Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR

Court
High Court of Kenya at Nairobi, Constitutional and Human Rights Division
Category
Civil
Judge(s)
Ngaah Jairus, Anthony Ndungu, Mumbua T. Matheka
Judgment Date
October 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR


1. Case Information:
- Name of the Case: Senate of the Republic of Kenya & Others v. Speaker of the National Assembly & Others
- Case Number: Petition No. 284 of 2019 (Consolidated with Petition No. 353 of 2019)
- Court: High Court of Kenya, Milimani Law Courts, Constitutional and Human Rights Division
- Date Delivered: October 29, 2020
- Category of Law: Constitutional Law
- Judge(s): Ngaah Jairus, Anthony Ndungu, Mumbua T. Matheka
- Country: Kenya

2. Questions Presented:
The central legal issues for resolution by the court include:
1. Whether the Speakers of the National Assembly and the Senate must jointly determine if a Bill concerns county governments before it is introduced in either House.
2. Whether the National Assembly's failure to seek the Senate's concurrence on certain Bills renders those laws unconstitutional.
3. The implications of amendments to the National Assembly's Standing Orders regarding the legislative process concerning county governments.

3. Facts of the Case:
The case arose from a dispute between the Senate and the National Assembly regarding legislative functions and the process of enacting laws affecting county governments. Between 2017 and 2019, the National Assembly passed 23 Acts without the Senate's participation, which the Senate contended was unconstitutional under Article 110(3) of the Constitution of Kenya, 2010. The Senate filed a petition seeking the nullification of these Acts, supported by the Council of County Governors, which also challenged amendments to the Kenya Medical Supplies Authority Act that restricted county governments' procurement options.

4. Procedural History:
The Senate filed its petition on July 18, 2019, and the Council of County Governors filed a separate but related petition, which was consolidated with the Senate's petition on March 9, 2020. The National Assembly opposed the petitions, asserting its legislative authority and claiming that the Senate had a limited role in the legislative process. The court directed that the matter be resolved through written submissions, and a cross-petition by the National Assembly was also filed.

5. Analysis:
- Rules: The court considered various constitutional provisions, particularly Articles 94, 96, 109-114, and 110 of the Constitution of Kenya, 2010, which outline the legislative authority and the roles of the Senate and National Assembly.

- Case Law: The court referenced previous rulings, including the Supreme Court Advisory Opinion No. 2 of 2013, which emphasized the necessity of joint consultation between the two Houses on Bills concerning county governments. The Court of Appeal also supported this view in National Assembly of Kenya & Another v. Institute for Social Accountability [2017] eKLR.

- Application: The court found that the National Assembly's unilateral actions in passing Bills without the Senate's involvement violated Article 110(3), rendering those laws unconstitutional. The court reasoned that the legislative process must involve both Houses to uphold the principles of devolution and representation.

6. Conclusion:
The High Court ruled in favor of the Senate and the Council of County Governors, declaring that the National Assembly must seek the Senate's concurrence on Bills concerning county governments. The court nullified the Acts passed without such consultation and ruled that the amendments to the Standing Orders of the National Assembly that limited the Senate's role were unconstitutional.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The High Court's ruling reaffirmed the constitutional requirement for collaboration between the Senate and the National Assembly in the legislative process, particularly concerning laws affecting county governments. This decision has significant implications for the legislative authority of both Houses and the protection of devolution in Kenya. The court's declaration of various Acts as unconstitutional underscores the importance of adhering to constitutional processes in law-making.

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