Judges & Magistrates Vetting Board & Attorney General v Kenya Magistrates & Judges Association [2014] KECA 464 (KLR)

Section 7 of the Civil Procedure Act bars re-litigation only where the matter directly and substantially in issue was heard and finally determined between the same parties. In the earlier suit the issue was the constitutionality of vetting generally; here the constitutionality is accepted and the only question is the scope of the JMVB's mandate. The issues being different, res judicata does not arise, and the High Court was correct to reject the defence.

Clause 23 of the Sixth Schedule places vetting in the transitional and consequential provisions, and section 18(1) of the Act focuses on pre-effective-date conduct ('past work record', 'pending' matters). 'Pending' means pending as of the effective date. Concurrent jurisdiction of the JMVB and the Commission over post-effective-date complaints would breed uncertainty implicating judicial independence and security of tenure, and must be avoided. A purposive interpretation confining pre-effective-date complaints to the JMVB and post-effective-date complaints to the Commission fosters certainty and ensures no complaint goes unaddressed.

Courts interpreting legislation against the Constitution may declare provisions void, sever or strike out, read down, or read in. Drawing on Schachter v Canada and Hong Kong authority, the court held reading in valid but to be used in the clearest of cases, with precision, consistently with the legislative objective, without substantial budgetary burden and without significantly altering the rest of the statute. The pre-2010 dicta in Ngobit Estate against judicial law-making has doubtful value in constitutional interpretation.