111 as the Applicant cannot be deemed to be absent without the written permission of the Speaker. Standing Order 111 was enforced by the Speaker and the Applicant cannot allege that its enforcement results in the loss of his seat as a Member of Parliament. The High court in this particular case declined to exercise its powers given the fact that the standing orders are clearly made by the parliament hence the court had no jurisdiction to deal with this particular dispute arguing that it was the responsibility of the high court to ensure that the said standing orders complied with the law. However in a different case, James Opiyo Wandayi v. Kenya National Assembly and 2 Others,78 Justice Odunga issued orders staying the decision of the Speaker of the National Assembly who had suspended the Member of Parliament for Ugunja, Honorable James Opiyo Wandanyi from parliament when he caused fracas during the debate on the Security Amendment Bill in parliament and barred him from attending the remainder of the parliamentary session. Odunga held that ‘the doctrine of the separation of powers is inapplicable where it is alleged that the Constitution has been violated.’ Opiyo argued that the provisions of the Standing Orders were ‘unconstitutional to the extent that they do not meet the threshold of fairness and proportionality as provided for in Article 47. The problem with his argument was that he did not prove how the standing orders were unconstitutional with regard to Article 4779 of the constitution. The prohibitory injunction so issued by Justice Odunga could not operate since Honorable Opiyo could not prove how the National Assembly standing orders were in contradiction of Article 47 of the constitution and also the other fact is that, the National Assembly standing orders are made by the parliament itself so the court’s jurisdiction in this particular case was limited.
77 Supra n 6 Article 103(1)(b)
78 James Opiyo Wandayi v. Kenya National Assembly and 2 Others (2016) eKLR.
79 Ibid Article 47
In Judicial Service Commission v. Speaker of the National Assembly and 8 Others,80 the court stated that separation of powers doctrine obligated it to be conscious of certain limitations to judicial authority; the court remarked that certain matters, by the terms of the Constitution, had been expressly committed to other arms of government and by this it meant that there are circumstances whereby even if the judiciary issues orders against the legislature for example, the said orders may not have any effect since the circumstances in which those orders are granted will be a violation of the doctrine of separation of powers. Again in this case, the court stated that it is upon the court to uphold and protect the principles envisaged under the constitution without any interference by the other arms of the government. And again, if there arises issues to do with public policy or even public interest issues, then the courts are not hand tied i.e. they have the powers to litigate upon the matter. In Coalition for Reform and Democracy (CORD) and 2 Others v. Republic of Kenya and 10 Others,81 This case related to the passing of the Security Laws (Amendment) Act, No 19 of 2014. The Security Laws (Amendment) Bill was published on 11th December 2014. It was debated on 18th December 2014 and passed. It received Presidential assent on 19th December 2014. SLAA came into force on 22nd December 2014. It amends the provisions of twenty two other Acts of Parliament concerned with matters of national security, and it is these amendments that precipitated CORD to move to court to challenge the constitutionality of the said law. The petition filed by the applicants challenged the constitutionality of Law and asked the court to determine the procedures used by the parliament in the process of the enactment of law as well as its contents. The questions that arose in this case concerned the extent to which this court may inquire into the processes of the legislative arm of government particularly, whether the court had the powers to interrogate parliamentary
80 Judicial Service Commission v. Speaker of the National Assembly and 8 Others(2014) eKLR
81 Coalition for Reform and Democracy (CORD) and 2 Others v. Republic of Kenya and 10 Others(2013) eKLR
proceeding. On 8th December, 2014 the Security Laws (Amendment) Bill 2014 was published in a special issue of the Kenya Gazette being Supplement No. 163 (National Assembly Bill No.
