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KENYA LAW REVIEW Ii VOLUME 7: [No 1, June 2019] VOLUME 7: [No 1, June 2019] KENYA LAW REVIEW ii VOLUME 7: [No 1, June 2019] KENYA LAW REVIEW Editor Long’et Terer Nairobi THE NATIONAL COUNCIL FOR LAW REPORTING (Kenya Law) 2019 iii CITATION Kenya Law Review Vol 7: [No 1, June 2019] ISBN 9966-821-78-3 DISCLAIMER: The views and opinions expressed in the papers published in this Journal are those of the individual authors and they do not necessarily reflect the views of the National Council for Law Reporting (Kenya Law) or the Editorial Board. Typeset and published by the National Council for Law Reporting (Kenya Law) PO Box 10443 - GPO 00100 Nairobi 2019 This Work by National Council for Law Reporting (Kenya Law) is licensed under a Creative Commons Attribution-NonCommercial-NonDerivative 4.0 International (CC BY-NC-ND 4.0). THE COUNCIL FOR LAW REPORTING IN 2019 The Hon Mr Justice David K Maraga, EGH Chief Justice, President of the Supreme Court/Chairman The Hon Justice (Rtd) Paul Kihara Kariuki Attorney General (Alt – Ms Linda Murila, Chief State Counsel) The Hon Lady Justice Fatuma Sichale Judge of the Court of Appeal of Kenya The Hon Justice Anthony Ndung’u Judge of the High Court of Kenya Prof Kiarie Mwaura Dean, School of Law, University of Nairobi Ms Jennifer Gitiri Advocate & Public Officer Mr Michael Muchemi Advocate, Law Society of Kenya Ms Janet Kimeu Advocate, Law Society of Kenya Mr Mwenda Njoka Government Printer (Ag), Government Press (Represented by Ms Eva Kimeiywo, Principal Printer) Mr Long’et Terer Editor/CEO Members co-opted to serve in ad-hoc Advisory Capacity Hon Anne Amadi Chief Registrar, The Judiciary Mr Michael Sialai Clerk of the National Assembly (Represented by Mr Samuel Njoroge, Dep Director Legislative & Support Services) Amb Ukur Yatani Kanacho Cabinet Secretary (Ag), National Treasury (Represented by Mr Jona Wala, Director, Accounting Services) Ms Caroline Kigen Financial Expert, The Judiciary EDITORIAL TEAM Editor Long’et Terer Editorial Team Linda Awuor Publishing, Graphic Design & Layout Catherine Moni Robert Basweti Josephine Mutie Technical Proofreaders Innocent Ayatollah Phoebe Juma Thomas Muchoki Humphrey Khamala Submission Guidelines Introduction The Kenya Law Review Journal is a publication that provides a forum for the scholarly analysis of Kenyan law and interdisciplinary academic research on the law. The focus of the Journal is on studies of the legal system and analyses of contemporary legal issues with particular emphasis on every article making a substantive contribution to understanding some aspect of the country’s legal system. The Editorial Policy of the Journal is to be non- ideological and with a multi-disciplinary outlook, to include articles showing the interplay between the law and other disciplines. Submission Requirements Articles should not normally exceed 12,000 words (excluding footnotes); Case Comments should not normally exceed 5,000 words (excluding footnotes). In all cases footnotes should be used only to make necessary citations rather than to provide additional text. All submissions should be accompanied by a statement that the material is not under consideration elsewhere, and that it has not been published or is not pending publication elsewhere. The text and the footnotes must be double spaced, with margins on both sides. A statement of the number of words should be included. The author’s name should appear under the title, and should be asterisked, with the author’s designation just above the notes. The selection committee, composed of the editorial board of the Journal, will review and consider all submissions for publication and the contributors will be given notification of the acceptance of their works for publication in the Journal. Each submission should be written in English and submitted both in signed paper copy and in soft copy as an editable word - processed computer file. They should conform to academic citation standards and include an abstract of up to 350 words. The submissions should include: i. The author’s full names and contacts; ii. A declaration of originality; iii. A statement of whether the work has been previously published or tendered for publication in any other publication and where this is the case, the name of the publisher and the date of publication; iv. A statement that the author consents to the publication of the work by the National Council for Law Reporting. All submissions and enquiries should be addressed to: The Editor National Council for Law Reporting (Kenya Law), ACK Garden Annex, 5th Floor, 1st Ngong Avenue, Ngong Road P.O. Box 10443-00100 Nairobi. Tel: +254 (0)20 271 2767, 2719231 Nairobi Email: [email protected] VOLUME 7: [No 1, June 2019] KENYA LAW REVIEW Table of Contents Foreword .................................................................................................................ix Asserting the legitimacy of judicial power in the Constitution of Kenya: Can judicial review of national security be justified? Stephen Ouma, Prof. Kiarie Mwaura, and Dr. Njaramba Gichuki ...........................1 Towards Free, Fair, Transparent, Accountable and Verifiable General Elections in Kenya Mwai Samuel Maina and Macharia James Muriuki .............................................. 