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Supreme CourtPartially AllowedPetition E016 & E017 of 2025 (Consolidated)

Parliament of Kenya & another v Okoiti & 2 others

Supreme Court of Kenya
31 March 2026
14,864 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~59 min to read original · ~4 min brief

The bottom line

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Supreme Court orders Parliament to enact laws for local tribunals without unreasonable delay, but cancels court supervision.

What this practically means

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The Supreme Court ruled that Parliament must pass laws giving local tribunals the power to hear cases, but it cannot be forced to do so by a specific deadline. The Court also clarified that a local tribunal must act like a court, decide disputes, and be created by law. The Court removed a previous order that would have let the courts oversee Parliament's progress.

Executive summary

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This consolidated appeal arose from a judgment of the Court of Appeal which upheld a High Court decision on the nature, composition and regulation of local tribunals under Article 169(1)(d) of the Constitution. The 1st respondent, Okiya Omtatah, had petitioned the High Court alleging that Parliament and the Attorney General had failed to enact legislation under Article 169(2) to confer jurisdiction, functions and powers on local tribunals, and that the continued appointment of tribunal members by the Executive violated the separation of powers and the right to a fair hearing. The High Court declared that local tribunals are subordinate courts, that their appointment and removal must be undertaken by the Judicial Service Commission, and issued a structural interdict requiring the appellants to take steps towards enacting the Tribunals Bill and file progress affidavits. The Court of Appeal affirmed. On appeal, the Supreme Court partially allowed the appeal. It upheld the concurrent findings that Parliament bears a mandatory constitutional obligation under Article 169(2) to enact the required legislation within a reasonable time, and that a delay of over eight years was unreasonable. It also upheld the definition of 'local tribunal' as requiring the exercise of judicial, quasi-judicial, or adjudicative power. However, the Court set aside limb (e) of the High Court's order listing specific tribunals, finding that this declaration was not pleaded and therefore exceeded the court's jurisdiction. The Court also set aside the structural interdict, holding that it was not appropriate where the legislative process was already underway and a declaratory relief would have been sufficient and less intrusive. The Court directed that each party bear their own costs due to the public interest nature of the matter.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to hear and determine the consolidated appeal.
  2. 2.Whether the 1st respondent's petition before the High Court was justiciable.
  3. 3.Whether Article 169(2) of the Constitution prescribes a timeframe for the enactment of the Tribunals Bill.
  4. 4.What is the proper interpretation of 'local tribunal' under Article 169(1)(d) of the Constitution, and which categories of tribunals fall within that rubric for purposes of transition to the Judiciary?
  5. 5.Whether it was appropriate for the High Court to grant an order of structural interdict to supervise the enactment of the Tribunals Bill, when the process of enacting the Bill was actively underway.

Key legal issues

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01

Whether the 1st respondent's petition before the High Court was justiciable.

Holding

The petition was justiciable because it alleged a failure to perform a constitutionally required duty under Article 169(2), which is an omission that Article 2(4) declares invalid, and the pendency of the Tribunals Bill did not cure the alleged violations or render the dispute abstract.

Reasoning

The Court held that justiciability concerns whether a matter is suitable for adjudication, and the petition did not challenge the substantive content of the Bill but rather the prolonged legislative inaction. The Court distinguished between challenging a Bill for substantive constitutionality (not ordinarily permitted) and challenging legislative inaction (permitted). The petition also alleged violations of rights to access to justice and fair hearing, which are inherently justiciable. The alternative remedy under Article 119 was not adequate for constitutional violations.

02

Whether Article 169(2) of the Constitution prescribes a timeframe for the enactment of the Tribunals Bill.

Holding

Article 169(2) does not prescribe a specific timeframe, but Article 259(8) requires that the obligation be performed without unreasonable delay. A delay of over eight years was unreasonable and breached the constitutional obligation.

