Senate & 3 others v Speaker of the National Assembly & 10 others
Martha K Koome
Philomena M Mwilu
Mohamed K Ibrahim
Smokin C Wanjala
Njoki Ndungu
Isaac Lenaola
William OukoThe bottom line
#Supreme Court clarifies Senate role: no say on money bills, but must consider bills affecting county governments.
What this practically means
#The Supreme Court ruled on the Senate's role in making laws. The Senate cannot be involved in money bills, which are financial laws. However, for other bills that affect county governments, the Senate must be included. The Court also said that the Speakers of both houses only need to meet to decide if a bill concerns counties when a question is raised. Twenty-one laws passed by the National Assembly alone were upheld, but three others were struck down because they needed Senate approval.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to entertain the appellants’ appeal.
- 2.Whether the 6th and 8th respondents’ cross appeal is properly before this court.
- 3.Whether the Constitution provides for the participation of the Senate in the consideration and enactment of a money Bill.
- 4.Whether it is mandatory for every Bill published by either House of Parliament to undergo the joint concurrence process under article 110(3) of the Constitution.
- 5.Whether the impugned Acts and Bills are unconstitutional for want of Senate’s participation in their enactment.
- 6.What reliefs should issue?
Key legal issues
#Whether the Court of Appeal erred in finding that the concurrence process under article 110(3) is not mandatory for every Bill.
The Supreme Court upheld the Court of Appeal's finding, holding that the joint resolution process is triggered only when a question arises as to whether a Bill concerns counties.
The Court interpreted article 110(3) textually, noting that the phrase 'resolve any question' implies a prior question or doubt must exist. It distinguished its earlier Senate Advisory Opinion, which was rendered in the specific context of the Division of Revenue Bill where a question had already arisen. The Court held that a purposive interpretation requires the Speakers to proactively inform each other of Bills to facilitate the process, but the mandatory joint resolution is not a condition precedent for every Bill.
Whether the Senate has a role in the consideration and enactment of money Bills.
The Supreme Court held that the Senate is constitutionally excluded from participating in the enactment of money Bills.
The Court reasoned that article 96(2), which defines the Senate's law-making role, references articles 109 to 113 but deliberately omits article 114, which governs money Bills. Article 109(5) also states that a money Bill may be introduced only in the National Assembly. The Court found this exclusion to be deliberate, aligning with the practice in asymmetrical bicameral systems to prevent deadlocks over critical financial legislation.
Whether the Court of Appeal applied the correct test to determine if a Bill concerns county government under article 110(1)(a).
The Supreme Court held that the Court of Appeal erred by applying a 'pith and substance' test focused on the 'nature of the bill', instead of focusing on whether the Bill's provisions had an impact on the functions and powers of county governments.
The Court emphasized that article 110(1)(a) uses the language 'provisions affecting the functions and powers of the county governments'. The inquiry must therefore be on the impact of the specific provisions, not a general assessment of the Bill's overall nature. The Court reiterated the principle from Attorney-General & 2 others v Ndii that courts must give effect to the explicit language of the Constitution and not import extraneous doctrines.
Whether the 1st and 2nd respondents' cross petition in the High Court was properly filed and whether the Court of Appeal erred in remitting it for hearing.
The Supreme Court held that the cross petition was improperly filed as it raised a different and unrelated cause of action from the main petition, and the Court of Appeal erred in remitting it.
The Court defined a cross petition as a reactive claim that must relate to the subject of the action. It found that prayers (vii) to (xxii) of the cross petition, concerning Senate's quorum, leadership offices, and oversight, were distinct from the main issue of legislative procedure for Bills concerning counties. Therefore, the High Court was correct to decline to hear them, and the Court of Appeal's order to remit them was erroneous.
Whether the 6th and 8th respondents, as interested parties, had locus standi to file a cross appeal on the standard of review.
The Supreme Court struck out the cross appeal, holding that interested parties cannot raise new issues not raised by the primary parties.
The Court applied the principle from Muruatetu that an interested party's stake is peripheral and they cannot frame their own fresh issues. The issue of the standard of review (Selle Case) was not raised by any primary party. Therefore, the 6th and 8th respondents lacked the locus standi to raise it through a cross appeal.