309) under the hand of Mr. Asman Kamama, the Chairperson of the Administration and National Security Committee of the National Assembly. The following day the Bill was introduced for the first reading in the National Assembly. Pursuant to Standing Order No.12, The public had been given public participation dates which were to be on the 10th, 11th and 15th December 2014. Members of the public were thereby invited to submit their representations on the Bill either through written memoranda to the Clerk of the National Assembly in Nairobi or orally to the Committee which was to sit on the stated days between 10.00 am and 5.00pm. Despite the dates for public participation published in the newspapers, on 11th December, 2014 the Bill was tabled for the 2nd reading. Upon questions being raised in Parliament about the period for public participation, the Speaker of the National Assembly, Mr. Justin Muturi, ruled that public participation would continue after the 2nd reading. This continued in parliament amid great disregard of the National assembly standing orders until the law was assented to by the president which aggrieved members of CORD who moved to court on 23rd December, 2014 seeking ex- parte conservatory relief to stay the operation of the Act. In his ruling on 2nd January 2015, the Honorable Judge granted conservatory orders suspending the following sections of the Act which had been challenged as constituting a threat or violation of the Constitution the said sections included;
a) Section 12 which inserted section 66A to the Penal Code.
b) Section 16 which inserted section 42A to the Criminal Procedure Code.
c) Section 26 which inserted section 20A to the Evidence Act.
d) Section 29 which inserted section 59A to the Evidence Act.
e) Section 48 which inserted section 16A to The Refugees Act. Amongst other sections.
This particular case one of the issues for determination was the extent to which the court may inquire into processes falling squarely within the legislative mandate: namely, parliamentary proceedings. The court argued that it had powers to inquire and make a determination on the constitutionality of the parliament standing orders. The learned Justice in this case clearly stipulated that the “courts must never shy away from doing justice because if they did not do so justice has the capacity to proclaim itself from the mountaintops and to open up the heavens for it to rain on us. Courts are the temples of justice and the last frontier of the rule of law.”82
In Kevin K. Mwiti & others v Kenya School of Law & others,83 In this case, various law students from different law schools in Kenya filed a petition in court seeking a declaration that the Kenya School of Law Act,84 enacted in September 2012 was a nullity as it did not provide for a three year transition period beginning 15th January 2013 to cater for students who had already been admitted to the university system prior to the enactment of the Act and to allow them to complete their programs. And also that the said pre-bar examination will require the students enrolling for the said programs to pay more on top of the normal fees;
…the intended process of pre-bar examination will be undertaken by funds from the public coffers. Therefore it is not just a question of inconvenience to the parties but a matter that is likely to impact on the public as well. In my view the lesser injustice would be to suspend the respondent’s action pending the hearing of these petitions and application
82 Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR para
188. See also, Republic vs. Judicial Commission of Inquiry into Goldenberg Affair, ex parte George Saitoti (2007)2 EA 392; (2006) 2 KLR 40
83 Kevin K Mwiti & others v Kenya School of Law & others [2015] eKLR
84 Kenya School of Law Act, 2012
This particular case involves issues to do with public interest in the sense that the Kenya School of Law Act enacted by the parliament was against the general interests of the public and the court herein had the powers conferred to it under Article 165 to give a determination on the matter in order to uphold the legitimate expectation of the applicants. Also in a case where the members of the National Assembly had declared null and void the salaries that had been set forth by the Salaries and Remuneration Commission thereby moving to increase their salaries. In giving orders towards the parliament, Justice Lenaola stated that, “On one hand State and public authorities should not be permitted to proceed and implement decisions that violate the Constitution and on the other hand the mandate of the Constitutional Commissions should be protected from erosion of the legislature…It is the judiciary that has the ultimate authority to assert the supremacy of the Constitution..The High Court and the other Superior Courts will have the final word on what the Constitution means.” The court had to intervene to save the public from the actions of the National Assembly, and that the argument that members of the National Assembly issuing threats that they will abolish the judiciary cannot and can never hold water. In Okiya Omtatah and 3 Others v. Attorney-General and 3 Others,85 the court in this case held that, “To agree with the National Assembly that this Court cannot interrogate its work will amount to saying that the National Assembly can fly beyond the reach of the radar of the Constitution. That is a proposition we do not agree with. Our view is that all organs created by the Constitution must live by the edict of the Constitution.”
In Institute of Social Accountability & another v. The National Assembly and Four Others,86 a petition was filed by the Institute of Social Accountability and the Centre For Enhancing Good
85 Okiya Omtatah and 3 Others v. Attorney-General and 3 Others
(2014) eKLR, paragraph 54.
