How Supreme Courts reach their decisions

The answer lies in the concept of a bench, which rules as a team not individually

In Summary

• The CJ has only one vote out of the seven

Supreme Court seven bench judges led by Chief Justice Martha Koome.
RULE OF LAW: Supreme Court seven bench judges led by Chief Justice Martha Koome.

Last week, Chief Justice Koome read the judgment of the Supreme Court regarding petitions filed in court to challenge the August 9 presidential polls. Nine petitions had been lodged before the apex court but two were dismissed. The remaining seven were condensed and since they raised similar issues, the court established nine issues for determination.

Before we get into the gist of this piece, let's discuss the preliminary issues. What's the difference between ruling and judgment? 

In the course of legal proceedings, some issues arise within the suit. These issues are known as interlocutory applications. Simply put, an interlocutory application is an application to seek orders that will help one with proving their case in the main suit.

For instance, in the consolidated presidential petitions, some parties sought orders to have access to IEBC servers, whereas others sought a recount of ballots in 41 polling stations. Those are interlocutory applications. The decision the court gives to allow or disallow such requests is what is called a ruling. In contrast, the final decision given regarding the main suit is the judgement.

The judgement delivered on September 5 elicited mixed reactions. As the Deputy Chief Justice Philomena Mwilu rightfully stated, whereas some people were happy, there were some six million Kenyans who perhaps would not be happy with the decision. How, then, is this judgement arrived at? Did the CJ unilaterally determine the petition?

The answer lies in the concept of a bench. A bench is a term used to refer to judges listening to a case. Benches are common in superior courts, namely: the High Court, the Court of Appeal and the Supreme Court. Benches are usually comprised of an odd number of judges to ensure there is no tie. 

The Chief Justice sets up benches to determine matters in the High Court and at the Court of Appeal. For instance, when the BBI case made its way to the Court of Appeal, a seven-judge bench was set up to determine the matter. The Supreme Court, however,  has seven judges who make up the bench and is not usually constituted by the Chief Justice.

A bench has a presiding judge. This is usually the head judge in the proceedings. When the president of that particular court is on the bench, they will automatically be the presiding judge. For instance, in the recent presidential petition, the CJ was the presiding judge. Alike, in the BBI case at the Court of Appeal, Hon Daniel Musinga, the president of the Court of Appeal, presided.

However, when it comes to the final decision, it is the decision of the majority that carries the day. In the first presidential election petition of 2017, four judges allowed the petition, whereas two dismissed it. The majority decision prevailed. This year, all seven judges dismissed the petition. In such an instance, the decision is said to be unanimous. 

It's coincidental that in all the presidential election petitions we have had, the side that the Chief Justice stood for carried the day. However, the CJ cannot determine a petition by themselves. The CJ has only one vote out of the seven.

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