National Assembly v Katiba Institute & 6 others (Civil Appeal 243 of 2018) [2023] KECA 1174 (KLR)
The bottom line
#Kenya's Court of Appeal upheld most of the 2017 election law amendments unconstitutional, protecting IEBC leadership qualifications and transparency in presidential results.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge failed to apply the correct legal tests for interrogating the constitutionality of an Act of Parliament
- 2.Whether the amendments to sections 2, 7A(4), 7A(5), 7A(6), 7B of the IEBC Act and paragraphs 5 and 7 of the Second Schedule to the IEBC Act are unconstitutional
- 3.Whether the amendments to sections 39(1C)(a), 39(1D), 39(1E), 39(1F), 39(1G) and section 83 of the Elections Act, 2011 are unconstitutional
Key legal issues
#Whether the amended definition of 'Chairperson' in section 2 of the IEBC Act is constitutional
The amended definition, which includes the vice-chairperson or any member acting as chairperson, is vague and overbroad and therefore unconstitutional
The court held that definitions sections control the meaning of terms throughout a statute and must conform to the Constitution. The amended definition ignores article 166(3) qualifications for a Supreme Court judge replicated in section 6(1) of the IEBC Act, and permits a person not appointed as the Constitution stipulates to assume the post of Chairperson. Applying vagueness and overbreadth doctrine, the court found the definition creates room for unconstitutional application and agreed with the trial court.
Whether sections 7A(4), (5), (6) and 7B of the IEBC Act are constitutional
They are unconstitutional because they allow unqualified persons, not appointed in accordance with the Constitution, to perform the constitutional functions of the Chairperson
Article 250(2) and (3) prescribe the manner of appointment and mandatory qualifications for the Chairperson, anchored in article 166(3). Section 7A(6) effectively suspends section 6(1) of the Act and thereby article 250(3). The court held that when the Constitution prescribes the manner of appointment, Parliament cannot by statute provide a different manner; any such law falls foul of article 2(4). The same reasoning applies to section 7B, which the court agreed was similarly unconstitutional.
Whether paragraphs 5 and 7 of the Second Schedule to the IEBC Act on quorum are constitutional
The issue is now moot having been settled by the Supreme Court in the Ndii decision, which held each constitutional commission must consist of at least three but not more than nine members
The court noted the Supreme Court in Attorney-General & 2 others v Ndii & 79 Others (with dissent) resolved the quorum question. The court nonetheless affirmed the trial court's findings, holding that a quorum of three out of seven members with decisions by majority of those present and voting could allow a minority of Commissioners to bind the Commission, which is constitutionally objectionable for an independent commission.
Whether the amendments to sections 39(1C)(a), 39(1E), 39(1F) and 39(1G) of the Elections Act are constitutional
They are unconstitutional as they weaken transparency, accuracy, verifiability and accountability in transmission of presidential results
The removal of the requirement for a prescribed form for transmission opens results to adulteration and manipulation. Section 39(1E) creates conflict between electronically transmitted and physically delivered results; section 39(1F) saves results not transmitted electronically, a backward step against articles 10, 81 and 86; and section 39(1G) renders live-streamed results valueless for declaration, mocking free, fair and credible elections.
Whether section 39(1D) of the Elections Act is constitutional
Section 39(1D) is constitutional and can stand on its own; the trial court erred in invalidating it alongside section 39(1E) instead of severing
Following counsel's concession and the doctrine of severance drawn from Schachter v Canada, the court held the trial judge should have determined whether section 39(1D), which merely obliges the Commission to verify that transmitted results are an accurate record of results at polling stations, could stand independently of the defective section 39(1E). It could, and the severance remedy should have been deployed.
Whether the amendment to section 83 of the Elections Act, 2011 is constitutional
Only the amendment replacing the disjunctive test with the conjunctive one is unconstitutional; the pre-amendment section 83 remains in force
The Supreme Court had already interpreted section 83 as harmonized with the Constitution. The amendment introducing the conjunctive 'and' and the word 'substantially' was a departure from constitutional requirements for free, fair and transparent elections. However, the High Court's order had over-reached by nullifying the entire section rather than only the amendment; on concession and the court's own analysis, the order was varied to invalidate only the amendment.
