Strathmore Law Review

Editorial

Sanjana Ragu — Tue, 10 Oct 2023 00:00:00 +0300

Foreword

Allan Mukuki — Tue, 10 Oct 2023 00:00:00 +0300

Critiquing the Supreme Court of Kenya’s Jurisdictional Decisions to Listen to Matters of General Public Importance

William Ngaruiya — Tue, 10 Oct 2023 00:00:00 +0300

The Supreme Court of Kenya, as per Article 163 (4) (b), has the appellate jurisdiction to listen to appeals from the Court of Appeal that have been certified to be matters of general public importance. In Hermanus Phillipus Steyn v Giovanni Gnnechi-Ruscone, the Supreme Court put forth the Hermanus test that aimed at demystifying the concept of matters of general public importance. The prevailing understanding at the Supreme Court seems to take public interest to be an idea that is homogenous, applying to the country as a whole, ignoring the vast diversity in society. Hence, through the Hermanus test, the Supreme Court narrowly interprets its appellate jurisdiction to listen to matters of general public importance, going against transformative constitutionalism. This article aims to prove, through Court decisions, that the current interpretation of the ‘public interest’ in the Hermanus test goes against the purposive interpretation expected by the Constitution and access to justice. The article proposes reformulations to the Hermanus test that would meet the transformative aspect of the Constitution and fulfil the visions espoused by the constitution’s drafters.

Emerging Horizons: Transformative Prudentialism and the Renaissance of Judicial Philosophy in the Supreme Court of Kenya

Mark Gitau — Tue, 10 Oct 2023 00:00:00 +0300

After over a decade of extensive work, the Supreme Court of Kenya has built a substantial track record. Consequently, a thorough appraisal of the judges’ efforts is undoubtedly warranted, given the Court’s crucial role in safeguarding democracy and upholding the rule of law in Kenya. How judges go about deciding cases has consistently attracted considerable scrutiny. Moreover, in the study of judicial behaviour, there are various considerations as to which factors affect the outcomes of judicial decisions. Judicial philosophy, being one such factor, is a chosen, articulable, and rationally defensible method of judicial decision-making that generally includes an explicitly articulated view of many legal concepts, including separation of powers.

This paper conducts a hermeneutic analysis of Supreme Court cases to investigate the judicial philosophy of the Supreme Court regarding the concept of separation of powers and evaluate its appropriateness for the post-2010 constitutional dispensation. It is argued that the philosophy the Court has adopted is not clear-cut, it is comprised of excessive restraint and sporadic overreach. Consequently, it is proposed that the Court should embrace transformative prudentialism as a philosophy because unlike judicial restraint or judicial activism, it is not tied down to determined actions irrespective of the circumstances, it seeks to meet the aims of transformative constitutionalism.

Me, Myself, and A.I.: Should Kenya’s Patent Law Be Amended to Recognise Machine Learning Systems as Inventors?

Mitchelle Kang'Ethe — Tue, 10 Oct 2023 00:00:00 +0300

On 28 July 2021, South Africa set the record for being the first country in the world to grant a patent to an artificial intelligence (AI) system known as ‘Device for the Autonomous Bootstrapping of Unified Sentience’ (DABUS). Although DABUS is not the first AI system to produce patentable products, it is the first AI system to be listed as an inventor in a patent application, attracting worldwide interest. Against this backdrop, this article seeks to analyse whether Kenya’s Industrial Property Act, 2001 (IPA) should evolve to recognise machine learning (ML) systems as inventors. It submits that some ML systems are capable of inventive activity that is equivalent to or superior to that of the human intellect and that such systems should be recognised as inventors. This paper illustrates that Kenya's IPA, however, is unable to recognise ML systems since it is based on anthropocentric standards that, when put into practice, preclude the acknowledgement of non-human inventors. Therefore, this article makes several recommendations aimed at overhauling not only Kenya's IPA but also the country’s patent system.

Equitably Assessing the Weight of Non-Monetary Contributions in Kenya

Elvira Akech — Tue, 10 Oct 2023 00:00:00 +0300

Article 45 of the Constitution of Kenya establishes the family as the natural and fundamental unit of the society. Marriage is one of the main ways of creating a family, and the spouses in such a marriage are deemed to have equal rights. Upon the dissolution of the marital union, the spouses are faced with the challenge of dividing the property they acquired during their union. In this division, courts have taken opposing stances. One faction advocates for the equal division of property based on the fact that the spouses have equal rights. Another faction claims that marital property should be distributed on the basis of contribution since equality of rights does not necessarily translate to equal division of property. Consequently, the value of monetary and non-monetary contributions becomes increasingly important when dividing matrimonial property. Unfortunately, non-monetary contributions have historically been left out up until the enactment of the Matrimonial Property Act of 2014. Even then, in the eyes of judicial officers, non-monetary contribution appears to be a lesser consideration given the ease of proving monetary contributions. Using a doctrinal analysis, this paper argues that non-monetary contribution is not accorded the same consideration as monetary contributions, which goes against the constitutional standard of equity. It is suggested that an application of a mathematical formula can remedy this inequity by placing each of the contributions on the same footing when dividing matrimonial property.

The Delicate Balance: Exploring the Interplay Between the Right to Healthcare Services and the Right to Strike for Medical Practitioners in Kenya

Nicholas Kipkoech — Tue, 10 Oct 2023 00:00:00 +0300

The right to strike of medical practitioners under the Constitution of Kenya (2010), is the best tool that an employee has against non-performance by an employer, given that both parties have varying bargaining powers. There exists an endemic nexus between the right to healthcare services guaranteed by the Constitution of Kenya, the right to health as well as the right to strike for healthcare practitioners. This delicate relationship between these competing rights necessitates a harmonious balance between them that will achieve the greatest good.

This article analyses the concept of essential services and the rights and limitations of those rights that medical practitioners have as essential service providers. It looks at how the Kenyan courts as well as different jurisdictions have handled the issue altogether, in an attempt to strike a balance between the two conflicting rights. While striking a balance between these two competing rights, the path that will lead to serving the best interest of the public, both in personam and in rem has to be taken not only by the courts and legislature but other relevant stakeholders including the medical practitioners and their employers. The steps taken thus far by the Employment and Labour Relations Court (ELRC) in adopting the concept of minimal service during strikes by medical practitioners, who are essential service providers, are notable but a lot is left to be desired to achieve legal certainty.

Research Director's Preface

Dr. Lynette Osiemo — Tue, 10 Oct 2023 00:00:00 +0300