THE CATHOLIC UNINVERSITY OF EASTERN AFRICA

CUEA CLS 122

CONSTITUTIONAL PRACTICE

LECTURE NOTES

BY CHARLES B G OUMA

LLB, MLB

LECTURER FACULTY OF LAW CUEA

TOPIC 1 INTERPRETING THE CONSTITUTION OF KENYA 2010

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Contents
1. What is Constitutional (Statutory) Interpretation? ....................................................... 4
2. The Object of Interpretation ......................................................................................... 4
3. Why is Interpretation Necessary?................................................................................. 4
4. A Theory of Interpretation ........................................................................................... 7
5. What Causes Ambiguity in Statutes? ........................................................................... 8
6. Who has the Last Word on the Interpretation of the Constitution?............................ 10
7. What are the Risks Involved in Interpretation? .......................................................... 11
8. How can the Risks be Managed? ............................................................................... 12
9. Two Major Approaches .............................................................................................. 12
10. Use of Extrinsic Sources ............................................................................................ 13
11. Originalism vs Evolutionism ...................................................................................... 14
12. Judicial Self-Restraint vs Judicial-Activism .............................................................. 14
13. How Should we Interpret the CoK 2010? .................................................................. 14
14. The Primary Rule ....................................................................................................... 17
15. Cannons of Construction ............................................................................................ 17
16. Textual cannons .......................................................................................................... 18
17. Substantive Cannons: Examples from the US ............................................................ 18
17.1. Charming Betsy Canon .............................................................................................. 18
17.2. Interpretation in Light of Fundamental Values .......................................................... 18
17.3. Rule of Lenity ............................................................................................................. 19
17.4. Avoidance of abrogation of state sovereignty ............................................................ 19
17.5. 'Indian' Canon ............................................................................................................. 19
17.6. Deference.................................................................................................................... 19
17.7. Deference to Administrative Interpretations (US Chevron deference) ...................... 19
17.8. Avoidance Canon (Canon of Constitutional Avoidance) ........................................... 19
17.9. Avoiding Absurdity .................................................................................................... 20
17.10. Clear Statement Rule .................................................................................................. 20
18. Some Presumptions .................................................................................................... 20
18.1. Presumption of Constitutionality................................................................................ 20
19. The Constitution as an Integrated Whole ................................................................... 21
20. The Concept of the Living Constitution ..................................................................... 22
20.1. Advantages of the Living Constitution Approach ...................................................... 23
20.2. Disadvantages of the Living Constitution Approach ................................................. 23
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21. Use of Judicial Precedent ........................................................................................... 24
22. Determining the Constitutionality of Ordinary Legislation ....................................... 24
23. Criticism of the Canons .............................................................................................. 28
24. The Constitution of Kenya as a Transformative Constitution .................................... 28
24.1. Distinction from Classical Constitutionalism............................................................. 28
24.2. Characteristics of a Transformative Constitution ....................................................... 30
24.3. Implication for Constitutional Interpretation ............................................................. 31
25. A history of Constitutional Interpretation in Kenya ................................................... 31
26. The Role of the Courts ............................................................................................... 35
27. The Role of History .................................................................................................... 36
28. The Importance of Developing Indigenous Jurisprudence ......................................... 36
29. The Great Debates ...................................................................................................... 37
30. The Value of Dissenting Opinions ............................................................................. 37

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1. What is Constitutional (Statutory) Interpretation?
Constitutional (Statutory) interpretation is the process of finding the meaning of the provisions
of the Constitution (or legislation). Constitutional interpretation is also referred to as
‘construction of the constitution’. Accordingly, text writers, case law and, indeed, the CoK
2010, use the term ‘construction’ and ‘interpretation’ interchangeably.1
In Stephen Wachira Karani & another vs. Attorney General & 4 others [2017] eKLR Mativo J
used the words interchangeably;
“26. The purposive approach (sometimes referred to as purposivism, or purposive
construction, or purposive interpretation, or the modern principle in construction) is an
approach to statutory and constitutional interpretation under which common law courts
interpret an enactment (a statute, part of a statute, or a clause of a constitution) within
the context of the law’s purpose.
However, some text writers have tried to draw a distinction between the two terms. For
example, Barnet is of the view that whereas ‘interpretation’ is the activity of identifying the
semantic meaning of a particular use of language in context, ‘construction’ is the activity of
applying that meaning to particular factual circumstances2. According to Barnet, interpretation
is all about the linguistic meaning of the legal text and construction is the determination of
the legal effect of the words and writings of the statute. In this module the two terms are used
interchangeably.
2. The Object of Interpretation
The object of interpretation is to determine what intention is conveyed, either expressly or
implied by the language used. To find the meanings of the constitution, judges use various tools
and methods of interpretation, values and principles of the constitution.
3. Why is Interpretation Necessary?
Sometimes the words of a statute have a plain and straightforward meaning. Accordingly, many
provisions of the constitution have settled meaning and we do not have to go to the judges to
interpret them. For example, Article 97 and 98 provide for the members of the National
Assembly and Senate respectively. It is inconceivable that there can ever be an interpretation
that yields a number greater than the expressly prescribed numbers. Similarly, Article 163
provides for the membership of the Supreme Court. Again, it is inconceivable that any craft of
interpretation can yield a greater number. There are constitutional timelines for the conduct of

1
See Article 20(3)(b) 20(4), 259 and 260 of the CoK 2010
2
Barnet, R. E. (2011). Interpretation and Construction. Harv. J.L. & Pub. Pol'y, 34, 65-72.
[Link]
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a presidential election petition3, for the transition4, for impeachment5 and for the composition
of the Cabinet6 that are as clear as daylight and require no interpretation. Accordingly, it has
been held that-
‘courts are constrained by the language used. Courts may not impose a meaning that
the text is not reasonably capable of bearing. In other words, interpretation should not
be “unduly strained… It should avoid “excessive peering at the language to be
interpreted’7
In International Legal Consultancy Group v Senate & Clerk of the Senate [2014] eKLR, it
was held as follows-

48. We fully agree with the interpretation given by the courts in the authorities cited
above regarding the harmonization principle of interpretation which means that a
provision of the Constitution should be interpreted in harmony with the whole
document of the Constitution and not in isolation. Each section of the Constitution
should sustain and not destroy the other. We therefore find that Article 226(2) must be
read together with Article 96 of the Constitution which as earlier stated provides for the
roles of the Senate. Of particular importance is Article 96(3) which gives the Senate a
central role in the fiscal matters of the County Governments concerning the allocation
of National Revenue. The Constitution under that proviso goes further and states that
the Senate has “an oversight role over the National Revenue allocated to Counties”. In
our view, this provision is clear and requires no more than a literal interpretation

But in many cases, there is some ambiguity or vagueness in the words of the statute that must
be resolved by the court. There are provisions of the constitution, especially the Bill of Rights
that do not lend themselves to precise measurement. They are couched in open-ended terms
and require some form of interpretation. Such provisions call for a value judgment in an area
where opinions may differ. The provisions are not self-defining and have been and will be
objects of judicial interpretation.

3
Article 140
4
Article 141
5
Article 145
6
Article 152
7
Federation of Women Lawyers Kenya (FIDA) v Attorney General & another Petition No.
164B of 2016 [2018] eKLR

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For example, 27 provides for the 2/3rd gender rule. At first sight, it appears fairly straight
forward. But it turns out that it is a lot more complicated, and the Supreme Court was unable
to agree on its application to the 10th parliament resulting in a powerful dissent by Chief Justice
Willy Mutunga8. Earlier on an attempt to persuade the court to find that the composition of the
Supreme Court for non-compliance with this provision was rejected by the constitutional
[Link], Article 45 (3) of the Constitution provides that-
“parties to a marriage are entitled to equal rights at the time of the marriage, during the
marriage and at the dissolution of the marriage”.
Does this create community of matrimonial property entitling the spouses to equal shares upon
dissolution of a marriage? That was the argument by FIDA in Federation of Women Lawyers
Kenya (FIDA) v Attorney General & another Petition No. 164B of 2016 [2018] eKLR. Judge
Mativo did not think so and accordingly found that Section 7 of the Matrimonial Property Act10
which requires proof of contribution to the acquisition of the property is not unconstitutional.
It has a letter and a spirit. While the use of broad and vague language in constitutional
provisions has its advantages, it also poses challenges. The interpretation of such provisions
may lead to debates, and the potential for differing interpretations can raise questions about the
consistency and predictability of constitutional law. Nevertheless, this ambiguity is often a
deliberate choice to balance stability with the need for flexibility in governing complex and
dynamic societies.
Broad and vague language allows constitutional provisions to be flexible and adaptable to
changing social, political, and cultural circumstances. Societies evolve, and by using more
general terms, the constitution can endure over time without requiring constant amendments
for every new situation. If constitutional provisions were too detailed and specific, they might
become rigid and fail to address unforeseen issues or changes in society. Broad language
provides room for interpretation and application to a wide range of situations, ensuring that the
constitution remains relevant.
During the drafting of a constitution, achieving consensus among diverse groups with varying
perspectives can be challenging. Using broad language allows for compromise and helps bring
together different factions that might have conflicting views on specific issues. By leaving

8
In the Matter of the Principle of Gender Representation in the National Assembly and the Senate Advisory
opinion No 2 of 2012
9
Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] eKLR Petition
Number 102 of 2011
10
Section 7 MPA provides a follows; ‘Subject to section 6(3), ownership of matrimonial property vests in the
spouses according to the contribution of either spouse towards its acquisition and shall be divided between the
spouses if they divorce or their marriage is otherwise dissolved.”

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certain issues open to interpretation, constitutional drafters can avoid settling contentious
matters definitively. This may help maintain a broader political consensus and prevent the
constitution from becoming a source of constant political conflict.
Constitutions are designed to provide a framework for governance that can stand the test of
time and be applicable to diverse societies. Broad language allows for the creation of
constitutional principles that can be broadly applicable across different contexts and cultures.
Vagueness in constitutional language can also encourage public participation and engagement.
Citizens and interest groups can contribute to the ongoing interpretation and development of
constitutional principles, fostering a sense of ownership in the constitutional order.
The use of broad language in the Bill of Rights helps protect fundamental rights and liberties
by preventing overly restrictive interpretations. This ensures that the rights enumerated in the
constitution are not narrowly construed to the detriment of individuals. The Bill of rights often
require interpretation by the judiciary. Broad language gives courts the flexibility to interpret
the constitution in light of contemporary values and circumstances, allowing them to apply the
law to changing societal norms. For example, the constitution deliberately doesn’t define
concepts like ‘fair trial’, ‘cruel or unusual punishment’ These words or concepts can mean
different things to different people at different times. Accordingly, the drafters build flexibility
into the constitution by leaving them undefined. Legislation or judicial interpretation can then
fill in the gaps.
Chief Justice Willy Mutunga held as follows in In the Matter of the Principle of Gender
Representation in the National Assembly and the Senate.
“It is true the Constitution will present the courts with inconsistencies, grey areas,
contradictions, vagueness, bad grammar and syntax, legal jargon, all hallmarks of a
negotiated document that took decades to complete. It reflects contested terrains, vested
interested that are sought to be harmonized, and a status quo to be mitigated. These
features in our Constitution should not surprise anybody, not the bench, or the bar or
the academia.”

