Patrick Ouma Onyango & 12 others vs Attorney general & 2 others: a classtcal case of mis-applying and disapplying Jurisprudence

Abstract

When a historian with a genuine bias in favour of matters re~ating to the constitution will finally and incisively document, in a sequential manner, the rowdy character of Kenya's attempt at the Constitution making process, the Kenyan judiciary may not be credited with bringing the sanity of law to the process. To the contrary, the judiciary may be accused of having bent backwards to provide a forum for the tramps in the theatre of the absurd to trivialize the entire process. This case review attempts to lend credit to the above averments. The review makes a critical evaluation of the court's reasoning in High Court Mise. Civil Application No. 677 of 2005(0.5). For purposes of this analysis, the term jurisprudence is employed in its French sense to refer to case law and its English sense to refer to the general speculations about the meaning, nature and character of law-, It is contended that the three judges dis-applied existing jurisprudence on constitutional litigation in the former sense and misapplied jurisprudence in the latter sense .