The new era of the Supreme Court

By Pravin Bowry

With the Supreme Court Act now in place and with the appointments of the Chief Justice, the Deputy Chief Justice and the five judges to the highest court in the land, Kenyans can proudly herald a new era.

In any matter before it, five judges must sit together to adjudicate and the decision of the majority will prevail. By judicial practice, in weighty national or legal matters, it is likely that the full Bench of seven will sit.

The Supreme Court will hear all appeals from the present Court Of Appeal, which up to now was the final court, or any other court or tribunal prescribed by legislation. The court is mandated to determine disputes relating to elections to the office of the president in its original jurisdiction. In only the most rare circumstances and profound matter may the court be asked to hear an issue directly.

All appeals involving constitutional interpretation or any matter certified as raising ‘a matter of general public importance’ will be heard by the Supreme Court.

Additionally – and this concept is absolutely new and hitherto not in our statues – the final court ‘may give an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government’.

To the lay Kenyan, all this may sound extremely rosy, but when it comes to stark reality there are likely to be multitude of interesting scenarios.

Established doctrine

There is this well established doctrine of precedent – also called stare decisis – which stipulates that a decided case that furnishes a basis of determining later cases involving similar facts or issues must be decided in similar legal way.

This is the concept where judges make law and an example when a judicial decision which contains in itself a principle, which has the force of law as regards the world at large.

Precedents can be binding i.e. where all lower courts must follow the decision of the higher court, or declaratory where the precedent is merely the application of an already existing rule.

All lower courts were up to now bound by the decisions of the Court of Appeal and the historical pre – Independence Court of Appeals.

Creation of the new Supreme Court in the ultimate analysis means that every single legal principle in Kenya’s 125-year-old legal history can, when the occasion merits, be examined and a new judge-made law propagated.

The colonial laws and laws since Independence will be given a fresh dimension with the backdrop and strength of the invigorated provisions of the Constitution.

On the ground and in reality, it is all not going to be a bed of roses.

In criminal matters the process of finalising an appeal in the Court of Appeal can take up to ten years in complicated matters; all this when the appellants are languishing in jails. Civil appeals, too, have an unbelievable queue of pending appeals with a backlog of at least seven years.

Final court

The question, therefore, arises: will the creation of yet another final court not compound further delays?

Delays in all tiers of our courts must be addressed urgently and when setting up rules of the Supreme Court, the Chief Justice must be innovative to surmount the problem.

Will the court be bold enough to devise a way to address historical injustices in the Court of Appeal where malpractices were alleged or where some tainted judges were sent home in unexplained circumstances without having to carry their cross?

The combined factor of new remedies under our Constitution and the creation of the Supreme Court is being perceived by litigants as a mode to embark on a new regime of change and combating various types of injustices which the former courts were shy or slow to address.

Cut-and-paste

The post-Independence development of our laws has been influenced by a totally non-innovative approach by the Judiciary condoned by borrowed laws from other jurisdictions, in most cases on cut-and-paste basis.

The Supreme Court has the challenge to chart a new path and carry the ultimate burden of being our shield and defender so that our constitutional values become a national reality.

Kenyans do and must wish all new office bearers the best. Let the tide of the new era engulf the Judiciary.

—The writer is an Assistant Director with KACC

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