Whether the Court of Appeal erred in declaring the Parliamentary Service Act, 2019 unconstitutional.
The Supreme Court held that the Court of Appeal exceeded its jurisdiction by making a determination on a matter that was not properly before it.
The Court distinguished between a Bill (a proposed law) and an Act (an enacted law), noting they require different causes of action. The constitutionality of the Parliamentary Service Act, 2019 was not an issue in the High Court pleadings, and the High Court made no finding on it. The Court of Appeal conflated the Parliamentary Service Bill No. 6 of 2018 with the Act. The Supreme Court found this was an overreach and that the matter should be left for the pending High Court case.
Legal principles established
#- The Senate is constitutionally excluded from money bills under Article 114.
- Speakers' joint resolution under Article 110(3) is only required when a question arises on whether a bill concerns counties.
- To determine if a bill concerns counties, courts must focus on the impact of its provisions on county functions, not the bill's overall nature.
- A cross-appeal cannot introduce entirely new issues unrelated to the original case.
- An interested party cannot raise issues through a cross-appeal that were not raised by the primary parties.
- The Equalization Fund Appropriation Act is not a money bill and requires Senate participation.
Court orders
#- 1.This court’s appellate jurisdiction under article 163(4)(a) of the Constitution has been properly invoked by the appellants.
- 2.The 6th and 8th respondents cross appeal dated March 8, 2022 is hereby struck out.
- 3.We uphold the following findings by the Court of Appeal: i. The declaration by the Court of Appeal that the underlisted Acts passed by the National Assembly did not require consideration and enactment by the Senate hence are constitutional: [list of 21 Acts]; ii. The declaration by the Court of Appeal that the underlisted Acts passed by the National Assembly are in contravention of articles 96, 109, 110, 111, 112 and 113 of the Constitution and are therefore unconstitutional, thus null and void: [Equalization Fund Appropriation Act No 3 of 2018; Sacco Societies (Amendment) Act, 2018 No 16 of 2018; and the amendments made to section 3 and 4 of the Kenya Medical Supplies Authority Act by the Health Laws (Amendment) Act, No of 5 of 2019].
- 4.We suspend the declaration of invalidity of the Sacco Societies (Amendment) Act, 2018 for a period of 18 months from the date of this judgment.
- 5.The 1st and 2nd respondents’ cross appeal dated March 15, 2023 is allowed to the extent that the Court of Appeal erred in making a determination on the constitutionality of the Parliamentary Service Act, 2019 despite the fact that it was not an issue for consideration before the High Court.
- 6.For avoidance of doubt, any relief not expressly granted is hereby dismissed.
- 7.Each party will bear their own costs of the appeal and cross appeal.
- 8.We hereby direct that the security for costs deposited in the consolidated appeal be refunded to the depositor(s).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No E084 of 2021
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition 2 of 2022
Relief refused
#Setting aside of order No 1, 2, 3 and 9 of the Court of Appeal’s judgment
The Court of Appeal's interpretation of article 110(3) was largely upheld; the concurrence process is not mandatory for every Bill.
Reinstatement of the judgment of the High Court dated October 29, 2020 in its entirety
The High Court had erroneously held that all Bills must undergo the concurrence process and had not properly assessed each impugned Act.
Declaration that article 114 of the Constitution only requires money Bills to be introduced in the National Assembly but does not bar Senate from considering and debating money Bills that affect counties
The Court held that the Senate is constitutionally excluded from considering and enacting money Bills.
Setting aside the finding by the Court of Appeal that the passage of the Parliamentary Service Bill was unconstitutional for want of the Senate’s consideration
The Court of Appeal had conflated the Bill and the Act; the issue of the Act's constitutionality was not properly before it.
Setting aside part of order No 4 of the judgment of the Court of Appeal by deleting the words 'and is not subject to article 114 of the Constitution'
The Court upheld the declaration that where a Bill concerns counties, it is not subject to article 114.
