In the Matter of Advisory Opinions of the Court under Article 163(6) of the Constitution (Commission for the Implementation of the Constitution)
The bottom line
#Court adopts previous written submissions but orders fresh oral arguments for new Supreme Court bench.
What this practically means
#The Supreme Court of Kenya decided to keep the written arguments already filed in a case that started before the court was fully formed. This avoids wasting the work already done. However, the oral arguments presented to the previous judges are thrown out, and both sides must present their oral summaries again. The court also said the new Supreme Court rules do not apply backwards to steps taken before those rules existed. Parties get 14 days to file additional written arguments.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court can adopt and/or take over the proceedings of the Court of Appeal sitting as the Supreme Court in this Advisory Opinion Application and proceed to determine the issues in question, and if so in what manner?
- 2.Whether the new Supreme Court Rules, 2011 apply retrospectively to proceedings already filed and heard before the establishment of the Supreme Court?
- 3.Whether the oral submissions made before the Court of Appeal sitting as the Supreme Court should be set aside and the matter heard de novo on oral highlighting?
- 4.Whether the written submissions filed before the Court of Appeal sitting as the Supreme Court should be adopted and retained on record?
- 5.Whether parties should be allowed to file supplementary written submissions?
Key legal issues
#Whether the Supreme Court can adopt proceedings from the Court of Appeal sitting as the Supreme Court after the establishment of the Supreme Court.
The Supreme Court can adopt and take over the proceedings and written submissions from the Court of Appeal sitting as the Supreme Court, as it would be prejudicial, costly and oppressive to require the applicant to start afresh.
The court found that the Court of Appeal sitting as the Supreme Court had acted properly under Article 21(2) of the Sixth Schedule. The court noted that setting aside all proceedings would be prejudicial and wasteful, given the investment of time and resources by the parties. The court emphasized the need for continuity and proper administration of justice, and that the Supreme Court should build upon the good work already done rather than dismantle it for its own convenience.
Whether the Supreme Court Rules, 2011 apply retrospectively to proceedings filed before their commencement.
The Supreme Court Rules, 2011 do not apply retrospectively to proceedings already filed and heard before their commencement on 10th October 2011.
The court held that applying the Rules retrospectively would be prejudicial, onerous and oppressive to the parties. The court relied on the general principle that law does not apply retroactively. However, the court directed that for the remainder of the proceedings, including supplementary filings, the Rules should be followed as much as possible or practicable.
Whether oral submissions made before the Court of Appeal sitting as the Supreme Court should be set aside and heard de novo.
The oral submissions made before the previous bench are set aside and expunged from the record, and the matter will proceed with fresh oral highlighting of the written submissions.
The court reasoned that since the new bench had not appreciated or internalized the oral arguments made before the previous bench, it would be proper, fair and prudent to start the oral highlighting afresh. This allows the new bench to be fully informed and educated by counsel on the important issues.
Legal principles established
#- The Court of Appeal properly acted as the Supreme Court during the constitutional transition period.
- New Supreme Court rules do not apply retroactively to proceedings filed and heard before they took effect.
- A two-judge bench can process and filter an application but cannot decide its merits - that needs at least five judges.
- The Supreme Court can adopt written submissions from the previous court but must hear oral arguments fresh.
- Setting aside all prior work would be unfair and wasteful to the parties and the administration of justice.
- Supplementary written submissions are allowed to update arguments under the new court structure.
Court orders
#- 1.This court hereby adopts and takes over Advisory Opinion Application No.1 of 2011 including all its pleadings under the Title shown hereinabove.
- 2.This court hereby adopts and takes over all the written submissions on record.
- 3.This court hereby sets aside and expunges from the record all oral submissions and/or highlighting of the written submissions on record.
- 4.The hearing of the application/Motion is hereby re-opened and the matter is deemed to be partly heard before this court.
- 5.Each party including Amicus Curiae is granted 14 days from the date hereof to file and serve their respective Supplementary Written Submissions.
- 6.Each party shall file and serve a list of authorities, at least seven (7) working days before hearing (see Rule 15(1).)
