Law Society of Kenya v Attorney General & 2 others (Civil Appeal 96 of 2014) [2019] KECA 344 (KLR)
The bottom line
#Kenya's Court of Appeal struck down major legal changes hidden in an omnibus amendment law because Parliament skipped public participation.
What this practically means
#Executive summary
#Key legal issues
#Whether the amendments were substantive and therefore improperly enacted through a miscellaneous amendments statute
The amendments were substantive: converting the Disciplinary Committee into a Tribunal, reassigning vetting of magistrates, admitting foreign advocates and empowering the CJ on in-house counsel remuneration created, defined and regulated rights and powers and could not pass as 'minor' amendments.
The Court examined the long title and ordinary meaning of 'minor' amendments, the dictionary meaning of substantive law as that which creates, defines and regulates rights, duties and powers, and the distinction between a 'Committee' (subordinate to a higher authority) and a 'Tribunal' (autonomous adjudicative body). It found the judge erred in calling the change cosmetic, noting the Tribunal's apparent beholdenness to the Attorney General, and held the amendments affected the appellant's business and undermined its independence.
Whether public participation was required and who bore the burden of proving it
Public participation under Article 10(2) read with Article 118 was mandatory and justiciable; the judge erred in placing the burden of proving absence of participation on the appellant, as the burden shifts to the respondents to show participation occurred.
Relying on the Supreme Court's holding in the IEBC v NASA case that Article 10(2) values are immediate, enforceable and justiciable, and on section 5 of the Statutory Instruments Act requiring consultation where a measure affects business or restricts competition, the Court held that Parliament and the Attorney General must take the initiative to consult affected persons, and that legislation detrimental to a section of the citizenry without consultation violates constitutional bounds.
Court's power to review legislative action against constitutional bounds
Whenever a question arises whether an arm of government has acted within constitutional bounds, it is the exclusive preserve of the courts to determine; Parliament's legislative authority is derived from the people and must reflect their will.
The Court cited the Supreme Court's decision in The Council of Governors & 6 Others v The Senate for the proposition that courts are vested with power to interpret the Constitution and intervene where violation is alleged or demonstrated, and invoked Chief Justice Langa's dictum in Glenister on the separation of powers. It concluded Parliament overreached and its passing of the amendments was not in keeping with constitutional bounds.
Whether the conversion of the Disciplinary Committee into a Tribunal was merely cosmetic
The change was not cosmetic; a Committee is subordinate to a higher authority while a Tribunal carries an autonomous adjudicative connotation, and the appellant's apprehensions about the Tribunal being beholden to the Attorney General were not idle.
Drawing on Stroud's Judicial Dictionary and Black's Law Dictionary, the Court distinguished the two terms and held that the amendment altered the essential character and exercise of power of the disciplinary body, especially given the Attorney General's role in determining remuneration for Tribunal members, thereby undermining the appellant's independence.
Legal principles established
#- A Statute Law (Miscellaneous Amendments) Act is meant only for minor, non-controversial amendments; substantive amendments smuggled through such an omnibus Bill are unconstitutional and will be struck down.
- In a challenge to legislation on the ground of absence of public participation, once the petitioner alleges there was no public participation, the burden shifts to the State (Parliament/Attorney General) to demonstrate that it took place.
- Article 10(2) values, including public participation, are justiciable and immediately enforceable and their violation can found a cause of action.
- Where a statutory instrument or legislative measure is likely to have a direct or substantial indirect effect on business or restrict competition, the making authority is obliged to consult persons likely to be affected, per section 5 of the Statutory Instruments Act.
- Courts have a constitutional obligation to ensure that the exercise of power by other branches of government occurs within constitutional bounds (separation of powers).
- Amendments that create, define, regulate or confer powers on parties are not 'minor' and cannot be passed via a Statute Law (Miscellaneous Amendments) Act.
Court orders
#- 1.The judgment of the High Court is set aside
- 2.An order allowing the appellant's Petition as prayed is substituted therefor
- 3.No orders as to costs
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal from the High Court in a constitutional petition (appellate jurisdiction under the Court of Appeal's statutory framework); petition originally brought under Article 22(2)(b) and (c) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#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.
- Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR)[2026] KECA 430 (KLR)6 Mar 2026
- Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR)[2026] KECA 430 (KLR)6 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Law Society of Kenya v Attorney General & 2 others (Civil Appeal 96 of 2014) [2019] KECA 344 (KLR)", Case Analysis (2019). Civil Appeal (from High Court Petition challenging Statute Law (Miscellaneous Amendments) Act 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/344/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.