Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR)
The bottom line
#Kenya's Court of Appeal narrowed the Senate's veto: only Bills touching county governments require the two Speakers' joint concurrence, not every law Parliament passes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it is mandatory and a condition precedent that any Bill published by either House of Parliament shall be subjected to the process under article 110(3) of the Constitution
- 2.Which Bills are the subject of the process in article 110(3) of the Constitution
- 3.What is the nature of the Bills envisaged by the provisions in articles 109 to 114 of the Constitution, including what bills do not concern counties and what bills concern counties
- 4.Whether the impugned Acts and Bills were unconstitutional for want of the Senate's participation
- 5.Whether the National Assembly Standing Order No 121(2) is unconstitutional
- 6.Whether the appellants' cross-appeal was competently filed, and if so properly considered
- 7.Preliminary issues: whether the doctrines of res judicata and sub judice barred determination of specific impugned Acts, and whether the representation of the 1st to 4th respondents by Mr Orengo SC without a filed Notice of Appointment of Advocates was fatal
Key legal issues
#Scope of Bills subject to article 110(3) concurrence
Article 110(3) applies only to Bills concerning county governments as defined in article 110(1), not to all Bills; money Bills under article 114 are expressly outside the concurrence process.
Applying a holistic, contextual and purposive interpretation starting with the text, the Court read article 110(3) alongside articles 109 to 116. Article 109(4) expressly ties bills concerning counties to article 110(3), while article 109(3) on bills not concerning counties and article 109(5) on money Bills do not. The asymmetrical bicameral design limits the Senate's law-making role to bills concerning counties, and article 114 prescribes an exclusive National Assembly procedure for money Bills.
Condition precedent for the concurrence process
The concurrence process is a condition precedent, but only for Bills concerning counties; every such Bill must be placed before the two Speakers upon publication and introduction.
The Court found the High Court erred in extending the condition precedent to all Bills. However, distinguishing between 'a Bill concerning county government' and 'a question whether a Bill concerns county government' would be hairsplitting; a purposive construction requires that every Bill concerning counties be subjected to the joint concurrence of the Speakers before consideration, and the process lies solely with the Speakers. The mediation process under article 113 applies during enactment, not to the concurrence process.
Constitutionality of the impugned Acts
The High Court erred in declaring all the impugned Acts unconstitutional wholesale; each Act had to be tested by its objects, the pith and substance test and the Fourth Schedule. Only the Equalization Fund Appropriation Act 2018, the Sacco Societies (Amendment) Act 2018 and sections 3 and 4 of the Kenya Medical Supplies Authority Act amendments failed the test.
The Court clustered the impugned Acts into appropriations/tax/finance, general statutes and miscellaneous amendments, and examined each. Appropriations from the Consolidated Fund and tax measures are money Bills for the National Assembly alone; but the Equalization Fund appropriation under article 204 is to be passed by Parliament (both Houses), Sacco regulation falls under trade development and regulation of cooperative societies assigned to counties, and the KEMSA provisions compelling county public health facilities to procure from KEMSA concern county health services.
Constitutionality of National Assembly Standing Order No 121(2)
Standing Order 121(2) (and (3)) as amended is unconstitutional and null and void because it was amended to defeat the Supreme Court's binding Advisory Opinion by removing the concurrence clause and making joint resolution optional.
The amendment introduced a condition precedent 'Whenever any question arises', removed the concurrence clause, and used the permissive 'may' for agreeing a joint framework. The rationale was to circumvent the Supreme Court's Advisory Opinion, which had found the prior Standing Orders faithfully reflected article 110(3). Standing Orders made under article 124 must conform to the Constitution. Standing Order 143(2) to (6) was not before the Court since it was not appealed.
The cross-petition
The High Court misdirected itself in treating the cross-petition as a mere response; having accepted it, it was obliged to determine it. Prayers 1 to 6 were determined but prayers 7 to 22 were not, and the matter was remitted to the High Court for determination of those prayers.
Applying the Methodist Church in Kenya v Mohamed Fugicha principles and the Civil Procedure Rules analogue of counterclaims, a cross-petition filed by a primary party, even if defective in form, must be determined once accepted. Since the High Court made no determination on prayers 7 to 22, the Court of Appeal had no jurisdiction to consider them on first appeal and remitted them.
Res judicata and sub judice
The doctrines did not bar determination of the impugned Acts because the issues in the prior cases cited (BAKE, Omtatah, Nubian, Haki Africa) were different from the article 110(3) complaints before the Court.