4. A Theory of Interpretation
Article 259(3) (3) provides that ‘Every provision of this Constitution shall be construed
according to the doctrine of interpretation that the law is always speaking and, therefore,
among other things…’ Does this article provide for a theory of interpretation? Former Attorney
General, professor Githu Muigai doesn’t think so. According to professor Githu, the
constitution decrees an ‘approach’ to constitutional interpretation but not a theory. Former CJ

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Willy Mutunga is of the view that article 259 prescribes a theory of interpretation11. In my view
this is a semantic debate. Literature liberally uses the words ‘theory of interpretation’ and
‘approaches to interpretation’ interchangeably and that is how the words will be used in this
module. The CoK 2010 even talks of a ‘doctrine of interpretation’
5. What Causes Ambiguity in Statutes?
It has been said above that ambiguity can be a deliberate drafting strategy. But not always.
Sometimes ambiguity is not intended by the drafters. It is a consequence of limitations of
drafting. Words are imperfect symbols to communicate intent. They are ambiguous and change
in meaning over time. Unforeseen situations are inevitable, and new technologies and cultures
make application of existing laws difficult. Uncertainties may be added to the statute in the
course of enactment, such as the need for compromise or catering to special interest groups.
The legislature cannot foresee all the situations that a statute may need to apply to and make
its intention clear so as to make it applicable to all of them. No legislation unambiguously and
specifically addresses all matters. It is therefore for the courts to interpret how legislation
should apply in a particular case.
Justice Mativo recognised the challenges and limitations of drafting in Council of County
Governors v Attorney General & another Constitutional Petition No 56 of 2017 [2017] eKLR.
First, statutory interpretation is the process by which courts interpret and apply
legislation. The court interprets how legislation should apply in a particular case as no
legislation unambiguously and specifically addresses all matters. Legislation may
contain uncertainties for a variety of reasons such as:-
a. Words are imperfect symbols to communicate intent. They can be ambiguous and
change in meaning over time.
b. Unforeseen situations are inevitable, and new technologies and cultures make
application of existing laws difficult.
c. Uncertainties may be added to the statute in the course of enactment, such as the need
to compromise or catering for certain groups.
In Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others
[2015] eKLR Civil Appeal No 196 of 2015, the court of appeal was called upon to interpret
the meaning of the term ‘to advise’ and to determine whether the applicable constitutional
provision intended that the word should be interpreted as requiring permissive or mandatory

11
Mutunga W The 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme Court’s
Decisions [Link]

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compliance with the advice given. The deceptively simple question attracted elaborate
submissions by counsel on both sides of the divide and an equally elaborate deliberation by the
court. It was apparent that there was ambiguity in the use of the term ‘advice’.
Article 230 (4) provides as follows-
The powers and functions of the Salaries and Remuneration Commission shall be to—
(a) set and regularly review the remuneration and benefits of all State officers; and (b)
advise the national and county governments on the remuneration and benefits of all
other public officers.
Held
[27] Article 259(11) which relates to the construing of the Constitution provides: “If a
function or power conferred on a person under this Constitution is exercisable by the
person only on the advice or recommendation, with the approval or consent of, or in
consultation with another person, the function may be performed or the power exercised
only on that advise, recommendation, with that approval or consent or after that
consultation except to the extent that this Constitution provides otherwise.”
TSC is established by Article 237 and its functions are prescribed by the Constitution.
TSC is therefore exercising its functions under the power conferred by the Constitution.
It is common ground that TSC as an employer of teachers who are public officers is
subject to the advice of SRC under Article 230(4)(b) on the remuneration and benefits
of teachers. Indeed, section 37(3) of TSC Act states that the registered teachers shall
serve under the terms and conditions as the committee established under section 13(5)
“in consultation” with Salaries and Remuneration Commission may determine.
However, in my view, the phrase “in consultation” is a drafting error as it does not
conform to the provisions of Article 230(4)
(b) which uses the word “advise”. By Article 259(1)(a), the Constitution has to be
interpreted in a manner which promotes its purposes, values and principles. The
inherent weaknesses in the wage settling mechanisms prior to the establishment of SRC
have been described by SRC. Dr. Thuge in his report refers to such weaknesses and
states in paragraph 29 and 30:
“29. As a result, wage awards were granted to sub-sectors of the public service without
regard to their implications on the other sectors of the public service, macro-economic
stability and external competitiveness, effectiveness and service delivery and
affordability of such award.

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 30. To address these challenges and ensure fair and transparent harmonization of public
service salaries and value for money the people of the Republic of Kenya consciously
established the Salaries and Remuneration Commission…”
The very composition of SRC indicates that its advice has to be given great weight. The
phrase “only on that advice…” used in Article 259(11) shows that the advice is a
mandatory condition precedent for a valid exercise of power or function. If the word
“advise” in Article 230 (4) (b) is construed to be not binding, the country would be
returned to the pre-Constitution 2010 era which would defeat the purposes, values and
principles of the Constitution and of the institutionalization of SRC under the
Constitution. It is conceivable and indeed inevitable that many employers in public
sector would defy SRC’s advice leading to unimaginable financial crisis in the
management of national wage bill.
[28] Having regard to the mischief that the institutionalisation of SRC under the
Constitution was intended to cure the principles of public finance and fiscal
responsibility, the budgetary process and the complexity of salaries and benefits
determination for public officers, I hold that the advice of SRC under Article 230(4)(b)
on remuneration and benefits of all public officers is binding on national and county
governments and any power or function exercised without that advise is invalid.
Per Koome JA

What constitutes a constitutional advice was also determined by the Supreme Court in
the case of; - In the Matter of Advisory Opinion of the Court, Constitutional Application
No. 2 of 2011. In that case the Supreme Court held;- “On this account, it is inappropriate
that the Supreme‘s Court‘s Advisory Opinion should be sought as mere advice. Where
a government or State organ makes a request for an Opinion, it is to be supposed that
such organ would abide by that Opinion; the Opinion is sought to clarify a doubt, and
to enable it to act in accordance with the law.
6. Who has the Last Word on the Interpretation of the Constitution?
Anybody can interpret the constitution. Article 10 presupposes that the executive, the
legislature, the judiciary, constitutional commissions or independent constitutional office
holders will be involved in interpreting the constitution. Article 10 provides as follows;
10. (1) The national values and principles of governance in this Article bind all State
organs, State officers, public officers and all persons whenever any of them––
(a) applies or interprets this Constitution;

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 (b) enacts, applies or interprets any law; or
But article 165 gives the courts the last word in determining the meaning of the constitution.
Article 165(3) is couched as follows:
(3) Subject to clause (5), the High Court shall have—
d) jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this
Constitution.
(ii) the question whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with, or in contravention of, this Constitution.
(iii) any matter relating to constitutional powers of State organs in respect of county
governments and any matter relating to the constitutional relationship between the
levels of government; and
(iv) a question relating to conflict of laws under Article 191.
In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No.
290 of 2012, the court of appeal expressed itself as follows-

“It is not in doubt that the doctrine of separation of powers is a feature of our Constitutional
design and a per-commitment in our Constitutional edifice. However, separation of
power does not only proscribe organs of Government from interfering with the other's
functions. It also entails empowering each organ of Government with countervailing
powers which provide checks and balances on actions taken by other organs of
Government. Such powers are, however, not a license to take over functions vested
elsewhere. There must be judicial, legislative, and executive deference to the repository
of the function. We therefore agree with the High Court's dicta in the petition the subject
of this appeal that: Separation of powers must mean that the Courts must show
deference to the independence of the Legislature as an important institution in the
maintenance of our constitution democracy as well as accord the executive sufficient
latitude to implement legislative intent. Yet as the Respondents concede, the Courts
have an interpretive role, including the last word in determining the Constitutionality
of all Governmental actions.”(emphasis added)
7. What are the Risks Involved in Interpretation?
The issue at hand is whether judges should limit themselves to the literal language of the Act
or go beyond it to alter the meaning of a word when applying the law literally would result in
an apparent absurdity, hardship, or injustice. It is a principle of interpreting statutes that,
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assuming constitutionality, the legislature holds supremacy in creating laws, and the court's
role is confined to interpreting them. However, in practice, through the process of statutory
construction, the court has the potential to bring about significant changes in how the law
operates. This process involves inherent risks such as subjective interpretation, conflicting
interpretations, and the possibility of the court engaging in what is commonly referred to as
'judicial law making.'
8. How can the Risks be Managed?
The courts are conscious of the dangers inherent in constitutional interpretation. Accordingly,
over time, the courts have grappled with the arduous task of developing a scientific, objective
and value- free methodology of interpretation. Such a methodology would limit opportunities
for judicial activism through standardized methodology of interpretation. The courts have
therefore developed the rules, cannons or maxims of interpretation to guide judges in
interpreting and applying legislation. Some of these maxims and cannons, especially the more
value laden ones, apply to the constitution only and may be inappropriate for application to
ordinary legislation. Most of them were in fact developed to assist in the interpretation of
ordinary legislation and apply to both ordinary legislation and the constitution. The assumption
is that if the judges follow the rules, there is a greater likelihood of objectivity and consistency
in interpretation. .
9. Two Major Approaches
Judges use two broad approaches to interpret the constitution. The first approach suggests that
constitutional interpretation is a wholly discretionary exercise that treats the entire text as
capable of many meanings. The second and alternative approach is that constitutional
interpretation is wholly mechanical and the meaning of the constitution is embedded in the
constitution itself.
According to Owen Fiss, the many methods, theories and principles can be classified into two
broad categories
• Interpretivist-. Restricts interpretation to the text of the constitution. (Extrinsic
sources seriously discouraged) Charecterised as ‘formalistic’ or ‘strict’
construction.
• Non-Interpretivist- goes beyond the text. There is heavy reliance on extrinsic
sources. Charecterised as the ‘living constitution’ approach

