The establishment of the Supreme Court.

The Constitution of Kenya which was promulgated on 27th August 2010 established the Supreme Court as the highest court in the land. The Court’s formation can be traced to the controversial presidential elections in 2007. The Kriegler Commission which was set up thereafter to look into the unprecedented electoral violence that occurred, as well as allegations of electoral irregularities, concluded that there were legitimate concerns relating to the Electoral Commission and the Judiciary which needed to be addressed. In particular was lack of faith and confidence in processes that arbitrated election outcomes: Kenyans made serious allegations against the Judiciary, including inefficiency, incompetence and corruption.

It was fairly evident that the people had lost faith in the Judiciary’s ability to dispense justice fairly, impartially and without fear. Kenyans also raised the concern about the generally restrictive approach to constitutional interpretation which the High Court had adopted, especially in the area of human rights litigation. Complaints were also raised about the lack of a right of appeal from a High Court decision on constitutional matters; this was seen as a denial of the right of appeal of the aggrieved party. Some High Court decisions were further criticized for being made against the public interest and being influenced by factors outside the law. The people were of the view that a Supreme Court should be created and that such a court should have power to issue Advisory Opinions. As a result, the Constitution of Kenya 2010, which was popularly supported through a referendum, established the Supreme Court as the highest court in the land, a final arbiter on interpreting the Constitution; and with exclusive original jurisdiction in respect of presidential election petitions. The Supreme Court on 23rd June, 2022, marked eleven (11) years since its operationalization by the Supreme Court Act, No. 7 of 2011.