Advisory opinion of the Supreme Court
Should be treated as authoritative statement of the law.
Test for Constitutionality of statute
The test of constitutional is stated to be nothing but a formal test of rationality.
Interpretation of the constitution
It should be given a holistic interpretation and read as an entity.
Interpretation of a statute
Both purpose and effect should be looked at to ascertain the constitutional validity.
Provisions on fundamental human rights
Should be given a dynamic, progressive, liberal and flexible interpretation.
substantial question of law
Public importance should be considered in establishing any question of law.
Literal rule of interpretation
when the language is clear, it should be taken expressly as conclusive
Public participation
It ought to be real and not illusory and should not be treated as mere formality.
Gender rule in political parties
Political parties should decide on how to incorporate the gender principles
Two third gender rule
it's an important element of human rights protected under the Constitution.
Nature of a superior court's obiter
Obiter of superior court is persuasive in the lower courts.
Article 27 of the Constitution
Applies irrespective of the context in which discrimination occurs.
Equality of the law
It's philosophical foundation of human rights and basic tenet of justice
Right to vote
it's a basic structure in a democratic society and should only be limited within the law
Interpretation of the law
courts have power to make law when necessary to meet the end of justice.
Interpretation of the constitution
It should be given purposive approach.
Determination of constitutional queries
Must be determined in conformity with the constitutional principles.
Interpretation of the constitution
It should not be interpreted necessarily according to the general rules of statutory interpretation.
Judicial function in matters Law
Espouse the value system in the Constitution and to avoid structural minimalistic approach.
Article 20(3) of the constitution
Holistic approach to the Article imports a limited legislative role to the High court
Article 10 of the constitution
national values and principles under the article are not exclusive but inclusive.
Limitation of CAP 2 Laws of Kenya
Cannot be invoked in the construction and interpretation of the Constitution.
validity of an executive action
validity depends on the legal principles surrounding the action and laws appurtenant to the action.
Jurisdiction of the High Court
It's obliged to intervene in actions by arms of the government in cases of constitutional violations
Doctrine of separation of powers
High court has power to inquire into the constitutionality of actions irrespective of the doctrine.
Doctrine of separation of powers
Must be read in the context of the constitutional framework.
Doctrine of separation of powers
In cases of a conflict, the doctrine must bow to the spirit and the letter of the Constitution.
Nature of the constitution
It's not a structurally based document but value oriented.
Nature of the constitution
Interpretation and application must be ingrained in the spirit of the Constitution and values.
Decisions emanating from the government
must be taken to ensure that such decision conform to the trans formative constitutional framework.
Standing orders of the parliament
Reflects parliamentary policy of undertaking the Assembly's constitutional and legislative mandate.
Standing orders of the parliament
Constitute legislation that must be obeyed and respected.
Standing orders of the parliament
they are within the purview of Article 10 of the Constitution
Jurisdiction matters
After the matter has been dispensed off, no party will be allowed to raise it in later stages.
Jurisdiction matters
The court should decide the matter depending on the material before it.
Jurisdiction matters
Without jurisdiction, the court downs its tools and has no power to make one more step.
Standing orders of the parliament
Courts have the competence to pronounce on the compliance by the legislative body in matters law.
Nature of the Kenyan constitution
Constitution 2010 is a trans-formative charter.
The conduct of public participation
dissemination, invitation and consultation must be incorporated to warrant public participation
Test for Article 24
Must conform with what has been accepted universally as democratic society.
Test for Article 24
the test must be subjective
Limitations of human rights
There must be pressing social need for restriction on a right.
Limitations of human rights
Direct connection between the expression and the protected interest must be shown.
Public Participation
A body that alleges public participation was conducted must prove with sufficient evidence.
Removal of a governor
Any procedure for the removal of a governor from the office must incorporate public participation.
Removal of a governor
The procedure should not be solely vested on the Members of the County Assembly.
Removal of a governor
Any process that involves the removal of a governor must reflect the will of the people.
Threshold of nullifying an Act
It must be proved to the court that the process was fundamentally flawed in enacting the Act
Limits to the Separation of powers
The High Court has constitutional limits in exercising judicial powers in matters legislations.
Jurisdiction of the High Court
invalidation of laws that are unconstitutional is in tandem which the court's duty under Article 163
Article 1 of the Constitution
All state organs must bow to the will of the people as expressed in the Constitution.
Separation of powers
It should not be applied in theoretical purity but the main focus should be towards good governance
Separation of powers
The principle is there to ensure that no single person or organ has the monopoly of power
Jurisdiction of Industrial Courts
Has the same status as the High Court thus vested with jurisdiction similar to those of High Court.
Limitations of Parliament
Cannot plead any internal rule or any statutory scheme as a reprieve from Constitutional obligation
Limitations of Parliament
Must function within the purview of the Constitution.
Limitations of Courts
The court cannot supervise the workings of the Parliament
Application of Law
Must be applied equally to all.
Powers of the Courts
Must be viewed from the supremacy clause under Article 2(1) of the Constitution.
Contempt of the court
Any legislation should not be enacted with the aim of limiting this power of the court.
Contempt of the court
Any legislation on contempt should be in addition to but not in derogation of the Constitution.
Contempt of the court
The power to punish for contempt is inherent thus not vested by the Constitution or Acts.
Contempt of the court
Any statute around contempt of court should only provide on how the power is to be applied.
Contempt of the court
Any statute on contempt of court should make the courts more effective but not limit their powers.
Purpose of the Courts
To ensure that public benefits from its judgments.
Contempt of court as a punishment
The purpose is to insulate courts processes for purposes of compliance
Contempt of court as a punishment
The purpose is to maintain the dignity of the court and make it effective in the justice arena.
disobedience of court orders
Violates the national values and the principles under the Constitution.
Interpretation of the Constitution
Courts should look at the purpose and effect of the legislations.
Burden of proof
It behoves the party alleging the unconstitutionality of an Act to prove to the courts.
Interpretation of the Constitution
Must be construed purposively and in a contextual manner.
Interpretation of the Constitution
Should not be unduly strained and should avoid excessive peering at the language to be interpretated
Interpretation of the Constitution
Generous construction should be adopted over a merely textual or legalistic approach.
Interpretation of the Constitution
A construction that advances the rule of law and promotes the spirit of the Constitution is needed.
Two conflicting interpretations
The court should adopt an interpretation that best advances the principles of the Constitution.
Interpretation of the Constitution
Interpretation should not subvert the societal goals and endanger public good.