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The court is the final arbiter over the constitution and has a right to determine what the vague
provisions mean. Some judicial pronouncements take an extremist approach, Evans Hughes, a
former Chief Justice of the United States ones sensationally proclaimed claimed;
‘We are under a constitution, but the constitution is what the judges say it is, and the
judiciary is the safeguard of our liberty and of our property under the constitution’
Other judges take a more cautious approach. On such judge is Kentridge in S vs. Zuma & others
1995 (2) SA 642 CC
‘I am aware of the fallacy of supposing that general language must have a single
‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual
and moral precepts. But it cannot be too strongly stressed that the constitution does not
mean whatever we might wish it to mean… if the language used by the law giver is
ignored in favour of a general resort to ‘values’, the result is not interpretation but
divination’
The issue is whether courts are permitted to use social policy as an aid to interpretation. Non-
Interpretivists insist the law and cannot be divorced from the social political and economic and
technological environment within which it operates. But judges do have a duty not to overly
politicize the process of interpretation. According to Mohammed J in Makwanyane (1995 (3)
SA 391, ‘there is a difference between the political role played by the legislature and the legal
role played by the judiciary’
10. Use of Extrinsic Sources
Non-interpretivism allows the court to go beyond the text of the constitution where the words
of the constitution are not clear. For example, in Speaker of the National Assembly v Centre
for Rights Education & Awareness & 7 others Civil Appeal No. 148 OF 2017 [2019] eKLR,
the Court of Appeal used a report of the Committee of Experts to interpret the CoK 2010.
We ask ourselves, why did the Constitution deem it necessary to provide the default
mechanism in Article 261?" In our view, it was simply to guard against legislative
inertia or inaction which would thwart or frustrate the full implementation of the
Constitution. This is borne out by the Final Report of the Committee of Experts
(CoE), which drafted the Constitution, where it was stated thus;
“The new Constitution also set out a procedure to be followed if a law were not enacted
within the scheduled time. The challenge was to ensure that the new laws envisaged by
the new constitution are promptly enacted. Under Article 308 of the Bomas Draft, if
Parliament failed to adopt a particular law within the time stipulated in the table,
anyone could petition the High Court for a declaratory order instructing Parliament to
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 enact the law within a specified period. If this was not done, Parliament would be
dissolved...The new Constitution follows the Bomas approach in allowing the National
Assembly to extend the time within which a Bill is to be passed, provided that the
extension is justified by exceptional circumstances and has the support of at least two-
thirds of its members. It also permits any person to petition the High Court to deal with
a failure by the National Assembly to pass a law in time. If the National Assembly fails
to abide by the court order, it will be dissolved, and a new election held.” (Emphasis
added).
11. Originalism vs Evolutionism
In the United States of America, there are two approaches to constitutional interpretation. The
‘originalists’ interprets the constitution according to the meaning that the framers of the
constitution may have assigned to the words of the constitution at the time of the drafting of
the constitution. ‘Evolutionists’ subscribe to the concept of the living constitution. They believe
that the constitution must be interpreted to reflect the changes in society. The words of the
constitution do not necessarily mean what they may have meant when the constitution was first
drafted. Neither does the spirit of purpose of the constitution remain static. The constitution is
dynamic and changes as society changes. In the United States of America, the late Justice
Antonin Scalia is the foremost originalist. Justice Scalia was of the view that the constitution
must be construed in the same way the framers would have understood it. Use of extrinsic
sources is permissible where there is ambiguity but only for purposes of ascertaining the
intention of the framers. Justice Stephen Breyer is an evolutionist. Breyer subscribes to the
school of thought that the constitution is not static and evolves with society. The constitution
must therefore be construed in a manner that comports with societies notions of constitutional
values.
12. Judicial Self-Restraint vs Judicial-Activism
Judicial self-restraint gives more deference to the legislature and the executive arms of
government when interpreting the constitution. Judicial activism, on the other hand, asserts
that the judiciary is designed to be the intermediary between the people and the government in
order to keep the government within the limits imposed by the constitution. Judicial activism
is often seen as an undemocratic usurpation of power by the judiciary. Judicial self-restraint is
seen as promoting excessive formalism and textualism.
13. How Should we Interpret the CoK 2010?
In interpreting the Constitution of Kenya 2010, we need not look further than the provisions of
the constitution itself. The constitution unambiguously decrees how it must be interpreted. It
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effectively demands judicial activism in its interpretation. Article 259 unambiguously rejects a
textualist approach to constitutional interpretation in favour of a purposive approach. Article
10 requires that national values be used in interpreting the provisions of the constitution. This
is not an invitation to ignore the clear words of the constitution in pursuit of an alleged spirit
of the same. Some provisions of the constitution such as the number of members of parliament
(article 97 and 98), the number of members of the Supreme Court( Article 163) the timelines
for challenging a presidential election( article 140) the timelines for transition period, the
timelines for impeachment are couched in unambiguous terms and no craft of interpretation
can change them. It is only where there is ambiguity, where there are alternative meanings that
the courts now adopt the purposive approach to resolve the ambiguity. Where the constitution
is silent, it may be reasonable to read into the constitution words that may not be in the text so
as to avoid injustice or absurdity or, provide a necessary remedy.
Article 259 provides;
‘259. (1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill
of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.
(2) If there is a conflict between different language versions of this Constitution, the
English language version prevails
(3) Every provision of this Constitution shall be construed according to the doctrine of
interpretation that the law is always speaking…’
Section 3 of the Supreme Court Act provides as follows;
The object of this Act is to make further provision with respect to the operation of the
Supreme Court as a court of final judicial authority to, among other things—
(a) assert the supremacy of the Constitution and the sovereignty of the people of Kenya;
(b) provide authoritative and impartial interpretation of the Constitution;
(c) develop rich jurisprudence that respects Kenya’s history and traditions and
facilitates its social, economic and political growth;
(d) enable important constitutional and other legal matters, including matters relating
to the transition from the former to the present constitutional dispensation, to be
determined having due regard to the circumstances, history and cultures of the
people of Kenya;
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In the Matter of the Principle of Gender Representation in the National Assembly and the
Senate Advisory opinion No 2 of 2012 Mutunga, CJ held as follows-

Interpreting the various Articles that are in issue here is the fundamental issue in this
Reference. Learned Counsel before us have suggested various methods of interpreting
the Constitution that should be adopted by this Court. These methods have been used
by various jurisdictions, including some prescriptions arising from Kenyan Courts,
both under the repealed and current Constitutions. Fortunately, to interpret the
Constitution we need not go further than its specific Articles that give us the necessary
guidance into its interpretation .It is, therefore, necessary for the Court at this early
opportunity to state that no prescriptions are necessary other than those that are within
the Constitution itself. The Constitution is complete with its mode of its interpretation,
and its various Articles achieve this collective purpose…It is from these articles that
the Supreme Court finds its approach to the interpretation of the Constitution. The
approach is to be purposive, promoting the dreams and aspirations of the Kenyan
people, and yet not in such a manner as to stray from the letter of the Constitution. The
obligation upon this Court to uphold this interpretation is provided for in Section 3 of
the Supreme Court Act (Act No …of 2011):

In the Matter of the Interim Independent Electoral Commission - Constitutional Application

No. 2 of 2011 [2011] eKLR paragraph 86,

“The rules of constitutional interpretation do not favour formalistic or positivistic

approach(Article 20(4) and 259(1)). The Constitution has incorporated non-legal
considerations which we must take into account in exercising our jurisdiction. The
Constitution has a most modern Bill of Rights that envisions a human--rights-based and
social-justice-oriented state and society. The values and principles articulated in the
preamble, in article 10, in chapter 6 and in various provisions, reflect historical,
economic, social, cultural and political realities and aspirations that are critical in
building a robust patriotic and indigenous jurisprudence or Kenya. Article 159(1) state
that judicial authority is derived from the people. That authority must be reflected in
the decisions made by the court”.
A similar approach had been adopted, the significantly less progressive independence
constitution. In Murungaru vs. Kenya Anti-Corruption Commission & Another Nairobi
HCMCA No. 54 of 2006 [2006] 2 KLR 733, the High Court found as follows-

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 Our Constitution must be interpreted within the context and social and economic
development keeping in mind the basic philosophy behind the particular provisions of
the Constitution.
14. The Primary Rule
The first principle of interpretation is the literal or grammatical interpretation which means that
the words of an enactment are to be given their ordinary and natural meaning, and if such
meaning is clear and unambiguous, effect should be given to a
Connecticut Nat'l Bank v. Germain 112 S. Ct. 1146, 1149 (1992) (US Supreme Court)
"In interpreting a statute, a court should always turn to one cardinal canon before all
others. . . .Courts must presume that a legislature says in a statute what it means and
means in a statute what it says there…when the words of a statute are unambiguous,
then, this first canon is also the last: 'judicial inquiry is complete.'"
State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) (Supreme Court of New Mexico)
: "The principal command of statutory construction is that the court should determine
and effectuate the intent of the legislature using the plain language of the statute as the
primary indicator of legislative intent."
State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) (Supreme Court of New
Mexico)
“The words of a statute . . . should be given their ordinary meaning, absent clear and
express legislative intention to the contrary,” as long as the ordinary meaning does “not
render the statute’s application absurd, unreasonable, or unjust.”
. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (U.S. Court of Appeals for the Second
Circuit)
"As in all statutory construction cases, we begin with the language of the statute. The
first step is to determine whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case

15. Cannons of Construction

Cannons are principles and rules upon which judges proceed in interpreting a statute. These
rules and principles came into being through various sources in the course of time. Many of
them are based on maxims of Roman Law; some of them reflect Natural Law principles, some
are laid down by Courts in their decisions and some are the creations of eminent jurists like
Maxwell. Canons give common sense guidance to courts in interpreting the meaning of

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statutes. Proponents of the use of canons argue that the canons constrain judges and limit the
ability of the courts to legislate from the bench. Critics argue that the cannons frequently
contradict themselves. Accordingly, a judge always has a choice between competing canons
that leads to different results, so judicial discretion is only hidden through the use of canons,
not reduced. There are two types of cannons of statutory interpretation;
• Textual cannons
• Substantive cannons

Textual canons are rules of thumb for understanding the words of the text. Some of the canons
are still known by their traditional Latin names. Substantive canons instruct the court to favor
interpretations that promote certain values or policy results.
16. Textual cannons
• Literal construction
• The golden rule
• The mischief rule
• Ejusdem generis
• Expressio unius est exclusion alterius
• Generalia specialibus non derogant
• Construction ut res magis valeat quampereat
• Noscitur a sociis ("a word is known by the company it keeps")
• In parimateria ("upon the same matter or subject")
• Reddendo singulasingulis ("refers only to the last“)
17. Substantive Cannons: Examples from the US
Substantive canons instruct the court to favor interpretations that promote certain values or
policy results. We borrow liberally from the jurisprudence from United States of America.
17.1. Charming Betsy Canon
National statute must be construed so as not to conflict with international law. Murray v. The
Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of
Congress ought never to be construed to violate the law of nations if any other possible
construction remains..."
17.2. Interpretation in Light of Fundamental Values
Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v.
United States,[22] or Coco v The Queen. [1994] HCA 15, (1994) 179 CLR 427, High Court
(Australia)] However, legislation that is intended to be consistent with fundamental rights can

