The Good, The Bad & The Dictum: Exorcising the Ghost of Anarita Karimi v Republic

Abstract

The 1979 decision of the High Court in Anarita Karimi Njeru v Republic has enjoyed a long legacy as the benchmark for the drafting of constitutional petitions. The case is often cited for the position that “a person seeking redress from the High Court on a matter which involves a reference to the Constitution should set out with a reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.” These words have been the choice weapon to attack constitutional petitions, particularly in the period since 2010 that has witnessed a significant increase in the number of constitutional cases. As Ms. Anarita Karimi turns 80 in July 2020, this paper invites Kenyan courts to reexamine the enduring legacy of the case by placing these remarks in their proper context within the decision, and the decision itself in its proper historical and political context. The paper argues that the remarks were dictum and should be acknowledged as such instead of being treated as the binding statement of law from that decision. The continuing reliance on this statement as if it was the holding stems in part from the tendency among our lawyers and judges to cherry-pick soundbites from past judgments without reading these decisions in full. As a result of this, our Courts have also failed to appreciate the fact that the dictum was only elevated to the status of a holding by the emasculated KANU-era Judiciary that was not keen to resolve human rights cases substantively. The paper also argues that in light of the historical context within which the decision was rendered, Kenyan courts should refrain from using it as the benchmark for modern-day constitutional adjudication. While acknowledging the significance of clarity in pleading one’s case, the paper concludes by suggesting a new approach that resonates more with the unique nature of constitutional adjudication as well as the 2010 Constitution which demands that justice must be done without undue regard to procedural technicalities.