Whether the trial judge applied the correct legal tests for constitutional validity
He did; the judgment shows he was alive to the cannons of constitutional interpretation and deployed them
The court reviewed paragraphs 40 to 51 of the High Court judgment and found the judge had conducted a lengthy review of decided cases enunciating principles of constitutional interpretation, including the US v Butler formulation, and applied them to the impugned provisions. The appellant's separation-of-powers challenge to the trial court's approach therefore failed.
Legal principles established
#- Parliament cannot, by ordinary legislation, permit a person to perform the constitutional functions of the Chairperson of the IEBC who does not possess the qualifications prescribed by article 166(3) of the Constitution and who has not been appointed in the manner the Constitution prescribes
- A vague or over-broad statutory definition that permits a constitutionally unintended person to assume a constitutional office offends the Constitution and is invalid
- Where a court finds only part of a statutory provision unconstitutional, it must define the extent of the inconsistency and consider the remedy of severance rather than invalidating the entire provision
- Amendments to electoral law that erode transparency and accountability in the transmission and declaration of presidential election results violate articles 10, 81 and 86 of the Constitution
- A constitutional commission's quorum and decision-making provisions must ensure that binding decisions are made by a majority of commissioners; provisions enabling a minority to bind the Commission are unconstitutional
Court orders
#- 1.Affirmed the High Court's finding that the amendments to the IEBC Act, namely sections 2, 7A(4), 7A(5), 7A(6), 7B and paragraphs 5 and 7 of the Second Schedule are unconstitutional
- 2.Upheld the trial court's finding that the amendments introduced to the Elections Act, 2011 by sections 39(1C)(a), 39(1E), 39(1F) and 39(1G) are unconstitutional
- 3.Declared section 39(1D) of the Elections Act, 2011 constitutional
- 4.Set aside the declaration that the entire section 83 of the Elections Act, 2011 is unconstitutional and substituted an order declaring only the amendment introduced by section 83(1)(a) & (b) and (2) unconstitutional, section 83 remaining as it was prior to the amendment
- 5.Ordered that each party shall bear its own costs for the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Constitutional Petition No HCCC No 548 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution over the High Court's constitutional petition judgment (appeal as of right on constitutionality of statute)
Relief refused
#The appellant's prayer that the appeal be allowed in its entirety, the impugned judgment be set aside and the petition dismissed with costs
The appeal failed substantially, save for the two issues conceded by counsel for the respondents; the bulk of the High Court's findings on unconstitutionality were affirmed
Costs of the appeal in favour of the respondents
The matter is public interest litigation
Costs
Each party shall bear its own costs for this 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.
We affirm the learned Judge's finding that the amendments to the IEBC Act, namely sections 2, 7A(4), 7A(5), and 7A(6), 7B and paragraphs 5 and 7 of the Second Schedule to the Act are unconstitutional.
We uphold the trial court's finding that the amendments introduced to the Elections Act, 2011 by sections 39(1C)(a), 39(1E), 39(1F) and 39(1G) are unconstitutional.
We find and hold that section 39 (1D) is constitutional.
We set aside the learned judge's finding declaring the entire section 83 of the Elections Act, 2011 unconstitutional and substitute it with an order declaring that the amendment introduced by section 83(1)(a) & (b) and (2) be and is hereby declared unconstitutional. For the sake of clarity, section 83 remains as it was prior to the amendment.
Where the Constitution prescribes the manner in which a thing shall be done or a fact ascertained by implication, it prohibits the Legislature from, by statute, providing a different manner.
If at all any change is required, (as has been argued by the appellant), then, it cannot be achieved by passing a legislation whose application offends the Constitution, essentially amending the Constitution through a legislation. The remedy lies in a proper constitutional amendment.
When Parliament enacts a law that significantly erodes the element of transparency and accountability in the electoral process, such a law overrides the constitutional principles of the electoral systems contemplated in articles 10, 81 and 86 of the Constitution.
Each party shall bear its own costs for this appeal.
Issues in the judgment
#Internal paragraph numbering in the judgment is irregular: paragraph numbers 65, 103 and others appear twice, and the sequence jumps (e.g. from 39 to 39/40 and from 111 back to 103), which may complicate locating quoted passages
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#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
Cite this brief
#Cite this brief
Caselaw, "National Assembly v Katiba Institute & 6 others (Civil Appeal 243 of 2018) [2023] KECA 1174 (KLR)", Case Analysis (2023). Civil Appeal (Nairobi Constitutional Petition No HCCC No 548 of 2017 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1174/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.