14 Who Takes The First Bite? - Human Rights and Good Governance in Kenya Nyatundo George Oruongo (Dr) ............................................................................30 Sentencing of Child Offenders in Kenya: A Latent Contradiction in Law Fernados Ombaso Mang’ate ....................................................................................51 Like a Phoenix from the Ashes of Insolvency: An Appraisal of the Rescue Culture of the Kenyan Insolvency Act of 2015 Caroline Lichuma and Florence Shako ..................................................................69 Devolution and the EAC Integration: Participatory Opportunities and Challenges for County Governments of Kenya Pauline Mbodze Chengo .........................................................................................86 A new judicial review: Defining the interface between political and judicial power in the Constitution of Kenya Stephen Ouma, Prof. Kiarie Mwaura, and Dr. Njaramba Gichuki .......................110 A Case for Structural Interdicts in Enforcing Socio-Economic Rights in Kenya William Kiema ...................................................................................................... 136 Foreword Since our inaugural publication the quality and quantity of Kenyan legal literature has been on the rise over the years and there has been high quality commentary on our laws and judgments. This has been deeply reflected in this edition of the journal as it features articles from wide and varied areas of the law which seek to develop the direction legal discourse intends to take. Kenya adopted a new Insolvency Act in line with the culture adopted by many other modern insolvency regimes. This reformed legislation shifts the focus from recovery to rescue. One article in this edition focuses on this and gives an outline of alternatives to bankruptcy as provided in the insolvency Act. The authors of this article give an in-depth view of the framework that the Act has put in place to facilitate the rescue of troubled businesses in the interests of all stakeholders. Another author takes a critical look at the interface between political and judicial power in the Constitution of Kenya, and highlights the interface between them that informs and guides the practice of judicial review. These are a few of the articles that are featured in this journal and this edition will prove to be an interesting read to legal professionals. Special thanks goes to the contributors of the journal for their trust, patience and timely revisions. We continue to welcome article submissions in interdisciplinary research on the law. Long’et Terer Editor Asserting the legitimacy of judicial power in the Constitution of Kenya: Can judicial review of national security be justified? Asserting the legitimacy of judicial power in the Constitution of Kenya: Can judicial review of national security be justified? By Stephen Ouma, Prof Kiarie Mwaura, and Dr Njaramba Gichuki* Abstract The currency of executive pleas in cases calling for limitation of rights in matters of national security is often grounded on its functional competence and being elective as opposed to an appointive Judiciary. This concern is not academic as illustrated by the narrative propagated by President Kenyatta on the outcome of the 2017 presidential petition of an unelected minority deciding for the majority.1 This paper addresses itself to the question whether judicial review is a legitimate and desirable and effective way to check and balance the exercise of executive power in matters of national security. 1. Introduction The question of judicial legitimacy vis a vis the executive and legislature forms the core of what American jurists have called the Countermajoritarian difficulty—the ability of unelected judges to thwart majority will in a democracy. In Kenya, for example, the difficulty would manifest in Article 1(2) of the Constitution where “The people may exercise their sovereign power either directly or through their democratically elected representatives” but they have no certainty that their decisions will prevail. If someone who disagrees with the exercise of a legislative or executive authority impacting rights decides to bring the matter before a court under Article 165(3), and the view that finally prevails is that of the judges, the
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