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be overridden by clear and unambiguous language. Electrolux Home Products Pty Ltd v
Australian Workers' Union [2004] HCA 40, (2004) 221 CLR 309 (2 September 2004), High
Court (Australia)
17.3. Rule of Lenity
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of
the defendant.[25][26]:296–302 See McNally v. United States, 483 U.S. 350 (1987); See, e.g.,
Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S.,
504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977)
(Stewart, J., dissenting); See United States v. Santos (2008).
17.4. Avoidance of abrogation of state sovereignty
See Gregory v. Ashcroft; 501 U.S. 452 (1991) see also Gonzales v. Oregon 546 U.S. 243
(2006)see also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003 except where
such would deprive the defendant of bedrock, foundational rights that the Federal Government
intended to be the minimum floor that the states were not allowed to fall beneath; Dombrowski
v Pfister. U.S. 479 (1965)
17.5. 'Indian' Canon
National statute must be construed in favor of Native Americans. See Chickasaw Nation v.
United States, 534 U.S. 84 (2001): "statutes are to be construed liberally in favor of Indians
with ambiguous provisions interpreted to their benefit." This canon can be likened to the
doctrine of contra proferentem in contract law.
17.6. Deference
Deference canons instruct the court to defer to the interpretation of another institution, such as
an administrative agency or Congress. These canons reflect an understanding that the judiciary
is not the only branch of government entrusted with constitutional responsibility.
17.7. Deference to Administrative Interpretations (US Chevron deference)
If a statute administered by an agency is ambiguous with respect to the specific issue, the courts
will defer to the agency's reasonable interpretation of the statute. This rule of deference was
formulated by the United States Supreme Court in Chevron v. Natural Resources Defense
Council, 467 U.S. 837 (1984).
17.8. Avoidance Canon (Canon of Constitutional Avoidance)
If a statute is susceptible to more than one reasonable construction, courts should choose an
interpretation that avoids raising constitutional problems. In the US, this canon has grown
stronger in recent history. The traditional avoidance canon required the court to choose a
different interpretation only when one interpretation was actually unconstitutional. The modern
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avoidance canon tells the court to choose a different interpretation when another interpretation
merely raises constitutional doubts.[
17.9. Avoiding Absurdity
The legislature did not intend an absurd or manifestly unjust result.[]
17.10. Clear Statement Rule
When a statute may be interpreted to abridge long-held rights of individuals or states, or make
a large policy change, courts will not interpret the statute to make the change unless the
legislature clearly stated it. This rule is based on the assumption that the legislature would not
make major changes in a vague or unclear way, and to ensure that voters are able to hold the
appropriate legislators responsible for the modification.
Leges posterior espriores contrarias abrogant (Subsequent laws repeal those before enacted to
the contrary, aka "Last in Time") .When two statutes conflict, the one enacted last prevails.
18. Some Presumptions
Statutes may be presumed to incorporate certain components, as Parliament is "presumed" to
have intended their inclusion. For example:
• Offences defined in criminal statutes are presumed to require mens rea (a guilty
intention by the accused),
• A statute is presumed to make no changes in the common law.
• A statute is presumed not to remove an individual's liberty, vested rights, or
property
• A statute is presumed not to apply to the Crown.
• A statute is presumed not to apply retrospectively
• A statute is to be interpreted so as to uphold international treaties;
• It is presumed that a statute will be interpreted ejusdem generis, so that
words are to be construed in sympathy with their immediate context.
18.1. Presumption of Constitutionality
That there is a presumption of constitutionality of statutes is not in doubt.
Ndyanabo vs. Attorney General [2001] EA 495 CA (T)
“Until the contrary is proved, legislation is presumed to be constitutional. It is a sound
principle of constitutional construction that, if possible, legislation should receive such
a construction as will make it operative and not inoperative”
Odunga J in Peter Solomon Gichira v Independent Electoral and Boundaries Commission&
another [2017] eKLR

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 In considering this question, we are further guided by the principle enunciated in the
case of Ndyanabo vs Attorney General [2001] EA 495 to the effect that there is a
general presumption that every Act of Parliament is constitutional. The burden of proof
lies on any person who alleges that an Act of Parliament is unconstitutional. However,
the Constitution itself qualifies this presumption with respect to statutes which limit or
are intended to limit fundamental rights and freedoms. Under the provisions of Article
24 there can be no presumption of constitutionality with respect to legislation that limits
fundamental rights: it must meet the criteria set in the said Article.
19. The Constitution as an Integrated Whole
Olum -vs- Attorney General of Uganda (2002) 2 EA 508, the Court of Appeal of Uganda
“The entire Constitution has to be read as an integrated whole and no one particular
provision destroying the other but each sustaining the other. Constitutional provisions
must be construed as a whole in harmony with each other without insubordination of
any one provision to the other.”
This principle of harmonious interpretation of the Constitution was also discussed by the
United States Supreme Court in the case of Smith Dakota -vs- North Carolina 192 v 268 (1940)
where the Court held that;
“It is an elementary rule of Constitutional construction that no one provision of the
Constitution is to be segregated from the others and to be considered above but that all
provisions bearing upon a particular subject are to be brought into view and to be
interpreted as to effectuate the great purpose of the instrument.”
International Legal Consultancy Group v Senate & Clerk of the Senate [2014] eKLR

48. We fully agree with the interpretation given by the courts in the authorities cited
above regarding the harmonization principle of interpretation which means that a
provision of the Constitution should be interpreted in harmony with the whole
document of the Constitution and not in isolation. Each section of the Constitution
should sustain and not destroy the other. We therefore find that Article 226(2) must be
read together with Article 96 of the Constitution which as earlier stated provides
for the roles of the Senate. Of particular importance is Article 96(3) which gives the
Senate a central role in the fiscal matters of the County Governments concerning the
allocation of National Revenue. The Constitution under that proviso goes further and
states that the Senate has “an oversight role over the National Revenue allocated to

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 Counties”. In our view, this provision is clear and requires no more than a literal
interpretation
Tinyefuza v Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997) UGCC
3
Lastly and fundamentally, it is the principle that the provisions of the Constitution must
be read as an integrated whole, without any one particular provision destroying the
other but each sustaining the other.
Odunga J in Peter Solomon Gichira v Independent Electoral and Boundaries Commission&
another [2017] eKLR
Whereas a holistic interpretation I called for, care must be taken to read into the
constitution meanings which are not in the constitution
In Matter of the Kenya National Human Rights Commission, Advisory Opinion No. 1 of 2012;
[2014] eKLR, (SC)
“…But what is meant by a holistic interpretation of the Constitution" It must mean
interpreting the Constitution in context. It is the contextual analysis of a constitutional
provision, reading it alongside and against other provisions, so as to maintain a rational
explication of what the Constitution must be taken to mean in light of its history, of the
issues in dispute, and of the prevailing circumstances. Such scheme of interpretation
does not mean an unbridled extrapolation of discrete constitutional provisions into each
other, so as to arrive at a desired result.”
20. The Concept of the Living Constitution
Chege Kimotho& Others vs. Vesters & Another [1988] KLR 48; Vol. 1 KAR 1192; [1986-
1989] EA 57, the Constitution is a living thing: it adopts and develops to fulfill the needs of
living people whom it both governs and serves. Like clothes, it should be made to fit people. It
must never be strangled by the dead hands of long discarded custom, belief, doctrine or
principle. It must, of necessity, adapt itself; it cannot lay still. It must adapt to the changing
social conditions judicial activism vs judicial self-restraint
In the Matter of the Estate of Lerionka Ole Ntutu [2008] KLR 452:

“Constitution of any country of the world should not represent a mere body or skeleton
without a soul or spirit of its own. The Court would not like to discard the possibility
of the court adopting broader view of using the living tree principle of the
interpretation of the Constitution where they are “amongst others, ambiguity,
unreasonableness, obvious imbalance or lack of proportionality or absurd situation.”

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Richard Nduati Kariuki vs Honourable Leonard Nduati Kariuki & Another [2006] 2 KLR 356
Nyamu, J

“The Constitution is a living document. It is a house with many rooms, windows and
doors. It is conservative enough to protect the past but flexible enough to advocate new
issues and the future.”

Charles Lukeyen Nabor i& 9 Others vs. the Hon. Attorney General & 3 Others Nairobi HCCP
No. 466 of 2006,

“…the Constitution should not represent a mere body or skeleton without a soul or spirit
of its own. The Constitution being a living tree with roots, whose branches are
expanding in natural surroundings, must have natural and robust roots to ensure the
growth of its branches, stems, flowers and fruits.”
20.1. Advantages of the Living Constitution Approach
The living constitution allows for the interpretation of the Constitution to be adaptable to the
changing needs and values of society. It enables the legal system to address new and unforeseen
issues that may not have been contemplated by the framers. By interpreting the Constitution in
light of current circumstances, the living constitution approach helps maintain the relevance of
constitutional principles in contemporary society. This is seen as crucial in addressing issues
that were not anticipated by the framers. Proponents argue that the living constitution allows
for a more expansive protection of fundamental rights by adapting constitutional interpretation
to contemporary understanding of those rights.

20.2. Disadvantages of the Living Constitution Approach

Critics argue that the living constitution approach introduces uncertainty into constitutional
interpretation because it relies on subjective assessments of contemporary values. This can lead
to inconsistencies and unpredictability in legal decisions. It is said to be a convenient a guise
for judicial activism, where judges may use their own personal beliefs to reinterpret the
Constitution, potentially overstepping their role by making policy decisions rather than strictly
interpreting the law. It is also argued that the living constitution undermines the stability and
predictability of the legal system by allowing the meaning of the Constitution to change over
time. This may lead to difficulties in establishing clear legal precedent.

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21. Use of Judicial Precedent
The use of precedent, also known as stare decisis, plays a crucial role in the interpretation of
the Constitution. Precedent refers to the legal principle of relying on past decisions to guide
current and future rulings. In the context of constitutional law, precedent helps create a stable
and predictable legal system, promoting consistency and fairness in the application of the
Constitution. Precedent serves as a valuable source of interpretive guidance. Courts often
analyze the reasoning behind prior decisions to understand how constitutional principles have
been applied in different contexts. This analysis helps in shaping the interpretation of the
Constitution in new [Link] provides a sense of stability and predictability in the legal
system. Courts often look to past decisions to resolve similar issues, which helps maintain
continuity and consistency in the interpretation of constitutional principles.
Over time, society evolves, and new issues arise that may not have been contemplated by the
framers of the Constitution. Precedent allows the legal system to adapt to changing
circumstances while still respecting the foundational principles of the Constitution.
Binding precedent means that decisions made by higher courts must be followed by lower
courts in the same jurisdiction. This ensures uniformity in legal rulings and prevents conflicting
interpretations within a specific jurisdiction.
Persuasive precedent refers to decisions from other jurisdictions or lower courts that may
influence a court's decision. Courts may consider the reasoning and arguments presented in
these cases when deciding on constitutional issues.
Over time, society evolves, and new issues arise that may not have been contemplated by the
framers of the Constitution. Precedent allows the legal system to adapt to changing
circumstances while still respecting the foundational principles of the Constitution.
22. Determining the Constitutionality of Ordinary Legislation
Courts are frequently called upon to determine the constitutionality of legislation. This is a
potentially hazardous task as the legislature frequently considers itself capable of determining
the constitutionality of legislation. Indeed, understanding Order No 47, the speaker is obliged
to determine the constitutionality of all bills presented for debate. The passing of a bill
necessarily presupposes that legislature has considered the constitutionality of legislation.
Querying the constitutionality of legislation therefore means second guessing the decisions of
parliament and are interpreted by parliament as interference. Courts are anxious not to be seen
as interfering with the work of the other arms of government. Courts are therefore
understandably wary of second guessing the decisions of the legislature. Accordingly, the

