‘Uncommonly silly law’ and Hollow men: A critique of the legalistic interpretation of Time-Limit clause by the Kenyan Court of Appeal

Abstract

The constitution of kenya calls for a shift from literal interpretation to a realist-cum- value oriented approach to statutory interpretation and eschews a positivist interpretation that would view the constitution as value-less or value neutral. The minimalist approach that was in the pre-2010 era (the ‘mechanical or phonographic’) is therefore not in line with the demands of our constitution. By dint of Article 10, judges are not subordinated to the legislature and not merely programmed to pronounce the law like music lyrics. The paper will however show that the court of Appeal judges in Aprim Consultants reduced themselves to mere hollow men empty of the pursuit of substantive justice. Primarily, the paper critiques the way the Court of appeal interpreted a time limit clause to cause an injustice. The paper applauds the approach followed by the High Court which gives effect to the constitutional values and access to justice