The Court set out the conjunctive elements of res judicata under section 7 of the Civil Procedure Act and the conditions for sub judice under section 6, noting the Supreme Court's constitutional exception to res judicata where substantial injustice would result. Comparing the issues in the cited cases with those in the appeal, it found the subject matters starkly different and proceeded to determine each Act.
Representation without a Notice of Appointment of Advocates
Mr Orengo SC's failure to file a Notice of Appointment in the High Court was irregular but not fatal; lapses by counsel should not be visited on a party, and the High Court properly relied on the Mutunga Rules and article 159(2)(d).
Constitutional petitions are orders in rem raising public interest issues; there are no prescribed procedural rules for petitions outside article 22. Rule 3(8) of the Mutunga Rules and article 159(2)(d) justified overlooking the technicality, and the parties never disowned Mr Orengo's instructions. The Court cited National Bank of Kenya v Anaj Warehousing on not punishing parties for counsel's lapses.
Legal principles established
#- The concurrence process in article 110(3) of the Constitution applies only to Bills concerning county governments as defined in article 110(1), not to every Bill originating in either House, and money Bills under article 114 are excluded from it.
- Every Bill concerning county governments must be placed before the Speakers of the two Houses for the joint concurrence process before consideration, and the process is not dependent on a question arising.
- A Speaker of the National Assembly cannot unilaterally determine whether a Bill concerns counties where the Bill is one concerning county governments; the process is solely and exclusively within the mandate of the two Speakers.
- Whether legislation concerns counties is ultimately a justiciable question for the courts applying the pith and substance test, notwithstanding the Speakers' concurrence.
- Standing Order 121(2) of the National Assembly, which dispensed with the mandatory joint concurrence of the two Speakers, is null and void for inconsistency with the Constitution.
- The Selle principles of retrial apply equally to constitutional appeals in this Court.
Court orders
#- 1.Set aside orders (i) to (vi) of the High Court judgment dated October 29, 2020, including the declarations that concurrence under article 110(3) is mandatory for all bills and the order for immediate cessation of consideration of pending bills
- 2.Set aside the High Court's declaration that the enumerated impugned Acts (including the Public Trustee Amendment Act, Building Surveyors Act, Computer Misuse and Cybercrimes Act, Statute Law (Miscellaneous Amendment) Acts, Kenya Coast Guard Service Act, Tax Laws (Amendments) Act, Appropriations and Supplementary Appropriations Acts, Finance Act 2018, Capital Markets (Amendments) Act, National Youth Service Act, Sports (Amendment) Act, National Government Constituency Development Fund Act, National Cohesion and Integration (Amendment) Act and Insurance (Amendment) Act 2019) were unconstitutional, save for the amendments to sections 3 and 4 of the Kenya Medical Supplies Authority Act
- 3.Declared that the concurrence process in article 110(3) only applies to all Bills concerning counties within the meaning of articles 109 to 114 of the Constitution
- 4.Upheld the High Court declaration that where the Speakers concur that a Bill concerns counties, the Bill must be passed in accordance with articles 110 to 113, 122 and 123 of the Constitution and is not subject to article 114
- 5.Upheld the High Court declaration that any Bill or delegated legislation touching on the mandate or powers of the Parliamentary Service Commission must be considered by the Senate
- 6.Upheld the High Court declaration that the Equalization Fund Appropriation Act No 3 of 2018, the Sacco Societies (Amendment) Act No 16 of 2018, and the amendments to sections 3 and 4 of the Kenya Medical Supplies Authority Act are unconstitutional and null and void
- 7.Upheld the declaration that the amendments to section 4 of the Kenya Medical Supplies Act are contrary to articles 6, 10, 43(1), 46(1), 73(1), 110(3), 189(1) and 227(1) of the Constitution
- 8.Upheld the declaration that Standing Order 121(2) of the National Assembly Standing Orders is inconsistent with articles 109(4) and 110 to 113 of the Constitution and is null and void
- 9.Remitted the appellants' cross-petition to the High Court for consideration and determination of Prayers Nos 7 to 22 of the cross-petition
- 10.Ordered that each party bear its own costs of the appeal, this being a public interest matter
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- Nairobi HC Petition No 284 of 2019 as consolidated with Nairobi HC Petition No 353 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution, the appeal being a first appeal from the High Court
- Consolidated with
- Nairobi HC Petition No 353 of 2019
Relief refused
#Affirmation of the High Court order that all Bills passed and assented to during the pendency of the proceedings without complying with articles 109-113 be subjected to proper legislative process afresh
The order was non-specific and speculative, attaching to no particular bill; courts do not issue such orders
Declaration that the Data Protection Act, 2019 and the Personal Data Protection Bill be declared unconstitutional or be enacted afresh
No specific orders were sought or made in respect of those statutes; the issues did not arise from the pleadings
Determination of prayers 7 to 22 of the appellants' cross-petition on appeal
The High Court never determined them, so this court had no basis to consider them; the matter was remitted instead
Costs of the appeal against the appellants or in favour of any party
The matter was a public interest litigation
Costs
This being a public interest matter, each party shall bear its own costs of the 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.
