From constitutional avoidance to the primacy of rights approach to adjudication in Kenya: A case study of the interplay between constitutional rights and the law of contract

Abstract

The Constitution of Kenya of 2010 is a value-oriented normative document. It enshrines values, principles, and rights that are supposed to transform the Kenyan state and society into a democratic and egalitarian direction. Through Article 20(3), the Constitution envisages that all legal rules sourced from statutes, common law, or customary law will be developed to ensure conformity and consistency with its value order. This paper advances the argument that the obligation to develop the law to promote the vision of the Bill of Rights mandates a shift of adjudication and litigation strategy from an approach that places premium on the doctrine of constitutional avoidance to an embrace of a primacy of rights approach to adjudication.