“Judicial power is derived from the people and shall be exercised by the courts
established under this Constitution in the name of the people and in conformity with
the law………”
And article 126 (2) says;
“In adjudicating cases both civil and criminal nature, the court shall subject to the law
apply the following principles...........”
Therefore the Constitution demands that whatever courts do must be in conformity with the law
which law supports the Constitution since we cannot have everything embedded in the
Constitution.
This court is mindful of the provisions of Article 274 referred to by learned counsel for the
applicant which provides that the existing law shall be construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring it into conformity with
the Constitution. The fact that this application has been brought under provisions of Order 10
rules 12, 14 and 24, Sections 98 and 64 (e) of the Civil Procedure Act and Section 33 of the
Judicature Act which have been severally interpreted many years after the promulgation of the
1995 Constitution suggests that the said interpretations have had Article 274 in mind. For
example requirement that for one to seek discovery must have a suit before the court in which
the application is made cannot be said to be against the Constitution as I have explained above.
This application is not brought under Articles 2,50, 41 or 247 of the Constitution but it is brought
under the substantive laws I have mentioned.
Finally Mr. Kabega supported by his co-counsel submitted that this application is incompetent,
frivolous, vexatious and an abuse of court process which should be struck out with costs.
According to the third respondent’s affidavit in opposition, he averred in paragraphs 10 and 11,
that this application is merely a fishing expedition intended to merely scandalize him.
9
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