Upholding the Letter of the Law: Why the Deputy Chief Justice Cannot Empanel a Constitutional Bench and Why Our Court Rules Must Evolve

A recent judgment of the Court of Appeal brings renewed clarity to two foundational issues in Kenya’s constitutional framework: the authority to empanel a constitutional bench, and the urgent need to modernize our court procedures for a digital era.

At SwanyaLaw Advocates, we believe this decision represents not only a reaffirmation of the rule of law, but also a necessary nudge toward responsive and future-facing judicial reforms. It is a timely development for the legal profession, the judiciary, and the public.

The first issue concerns the empanelment of a bench to hear substantial constitutional questions. In the case of Gachagua & 7 others v Speaker, National Assembly & 5 others; Law Society of Kenya & another (Interested Parties) [2024] KEHC 13752 (KLR), the High Court stated unequivocally that the power to empanel a bench under Article 165(4) of the Constitution cannot be delegated. This position was upheld by the Court of Appeal, which held that unless the office of the Chief Justice is vacant or the Chief Justice is formally incapacitated, the Deputy Chief Justice has no authority to empanel a bench.

This is not a mere administrative function, it is a constitutionally conferred responsibility. Central to the Court of Appeal’s reasoning was the application of the ordinary meaning canon, a foundational principle in statutory and constitutional interpretation. Article 165(4) of the Constitution is clear in its language, and the court emphasized that where the text is plain and unambiguous, it must be given effect without resorting to external interpretation. This canon dictates that the role of the court is not to rewrite or reinterpret the Constitution, but to enforce it as written. By relying on this principle, the court reaffirmed that the power to empanel a constitutional bench cannot be delegated. This reasoning aligns with precedents such as United States v. Ron Pair Enterprises and Caminetti v. United States, where courts held that when statutory language is clear, the judicial duty is to apply it as it stands and not interpret it or give it meaning. In this case, the Court of Appeal rightly enforced the ordinary meaning of Article 165(4), preserving both the letter and the spirit of the Constitution.

The practical impact of this finding is significant. It safeguards due process in high-profile constitutional disputes, prevents potential overreach by other judicial officers, and maintains fidelity to the separation of powers. Most importantly, it sends a strong signal that constitutional procedures are not to be bypassed for convenience.

The second issue raised by this judgment is the need for clear, modern court rules to handle urgent matters, especially in the digital age. The Court recognized a real and growing challenge in Kenya’s justice system: the difficulty of accessing courts during weekends or public holidays, particularly in life-or-death or time-sensitive situations.

While the judiciary has on occasion convened emergency hearings outside regular hours, the Court of Appeal emphasized that there is currently no express legal framework allowing for electronic or virtual hearings during such periods. The High Court (Organization and Administration) Rules limit court operations to traditional working hours. This creates uncertainty and limits the court’s ability to respond swiftly in emergencies.

The Court called on the Chief Justice and Parliament to establish clear rules permitting urgent virtual hearings beyond normal hours. As more litigation becomes digitized, the legal system must be empowered to respond with speed and flexibility. The absence of such provisions risks denying timely justice in critical matters such as habeas corpus applications, election-related injunctions, or enforcement of constitutional rights.

In summary, the judgment is a progressive step forward for the administration of justice in Kenya. It preserves the constitutional structure by upholding the non-delegable nature of empanelment. It also highlights the need to modernize judicial processes to ensure that access to justice is not constrained by outdated procedural rules.

At SwanyaLaw Advocates, we welcome this decision as a win for judicial integrity, clarity, and the modernization of our legal institutions. It is now incumbent upon key actors in the legal system to implement these necessary reforms and ensure the law continues to serve the evolving needs of society.

Disclaimer: This article is a simplified summary for general information purposes only and does not constitute legal advice.