High Court Judge Amugo Angote has offered a robust defence of judicial restraint, warning that courts risk undermining constitutional order when they stray into the domains of politics and other arms of government.
Appearing before Commissioners during an interview session, Justice Angote drew a clear distinction between judicial activism, judicial overreach and judicial restraint, noting that the terms are often confused but carry different meanings in constitutional practice.
He explained that judicial activism arises when courts entertain matters that are not justiciable, particularly political questions that the Constitution reserves for other institutions. According to the judge, courts must consciously restrain themselves and operate strictly within the space allowed by the Constitution.
Judicial overreach, he said, occurs when judges cross into the functions of other arms of government instead of performing their proper adjudicative role. He cited Parliament as a clear example, stating that where Parliament has acted within the Constitution and followed the law, courts should not interfere with its internal processes. The court’s role, he emphasized, is limited to confirming legality, not supervising policy or legislative debate.
Justice Angote said judicial restraint demands that judges confine themselves to issues properly placed before them through pleadings. Venturing into unpleaded matters, he warned, amounts to an abuse of judicial power. Judges, he added, are restrained by the Constitution, the law and the pleadings filed by parties.
Responding to questions on Kenya’s transformative Constitution and the Bill of Rights, Justice Angote maintained that judges must decide cases strictly on the evidence and material placed before them. He cautioned against reliance on personal views of society where no evidence exists on record, insisting that such an approach erodes the doctrine of restraint.
On democratic principles, he acknowledged the concept of majoritarian rule but linked it closely to the right to be heard. Every party, he said, must be afforded a fair opportunity to present their case, with courts deciding disputes within the confines of pleadings and responses.
Justice Angote disclosed that his interpretive approach is purposive and contextual, grounded in Article 259 of the Constitution. He said constitutional interpretation is not a personal choice but a constitutional command requiring courts to promote values, good governance and societal development. The law, he noted, is “always speaking” and must be interpreted as a living instrument responsive to social change.
Addressing concerns about serving in a collegial appellate court where judges may hold differing views, Justice Angote said consensus is achieved through persuasion, discussion and shared legal principles. He observed that all judges, regardless of philosophy, are ultimately bound by the Constitution.
On public law litigation, the judge said that the test for suspending statutes mirrors that applied in commercial matters, including the existence of an arguable appeal and the risk of rendering an appeal nugatory. However, he stressed that courts must also weigh public interest and national consequences, particularly where invalidating a statute may require Parliament time to correct constitutional defects
