Legal Advice Centre t/a Kituo Cha Sheria v Attorney General
The bottom line
#Only the national government, state organs, or county governments can ask the Supreme Court for an advisory opinion.
What this practically means
#The Supreme Court of Kenya dismissed a case brought by Katiba Institute, a non-governmental organization, because it lacked the legal right to ask for an advisory opinion. The Constitution only allows the national government, a state organ, or a county government to make such requests. The court said it cannot create jurisdiction where the law does not give it. This means NGOs and individuals cannot use this specific legal route.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has the requisite locus standi to seek an advisory opinion from the court
Key legal issues
#Whether a non-governmental organization has locus standi to seek an advisory opinion under Article 163(6) of the Constitution.
A non-governmental organization does not have locus standi to seek an advisory opinion; only the national government, a State organ, or a county government may do so.
The court examined Article 163(6) and Section 13 of the Supreme Court Act, which limit the right to request an advisory opinion to the national government, a State organ, or a county government. The applicant, a non-governmental organization, did not fall within any of these categories. The court rejected the argument for a broad interpretation, noting that allowing any person to approach the court as 'the people' would disregard constitutional provisions and safeguards. The court also cited its prior decisions, including In the Matter of Interim Independent Electoral Commission and Council of Governors v Attorney General, which established that only specified entities have locus standi.
Legal principles established
#- Only the national government, a state organ, or a county government may request an advisory opinion under Article 163(6) of the Constitution.
- A non-governmental organization does not have locus standi to seek an advisory opinion from the Supreme Court.
- The Supreme Court cannot assume jurisdiction that is not expressly conferred by the Constitution or statute.
- The court rejected a broad interpretation that would allow any person to approach it as 'the people' for an advisory opinion.
- Prior Supreme Court decisions, including Council of Governors v Attorney General, confirm the strict limits on who may seek an advisory opinion.
Court orders
#- 1.The respondent’s Notice of Preliminary Objection dated July 21, 2023 is hereby allowed.
- 2.The applicant’s Reference dated May 31, 2023 is hereby struck out and dismissed.
- 3.The applicant shall bear the costs of this reference.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(6) of the Constitution
Relief refused
#Advisory opinion on the questions posed by the applicant
The applicant lacked locus standi to seek an advisory opinion under Article 163(6) of the Constitution.
Costs
The applicant shall bear the costs of this reference.
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 cannot arrogate jurisdiction to ourselves where the same is not expressly conferred.
Key timeline
#Practical implications
#Advise clients on standing limits
When a client wants to challenge a constitutional issue via an advisory opinion, confirm they are the national government, a state organ, or a county government. NGOs, businesses, and individuals cannot use this route. Instead, consider filing a constitutional petition under Article 22 or 258, which have broader standing rules.
No direct advisory opinion access
Your company or trade association cannot directly ask the Supreme Court for an advisory opinion on a legal question. To influence constitutional interpretation, you must work through a government ministry, state agency, or county government that can make the request. Alternatively, challenge a law or action through a regular constitutional petition.
Use other legal avenues instead
If you want the Supreme Court to clarify a constitutional right, you cannot file an advisory opinion request. You have other options: file a constitutional petition under Article 22 (right to approach court for enforcement of rights) or join a case as an interested party. This case does not affect your ability to sue for violations of your rights.
Frequently asked questions
#Who can ask the Supreme Court of Kenya for an advisory opinion?+
Only the national government, a state organ (like a commission or independent office), or a county government can request an advisory opinion under Article 163(6) of the Constitution. NGOs, businesses, and individuals cannot.
What happened in the Katiba Institute v Attorney General case in Kenya?+
Katiba Institute, an NGO, asked the Supreme Court for an advisory opinion on the right to assemble. The court struck out the case because only the government, state organs, or county governments can make such requests. The NGO lacked the legal standing to do so.
Can an NGO file a case at the Supreme Court of Kenya?+
Yes, an NGO can file a case at the Supreme Court, but not for an advisory opinion under Article 163(6). They can file a constitutional petition or appeal a lower court decision if they have standing under other constitutional provisions, such as Article 22.
What is Article 163(6) of the Kenyan Constitution?+
Article 163(6) gives the Supreme Court power to give advisory opinions on any matter concerning county government. Only the national government, a state organ, or a county government may apply for such an opinion. The court cannot expand this list.
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.
Cite this brief
#Cite this brief
Caselaw, "Legal Advice Centre t/a Kituo Cha Sheria v Attorney General", Case Analysis (2024). Advisory Opinion Reference E001 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/15/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.