- 7.The list of authorities shall contain a summarized analysis of each of the listed authorities specifying the ratio decidendi, relevance and applicability to the matter before the court (See Rule 15(2).)
- 8.This matter shall be mentioned on 17th November 2011 to confirm compliance and to fix hearing dates of the Application by at least a 5-Bench Court, if not the Full Bench as may be directed by the President of the Supreme Court of Kenya.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal sitting as the Supreme Court
- Advisory Opinion Application No. 1 of 2011
- Jurisdiction invoked
- Article 163(6) of the Constitution as read with Section 21(2) of the Sixth Schedule of the Constitution
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It would be totally improper, irregular and unfair for this court to set aside all proceedings and record and to order the Applicant to file a fresh Application so that they could comply with the new Supreme Court Rules.
the law is clear that generally, the law does not apply retroactively. It would be a violation of the rights of the parties herein who represent Kenyans to direct that the Rules come first and the record/proceedings must wholly conform to the Rules.
the oral submissions by way of highlighting ought to start a fresh or de novo.
This court hereby adopts and takes over Advisory Opinion Application No.1 of 2011 including all its pleadings under the Title shown hereinabove.
This court hereby sets aside and expunges from the record all oral submissions and/or highlighting of the written submissions on record.
The hearing of the application/Motion is hereby re-opened and the matter is deemed to be partly heard before this court.
Key timeline
#Practical implications
#Transition case management strategy
When cases move from transitional courts to permanent ones, preserve written submissions but expect to redo oral arguments. File supplementary written submissions within the new deadline to strengthen your record. Urgently check if your case falls under transitional provisions to avoid having to start over.
Regulatory continuity and costs
Businesses involved in constitutional advisory proceedings can rely on court efficiency: earlier written work remains valid, saving time and legal fees. However, plan for additional hearing days as oral arguments are done again. Monitor whether new court rules affect compliance deadlines for future filings.
Fairness in court transitions
If you are a party in a case that crosses a court restructuring, you will not be forced to start from scratch. The court protects your investment in the case. But you may need to present oral arguments again to a new panel. This ensures judges fully understand your side before deciding.
Frequently asked questions
#What happens to my case if the court structure changes in Kenya?+
Your earlier written filings remain valid and are adopted by the new court. However, oral arguments may need to be repeated so the new judges hear your side directly. You will get a chance to file additional written submissions if needed.
Do new court rules apply to cases already filed in Kenya?+
Generally no. New rules do not apply backwards to steps already completed in your case. The court will follow the old rules for past steps and apply the new rules only to future steps as much as possible.
Can a two-judge bench decide my case in the Supreme Court of Kenya?+
No. A two-judge bench can only manage procedural steps like filtering and scheduling. The actual decision on the merits requires at least five judges as per Article 163(2) of the Constitution.
Why did the Supreme Court of Kenya set aside oral submissions in this case?+
Because the new bench had not heard the earlier oral arguments. To ensure fairness and informed judgment, the court ordered fresh oral highlighting of written submissions so the judges could properly understand the issues.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Japata Agricultural Development Corporation v Mungusho & 2 others (Environment and Land Appeal E003 of 2024) [2024] KEELC 5775 (KLR)[2024] KEELC 5775 (KLR)19 Jul 2024applied
- Chabari & 3 others (Suing on Public Interest and for their Abothuguchi Clan and Own Interest) v Attorney General & another (Environment & Land Petition E008 of 2022) [2024] KEELC 1097 (KLR)[2024] KEELC 1097 (KLR)28 Feb 2024
- Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] KECA 553 (KLR)[2018] KECA 553 (KLR)8 Jun 2018applied
- Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others[2012] KESC 8 (KLR)23 Oct 2012
Cite this brief
#Cite this brief
Caselaw, "In the Matter of Advisory Opinions of the Court under Article 163(6) of the Constitution (Commission for the Implementation of the Constitution)", Case Analysis (2011). Advisory Opinions Application 1 of 2011. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2011/4/eng@2011-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.