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courts have also developed some principles that they follow in determining the constitutionality
of legislation.
In the case of Martin Nyaga Wambora& 30 others v County Assembly of Embu & 4 others
NRB HC PET NO 7 OF 2014 [2015] eKLR the court enumerated some guiding principles that
constitutional courts use when determining the constitutionality of legislation.
It is now accepted that in interrogating the constitutionality of a provision of a
statute or a statute, the starting point is statutory interpretation. There are several
principles which have been developed over the years that must be taken into
account.
The first guiding principle is that a statute is presumed to be constitutional
unless the contrary is proved. This was reiterated in the case of Wyclife Gisebe
Nyakina & another v Institute of Human Resource Management & another
{Petition No 450 of 2013} [2014] eKLR where Mumbi Ngugi, J, quoting Kenya
Union of Domestic, Hotels, Education Institutions and Hospital Workers v
Kenya Revenue Authority & Others High Court Petition No. 544 of 2013 stated
as follows:
“The principles upon which the court determines the constitutionality
of statutes are now well settled. It is well established that every
statute enjoys a presumption of constitutionality, and the court is
entitled to presume that the legislature acted in a constitutional and fair
manner unless the contrary is proved by the petitioner. In considering
whether an enactment is unconstitutional, the court must look at the
character of the legislation as a whole, its purpose and objects and
effect of its provisions (see Ndyanabo v Attorney General of Tanzania
(2001) 2 EA 485, Joseph Kimani and Others v Attorney General and
Others Mombasa Petition No. 669 of 2009 [2010] eKLR, Murang’a
Bar Operators and Another v Minister of State for Provincial
Administration and Internal Security and Others Nairobi Petition No. 3
of 2011 (Unreported)), Samuel G. Momanyi v Attorney General and
Another Nairobi Petition No. 341 of 2011 (Unreported)”. (Emphasis
added)
The second guiding principle is that the courts are concerned only with the
power to enact statutes not with their wisdom. This was well stated in the

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 dissenting decision in U.S v Butler, 297 U.S. 1 [1936], in the U.S Supreme Court
where it was observed that:
“The power of courts to declare a statute unconstitutional is subject to
two guiding principles of decision which ought never to be absent
from judicial consciousness. One is that courts are concerned only with
the power to enact statutes, not with their wisdom. The other is that
while unconstitutional exercise of power by the executive and
legislative branches of the government is subject to judicial restraint,
the only check upon our own exercise of power is our sense of self-
restraint. For the removal of unwise laws from the statute books appeal
lies, not to the courts, but to the ballot and to the processes of democratic
government.” [Emphasis supplied]
Clearly therefore, the primary role of the Court is to interpret the law, as enacted
by Parliament, and that entails giving effect to the legislative intent of Parliament.
Thus, the Court is not concerned with ‘what ought to be’ but with ‘what is’, as
exemplified in the Indian Case of Re Application by Bahadur [1986] LRC 545
(Const.), where it was stated:
“I would only emphasize that one should not start by assuming that
what Parliament has done in a lengthy process of legislation is
unfair. One should rather assume that what has been done is fair until
the contrary is shown…”
In this regard, the Court in Republic vs The Council of Legal Education [2007]
e KLR, cited with approval the Indian Case of Maharashtra State Board of
Secondary and Higher Secondary Education and Another v Kurmarstheth [1985]
LRC where it had been found as follows:
“…It is exclusively within the province of the Legislature and its
delegate to determine, as a matter of policy, how the provision of the
statute can best be implemented and what measures, substantive as well
as procedural would have to be incorporated in the rules or regulations
for the efficacious achievement of the objects and purposes of the Act.
It is not for the court to examine the merits or demerits of such a policy
because its scrutiny has to be limited to the question as to whether the
impugned regulations fall within the scope of the regulation…”

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 The third guiding principle is that the purpose and effect of the statute or
provision impugned must be considered in determining the constitutionality or
otherwise of a statute. This test was well stated by the Supreme Court of Canada
in the case of R. v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, in the following
words:
“I cannot agree. In my view, both purpose and effect are relevant in
determining constitutionality; either unconstitutional purpose or
unconstitutional effect can invalidate legislation. All legislation is
animated by an object the legislature intends to achieve. This object is
realised through the impact produced with the operation and application
of the legislation. Purpose and effect respectively, in the sense of the
legislation’s objects and its ultimate impact, are clearly linked, if not
indivisible. Intended and actual effects have often been looked to for
guidance in assessing the legislation’s object and thus, its validity.”
(Emphasis added)
The fourth guiding principle is that the court must look at the character of the
legislation as a whole.
The fifth guiding principle is that the provision or statute alleged to contravene
the constitution must be juxtaposed against the provision(s) of the constitution
alleged to be impugned to determine the variance. That is to say, a comparative
enquiry must be done to determine whether the statutory provision squares out
with the constitutional provision. In the majority decision of the US Supreme
Court in U.S v Butler, 297 U.S. 1 [1936], it was held that:
“When an Act of Congress is appropriately challenged in the courts as
not conforming to the constitutional mandate, the judicial branch of the
government has only one duty; to lay the article of the Constitution which
is invoked beside the statute which is challenged and to decide
whether the latter squares with the former. All the court does, or can
do, is to announce its considered judgment upon the question. The only
power it has, if such it may be called, is the power of judgment. This court
neither approves nor condemns any legislative policy. Its delicate and
difficult office is to ascertain and declare whether the legislation is in

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 accordance with, or in contravention of, the provisions of the
Constitution; and, having done that, its duty ends.” [Emphasis added]
Finally, within that exercise of seeking to determine the constitutionality of any
statutory provision, there is the overarching constitutional obligation to interpret
the constitution itself, in accordance with the constitutional construction
imperatives stated in Article 259’

23. Criticism of the Canons

Critics of the use of canons argue that canons impute some sort of "omniscience" to the
legislature, suggesting that it is aware of the canons when constructing the laws. In addition, it
is argued that the canons give credence to judges who want to construct the law a certain way,
imparting a false sense of justification to their otherwise arbitrary process. Karl Llewellyn, for
example , argued that every canon had a "counter-canon" that would lead to the opposite
interpretation of the statutes.
24. The Constitution of Kenya as a Transformative Constitution
Karl Klare, Legal Culture and Transformative Constitutionalism, South African Journal of
Human Rights, Vol. 14 (1998),
“By transformative constitutionalism I mean a long-term project of constitutional
enactment, interpretation, and enforcement committed…to transforming a country’s
political and social institutions and power relationships in a democratic, participatory,
and egalitarian direction. Transformative constitutionalism connotes an enterprise of
inducing large-scale social change through non-violent political processes grounded in
law.”
24.1. Distinction from Classical Constitutionalism
Ulrich Karpen in ‘The Constitution of the Federal Republic of Germany’ distinguishes
between the two “…the value –oriented, concerned with intensely human and humane
aspirations of personality, conscience and freedom; the structure-oriented, concerned with
vastly more mundane and mechanical matters like territorial boundaries, local government,
institutional arrangements.”
A transformative constitution is different from the classical constitution which focused
primarily on the structure of the state and the powers and functions of key state organs (a
primary aim being the separation of powers). In due course many constitutions adopted Bills
of Rights, but on the whole did not concern themselves with the purposes for which state
power should be exercised. A transformative constitution is generally understood as that

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which seeks to make a break with the previous governance system. It aims not only to change
the purposes and structures of the state, but also society. It is value laden, going beyond the
state, with emphasis on social and sometimes economic change, stipulation of principles
which guide the exercise of state power, requiring state organs, particularly the judiciary,
to use the constitution as a framework for policies and acts for broader shaping of state
and society. It requires positive initiatives and legislation by the state, and in cases of failure,
courts may instruct them to do so and even elaborate what needs to be done. There is
considerable emphasis on the rule of law, defined not in any technical sense, but signifying
a new kind of constitutionalism.
Speaker of The Senate & Another vs. Hon. Attorney-General & Another & 3 Others Advisory
Opinion Reference No. 2 of 2013 [2013] EKLR

: “Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional

“liberal” Constitutions of the earlier decades which essentially sought the control and
legitimization of public power, the avowed goal of today’s Constitution is to institute
social change and reform, through values such as social justice, equality,
devolution, human rights, rule of law, freedom and democracy

Peter Solomon Gichira v Independent Electoral and Boundaries Commission& another [2017]
eKLR Odunga J

The current Constitution of Kenya, 2010, is a product of a long struggle for democracy
spanning decades by the people of Kenya. It is therefore partly a response to many years
of misrule by a single party dictatorship. One must therefore start from the presumption
that the provisions dealing with Kenya’s political system were meant inter alia to
correct the historical deficiencies that placed the people at the mercy of the executive
by usurping the people’s sovereignty and giving the executive unchecked power over
all other institutions of governance. This was appreciated by the Supreme Court In the
Matter of the Principle of Gender Representation in the National Assembly and the
Senate Advisory Opinion Application No. 2 of 2012, where it held that we ought to
take into account the agonized history attending Kenya’s constitutional reform.
Accordingly, in interpreting the Constitution it important that we do so while keeping
in mind what Kenyans intended to achieve by retiring the former Constitution and
substituting it with the current Constitution

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Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another
Constitutional Petition No. 234 OF 2017 [2017] eKLR,

‘Our Constitution, it has been hailed as being a transformative Constitution since as

opposed to a structural Constitution, it is a value-oriented one. Its interpretation and
application must therefore not be a mechanical one but must be guided by the spirit and
the soul of the Constitution itself as ingrained in the national values and principles of
governance espoused in the preamble and inter alia Article 10 of the Constitution
Joseph Kimani Gathungu vs. Attorney General & 5 Others Constitutional Reference No. 12 of
2010:
“A scrutiny of several Constitutions Kenya has had since independence shows that,
whereas the earlier ones were designed as little more than a regulatory formula for State
affairs, the Constitution of 2010 is dominated by a “social orientation”, and as its main
theme, “rights, welfare, empowerment”, and the Constitution offers these values as the
reference-point in governance functions.” Per Ojwang, JSC
In the Matter of the Principle of Gender Representation in the National Assembly and the
Senate, SC Advisory Opinion No. 2 of 2012
“A consideration of different constitutions shows that they are often written in different
styles and modes of expression. Some Constitutions are highly legalistic and
minimalist, as regards express safeguards and public commitment. But the Kenyan
Constitution fuses this approach with declarations of general principles and statements
of policy. Such principles or policy declarations signify a value system, an ethos, a
culture, or a political environment within which the citizens aspire to conduct their
affairs and interact among themselves and with their public institutions. Where a
Constitution takes such a fused form in terms, we believe a Court of law ought to keep
an open mind while interpreting its provisions. In such circumstances, we are inclined
in favour of an interpretation that contributes to the development of both the prescribed
norm and the declared principle or policy; and care should be taken not to substitute
one for the other.”
24.2. Characteristics of a Transformative Constitution
The emphasis is on achieving social justice by addressing historical inequalities,
discrimination, and marginalization based on factors such as race, gender, ethnicity, or class.
In addition to civil and political rights, a transformative constitution may address economic
rights, aiming to reduce economic disparities and ensure access to essential resources and

30 | P a g e N A I R O B I L A W T U T O R S L T D
opportunities. A transformative constitution may explicitly recognize and celebrate the
diversity within a nation, acknowledging the rights and contributions of various cultural,
linguistic, and religious groups.
Transformative constitutions may involve restructuring or redefining key institutions to
promote fairness, inclusivity, and accountability. This may include changes to the judiciary,
executive branch, and legislative bodies. The constitution may reinforce democratic principles,
including the rule of law, separation of powers, and mechanisms for citizen participation in
decision-making processes.
24.3. Implication for Constitutional Interpretation
In the Matter of the Principle of Gender Representation in the National Assembly and the
Senate, SC Advisory Opinion No. 2 of 2012

Where a Constitution takes such a fused form in terms, we believe a Court of law ought to
keep an open mind while interpreting its provisions. In such circumstances, we are inclined
in favour of an interpretation that contributes to the development of both the prescribed
norm and the declared principle or policy; and care should be taken not to substitute one
for the other…In interpreting the Constitution and developing jurisprudence, the Court will
always take a purposive interpretation of the Constitution as guided by the Constitution
itself. An example of such purposive interpretation of the Constitution has been articulated
by the Supreme Court of Canada in R v Big Drug Mart (1985). In paragraph 116 of the
ruling, the Court states: The proper approach to the definition of the rights and freedoms
guaranteed by the Charter was a purposive one. The meaning of a right or freedom
guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a
guarantee; it was to be understood, in other words, in the light of the interests it was meant
to protect...to recall the Charter was not enacted in a vacuum and must therefore...be placed
in its proper linguistic, philosophic, and historical contexts.

