In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties
The bottom line
#Supreme Court refuses to advise on speaker removal because the issue was already decided in earlier cases.
What this practically means
#The Speakers of three county assemblies asked the Supreme Court for an advisory opinion on how to remove a Speaker. The Court said no. It explained that advisory opinions are only for new, urgent issues that cannot go through normal courts. Since the same question had already been raised in a previous case and in a High Court petition, it was not new. The Court dismissed the request as an abuse of process.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What were the circumstances in which the Supreme Court would exercise its advisory opinion jurisdiction?
Key legal issues
#Whether the Supreme Court has jurisdiction to render an advisory opinion under Article 163(6) on the grounds and procedure for removal of a Speaker of a County Assembly.
The Court held that the matter does not qualify for an advisory opinion because it is justiciable, fit for trial in lower courts, and res judicata, thus the reference is incompetent and an abuse of court process.
The Court applied the principles from its prior decisions: an advisory opinion must involve a legal uncertainty of great public importance, novelty, ill-suited for conventional dispute resolution, or raise urgent structural challenges. Here, the same issue had been previously raised in a High Court petition and in a prior advisory opinion reference (No. 3 of 2014), where the Court held it could only come through the appellate process or through legislative intervention. The matter was therefore not novel, was already res judicata, and did not warrant the Court's advisory jurisdiction.
Legal principles established
#- Advisory opinions require great public importance, novelty, and unsuitability for ordinary court resolution.
- The Supreme Court must prevent misuse of advisory jurisdiction to relitigate normal disputes.
- A matter that is res judicata cannot be brought as an advisory opinion.
- Justiciable issues should be resolved through normal litigation, not advisory opinions.
- Advisory opinions cannot bypass the appellate process.
- The Court has discretion to decline an advisory opinion if the criteria are not met.
Court orders
#- 1.The Reference dated June 10, 2019 and filed on June 17, 2019 is hereby dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(6) of the Constitution of Kenya, 2010
Relief refused
#Advisory opinion on grounds and procedure for removal of a Speaker of a County Assembly
The matter is justiciable, fit for trial in lower courts, and res judicata, thus incompetent and an abuse of court process.
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.
the matter for Advisory Opinion must be one of great public importance which 'bears novelty, and ill-fits the conventional dispute-settlement scheme' and calls for expeditious resolution; or it must be a matter that 'raises a variety of structural, management and operational challenges unbeknown to traditional dispute settlement.'
The Supreme Court must guard against improper transformation of normal dispute issues for ordinary litigation into Advisory Opinion causes
This matter is therefore not only justiciable fit for trial in the lower courts in the normal way but also res judicata. It is accordingly incompetent and an abuse of the court process.
the Reference dated June 10, 2019 and filed on June 17, 2019 is hereby dismissed
Key timeline
#Practical implications
#Advisory opinion criteria tightened
Lawyers should note that the Supreme Court will strictly apply the novelty and urgency test for advisory opinions. If a legal issue has been litigated in lower courts or a prior reference, it cannot be repackaged as an advisory opinion. Counsel must first exhaust ordinary appellate routes before seeking the Court's advisory jurisdiction.
County governance stability
Businesses operating in counties should understand that disputes over removal of county assembly speakers must follow normal court processes. This ruling prevents quick advisory shortcuts, meaning governance disputes may take longer to resolve. Companies should plan for potential delays in legislative decisions that depend on speaker stability.
Access to Supreme Court limited
Individuals cannot use advisory opinions to get quick answers from the Supreme Court on legal questions that have already been decided. If you have a dispute about county officials, you must go through the High Court first. The Supreme Court will only give advisory opinions on truly new and urgent matters of national importance.
Frequently asked questions
#What is an advisory opinion in the Kenya Supreme Court?+
An advisory opinion is a non-binding legal opinion the Supreme Court can give on important constitutional questions. But the Court only gives them if the issue is new, urgent, and cannot be resolved through normal court cases. The Court has discretion to refuse if the matter is already being litigated.
Can the Supreme Court refuse to give an advisory opinion in Kenya?+
Yes. The Supreme Court can refuse if the issue does not meet its strict criteria. The matter must be of great public importance, novel, and ill-suited for ordinary courts. If the same issue has been decided before or is pending in lower courts, the Court will dismiss the request as an abuse of process.
What are the grounds for removing a county assembly speaker in Kenya?+
The Constitution and County Governments Act set out grounds for removal, including misconduct, incapacity, and violation of the Constitution. However, this case did not decide those grounds. The Supreme Court refused to give an advisory opinion because the issue had already been raised in a High Court petition and a prior reference.
Is the issue of speaker removal res judicata in Kenya?+
In this case, the Supreme Court found that the question of grounds and procedure for removing a county assembly speaker was res judicata. It had been determined in High Court Petition No. 418 of 2014 and in a prior advisory opinion reference. Therefore, the same issue could not be brought again as an advisory opinion.
Cite this brief
#Cite this brief
Caselaw, "In the Matter of Speakers, County Assemblies of Nandi, Kericho & Meru Counties", Case Analysis (2020). Reference 2 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/41/eng@2020-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.