Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtAllowedApplication 4 (E010) 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
3 June 2022
2,242 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Supreme Court can review its own orders to prevent injustice, even without explicit constitutional power.

What this practically means

#

The Supreme Court of Kenya ruled that it has the power to review its own decisions in exceptional cases to prevent injustice. In this case, the Court set aside its earlier stay orders because they would have stopped Parliament from passing critical bills before the 2022 elections, potentially crippling government operations. The Court emphasized that such review is not automatic but requires showing that the original order caused serious harm.

Executive summary

#
This ruling concerns an application by the Speaker of the National Assembly and another to review, vary, or set aside the Supreme Court's orders of May 19, 2022, which had stayed execution of the Court of Appeal's judgment in Civil Appeal No. E084/2021. The applicants argued that the stay orders were prejudicial because they reinstated High Court orders based on an erroneous interpretation of Article 110(3) of the Constitution, and that the National Assembly was about to adjourn sine die ahead of the August 2022 General Elections, leaving critical Bills (including the Appropriation Bill and Finance Bill) unpassed, which could cripple government operations. The Court first affirmed its jurisdiction to review its own decisions in exceptional circumstances, relying on its inherent powers as established in Fredrick Otieno Outa v Jared Odoyo Okello. The Court then found that the matter called for review because the stay orders would cause apparent injustice not only to the applicants but to Kenyans as a whole. Consequently, the Court allowed the review application, set aside its earlier stay orders, and substituted them with an order dismissing the original stay application. Costs were ordered to abide the outcome of the main appeal.

Questions the Court framed

#

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

  1. 1.Whether this Court has jurisdiction to determine this review application; and if yes
  2. 2.Whether a case has been made to warrant that review?

Key legal issues

#
01

Whether this Court has jurisdiction to determine this review application.

Holding

The Court has jurisdiction to review its own decisions in exceptional circumstances, relying on its inherent powers as established in Fredrick Otieno Outa v Jared Odoyo Okello.

Reasoning

The Court noted that neither the Constitution nor the law explicitly confers powers to review its decisions. However, as the final court of justice, it is clothed with inherent powers to review its judgments, rulings, or orders in exceptional circumstances to meet the ends of justice. The Court cited Section 21(4) and 24(4) of the Supreme Court Act and the Fredrick Otieno Outa case to affirm this jurisdiction.

02

Whether a case has been made to warrant review of the stay orders issued on May 19, 2022.

Holding

Yes, the application for review is merited because the stay orders would cause apparent injustice by paralyzing the National Assembly's work and potentially crippling government operations.

Reasoning

The Court considered the applicants' argument that the stay orders reinstated High Court orders based on an erroneous interpretation of Article 110(3) of the Constitution, and that the National Assembly was about to adjourn sine die ahead of the August 2022 General Elections. The Court found that failure to deliberate on critical Bills, including the Appropriation Bill and Finance Bill, could cripple the running of the government, constituting exceptional circumstances warranting review.

Legal principles established

#
  • The Supreme Court has inherent jurisdiction to review its own judgments or orders in exceptional circumstances to meet the ends of justice.
  • Review of a discretionary order is not a right but an equitable remedy; the applicant must show the Court erred in its discretion.
  • The focus of a review application is on the Court's decision, not the merits of the underlying case.
  • Exceptional circumstances justifying review include preventing apparent injustice to parties and the public.
  • The Court may set aside its own orders if they would paralyze constitutional functions like parliamentary legislation.

Court orders

#
  1. 1.The application for review dated May 25, 2022 is hereby allowed.
  2. 2.The orders of this Court issued on May 19, 2022 staying 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 is hereby set aside and substituted with an order dismissing the said application No 1 (E002) of 2022.
  3. 3.The costs of this application and also No 1 (E002) 2022 shall abide the Court’s decision in the appeal.

The bench

#

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
Supreme Court of Kenya
Application No. 1 (E002) of 2022
Jurisdiction invoked
Sections 3, 21(2) and 24(1) of the Supreme Court Act, and Rules 28(5) of the Supreme Court Rules, 2020

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.

The application for review dated May 25, 2022 is hereby allowed.
p. 5 Final Orders
The orders of this Court issued on May 19, 2022 staying 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 is hereby set aside and substituted with an order dismissing the said application No 1 (E002) of 2022.
p. 5 Final Orders
The costs of this application and also No 1 (E002) 2022 shall abide the Court’s decision in the appeal.
p. 5 Costs Order
the Court is clothed with inherent powers which it may invoke, if circumstances so demand, to do justice…… However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice.
p. 4 Jurisdiction to Review
we find that this matter calls for review, variation or setting aside as there would be apparent injustice not only to the applicants but Kenyans as a whole.
p. 5 Exceptional Circumstances

Key timeline

#
2021
Court of Appeal judgment in Civil Appeal No. E084/2021 between National Assembly and Senate.
2022-05-19
Supreme Court issued stay orders staying execution of Court of Appeal orders.
2022-05-25
Applicants filed application for review of the stay orders.
2022
Supreme Court allowed review, set aside stay orders, and dismissed original stay application.

Practical implications

#
For lawyers

Review of discretionary orders: burden on applicant

When seeking review of a Supreme Court stay order, you must demonstrate that the Court exercised its discretion erroneously or that exceptional circumstances exist. Focus on the decision itself, not the merits of the appeal. This ruling confirms the Court's inherent power to correct its own orders to prevent injustice, but such review is not automatic.

For businesses

Parliamentary paralysis risk averted

Businesses relying on timely passage of fiscal legislation (e.g., Appropriation Bill, Finance Bill) should note that the Supreme Court will intervene to prevent orders that cripple government operations. If a court order threatens to stall critical parliamentary business, affected parties may seek review on grounds of public interest and potential harm to the economy.

For individuals

Court can correct its own mistakes

If a court order causes serious harm to you or the public, you can ask the Supreme Court to review it. This ruling shows that even the highest court can change its mind when necessary to prevent injustice. However, you must prove that the original order was clearly wrong or would cause exceptional harm.

Frequently asked questions

#
Can the Supreme Court of Kenya review its own decisions?+

Yes, the Supreme Court has inherent power to review its own judgments, rulings, or orders in exceptional circumstances to prevent injustice, even though the Constitution does not explicitly grant this power.

What does it take to get a Supreme Court order reviewed in Kenya?+

You must show that the Court erred in its discretion or that exceptional circumstances exist, such as the order causing serious harm to the public or paralyzing government functions. Review is not automatic.

Why did the Supreme Court set aside its stay orders in the National Assembly vs Senate case?+

The Court found that the stay orders would prevent Parliament from passing critical bills before the 2022 elections, potentially crippling government operations. This constituted exceptional circumstances warranting review.

What is the effect of the Supreme Court's review ruling on the National Assembly and Senate dispute?+

The Court set aside its earlier stay orders, allowing the Court of Appeal's judgment to take effect. The costs of the review application will be decided in the main appeal.

Cite this brief

#

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 4 (E010) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/34/eng@2022-06-03

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