25. A history of Constitutional Interpretation in Kenya

Prior to the enactment of the CoK 2010, courts in Kenya oscillated between a literal and
purposive interpretation of the constitution. The predominant approach was however literal.
More so, when it came to the interpretation of the Bill of Rights; Most courts adopted a
retrogressive approach that severely constricted the democratic space. But there were flashes
of brilliance that heralded the new dawn that finally came to pass in August 2010.
Githu Muigai 2004, in another look at the problem of constitutional interpretation, EALJ took
the position that the courts had adopted an unprincipled eclectic pedantic inconsistent and
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conservative approach to constitutional interpretation. This, according to Githu, was wrong
because the constitution is more of a political charter than a legal document.
In Gibson Kamau Kuria(1985), the court found that rights under the bill of rights were
unenforceable because the then Chief Justice had not made rules under section 84 for their
enforcement.
In Matiba –vs- The Attorney –General Misc. Application No. 666 of 1990 the court found an
escape route in technicalities of procedure to throw out a constitutional petition challenging the
constitutionality of detention without trial.
“An applicant in an application under section 84(1) of the Constitution is obliged to
state his complaint, the provisions of the Constitution he considers has been
infringed in relation to him and the manner in which he believes they have been
infringed. Those allegations are the ones which if pleaded with particularly invoke the
jurisdiction of the court under the section. It is not enough to allege infringement
without particularizing the details and manner of infringement.
The court in El Mann vs Republic 1969 EA 357infamously held that the constitution is to be
construed like any other act of parliament.
But probably the worst of the worst came from a politically correct expatriate judge Norbury
Dugdale who decreed in Joseph Maina Mbacha& 3 ors vs. AG(1989)that the enforcement
provisions in the bill of Rights were ‘as dead as a dodo’ because the CJ had not made rules
under s 84(6)
Justice Dugdale was at it again in Fotofom vs AG & 3 ors(1993) when he announced that
Because of s 16 of the Govt Proceedings Act, Cap 40,an injunction could not issue pursuant to
s 84, against the government to prevent a violation of a right under the bill of rights .This was
despite the clear wording of s 84 which does not limit the type of orders under that section
An interesting oscillation took place in the context of applications for anticipatory bail under
section 84 of the 1969 Constitution.
In Samuel Muchiri W’Njuguna vs R HC MSC 710 of 2006 Rawal, Kimaru JJ progressively
found that anticipatory bail possible despite not being mentioned in section 84. The two judges
had very little support from their more politically correct colleagues. In Daniel M M’Kirimania
vs AG HC Msc 998 of 2001 and Peter Mwangi Kahutu vs AG HC CR REV 9 0f 1999 , the
courts found that since the right was not mentioned in section 84, it did not exist. In Titus
Musyoka vs RHC CR A 142 of 2004 the court found that since the right was not provided for
in the CPC, it does not exist!

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In Stephen Mureithi vs AG,(1981) the court had no hesitation finding that all public servants
hold office at the pleasure of the president.
In John Harun Mwau vs AG (1988) the court found that a citizen could not challenge the action
of the state to deny him a passport on the grounds that it denied him his freedom of movement
In Raila Odinga vs AG (1988) it was held that a citizen could be detained without being given
reasons for such detention
In Gitobu Imanyara vs AG (1991), the courts had no hesitation in declaring that the provision
under s 2A of the 1969 Constitution that Kenya shall be a single party state did not infringe on
the freedom of association under s 70(b) and 80

But there were progressive voices. In Felix Marete Njagi vs AG [1987] KLR 690,Shields J.
Had this to say about section 84.

“The Constitution is not a toothless bulldog nor is it a collection of pious platitudes. It

has teeth and in particular these are found in section 84. Both section 74 and 84 are
similar to the provisions of other commonwealth constitutions. It might be thought that
the newly independent states who in their constitutions enacted such provisions were
eager to uphold the dignity of the human person and to provide remedies against those
who wield power.
In Njoya vs AG(2005) the court rejected the pedantic approach and followed the Tanzanian
case of Ndyanabo vs AG of TZ 2001 EA 485 (TZ) in finding that the constitution is not an act
of parliament. The court should adopt a broad, liberal, and purposive, construction. The
constitution embodies certain values and principles, and it is the duty of the court to interpret
the constitution in such a manner as to give value to those principles. Samatta CJ in Ndyanabo
vs AG of TZ 2001 EA 485 (TZ) had held that the constitution (of Tanzania) is a living
instrument having a soul and a consciousness of its own. It must not be crippled with narrow
and technical interpretation. It must be construed in tune with the lofty purposes for which it
was made. It must be construed liberally and purposively.
In Crispus Njogu vs AG,(200) the court rejected the infamous El Mann doctrine and found that
the constitution is not an act of parliament it must be interpreted broadly or liberally not in a
pedantic way
In the post Moi era, there were no shortage of progressive interpretations that sought to redress
previous injustices
Dominic Arony Amolo vs the Attorney General(2003), a sum of Kshs.2.5 million was awarded
in the year 2005, for similar violations; The court found that the limitation of actions Act does
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not apply to constitutional rights litigation. The plaintiff’s claim filed in the year 2003 which
was more than 20 years after the cause of action arose, was allowed.
Nyamu J. (as he then was), considering a similar suit in the matter of Lt. Col. Peter Ngari
Kagume & others vs the Attorney General Constitutional Application No.128 of 2006 and ,
whereas he did not grant the orders sought, he certainly did not shut the door on any litigant
who could sufficiently explain the delay in approaching the court.
“The petitioner had all the time to file their claim under the ordinary law and the
jurisdiction of the court, but they never did and are now counting on the constitution.
None of the petitioners has given any explanation as to the delay for 24 years. In my
view the petitioners are guilty of inordinate delay and in the absence of any
explanation on the delay; this instant petition is a gross abuse of the court process. …….
In view of the specified time limitation in other jurisdictions the court is in a position
to determine what a reasonable period would be for an applicant to file a constitutional
application to enforce his or her violated fundamental rights. I do not wish to give a
specific time frame but in my mind, there can be no justification for the petitioners
delay for 24 years. A person whose constitutional rights have been infringed should
have some zeal and motivation to enforce his or her rights. In litigation of any kind,
time is essential as evidence may be lost or destroyed and that is possibly the wisdom
of time limitation in filing cases.”
But in Wachira Weheire v Attorney- General [2010] eKLR the court rejected Judge Nyamu’s
approach and emphatically stated that the limitation of actions act does not apply to actions
brought to enforce fundamental rights and freedoms

We have considered the case Lt. Col. Peter Ngari& Others -Vs- Attorney-General
(supra), which was relied upon by the defendant. We note that the Judge did not say
that there was a limitation period for filing proceedings to enforce constitutional
rights, though he found no justification for the delay in that particular case. We find
that, although there is need to bring proceedings to court as early as possible in
order that reliable evidence can be brought to court for proper adjudication, there is no
limitation period for seeking redress for violation of the fundamental rights and
freedoms of the individual, under the Constitution of Kenya. Indeed, Section 3 of the
Constitution provides that the Constitution shall have the force of law throughout
Kenya, and if any other law is inconsistent with the Constitution, the Constitution shall
prevail.

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In Dr. Odhiambo Olel vs the Attorney General, HCCC (Kisumu) No.366 of 1995, a sum of
Kshs.12 million was awarded, including exemplary damages of Khs.4 million.
In James Njau Wambururu vs the Attorney General (supra), where Kshs.800, 000/= was
awarded.
In Rumba Kinuthia vs the Attorney General, HC. Misc. App. No.1408 of 2004, a sum of
Kshs.1.5 million was awarded in 2008.
In conclusion, it is safe to say that prior to the enactment of the CoK 2010 (in the Moi era)
constitutional interpretation was largely pedantic and restrictive. In the post-Moi it is largely
liberal and purposive, but we still have lapses like those of Judge Nyamu.
26. The Role of the Courts
The judiciary is given a key role in the interpretation and shaping of the constitution. It is the
ultimate custodian of the constitution. More and more Kenyans are taking advantage of the
user-friendly enforcement mechanisms in the CoK 2010 to litigate various constitutional
issues. The courts have the capacity to either constrict or expand the democratic space through
their interpretation of the constitution. The progressive CoK 2010 gives courts considerable
latitude in fashioning remedies in constitutional rights litigation. Courts have the authority and,
indeed, the responsibility, whenever called upon to do so to develop the law to give effect to
the constitution. Article 259 compels the courts to promote values that underlie an open and
democratic society based on human dignity, equality, equity, and freedom—and the spirit,
purport and objectives of the Bill of Rights. The constitution must be interpreted to promote its
purposes, values and principles (of which there are many, including integrity, equity, social
justice, inclusiveness, transparency and accountability), and in a manner that advances the rule
of law and human rights, facilitates the development of law and contributes to good governance
Under a transformative Constitution, judges bear the ultimate responsibility to demand that the
state must justify itself not only by reference to authority, but by reference to ideas and values.
We have, it is said, moved from a culture of authority to one of justification. Political realities
must now be factored into the process of constitutional interpretation. There is a penumbral
grey area where law and politics intersect and mix freely, and it is naive to pretend that law can
be divorced from politics. The former attorney General Professor Githu Muigai had once
warned that the constitution is a political charter and must be interpreted as such. And the court
in Ndyanabo vs AG of Tanzania 2001 EA 485 (TZ) decreed that the constitution is not an act
of parliament and can never be interpreted as such.

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27. The Role of History
According to Walter Khobe, “The historical approach is one of the non-positivist approaches
to law that is demanded by transformative adjudication. It should be recalled that legal
positivists often claim that there is no necessary connection between law and morals, and that
the analysis of legal concepts is worth pursuing distinct from sociological and historical
evaluation. The historical approach and critical evaluation are to be seen as part of efforts to
find the rationale of the law after the authoritarian pre-2010 era and the fiasco of legal
positivism of that dispensation; this gives the rise to the need of substantive grounding of
juridical reasoning in the transformative dispensation.12
Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR

Mutunga J underscored the need for courts to look at the history.

