Scribe Kenyan

This case concerns the jurisdiction of the Supreme Court of Kenya (SCOK) to hear and determine an appeal (against an interlocutory judgement by the Court of Appeal (COA)) and on the threshold for grant of leave to appeal to the COA (based on Section 35 of the Arbitration Act). The brief facts of the case are that the Applicant wanted to construct a campus in Kitengela and had borrowed USD 15,000,000 from the Respondent but the Respondent managed to only raise USD 10,000,000. For the remainder, the Applicants sued but later they decided to take the matter to an Arbitration Tribunal where there were several claims and counterclaims but the Respondent's counterclaim succeeded wholly while the Applicants only succeeded in part. The award was challenged before the High Court on grounds that it went against Section 13 of the Arbitration Act (hereafter 'the Act') due to nondisclosure of a relationship between the Arbitrator and the Respondent's counsel. However, the Respondent...

Following a preliminary objection by the Respondent regarding the Applicant's locus standi, the Applicant tried to argue that the language used under Article 163 (6), which gives locus standi to national, county, and state organs to obtain advisory opinions from the SCOK, can be broadly interpreted to mean the people by citing the meaning of 'state' and 'county government' by the Blacks Law Dictionary. The court held that it had pronounced itself on this issue of jurisdiction again in various cases, notably Re Interim Independent Electoral Commission [2011] eKLR where it issued guidelines on how it can exercise the jurisdiction: The reference must be regarding any matter concerning county governments (to be determined on case by case basis). The party must be the National Govt, County Govt or State Organ (defined under Art 260 of the Constitution) Where the reference concerns a matter before a lower court, the SCOK must be hesitant to hear it. However, it can do so...

  ABSTRACT Public participation is an essential element of democracy. In a republic such as Kenya where the people are the real custodians of the sovereign power, it becomes necessary for them to be given a chance to directly exercise this power. Even though the Constitution recognizes the direct exercise of sovereign power, it is silent on how this is to be achieved. This article takes the opinion that sovereign power is exercised directly through public participation and takes note of the fact that the mechanism through which public participation can be achieved is not outlined in the Constitution. For this reason, the article examines various constitutional provisions that lay the foundation through which public participation can footed. Further, the essay looks into the attempted creation of legislation and policy on public participation and finally the threshold for sufficient public participation. 1.      Introduction In Kenya, as per Article...