• Foreword
• Dedication
• Acknowledgements
• List of Abbreviations
• Introduction

Chapter One
Explaining Judicial Empowerment: A Historical Institutionalist Analysis
Introduction
Part One: Background to Judicial Empowerment
Part Two: Theoretical Explanations of Judicial Empowerment
Rational-Strategic Explanations
Attitudinalist Accounts of Judicial Expansion
Historical Institutionalism
Part Three: Signs of Judicial Empowerment
Conclusion

Chapter Two
The Transformation of Judicial Review in Kenya
Introduction
Part One: Elements of the New Judicial Review
Part Two: Judicial Review Before the 2010 Constitution
Unavailability of Judicial Review to Challenge Presidential Power
Judicial Review Entrenched in the 2010 Constitution
Reviewing Presidential Authority Under the 2010 Constitution: The New Judicial Review
Pre 2010 Judicial Review of Parliamentary Decisions
The New Judicial Review as a Corrective Mechanism
Conclusions

Chapter Three
The Incomplete Transformation of Judicial Review: The Case for Rooting all Judicial Review in the Constitution
Introduction
The Broad Picture
Affirming the Constitutional Grounding of Judicial Review
Rooting Judicial Review in the Principle of Legality
Defining and Getting the Standards of Judicial Review Right
The Two-Third Gender Representation Case and Missing the Opportunity to Set a Report Back System to the Supreme Court
Conclusions

Chapter Four
Political Branch Backlash to Judicial Empowerment
Introduction
Parliament’s Initial Reaction to the Post 2010 Judiciary
Parliamentary versus Constitutional Supremacy: The Altered Constitutional
Framework for Judicial Review For Understanding Parliament’s Backlash
Conclusion

Chapter Five
How Litigating in a Weak Judiciary in the Late 1980s and Early 1990s Prepared the Way for an Empowered Judiciary in 2010
Introduction
Part One: The Post-1963 Legal Profession and its Place in the Constitutional Order
The Rise of a Public Interest Role for Lawyers in Kenya
Repression of Activist Lawyers in the 1980’s
Part Two: The Transformation of the Law Society in the 1990s
The LSK Splinters
Prosecuting Government Corruption: The LSK and Private Prosecution in the
Goldenberg Case
Conclusions: Theoretical Implications of the Role of Lawyers in Kenya’s Democratization

Chapter Six
Assessing Institutional Reforms in the Post 2010 Judiciary
Introduction 105
The Appointment of the Chief Justice and Deputy Chief Justice under the 2010 Constitution
The Structure and Jurisdiction of Courts in the Post-2010 Judiciary
The Judicial Service Commission, Its Composition and Funding for the Judiciary
The Recruitment of Judges Under the 2010 Constitution
The Application
The Reference and Background Review
Applicant Interviews
Interview Criteria to Be Considered
The Commission’s Voting Procedures
Horizontal Accountability and Transparency within the Judiciary
The Constrained Authority of the President in the Appointment of Judges:
From Kibaki to Uhuru
Conclusions: The Fate of Judicial Reform Hangs in the Balance

Chapter Seven
Assessing the 2003 Judicial Purge and Judicial Vetting After the 2010 Constitution
Introduction
Part One: From the 2003 Radical Surgery to Vetting Under the 2010 Constitution
The 2003 Radical Surgery
The Consequences of the 2003 Radical Surgery
The 2010 Constitution – The Vetting of Judges
The Vetting of Judges and Magistrates under the 2010 Constitution
Constituting the Judges and Magistrates Vetting Board
The Vetting Procedures
Relevant Considerations to the Vetting Process
Board’s findings
Part Two: Challenges to the Vetting Process
Vetting timelines
Scope of Vetting Board’s mandate
Litigation
Part Three: Evaluating the Effectiveness of the Vetting Process
Conclusion

Chapter Eight
International Law and the Evolving Judicial Doctrine under the 2010 Constitution
Introduction
Expansion of Doctrine through International Law
Forced Eviction Law
Right to Legal Counsel
Women’s Property Rights
Civil Jail
Death Penalty
Diplomatic Immunity for Individuals and IGOs
International Labour Organization Conventions and Commercial Agreements
Fundamental Rights and Freedom
Refugee Law
Right to Information
Protection of Children Against International Abductions

Conclusion

Bibliography

INDEX