“In my opinion, this provision grants the Supreme Court a near-limitless and substantially
elastic interpretive power. It allows the Court to explore interpretive space in the country’s
history and memory that, in my view, goes even beyond the minds of the framers whose
product, and appreciation of the history and circumstance of the people of Kenya, may
have been constrained by the politics of the moment.
Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
[2014] eKLR.
The Supreme Court traced the history of freedom of the media in order to arrive at an outcome
that was consistent with the transformative CoK 2020 and found as follows;
“We revisit once again the critical theory of constitutional-interpretation and relate it
to the emerging human rights jurisprudence based on Chapter Four – The Bill of
Rights – of our Constitution. The fundamental right in question in this case is the
freedom and the independence of the media. We have taken this opportunity to illustrate
how historical, economic, social, cultural, and political content is fundamentally critical
in discerning the various provisions of the Constitution that pronounce on its theory of
interpretation.”
28. The Importance of Developing Indigenous Jurisprudence
Section 3 of the Supreme Court Act provides as follows;
The object of this Act is to make further provision with respect to the operation of the
Supreme Court as a court of final judicial authority to, among other things—

12
Walter Khobe ‘The Supreme Court versus Royal Media Services: History as ‘Super Context’ in Constitutional
Interpretation’ (2018) The Platform, page 51.

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 (a) assert the supremacy of the Constitution and the sovereignty of the people of Kenya;

(b) provide authoritative and impartial interpretation of the Constitution;

(c) develop rich jurisprudence that respects Kenya’s history and traditions
and facilitates its social, economic and political growth;

(d) enable important constitutional and other legal matters, including matters
relating to the transition from the former to the present constitutional dispensation,
to be determined having due regard to the circumstances, history and cultures of
the people of Kenya;

The provision was interpreted by the Supreme Court as follows;

In the Matter of the Principle of Gender Representation in the National Assembly and the
Senate Advisory opinion No 2 of 2012 eKLR Per Mutunga J at paragraph 8.8

The obligation of the Supreme Court is, therefore, to cultivate progressive indigenous
jurisprudence in the momentous occasions that present themselves to the Court. By
indigenous jurisprudence, I do not mean insular and inward looking. The values of the
Kenyan Constitution are anything but. We need to learn from other countries and from
scholars like the distinguished Counsel who submitted before us in this Court. My
concern, when I emphasize "indigenous is simply that we should grow our
jurisprudence out of our own needs, without unthinking deference to that of our other
jurisdictions and courts, however distinguished. This Court and the Judiciary at large
has, therefore, a great opportunity to develop a robust, indigenous, patriotic and
progressive jurisprudence that will give our country direction in its democratic
development.
29. The Great Debates
Githu vs Mutunga (Kenya)
[Link]
Originalism vs Evolutionism (Breyer vs Scalia (USA)
[Link]
30. The Value of Dissenting Opinions
Commentary on Morrison vs Olson
[Link]
[Link]
v-olson

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Bravin, N. (1998). Is Morrison v. Olson Still Good Law? The Court’s New Appointments
Clause Jurisprudence. Columbia Law Review, 98(4), 1103–1144.
[Link]

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 THE CATHOLIC UNINVERSITY OF EASTERN AFRICA
CUEA CLS 122
CONSTITUTIONAL PRACTICE
LECTURE NOTES
BY CHARLES B G OUMA
LLB MLB
LECTURER FACULTY OF LAW CUEA

TOPIC 2 CONSTITUTIONAL RESTRAINTS ON PUBLIC POWER

1|Page
Contents
1. Introduction ................................................................................................................. 4

2. Global Trends .............................................................................................................. 4

3. Functions of a constitution .......................................................................................... 5

4. Essential feature of a good constitution ...................................................................... 5

5. Why Power Must be Limited ...................................................................................... 6

6. Nature and Types of the of Restraints ........................................................................ 8

6.1. Normative Restraints ................................................................................................... 8

6.1.1. Supremacy of the Constitution .................................................................................... 9

6.1.2. The Bill of Rights ..................................................................................................... 11

6.1.3. Affirmative Action .................................................................................................... 12

6.1.4. Constitutionalism....................................................................................................... 12

6.1.5. The Rule of Law ........................................................................................................ 13

6.1.6. Democracy................................................................................................................. 17

6.1.7. Freedom of the Press ................................................................................................. 17

6.1.8. Separation of Church and State ................................................................................. 19

6.1.9. The Right to Bear Arms ............................................................................................ 20

6.1.10. Minority Rights Protection ........................................................................................ 21

6.1.11. Rigid Constitutional Amendments Procedures ......................................................... 23

2|Page
 6.1.12. Judicial Review. ........................................................................................................ 23

6.2. Structural Restraints .................................................................................................. 26

6.2.1. Separation of Powers ................................................................................................. 26

6.2.2. Federalism/Devolution .............................................................................................. 27

6.2.3. Term Limits and Elections ........................................................................................ 28

6.2.4. Bicameralism ............................................................................................................. 28

6.2.5. Public Participation ................................................................................................... 32

6.3. Institutional Restraints ............................................................................................... 33

6.3.1. An Independent Judiciary .......................................................................................... 33

6.3.2. Independent Institutions ............................................................................................ 33

6.3.3. Independent Central Bank ......................................................................................... 36

6.3.4. Civilian Control of the Armed Forces ....................................................................... 36

7. Characteristics of Good Control Devices .................................................................. 37

3|Page
1. Introduction
Constitutional ‘restraints on power’ can also be referred to as ‘constitutional limits’ on power.
Constitutions are not only about structuring and allocating public power. They are also about
restraining or limiting that power. (Transformative constitutions go even further and try to
precipitate a social political and economic re-engineering of society). The state is clothed with the
legal power to coerce. This power is what is, in American constitutional literature, referred to as
the ‘police power’ of the state. It is the justification of the restriction of individual liberties in order
to protect the general welfare. ‘Police power’ is exercised by the legislative and executive branches
through the enactment and enforcement of laws. The state has the power to compel obedience to
these laws but in a liberal democracy, there are constitutional limits to this power of compulsion.
Most constitutions are based on a belief that governments should have only limited power. Our
constitutional theory rejects the notion that the police power of the state is inherent or divine-
ordained. In constitutional theory power is delegated for specific purposes to be exercised in such
a way as to make society possible and no more. The theory of the social contract which is the
foundation upon which society and its corollary, government, is built presupposes an inherent
limitation of public power. An individual does not give up all his freedoms to live in society.
Individuals give up only those freedoms as are necessary to make society possible. It follows that
there are certain rights and freedoms that must be beyond the police power of the state.
Lord Acton famously warned that ‘power corrupts, and absolute power corrupts absolutely’.
Accordingly, good constitutions structure government so as to expand opportunities for the
exercise of personal freedom and maximize each individual’s equal right to pursue peaceful goals
and enjoy the benefits of living in society. Constitutions therefore use a broad range of safeguards
to act as restraints on the exercise of public power. This topic explores the constitutional devices
used in the Constitution of Kenya 2010 to restrain public power.
2. Global Trends
There are many examples of decisions from other jurisdictions where the courts have drawn
boundaries around the exercise of the police power of the state. In the United States, for instance,
the decision in Roe vs Wade Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision of the U.S.
Supreme Court in which the Court ruled that the Constitution of the United States protects a
pregnant woman's liberty to choose to have an abortion without excessive government restriction.
In Letsweletse Motshidiemang v Attorney General [2019] MAHGB-000591-16 Botswana, High

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Court (Decision of June 11, 2019) the High Court of Botswana declared that the time was ripe to
decriminalize homosexuality, thereby overturning the 2003 decision in Kanane v. S, 2003 (2) BLR
67 (CA) which upheld the constitutionality of the sodomy laws. The case was brought by a gay
man who challenged the Botswana Penal Code provisions that criminalized homo-sexual
intercourse on the grounds that they infringed his rights to dignity and liberty and to be free from
discrimination. The Court held that sexual orientation is innate to an individual and that the
criminalization of same-sex sexual conduct infringed the rights to liberty, dignity and privacy and
constituted discrimination. It added that there was no public purpose in continuing the
criminalization and that there was no justification for infringing upon those right. In the United
Kingdom, the Supreme Court judicially reviewed the decision of the prime minister to advice the
Queen to dissolve parliament, a move that was seen as an attempt by the ruling party to avoid an
embarrassing parliamentary defeat of government policy on Brexit1
3. Functions of a constitution
To understand the case for restraints on public power in a constitution, it is helpful to recall the
functions of a constitution. Constitutions are about structuring and allocating power. A
fundamental function of the constitution is the limitation the power thus allocated.
4. Essential feature of a good constitution
Lord Acton’s edict about the inherent danger of power rings true for constitution makers today as
it rang then. Accordingly, constitution making focuses a lot on how to limit public power. Indeed,
an essential feature of every good constitution is how well it delimits powers. In professor De
Smiths formulation of constitutionalism, a liberal democrat will not be persuaded that there is
constitutionalism in a country unless are features in the constitution that inherently limit
government.
‘…constitutionalism in its formal sense means the principle that the exercise of political
power shall be bounded by rules, rules which determine the validity of legislative and
executive action by prescribing the procedure according to which it must be performed or
by delimiting its permissible content. The rules may be at one extreme (as in the United
Kingdom) mere conventional norms and at the other directions or prohibitions set down
in a basic constitutional instrument, disregard of which may be pronounced ineffectual by

1
(R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v
Advocate General for Scotland (Appellant) (Scotland) 2019 UKSC 41

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 a court of law. Constitutionalism becomes a living reality to the extent that these rules curb
the arbitrariness of discretion and are in fact observed by the wielders of political power,
and to the extent that within the forbidden zones upon which authority may not trespass
there is significant room for the enjoyment of individual liberty’.2
5. Why Power Must be Limited
At the heart of the debate about the constitution is the inherent tension between constitutionalism
and democracy. Democracy is about majority rule. Courts are typically wary of inquiring into the
wisdom or justice of acts by legislative and executive arms of government because of the
assumption that these two are the representatives of the political will of the majority. In the US
case of Twining vs New Jersey3 the US Supreme court underscored this tension in the words
following:
"It must not be forgotten that in a free representative government nothing is more
fundamental than the right of the people through their appointed servants to govern
themselves in accordance with their own will, except so far as they have restrained
themselves by constitutional limits specifically established, and that in our peculiar dual
form of government nothing is more fundamental than the full power of the state to order
its own affairs and govern its own people, except so far as the Federal Constitution
expressly or by fair implication has withdrawn that power. The power of the people of the
states to make and alter their laws at pleasure is the greatest security for liberty and justice,
this court has said in Hurtado v. California." We are not invested with the jurisdiction to
pass upon the expediency, wisdom or justice of the laws of the states as declared by their
courts, but only to determine their conformity with the Federal Constitution and the
paramount laws enacted pursuant to it. Under the guise of interpreting the Constitution we
must take care that we do not import into the discussion our own personal views of what
would be wise, just and fitting rules of government to be adopted by a free people and
confound them with constitutional limitations. The question before us is the meaning of a
constitutional provision which forbids the states to deny to any person due process of law.

