In the Matter of Speaker, County Assembly of Siaya County
The bottom line
#Supreme Court won't give legal advice; contested issues must go to High Court first.
What this practically means
#The Supreme Court of Kenya dismissed a request from the Siaya County Assembly Speaker for an advisory opinion on whether a governor can redeploy county officials without assembly approval. The Court said it is not a legal adviser. Advisory opinions are only for urgent, non-disputed matters that could paralyze an institution. This case involved a real dispute between the assembly and governor, so it should be heard by the High Court first, not the Supreme Court.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether sections 30(2)(b) and 31(d) of the County Government Act and article 179(2)(b) empower the County Governor to redeploy or transfer a sitting member of the County Executive Committee from one portfolio to another
- 2.Whether, assuming that the answer to the question above is positive, such redeployment/transfer amounts to a fresh appointment and that the Governor is required by law to submit the names of such persons as nominees under sections 30(2)(b) and 31(d) of the County Government Act and article 179(2) of the Constitution to the County Assembly for approval
Key legal issues
#What are the circumstances in which the Supreme Court will exercise its advisory opinion jurisdiction under Article 163(6) of the Constitution?
The Supreme Court will only exercise its advisory opinion jurisdiction where the matter is not suitable for ordinary dispute resolution, does not flow from a contest of rights or claims, is urgent, and entails the danger of paralysis to the institution concerned. The Court must guard against transforming normal disputed issues into advisory opinion causes.
The Court reviewed its prior jurisprudence establishing that an advisory opinion is meant to unravel legal uncertainty in a manner promoting the rule of law and public interest. It must be a matter of great public importance that bears novelty and ill-fits the conventional dispute-settlement scheme. The Court emphasized that it is not a legal adviser of State organs and that contested justiciable issues should be litigated through the ordinary court hierarchy, starting at the High Court.
Does the present Reference qualify for an advisory opinion?
The Reference does not qualify for an advisory opinion because it presents a justiciable live issue involving a contest of rights between the County Assembly and the Governor over the interpretation of vetting provisions.
The Court found that the matter involved a clear dispute between the County Assembly and the Governor over whether redeployment of County Executive Committee members amounts to a reappointment requiring County Assembly approval. This is a contested justiciable issue that should be resolved through ordinary litigation starting at the High Court, not through an advisory opinion. Additionally, the applicant had not sought the Attorney General's opinion as a matter of good practice.
Legal principles established
#- The Supreme Court is not a legal adviser to state organs; its advisory opinion role is limited.
- An advisory opinion is only for matters that do not involve a contest of rights or claims.
- Contested justiciable issues must be filed in the High Court, not directly in the Supreme Court.
- As good practice, a state organ should seek the Attorney General's opinion before requesting a Supreme Court advisory opinion.
- An advisory opinion must be urgent and involve a risk of paralysis to the institution concerned.
Court orders
#- 1.The Reference dated 1st November 2017 and filed on 3rd November 2017 is hereby dismissed
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 163(6) of the Constitution of Kenya, 2010
Relief refused
#Advisory opinion on the two questions posed by the applicant
The matter is a justiciable live issue suitable for ordinary litigation, not an advisory opinion; the applicant also did not seek the Attorney General's opinion as a matter of good practice.
Costs
each party to bear its own costs
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.
We would, in the circumstances, like to make it clear that the Supreme Court is not a legal adviser of State organs. Further, the scope of an Advisory Opinion under article 163(6) of the Constitution does not extend to offering legal advice.
the matter suitable for advisory opinion must be one that '... does not flow from any contest of rights' or claims
The Supreme Court must guard against improper transformation of normal disputed issues for ordinary litigation into Advisory Opinion causes, as the Court must be disinclined to take a position in discord with the core principles of the Constitution.
contested justiciable issues should be canvassed before the High Court and should only reach this Court through the appellate process where necessary and appropriate.
Key timeline
#Practical implications
#Advisory opinion strategy clarified
When advising state organs, ensure the matter is truly non-contentious and urgent before filing a Supreme Court advisory opinion. If there is a live dispute between parties, advise your client to litigate in the High Court first. Also, recommend seeking the Attorney General's opinion as a preliminary step to strengthen the application.
County contract disputes must go to High Court
If your business has a dispute with a county government over appointments or redeployment of officials, do not expect the Supreme Court to resolve it through an advisory opinion. You must file a case in the High Court. This ensures your rights are fully argued and appealed if necessary.
Challenging county decisions in court
As a citizen, if you believe a county governor has acted illegally by redeploying officials without assembly approval, you can challenge that decision in the High Court. The Supreme Court will not give an advisory opinion on such a contested issue. Use the normal court process to protect your rights.
Frequently asked questions
#Can the Supreme Court of Kenya give legal advice to county governments?+
No. The Supreme Court has made clear it is not a legal adviser. Its advisory opinion power under Article 163(6) is only for urgent, non-disputed matters that could paralyze an institution. For legal advice, counties should consult the Attorney General.
What is an advisory opinion in Kenya and when can I request one?+
An advisory opinion is a Supreme Court ruling on a legal question without a live dispute. It is only available to state organs for matters of great public importance that are urgent, not suitable for ordinary court cases, and where failure to act could paralyze the institution.
How do I challenge a county governor's decision to redeploy officials in Kenya?+
You must file a case in the High Court. The Supreme Court will not hear it directly as an advisory opinion because it involves a contest of rights. The High Court can interpret the Constitution and county laws, and its decision can be appealed to the Court of Appeal and Supreme Court.
Do I need the Attorney General's opinion before going to the Supreme Court for an advisory opinion in Kenya?+
It is not mandatory, but the Supreme Court has said it is good practice to first seek the Attorney General's opinion. Doing so shows you have tried to resolve the legal uncertainty before asking the Court for an advisory opinion.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Commission on Administrative Justice (Applicant) (Advisory Opinion Reference E001 of 2025)[2026] KESC 21 (KLR)20 Feb 2026followed
- County Government of Nairobi v Attorney General[2023] KESC 65 (KLR)14 Jul 2023followed
Cite this brief
#Cite this brief
Caselaw, "In the Matter of Speaker, County Assembly of Siaya County", Case Analysis (2020). Reference 4 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/40/eng@2020-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.