| dc.description.abstract | This study seeks to appraise critically a number of selected decisions handed down in the recent past by the High Court and the Court of Appeal of Kenya with a view to demonstrating that far too often, those Courts do not abide by the doctrine of judicial precedent or stare decisis. As will be readily appreciated, the failure to observe the tenets of the said doctrine inevitably leads to decisions lacking in consistency, uniformity and predictability. This places legal practitioners and the clients whom they advise in a serious predicament, thereby undermining not just effective articulation and advice of legal issues to clients, but by extension, also the under-lying business and economic activities in which those clients engage. The perception of judicial arbitrariness and inconsistency thereby created has the undesirable effect of undermining respect for the rule of law and the institutions which serve it. This is not to say, however, that Courts should be oblivious of the social, political, economical and technological changes which take place in society all the time. The law ought to be dynamic so as to meet new realities and challenges as they arise but this need not result in judicial decisions driven by whimsical and capricious considerations. Unbridled judicial activism ought to be avoided whilst at the same time formulating such rules as permit Courts to reach decisions which address new situations in a logical, sensible and legally defensible manner.
The main objectives of the study will be firstly to define and bring out the meaning of the doctrine of judicial precedent or stare decisis and to trace its evolution to the present time. Next will be to identify selected decisions which have emanated from the High Court and the Court of Appeal of Kenya and to subject those decisions to scrutiny against the requirements of the doctrine of judicial precedent. It is intended to bring to focus the conflicts and inconsistencies which frequently afflict those decisions. The cause of this malady will be investigated and with reference to best practices in selected Commonwealth countries, possible solutions will be suggested. Finally, conclusions will be drawn and recommendations as to what measures could be taken to remedy this untenable state of judicial affairs will be offered. The methodology to be employed will be research-based, drawing on secondary sources which will principally be text books, journals and decided ~ases, reported and otherwise.
The main findings to be extracted from the study are that for a myriad of reasons, judicial decisions are not always consistent, uniform or predictable. Lack of proper or effective law reporting of decided cases is one of the key causes for this. Other causes include lack of diligence and thoroughness in legal research by the parties concerned, ignorance of material facts and legal provisions, judicial ineptitude and extraneous considerations which are allowed to creep in and affect judicial appreciation of the applicable facts and law. The conclusions drawn from the study are that firstly, consistency, uniformity and predictability of judicial decisions is critical and that, secondly, every effort should be made to attain the same, within the well established principles of stare decisis. The need for comity and predictability in judicial decision making is not grounded merely on theoretical considerations, but on legal and economic imperatives which cannot be
ignored if, ultimately, the rule of law is to be upheld andﾷthe judiciary, which is a key pillar thereof, held in esteem and respect.
The study will recommend that law reporting be enhanced so that the latest decisions, from every nook and cranny of the country, are collected, pooled together and reported in a comprehensive, effective and timely manner. Access to those reports by the relevant parties including judicial officers, lawyers, legal scholars and clients is critical. However, those dispensers and recipients of justice in the form of judicial decisions must be encouraged to go out there to research, procure and rely on past decisi~ns pertinent to the respective cases. If there has to be departure from those decisions, the study recommends that there ought to be clear guidelines which the particular Court must apply and abide by, the overall objective of promoting and enhancing the rule of law being borne in mind at all times. In addition, the study recommends continuous training and reeducation of judicial officers at every level of our court system. For legal practitioners, continuous legal education and awareness is key. Diligence and thoroughness in research would thus be enhanced, thereby uplifting the standards of advocacy on the one hand, and the quality of judicial decisions on the other hand. The ultimate result would be enhancement of the rule of law through a well respected judiciary whose hallmark is consistency, uniformity and predictability. | en_US |