86 Institute of Social Accountability & another v. The National Assembly and Four Others [2015] eKLR
Governance seeking to declare Constituencies Development Fund Act No. 30 of 2013 as one that was in contradiction with the constitution. The petitioner challenged the process leading to the enactment of the Act by parliament, substance of the said law and the administration and management of the CDF fund. First it was against the principle of separation of powers in the sense that it ran parallel against other established government structures. Also the National Assembly did not provide room for public participation when it enacted the law. The High Court found that the National Assembly had violated the principles of the constitution.
On matters of the interpretation of the constitution, the case of Mumo Matemu v. Trusted Society of Human Rights Alliance and 2 Others,87 the High Court of Kenya stated that “Separation of powers must mean that the Courts must show deference to the independence of the legislature as an important institution in the maintenance of our constitutional democracy, as well as accord the executive sufficient latitude to implement legislative intent. Yet, as the respondents also concede Courts have an interpretive role – including the last word in determining the constitutionality of all governmental actions”
CONCLUSION AND RECOMENDATIONS
Although the courts have the powers conferred to them under the constitution to monitor the functioning of the parliament it must not do so in a way that violates the principle of separation of powers between the three arms of government by interfering with the proper functioning of either arm of government. For example, the functions of the parliament including National Assembly Standing orders are governed by Article 110 of the constitution.88 Thus in Speaker of
87 Mumo Matemu v. Trusted Society of Human Rights Alliance and 2 Others(2014) eKLR
88 Supra n. Article 110
the Senate and Another v. Attorney-General and 4 Others,89 “This Court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by unwarranted intrusions into the workings of one arm by another.” On the other flipside of the coin court orders are meant to be obeyed and adhered to by everyone including those in authority not to talk less of the other two arms of government. Disobedience of court orders results to contempt of court. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.90 Disregard of court orders is tantamount to contempt of court; an offence that is punishable not to uphold the ego of the judicial officer but to safeguard the rule of law and fundamental to the administration of justice.91 The principle of separation of power is vital in ensuring that there’s no concentration of power unto one single arm of the government which could lead to arbitradness and abuse of power. The other three two arms of the government should obey orders issued by the judiciary and the threats and attempts by the legislature to cut down Judiciary funding and even try to enact a law that will bar the judiciary from inquiring into the affairs of the parliament is a show of intolerance and vengeance against the Judiciary.92 The three arms of government must always
89 Speaker of the Senate and Another v. Attorney-General and 4 Others [2013] eKLR
90 Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR
91 Ibid
92 Chagema A, the 11th Parliament has become a Disgrace, Standard News Digital, 6 June 2015
<www.https://standardmedia.co.ke/Article/2000164736/the-11th-parliament-has-become-a-nationaldisgrace > Accessed on 17 May 2017
uphold the rule of law while discharging their office functions which will act as an example to the rest of the Kenyans who will thus be motivated to obey and abide by the law.
BIBLIOGRAPHY
Books
John Locke, ‘Two Treaties on Government’ by Peter. Laslett, Ed 1970
M.J.C. Vile, ‘Constitutionalism and the Separation of Powers’ 2nd edit. (1967) Margaret Halliwell, ‘Equity and Trusts’ Old Bailey Press, 1997
Morris Kiwanda Mbondenyi & John Osogo Ambani, ‘The New Constitution of Kenya: Principles Government and Human Rights’ 2013
Philip H. Pettit, ‘Equity and the Law of Trusts’ Oxford University Press, 2009 Sara Wilson, ‘Trusts’ Oxford University Press, 2007 7th Edition
Statutes
Kenya School of Law Act 2012 Supreme Court Act No. 7 of 2011 The Constitution of Kenya 2010
Case Law
American Cyanamid Co v Ethicon Ltd. Lord Diplock (1975) 1 ALL ER 505, HL
Carron Iron co Ltd v Maclaran (1885) 5 HL Cas 416 at 436
Cascade Company Limited v. Kenya Association of Music Production (KAMP) & 3 others(2015) eKLR
Clarke and Others Vs Chadburn & Others [1985] 1All E.R (PC), 211
Coalition for Reform and Democracy (CORD) and 2 Others v. Republic of Kenya and 10 Others(2013) eKLR
D T Kampanje Banda v Hon Gwanda Chakuamba, Civil Cause No 1841 of 2001 (High Court of Malawi) (unreported)
Democratic Alliance v Speaker of the National Assembly and Others (CCT86/15) [2016] ZACC 8; 2016 (5) BCLR 577 (CC); 2016 (3) SA 487 (CC) (18 March 2016)
Dr.Christpher Murungaru v Kenya Anti-Corruption Commission & another [2006] 1 KLR 77.
