Institute of Social Accountability & another v National Assembly of Kenya & 3 others
The bottom line
#Supreme Court rejects late evidence in challenge to Constituency Development Fund Act.
What this practically means
#The Supreme Court of Kenya dismissed an application by Katiba Institute and others to introduce new evidence in their case against the Constituency Development Fund Act, 2013. The evidence, from National Assembly Hansard debates in March 2021, was about a different law and introduced seven years after the Act was passed. The court said the evidence was not directly relevant and would delay the case. The main appeal will now proceed without this additional material.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to the petitioners to adduce additional evidence by way of the National Assembly Hansard of 9th, 11th, 18th, 23rd March, 2021 covering debate on supplementary appropriations to the National Government Constituency Development Fund and the Division of Revenue Bill 2021.
Key legal issues
#Whether the National Assembly Hansard sought to be introduced as additional evidence is admissible and relevant to the appeal.
The court held that the Hansard is not directly relevant to the appeal, which concerns the constitutionality of the Constituency Development Fund Act, 2013, and not the National Government Constituency Development Fund Act or the Division of Revenue Bill 2021. The evidence was also introduced at a late stage, and the interests of justice are better served by disposing of the main appeal expeditiously.
The court examined the principles for admission of additional evidence from the Mohamed Abdi case. It found that the Hansard debates related to supplementary appropriations and the Division of Revenue Bill 2021, which are not the subject of the appeal. The appeal concerns the 2013 Act, and the evidence was introduced seven years after its enactment. The court also noted that the petitioners are challenging the National Government Constituency Development Fund Act in separate High Court proceedings, which is the appropriate forum. The court concluded that admitting the evidence would be inappropriate and would delay the final determination of the appeal.
Whether the proposed additional evidence is admissible under the Evidence Act and parliamentary privilege.
The court held that while parliamentary proceedings are privileged, the privilege is not absolute when there is a claim of constitutional violation. However, the court did not decide on admissibility at this stage, as the issue of relevance was dispositive.
The court cited its decision in Republic v Speaker of the National Assembly & 4 others ex-parte Edward RO Ouko [2017] eKLR, stating that parliamentary privilege does not extend to violations of the Constitution. The court noted that the petitioners have brought an action alleging infringement of the Constitution, and the issue of privilege cannot be determined before the appeal is heard. However, the court did not need to resolve this issue because it found the evidence not directly relevant.
Legal principles established
#- Additional evidence must be directly relevant to the specific law being challenged, not a different law.
- Evidence introduced years after a law was passed, at a late stage of appeal, is unlikely to be admitted.
- Parliamentary privilege does not protect actions that violate the Constitution, but relevance still matters.
- Courts will not allow new evidence that could have been raised earlier or belongs in separate cases.
- The interest of justice includes avoiding delays from late evidence that does not affect the core issue.
Court orders
#- 1.The notice of motion application dated April 16, 2021 is dismissed.
- 2.Costs shall abide the outcome of the main appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Leave to produce copies of the National Assembly Hansard of 9th, 11th, 18th and March 23, 2021 covering debate on supplementary appropriations to the National Government Constituency Development Fund and the Division of Revenue Bill 2021
The additional evidence is not directly relevant to the appeal, which concerns the constitutionality of the Constituency Development Fund Act, 2013, and introducing it at the penultimate stage is inappropriate.
Costs
Costs shall abide the outcome of the main appeal.
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.
To this extent therefore, we are unconvinced that the additional evidence should be admitted. Introducing evidence seven years after the time the Constituency Development Fund Act was enacted in 2013 and to seek that such evidence be considered in determining the constitutionality of the 2013 Statute is, in our view, quite inappropriate as it not only introduces fresh facts but also introduces them at the penultimate stage of the proceedings before the apex court.
The notice of motion application dated April 16, 2021 is dismissed.
Costs shall abide the outcome of the main appeal.
Parliament in Kenya cannot enjoy privilege, immunities and powers which are inconsistent with the fundamental rights guaranteed in [Constitution]. Thus, whereas parliamentary privilege is recognized, it does not extend to violation of the Constitution hence Parliament cannot flout the Constitution and the law and then plead immunity
Key timeline
#Practical implications
#Strict test for late evidence
When seeking to introduce additional evidence at the Supreme Court, ensure it is directly relevant to the specific law under appeal, not a related statute. Evidence from parliamentary debates must be tied to the exact issue and timeframe of the case. Late filings, especially years after enactment, will face high scrutiny. Consider filing separate proceedings for challenges to different laws.
Plan legal challenges early
If your business is affected by a law like the Constituency Development Fund Act, gather all supporting evidence soon after the law is passed. Waiting years to introduce new evidence, especially from parliamentary debates, risks rejection by the Supreme Court. File separate cases for different laws rather than trying to combine them late in an appeal.
Know your evidence deadlines
When challenging a law in court, you must present your evidence early, not years later. The Supreme Court will not allow you to add new evidence at the last minute if it could have been found earlier. If you have evidence about a different law, file a separate case. Delaying can hurt your chances of being heard.
Frequently asked questions
#Can I introduce new evidence late in a Supreme Court case in Kenya?+
Only if it is directly relevant to the specific law being challenged, could not have been found earlier, and would affect the outcome. The court rejected evidence about a different law introduced seven years after the original Act.
What is parliamentary privilege in Kenya and can it be challenged?+
Parliamentary privilege protects debates in the National Assembly, but it is not absolute. Courts can review parliamentary actions if they violate the Constitution. However, the evidence must still be relevant to the case.
How does the Supreme Court decide on additional evidence in Kenya?+
The court applies a strict test: the evidence must be directly relevant, credible, not available earlier, and not used to fill gaps. It must also not cause unfair delay. The court rejected evidence that was about a different law and introduced too late.
What is the Constituency Development Fund Act in Kenya?+
It is a 2013 law that sets aside funds for development projects in constituencies. The Supreme Court is hearing a challenge to its constitutionality. The court rejected late evidence about a related but different fund law.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)[2026] KEELC 905 (KLR)11 Feb 2026
- Peter v Chief Conservator of Forests & 2 others (Environment and Land Judicial Review Case E015 of 2024) [2025] KEELC 6788 (KLR)[2025] KEELC 6788 (KLR)6 Oct 2025
- Omweno & 3 others v Governor, County Government of Kakamega & 4 others; Wanyama & another (Interested Parties) (Petition E008 of 2023) [2024] KEELRC 1384 (KLR)[2024] KEELRC 1384 (KLR)6 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Institute of Social Accountability & another v National Assembly of Kenya & 3 others", Case Analysis (2021). Petition 1 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/30/eng@2021-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.