Reasoning

The Court distinguished between Parliament's discretionary power under Article 169(1)(d) to establish tribunals and its mandatory duty under Article 169(2) to enact legislation conferring jurisdiction, functions, and powers. The word 'shall' in Article 169(2) imposes a binding obligation. Article 259(8) supplies the standard of 'without unreasonable delay' where no timeline is prescribed. The delay of over eight years was assessed contextually, considering the importance of the obligation to the right of access to justice under Article 48.

03

What is the proper interpretation of 'local tribunal' under Article 169(1)(d) of the Constitution?

Holding

A 'local tribunal' under Article 169(1)(d) must exercise judicial, quasi-judicial, or adjudicative power; be subordinate to superior courts; resolve disputes through a structured adversarial process culminating in binding determinations; be established by an Act of Parliament; and not include superior court judges in its membership.

Reasoning

The Court applied the ejusdem generis rule, noting that the specific entities listed in Article 169(1) (Magistrates' courts, Kadhis' courts, Courts Martial) are all courts of law exercising judicial authority. The phrase 'local tribunal' must be understood as referring to tribunals of the same constitutional genre. The Court drew from Lon Fuller's exposition of adjudication to define adjudicative power. Constitutional tribunals, administrative bodies, advisory bodies, and regulatory authorities are excluded.

04

Whether it was appropriate for the High Court to grant an order of structural interdict to supervise the enactment of the Tribunals Bill.

Holding

The structural interdict was not appropriate because the legislative process was already underway, and a declaratory relief would have been sufficient and less intrusive. The order was also improperly directed at the Attorney General who lacks authority over parliamentary proceedings.

Reasoning

The Court recognized that structural interdicts are available under Article 23(3) but must be specific, realistic, proportionate, and restrained. The Court cited Mitu-Bell and the Speaker of the Senate Case for the principle of judicial restraint. The Court found that the preconditions for a structural interdict (incompetence, intransigence, or sustained inattentiveness) were not established since the Tribunals Bill was already before Parliament. The order directed at the Attorney General was improper as he does not control parliamentary proceedings.

Legal principles established

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  • Parliament has a mandatory duty under Article 169(2) to enact legislation for local tribunals within a reasonable time.
  • A 'local tribunal' must exercise judicial or quasi-judicial power, be subordinate to superior courts, and resolve disputes with binding decisions.
  • Courts cannot grant reliefs that were not asked for in the pleadings or without giving both sides a chance to respond.
  • Structural interdicts (court orders supervising government action) are only allowed when the duty-bearer has shown incompetence or stubborn refusal to act.
  • Challenging legislative inaction is allowed in court, but challenging the content of a Bill is not permissible.
  • Constitutional duties without a specific timeline must still be performed without unreasonable delay.

Court orders

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  1. 1.The consolidated appeal partially succeeds to the following extent: (a) We hereby set aside the declaration as granted by the High Court under limb (e) of its orders and affirmed by the Court of Appeal. (b) We hereby set aside the structural interdict as granted by the High Court and affirmed by the Court of Appeal.
  2. 2.We uphold the following findings by the Court of Appeal: (a) Parliament bears a mandatory constitutional obligation under Article 169(2) of the Constitution to enact legislation conferring jurisdiction, functions and powers upon local tribunals, an obligation that must be discharged within a reasonable time. (b) For a statutory body to qualify as a 'local tribunal' under Article 169(1)(d) of the Constitution, it must exercise judicial, quasi-judicial, or adjudicative power.
  3. 3.Each Party will bear their costs of appeal.
  4. 4.We hereby direct that the security for costs deposited in the consolidated appeal be refunded to the depositor(s).

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal E416 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
SC Petition No. E017 of 2025

Relief refused

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Declaration that any law vesting appointment/removal of tribunal members in non-JSC bodies is unconstitutional (limb (e) of High Court order)

The declaration was not pleaded and therefore fell outside the scope of the issues properly before the superior courts below.