East Africa Industries Ltd v. Trufoods Ltd (1972) EA 420
Elliot v Islington Borough Council (1990)
Eothen Films Ltd v Industrial and Commercial Education Macmillan Ltd (1966) FSR 356 CA
Giella v Cassman Brown & Co Ltd (1973) E.A. 358.
IN THE MATTER OF AN APPLICATION FOR ADVISORY OPINION UNDER ARTICLE 163(6) OF THE CONSTITUTION
Institute of Social Accountability & another v. The National Assembly and Four Others [2015] eKLR
James Opiyo Wandayi v. Kenya National Assembly and 2 Others (2016) eKLR.
Judicial Service Commission v Speaker of the National Assembly and the A.G (Petition 518 of 2013) eKLR
Judicial Service Commission v. Speaker of the National Assembly and 8 Others(2014) eKLR Kariuki & 2 Others v Minister For Gender, Sports, Culture & Social Services & 2 others(2004) eKLR
Kevin K Mwiti & others v Kenya School of Law & others [2015] eKLR
Locabail International Finance Ltd v Agro Export & Another (1986), ALI ER 901
Marbury v Madison (1803) 1 Cranch 137AW
Martin Nyaga Wambora v Speaker of the County of Assembly of Embu & 3 Others [2014] eKLR
Metall and Roshstoff A G v ACLI Metals (London) Ltd (1984) 1 Lloyds Rep 598, CA.
Mumo Matemu v. Trusted Society of Human Rights Alliance and 2 Others(2014) eKLR
Njenga Mwangi & Another v the Truth, Justice and Reconciliation Commission & 4 Others, Nairobi High Court (2013)e KLR
Okiya Omtatah and 3 Others v. Attorney-General and 3 Others (2014) eKLR, paragraph 54.
Potter v Chapman(1750) Amb 98
Pretoria City Council v Walker (1998) 3 BCLR 257 (CC).
Re M (1994) 1 AC 377
Republic v. National Assembly Committee of Privileges and 2 Others, ex parte Ababu Namwamba J.R. Case No. 129 of 2015, (2016)eKLR.
Republic vs. Judicial Commission of Inquiry into Goldenberg Affair, ex parte George Saitoti
(2007)2 EA 392; (2006) 2 KLR 40
Sergeant v Patel(1949), 16 E.A.C.A 63
Smith v Peters(1838)
Speaker of the Senate and Another v. Attorney-General and 4 Others [2013] eKLR
Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR
Wildlife Lodges Ltd Vs County Council of Narok and Another [2005] 2EA 344
Journal Articles
Ahmednasir Abdullahi (2010) ‘Politicians should let judiciary deal with law reforms’ He is a member of JSC, representing LSK. He is a former chair of LSK, a former lecturer at the University of Nairobi Law School, and has been consistent in criticizing the judiciary for what he terms as (intellectual) incompetence and corruption
James Madison, Federalist No. 51 1978
N Udombana, ‘The Africa Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’ (2006) 6 Africa Human Rights Law Journal 312.
Nwabuieze B.O, ‘Constitutionalism in the Emergent States’ Associated University Press (1973)
P. 14
See ‘Resolution on the Right to Recourse and Fair Trial’ Ninth Annual Activity Report of the African Commission on Human and People’s Rights.
Internet Sources
<https://judiciallearningcenter.org/judicial-independence/ >An impartial Federal Court.
Chagema A, the 11th Parliament has become a Disgrace, Standard News Digital, 6 June 2015
<http://www.standardmedia.co.ke/Article/2000164736/the-11th-parliament-has-become-a- nationaldisgrace> Accessed on 17th May 2015
Thomas Hobbes: ‘Solitary, poor, nasty, brutish, and short’
<https://yalebooksblog.co.uk/2013/04/05/thomas-hobbes-solitary-poor-nasty-brutish-and-short>