An Analysis of Walter Khobe’s ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the Interpretation and Application of the Constitution’

Abstract

This paper will analyse the arguments by Walter Khobe Ochieng’ in his paper, ‘The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the Interpretation and Application of the Constitution,’ in which he examines the jurisdictional limits of the Supreme Court of Kenya under article 163(4)(a) of the Constitution of Kenya, 2010 and where he powerfully argues that the Supreme Court of Kenya is entitled to assume what he terms a derivative jurisdiction. This paper will examine the position taken by Walter Khobe Ochieng’ but centring the analysis on the question of election laws. Walter Khobe Ochieng’ argues that this innovative (generic) jurisdiction is proper within the Constitution. This paper will examine the position taken by Walter Khobe in light of the Constitution’s apportioned scope of authority to the Supreme Court, vertically and horizontally, critically examining how the apportioned role is expected to be manifest in a democratic context. The paper will eventually reach the conclusion that the Supreme Court’s claim to a derivative (implied) jurisdiction is conceptually dicey and cannot be sustained under the Constitution.