Setting aside the entire order No. 5 of the judgment of the Court of Appeal
The Court declined to set aside this order, finding the issue of the Parliamentary Service Commission's mandate was tied to the pending High Court case.
Costs
Each party will bear their own costs of the appeal and cross 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 hold that the requirement for joint resolution by Speakers of both Houses of Parliament as to whether a Bill is one concerning counties is triggered when a question arises as to whether a Bill is one concerning counties.
Given the foregoing analysis, we come to the same conclusion as the Court of Appeal, that the Senate is not to be involved in the consideration and enactment of a money Bill.
We hold that in determining whether a Bill contains provisions affecting the functions and powers of County Governments as outlined in the Fourth Schedule under article 110(1)(a), the inquiry must focus on the impact of the Bill's provisions on these functions and powers.
A cross petition is designed specifically to counter the claims made by the petitioner in a petition. It is fundamentally reactive in nature, and meant to answer or address the issues raised in the petitioner’s claim, rather than to introduce entirely new, unrelated issues or questions.
It follows therefore, that the 6th and 8th respondents, having been joined as interested parties at the High Court are bereft of locus standi to raise the issue of standard of review applied by the Court of Appeal through its cross appeal.
Article 204 of the Constitution explicitly uses the term 'Parliament' rather than 'National Assembly' when referring to the appropriation of the Equalization Fund. This distinction is significant, as it contrasts with other provisions on appropriation as envisaged in article 114(3) which fall within the purview of a money Bill.
Each party will bear their own costs of the appeal and cross appeal.
We suspend the declaration of invalidity of the Sacco Societies (Amendment) Act, 2018 for a period of 18 months from the date of this judgment.
Key timeline
#Practical implications
#Test for bills concerning counties
When challenging a bill's constitutionality, focus on the specific provisions that impact county functions and powers. Do not rely on the bill's overall 'pith and substance'. Also, remember that cross-appeals must be reactive and limited to issues raised by the original petitioner; interested parties cannot introduce new issues.
Sacco Societies Act survives temporarily
The Sacco Societies (Amendment) Act, 2018 was declared unconstitutional but the declaration is suspended for 18 months. Businesses in the Sacco sector, including cooperatives and their members, should prepare for potential legislative action by Parliament to re-enact the law with Senate involvement. Monitor legislative activity closely.
Senate's role in your county's laws
If a national law affects county services like health, agriculture, or roads, the Senate must be involved in passing it. The Supreme Court clarified that the Senate's role is not automatic for every bill, but only when the bill's provisions actually impact county functions. This safeguards county autonomy.
Frequently asked questions
#Does the Senate have a role in passing money bills in Kenya?+
No, the Supreme Court confirmed that the Senate is constitutionally excluded from money bills under Article 114. Only the National Assembly considers and enacts money bills, which include laws on national taxes, borrowing, and the Consolidated Fund.
What is the test for a bill concerning counties in Kenya?+
The test is whether the bill's provisions affect the functions and powers of county governments as listed in the Fourth Schedule of the Constitution. Courts must look at the impact of the specific provisions, not just the overall nature of the bill.
What happened to the Sacco Societies Act in Kenya after this judgment?+
The Supreme Court declared the Sacco Societies (Amendment) Act, 2018 unconstitutional because it was passed without Senate involvement. However, the declaration is suspended for 18 months to allow Parliament to correct the process. The law remains valid during this period.
Can an interested party file a cross-appeal in Kenya?+
Not easily. The Supreme Court held that an interested party cannot raise issues through a cross-appeal that were not raised by the primary parties. Their stake in the case is peripheral, so they are limited to supporting or opposing the existing arguments.
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.
- Thula v Lingene & 2 others (Environment and Land Appeal E023 of 2025) [2026] KEELC 5195 (KLR)[2026] KEELC 5195 (KLR)4 Aug 2026
- Parliament of Kenya & another v Okoiti & 2 others[2026] KESC 28 (KLR)31 Mar 2026followed
Cite this brief
#Cite this brief
Caselaw, "Senate & 3 others v Speaker of the National Assembly & 10 others", Case Analysis (2025). Petition 19 (E027) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/11/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.