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Supreme CourtAllowedApplication 1 (E002) of 2022

Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others

Supreme Court of Kenya
19 May 2022
1,168 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Supreme Court halts enforcement of Court of Appeal orders pending Senate's appeal.

What this practically means

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The Supreme Court of Kenya temporarily stopped the Court of Appeal from enforcing its orders against the Senate. This means the Senate can continue its work while the Supreme Court hears its main appeal. The Court found the appeal raises serious legal questions that should be decided before any changes take effect. No one opposed the Senate's request, so the stay was granted.

Executive summary

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This is a ruling on a notice of motion dated January 11, 2022, filed by the Senate of Kenya and others (the applicants) seeking a stay of execution of orders 1, 3, and 9 of the Court of Appeal judgment in Civil Appeal No E084 of 2021 (National Assembly & others v Senate of Kenya & others), pending the hearing and determination of Supreme Court Petition No 19(E027) of 2021. The applicants argued that without the stay, the appeal would be rendered nugatory because pending Bills would be re-submitted without the joint resolution process required under Article 110(3) of the Constitution, and the current Parliament's term would expire before the impugned laws could be regularized. They also contended that the cross-appeal remitted to the High Court would proceed while the petition is pending. The court noted that no party had responded to or challenged the application. Relying on its jurisdiction established in the Malcom Bell Case and the guiding principles from the Gatirau Munya case, the court found that the pending appeal is arguable and that the application met the principles for grant of stay. Consequently, the court ordered a stay of execution of orders 1, 3, and 9 of the Court of Appeal judgment pending the hearing and determination of the main appeal. Costs were ordered to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the application for stay of execution meets the principles set out in the Malcom Bell Case and Gatirau Munya case

Key legal issues

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01

Whether the application for stay of execution meets the principles for grant of stay pending appeal.

Holding

The application meets the principles set out in the Malcom Bell Case and Gatirau Munya case, and the appeal is arguable.

Reasoning

The court considered the grounds adduced by the applicants, including that the appeal would be rendered nugatory if stay is not granted, that the pending Bills would be re-submitted without the joint resolution process, and that the cross-appeal remitted to the High Court would proceed while the petition is pending. The court also noted that no party had responded or challenged the application. It found that the pending Supreme Court Petition No 19(E027) of 2021 is arguable and that the application meets the established principles.

Legal principles established

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  • The Supreme Court has jurisdiction to grant a stay of execution of orders from lower courts pending appeal.
  • A stay is granted if the appeal is arguable and would be rendered nugatory without it.
  • The principles from the Malcom Bell and Gatirau Munya cases guide the grant of stay orders.
  • An applicant must show that the appeal raises substantial issues and that delay would cause irreparable harm.

Court orders

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  1. 1.Pending hearing and determination of Supreme Court Petition No 19(E027) of 2021; Senate of Kenya & others v National Assembly & others, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No E084/2021; National Assembly another & Senate of Kenya & others.

The bench

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

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
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 No E084 of 2021
Jurisdiction invoked
sections 3, 21 and 24 of the Supreme Court Act, and rules 31 and 32 of the Supreme Court Rules, 2020

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.

Pending hearing and determination of Supreme Court Petition No 19(E027) of 2021; Senate of Kenya & others v National Assembly & others, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No E084/2021; National Assembly another & Senate of Kenya & others.
p. 4 Stay of execution pending appeal
Having considered the prayers sought, we find that SC Petition No 19(E027) of 2021, which is already before us is arguable and that the instant application meets the principles set out by this court in the Malcom Bell Case and Gatirau Munya case.
p. 4 Principles for grant of stay

Key timeline

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2022-01-11
Senate files application for stay of execution of Court of Appeal orders.
2022
Supreme Court issues ruling granting stay of Orders 1, 3, and 9 of the Court of Appeal judgment.

Practical implications

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For lawyers

Appeal strategy for stay applications

When filing a stay pending appeal, clearly demonstrate that the main appeal is arguable and the orders will be rendered nugatory. Cite the Malcom Bell and Gatirau Munya principles. If no opposition is filed, the court may grant the stay without a hearing on the merits.

For businesses

Certainty in legislative processes

Businesses relying on National Assembly enacted laws should monitor the Supreme Court appeal. If the Senate's challenge succeeds, some laws may be invalidated. The stay means existing laws remain in effect temporarily, but the final outcome could affect compliance obligations.

For individuals

Impact on public participation

This case involves the proper process for lawmaking between the Senate and National Assembly. Individuals concerned with how laws are passed should watch the appeal. It will clarify whether joint resolution processes under Article 110(3) are mandatory, affecting how your voice is heard in Parliament.

Frequently asked questions

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What is a stay of execution in Kenya?+

A stay of execution is a court order that temporarily stops the enforcement of a previous court judgment while an appeal is decided. It prevents immediate changes until the higher court makes a final ruling.

What does the Supreme Court stay order mean for the Senate in Kenya?+

The Supreme Court's stay means the Court of Appeal's orders against the Senate are not enforced for now. The Senate can continue its legislative work without interruption while the Supreme Court hears the main appeal.

How does the Malcom Bell case apply to stay applications in Kenya?+

The Malcom Bell case established that the Supreme Court has jurisdiction to grant stays of execution pending appeal. It sets out the legal basis for such orders, which the Court relied on in this Senate case.

What are the grounds for a stay of execution in Kenya?+

The key grounds are: the appeal is arguable (not frivolous), and the appeal would be rendered nugatory (useless) if the stay is not granted. The applicant must show that without a stay, the outcome of the appeal would be meaningless.

Cite this brief

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Cite this brief

Caselaw, "Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others", Case Analysis (2022). Application 1 (E002) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/18/eng@2022-05-19

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