Author: NLM Correspondent

By John Gichuhi The Constitution of Kenya provides for the right to fair administrative action under Article 47, and also articulates the idea of constitutional supremacy under Article 2. Inclusion of these clauses in the Constitution had implications on Kenya’s administrative law, which was based on English Common Law before 2010. The question that then arises is whether Kenyan courts have reconciled the right to administrative justice as protected under the Constitution with the common law which the courts relied on prior to the 2010 Constitution. A look at what the constitutionalisation of administrative justice means for Kenyan administrative law…

By Shadrack Muyesu Although Black’s Law Dictionary defines an advisory opinion as a non-binding statement by a court on its interpretation of the law on a matter submitted for the purpose, the international legal regime (on advisory opinions) is defined by differences in definition and procedure. Kenya is an example of this uniqueness. Indeed, considering the approach on jurisdiction, the binding nature of advisory opinions and locus standi, ours could be considered a mould of its own totally flying off the handle of a few widely accepted international guidelines. This article explores this uniqueness, however briefly. Jurisdiction and locus standi…

By Daniel Benson Kaaya Alexander Hamilton pointed out in his paper, Federalist 78, that the Executive “…holds the sword of the community… The Legislature…commands the purse…prescribes the rule… The Judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever.” This argument suggests that the Judiciary is the weakest of the three arms. In his measured opinion, the Judiciary has no will or force, merely judgement. Hamilton is not the only scholar to make such a controversial observation. French Jurist,…

By Teddy J O Musiga In the wake of the 2013 Kenyan presidential election, three private citizens filed a petition at the Supreme Court of Kenya challenging the inclusion of rejected votes in the final tally of the results of the presidential elections (Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] KLR-SCK Petitions Nos 5, 3 & 4 of 2013 (Consolidated). Prior to filing the Petition, it was alleged and reported in the media that the Electoral commission had made a decision to include the rejected votes in the computation of the final presidential…

By Newton Arori Self-defence is a legal doctrine to the effect that a person may use reasonable force to defend himself, another person, or property. It justifies the use of force in those instances with the result that if successfully argued, the doctrine says that the person’s actions (the use of force) were not criminal. But does the question of what constitutes ‘reasonable force’ – on the use of firearms by the police – depend on an objective test or a subjective test? Put differently, is the court to be guided by a set of rules, the peculiar circumstances of…

By Kenyatta Otieno I am a stranger to the study of political science because I came late to the party. I am not part of a new crop of consultants called “governance experts” either, so I am writing more out of curiosity than authority. I am going to discuss the state in relation to the current political crisis in Kenya based on what I understand as the government and what some of my online acquaintances call the State. At the height of the drama of self-declared NASA General Miguna Miguna’s arrest and deportation, we had a discussion in one of the…

NLM Writer I will paraphrase the words of Martin Luther King: all we say to Kenya is “be true to what it set on paper”. If we lived in China, Rwanda, Ethiopia or any other totalitarian country, maybe we would understand some of the events that are taking place. Maybe then we would properly contextualise the curtailing of the principles of basic human rights, because those countries have committed themselves to that. There is provided for, freedom of the press, the right to (dual) citizenship, the right to association/assembly… and so on. Right now, nobody knows what government is planning now…

By Arkan Uddin On January 30th 2018, we witnessed the truth of Bob Marley’s chant of April 17th 1980 at the birth of the country he named his now famous song after, Zimbabwe. He promised we would “…know the true revolutionaries”, and on January 30th 2018, we did. We honour the Luo Nation. It has reminded us who we are – the way of men. That all a man is, is his word. No man, now nor in the future, will invoke your name in vain. The Luo Nation stood true to its pledge. The soldiers torched their ships, not…

By Tioko Ekiru Emmanuel The Supreme Court sits at the top of the Judiciary. It is a unifying force, which is why its decisions are binding to all courts below it. Looked at this way, the primary role assigned to this institution by the Constitution is to see to it that laws are executed and properly obeyed. Similarly, the court is supposed to be the leading actor in developing holistic interpretation of the Constitution and other relevant laws, whose standing ideals is to transform society into one which human dignity, freedom and equality lie at the heart of new the…

By Shadrack Muyesu Often unsaid about Marbury v Madison is that the Supreme Court did not demonstrate judicial independence in an order but only asserted it in dicta. Apart from brief, sporadic spells of renaissance, courts have, since then, followed this trend. They rarely stand up to the Executive. Its perhaps time we asked ourselves, is Marbury the powerful authority (on judicial independence) it is made out to be? More importantly, considering the obvious conflict between legal text and historical reality, will the Judiciary ever be an equal partner in government? The Judiciary is a weak species. In the words…