Structural interdict requiring Parliament to file progress affidavits on the Tribunals Bill

The legislative process was already underway; a declaratory relief would have been sufficient and less intrusive; the order was improperly directed at the Attorney General who lacks authority over parliamentary proceedings.

Costs

Each Party will bear their costs of appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Parliament bears a mandatory constitutional obligation under Article 169(2) of the Constitution to enact legislation conferring jurisdiction, functions and powers upon local tribunals, an obligation that must be discharged within a reasonable time.
p. 27 Constitutional obligation of Parliament
For a statutory body to qualify as a 'local tribunal' under Article 169(1)(d) of the Constitution, it must exercise judicial, quasi-judicial, or adjudicative power.
p. 27 Definition of local tribunal
a court exceeds its jurisdiction when it grants reliefs that have not been pleaded or in respect of which the opposing parties were not afforded an opportunity to address the court through evidence and submissions
p. 23 Pleadings and jurisdiction
the structural interdict issued in this case was not an appropriate remedy given that it was not shown that Parliament was unwilling or persistently indifferent to its constitutional duty, particularly as the legislative process for the enactment of the Tribunals Bill was already underway
p. 28 Structural interdict and separation of powers
Each Party will bear their costs of appeal.
p. 28 Costs order

Key timeline

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Before 2026
High Court grants declaration and structural interdict against Parliament for failing to enact the Tribunals Bill.
Before 2026
Court of Appeal affirms the High Court orders.
2026
Supreme Court partially allows the appeal, sets aside the declaration and structural interdict, but upholds Parliament's duty to act.

Practical implications

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For lawyers

Plead carefully and prove intransigence

When challenging legislative inaction, ensure your pleadings clearly request the specific relief you seek. The Supreme Court struck down the structural interdict because the relief was not properly pleaded. For future cases, gather evidence of sustained delay or refusal by the duty-bearer to justify a court order supervising compliance.

For businesses

Tribunal delays may affect dispute resolution

If your business relies on a specialized tribunal (e.g., rent or tax tribunals), note that Parliament must now act within a reasonable time to confer jurisdiction. However, without a court-ordered deadline, delays may continue. You can still petition the court if the delay becomes unreasonable, but you cannot force a specific timeline.

For individuals

Access to justice through tribunals

Individuals seeking justice from local tribunals have a constitutional right to have Parliament pass laws enabling those tribunals to function. If Parliament delays unreasonably, you can sue. But the court will not micromanage the legislative process unless there is clear evidence of unwillingness or inaction over many years.

Frequently asked questions

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What is a local tribunal under the Kenyan Constitution?+

A local tribunal is a body that exercises judicial or quasi-judicial power, like a court, but is subordinate to superior courts. It must be created by an Act of Parliament, resolve disputes through a structured process, and cannot include judges of the superior courts. Examples include the Business Premises Rent Tribunal.

Did the Supreme Court order Parliament to pass the Tribunals Bill in Kenya?+

Yes, the Court confirmed that Parliament has a constitutional duty to pass the Tribunals Bill under Article 169(2). However, the Court set aside a previous order that would have allowed the courts to supervise the process. Parliament must act within a reasonable time, but no specific deadline was imposed.

Can Kenyan courts order Parliament to act within a specific time?+

Not automatically. The Supreme Court said structural interdicts (court orders setting deadlines) are only justified if the duty-bearer has shown incompetence, intransigence, or sustained inattentiveness. In this case, the Court found that threshold was not met.

What happens if Parliament delays in enacting laws for local tribunals in Kenya?+

If the delay becomes unreasonable, you can challenge it in court. The Court has now clarified that Parliament must act without unreasonable delay. But without a specific timeline, you may need to show that the delay is excessive and harms your access to justice.

Cite this brief

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Cite this brief

Caselaw, "Parliament of Kenya & another v Okoiti & 2 others", Case Analysis (2026). Petition E016 & E017 of 2025 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/28/eng@2026-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.