All in all, this appeal is partially allowed, as it substantially succeeds in material respects. We also will need to reformulate certain orders in areas where the findings of the High Court have been upheld, for the reasons given in this judgment.
A Declaration be and is hereby issued that the concurrence process in article 110(3) only applies to all Bills concerning counties within the meaning of articles 109 to 114 of the Constitution, and as interpreted in this judgment.
This being a public interest matter, each party shall bear its own costs of this appeal.
We hereby remit the appellants' cross petition filed in Nairobi HC Constitutional Petition No 284 of 2019 back to the High Court for consideration and determination of Prayers Nos 7 to 22 of the cross petition.
the Bills referred to in article 110(3) can only be interpreted and construed to mean Bills concerning County Government as defined by article 110(1) and interpreted in this judgment, and not every or any Bills that originate from the National Assembly
the High Court wrongly extended the legislative powers of the Senate beyond the limits contemplated by the Constitution.
an appropriation under article 204 of the Constitution is efiected from the Equalisation Fund, unlike the appropriations described earlier, which sums are appropriated from the Consolidated Fund
we find the enactment of sections 3 and 4 of the Kenya Medical Supplies Authority Act to be unconstitutional.
We therefore uphold the finding of the High Court on the unconstitutionality of Standing Order No 121(2) and (3) for these reasons.
courts are not in the business of issuing non-specific, speculative orders, and the order when considered, lacked specificity as to the particular bills referred to or to their nature.
Issues in the judgment
#Internal numbering errors in the judgment: the recitation of the High Court's orders repeatedly reuses the numeral 'viii' for distinct orders, and the list of impugned Acts contains duplicated and out-of-sequence numerals (e.g. 'ix' appearing twice and 'xix' appearing three times), making exact identification of some orders and Acts uncertain.
The judgment contains an internally inconsistent statement about article 109: it asserts 'article 109(4) makes no reference at all to the application of article 110(3)' where the surrounding context indicates the reference intended was article 109(3).
Paragraph numbering in the judgment is duplicated (two successive paragraphs numbered 134), and the body text carries pervasive character-corruption ('afiecting' for 'affecting', 'ofiences' for 'offences'), which complicates verbatim citation but does not affect the holdings.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwakaneno v Registrar of Titles, Mombasa & 7 others (Civil Appeal E104 of 2022) [2026] KECA 296 (KLR)[2026] KECA 296 (KLR)20 Feb 2026applied
- Gonzalez v Francis Githinji Ngatia & another (Environment and Land Appeal E010 (A) of 2025) [2026] KEELC 597 (KLR)[2026] KEELC 597 (KLR)4 Feb 2026applied
- Chepkoech & 3 others (Suing as Former Members of the 1st Respondent, for themselves on Behalf of 143 other Former Members of the Union) v Kenya Plantation and Agriculture Workers Union (KPAWU) (Employment and Labour Relations Petition E012 of 2024) [2025] KEELRC 2870 (KLR)[2025] KEELRC 2870 (KLR)22 Oct 2025applied
- Kiki Investments Ltd & 2 others v Insurance Regulatory Authority (Civil Appeal 381 of 2017) [2024] KECA 1316 (KLR)[2024] KECA 1316 (KLR)27 Sept 2024applied
- Ogato v Kisii University & 2 others (Judicial Review E015 of 2021) [2024] KEELRC 494 (KLR)[2024] KEELRC 494 (KLR)14 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR)", Case Analysis (2021). Nairobi Civil Appeal arising from Nairobi HC Petition No 284 of 2019 as consolidated with Nairobi HC Petition No 353 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/282/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.