2
De Smith S.A., Constitutionalism in the Commonwealth Today. Malaya Law Review , December 1962, Vol. 4, No.
2 (December 1962), pp. 205-220
Stable URL: [Link]
3
(19o8) 211 U. S. 78, xo6, 107, 29 SuP. Ct. 14, 22, 23

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 In the decision of this question, we have authority to take into account only those
fundamental rights which are expressed in that provision."
As is apparent from the words of the US Supreme Court, constitutional theory has long recognised
the potential threat to individual liberty in the form of a dictatorship of the majority. The central
thesis of constitutionalism is that power however democratically acquired is prone to abuse and
needs to be limited. Constitutionalism recognises that government is a necessary evil. It therefor
accepts the necessity of government recognises its tendency towards arbitrariness and therefore
designs limitations to act as a safeguard against potential abuse of power. But because government
is necessary, constitutionalism tries to create a delicate balance between the effectiveness of
government and the limitations to be placed on government.
In his Spirit of Laws, Montesquieu also warned against the tyranny of the law
‘Liberty also requires that the laws concern only threats to public order and security, since
such laws will protect us from harm while leaving us free to do as many other things as
possible. Thus, for instance, the laws should not concern offenses against God, since He
does not require their protection. They should not prohibit what they do not need to
prohibit: "all punishment which is not derived from necessity is tyrannical. The law is not
a mere act of power; things in their own nature indifferent are not within its province" (SL
19.14)4. The laws should be constructed to make it as easy as possible for citizens to protect
themselves from punishment by not committing crimes. They should not be vague, since
if they were, we might never be sure whether or not some particular action was a crime.
Nor should they prohibit things we might do inadvertently, like bumping into a statue of
the emperor, or involuntarily, like doubting the wisdom of one of his decrees; if such
actions were crimes, no amount of effort to abide by the laws of our country would justify
confidence that we would succeed, and therefore we could never feel safe from criminal
prosecution. Finally, the laws should make it as easy as possible for an innocent person to
prove his or her innocence. They should concern outward conduct, not (for instance) our
thoughts and dreams, since while we can try to prove that we did not perform some action,
we cannot prove that we never had some thought. The laws should not criminalize conduct
that is inherently hard to prove, like witchcraft; and lawmakers should be cautious when

4
S.L 19.4 S.L [Link] accessed 6th Feb 021

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 dealing with crimes like sodomy, which are typically not carried out in the presence of
several witnesses, lest they "open a very wide door to calumny". 5
6. Nature and Types of the of Restraints
Restraints on government fall in three broad categories. Normative restraints, institutional
restraints and structural restraints. Normative restraints refer to the limitations or restrictions
placed on governmental power based on certain normative principles or values. Examples include
incorporating constitutional principles such as supremacy of the constitution, constitutionalism,
rule of law, and democracy in a constitution. "Structural restraints" refers to mechanisms or
features within a constitutional system that are designed to limit and balance the powers of
government entities. Examples include federalism, bicameralism, and independent judiciaries.
Institutional constraints refer to the mechanisms and structures in the form of specific institutions
within a government that limit the exercise of power and prevent abuses. Examples include
independent constitutional commissions and offices. It must be clear that the categorization of
restraints is not cast in stone. There are overlaps and some restraints can belong to more than one
category.
Restraints can also be categorised as legal and extra-legal. Legal restraints are those black letter
prohibitions that can be found in the constitutions. But no drafting can ever be so precise as to
anticipate and provide for every future contingency. Accordingly, some restraints are not to be
found in the letter of the constitution and are more about political culture and convention. The
example is often given about the UK Constitution not being Supreme. It is the legislature that is
Supreme. But there are many laws whose enactment the legislature cannot even dream about.
Similarly, the Queen can theoretically refuse allow popularly elected prime minister to form a
government. But there is no record of that ever happening. Neither is it expected that it will ever
happen. The restraints are more political than legal.
6.1. Normative Restraints
Normative restraints in constitutionalism refer to the limitations or restrictions placed on
governmental power based on certain normative principles or values. These restraints are designed
to ensure that those in power adhere to certain norms or standards, promoting the protection of
individual rights, the rule of law, and the overall well-being of society. Normative restraints
contribute to the establishment of a legal framework that promotes justice, fairness, and the

5
S.L (12.6)1 [Link] accessed 6th Feb 021

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protection of individual rights. They provide a set of principles that guide and limit the exercise of
governmental authority, fostering a system that is accountable, transparent, and respectful of the
rule of law. Normative restraints play a crucial role in constitutional governance and help prevent
the abuse of power.
6.1.1. Supremacy of the Constitution
Article 2 declares the constitution to be the supreme law of the land. Government must be
established according to the constitution. Any act done or laws made in contradiction of the
constitution are voided. By so doing the constitution limits government by requiring a
constitutional edict for any exercise of power. The constitution also checks against unconstitutional
means of acquiring power. Since the government exercise police power largely through the
enactment and enforcement of legislation, one way of checking on government power is through
determining the constitutional validity of government action. This power is specifically conferred
on the court by article 165 of the constitution, article 23(3)(f) and article 89(10). It is also implicit
under article 47 which provides for the right to fair administrative action. The courts have not
hesitated to strike down legislation as unconstitutional. Statutes struck out as unconstitutional since
2010 can be accessed in the link [Link] .Click on the
specific statutes for a hyperlink to the cases. A few examples will suffice
In Anthony Njenga Mbuti & 5 Others V Attorney General & 3 Others Constitutional Petition NO
45 of 2014, High Court at Nairobi (Milimani Law Courts) M Ngugi, J) the Petitioners had at
various times been arrested and arraigned in Court but had not been charged with any criminal
offences. Instead, they had been required to execute a bond to keep the peace in accordance with
the provisions of sections 41-63 of the Criminal Procedure Code. They filed the instant Petition
challenging the constitutionality of the provisions of section 43 to 61A of the Criminal Procedure
Code. They assert that those provisions offended various articles of the Constitution, among them
articles 27, 28, 29, 49 and 50 with regard to the rights of an accused person and were therefore null
and void.
Held;
Certainly, in our circumstances and the express provisions, tenure and spirit of the 2010
Constitution, the provisions of the peace bond process are indefensible. Whichever way one looks
at it, the provisions of the peace bond process under the CPC cannot meet constitutional muster. I
therefore find and hold that Sections 43-61A of the Criminal Procedure Code are unconstitutional

9|Page
for violating the provisions of Articles 27, 28, 49 and 50(2) of the Constitution, and are therefore
null and void. It is also worth observing that section 61A of the CPC, which empowers a magistrate
to confine a person within a particular district, contravenes the right of citizens to freedom of
movement under Article 39.
In Geoffrey Andare v Attorney General & 2 others Petition 149 of 2015High Court, at Nairobi
(Mumbi Ngugi J) the Petitioner was charged with an offence under section 29 of the Kenya
Information and Communications Act, KICA. The said provision criminalised any person who
improperly used licensed telecommunication system either to sends a message or other matter that
was grossly offensive or of an indecent, obscene or menacing character. The Petitioner had
allegedly posted a message in the social media described to have been grossly offensive electronic
mail within the meaning of section 29 of the KICA. The message described to have been annoying
to the claimant in a criminal case implicated the claimant to have been sleeping with young girls
before awarding them scholarship opportunities to go to school. The Petitioner in certain words
had described the claimant’s acts as shameful. While the charges were ongoing against the
Petitioner sought to challenge the constitutionality of section 29 on the grounds that its wordings
were vague, offensive to his freedom of expression thus unconstitutional, and that the said section
did not have elements of criminal offences (mens rea and actus reus) and as such the offence
created therein was not prosecutable.
Held;
Section 29 imposes penal consequences in terms which I have found to be vague and broad, and
in my view, unconstitutional for that reason.
In Jacqueline Okuta & another v Attorney General & 2 others Petition No 397 of 2016 High Court,
at Nairobi (Mativo, J) the petition was triggered by the arraignment of the first petitioner in Kwale
Criminal Case No. 532 of 2016 and the second petitioner in Nairobi Milimani Criminal Case No.
549 of 2016 whereby each petitioner was charged with the offence of criminal defamation under
section 194 as read with section 36 of the Penal Code for allegedly making and or publishing
allegedly defamatory statements of and concerning the complainant in the said cases.
The petitioner’s concern was the constitutionality of the criminal defamation law in section 194 of
the Penal Code. It was their case that the said section unjustly violated the freedom of expression
by imposing sanctions on the civil wrong of defamation. The petitioners correctly averred that the
constitution was the supreme law of the land and any law that was inconsistent with the constitution

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was void to the extent of the inconsistency, and any act or omission in contravention of the
constitution was invalid.
Held;
The exercise of certain rights (such as the right to a fair trial, freedom from arbitrary imprisonment,
freedom of movement, freedom of expression, freedom of religion or the right to participate in
public decision-making) was integral to citizenship in a democratic society. The protection of
fundamental rights against arbitrary or excessive infringements was an essential feature of
constitutional government, which was recognized both in international human rights law and in
many national constitutions. Nevertheless, relatively few rights could be enjoyed in absolute terms.
Most rights were subject to limitations that were necessary and reasonable in a democratic society
for the realization of certain common good such as social justice, public order and effective
government or for the protection of the rights of others. The principal issue for determination was
the constitutionality of criminal defamation provided under section 194 of the Penal Code.
Freedom of expression was secured under article 33 of the Constitution and for it to be limited;
the limitation must fall within the scope and ambit of the provisions of article 24 of the constitution.
6.1.2. The Bill of Rights
Constitutions include provisions that protect fundamental rights and freedoms of individuals.
These rights act as a normative restraint by limiting the government's ability to infringe upon the
liberties of its citizens. Under the social contract theory, individuals give up certain rights to as to
make society possible. The state is empowered to coerce obedience to the laws made by society
for the general welfare of the society. But not all rights are given up. Certain rights are put beyond
the police power of the state. This is the concept of inalienable rights. A bill of rights restrains
public power by putting certain acknowledged rights beyond the reach of the state thereby limiting
the power of the state. The two cases cited above are good example. The state does not have an
unlimited power to infringe on individual rights and freedoms. There are both rational and
constitutional limits to the police power of the state.
The CoK 2010 adopts a very progressive approach to the bill of rights. Rights are declared, not
granted.(Article 19) .The rights are justiciable. Any limitation on the enjoyment of those rights be
justified objectively(Article 24)The state has an obligation to observe, respect, protect, promote
and fulfil the rights and fundamental freedoms in the Bill of Rights.

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6.1.3. Affirmative Action
Democracy implies majority rule. Democracy may well threaten the rights and interests of social
minorities and marginalized groups. The object of affirmative action– action otherwise known as
positive discrimination – is to enhance the participation of marginalized groups in decision-making
and implementation and make a difference in the political climate and culture.
“Affirmative action is a deliberate policy or programme that is a deliberate policy or
programme that seeks to remedy past discrimination by increasing the chances of the
affected to participate in what they were previously denied.”
Affirmative action tempers the potential for a dictatorship of the majority and empowers the
marginalised by requiring the taking of positive deliberate action to empower the historically
disadvantaged.
The Constitution of Kenya 2010 has extensive provisions for affirmative action. Two approaches
are evident: making affirmative action a principle of governance and making specific provisions
requiring affirmative action in specific cases. Good examples where affirmative action is a key
principle of governance can be found in Article 174 (principles of devolution)– and Articles 81
(b) (c)(electoral system) and Article 100 (promotion of representation of marginalised groups).
Specific provisions for affirmative action can be found in Articles 10 (2)(b) 53 54 55 56 57 91(e)
97 (b) 98 (c ) (d) (e) 127 (c ) (d) 171 (1)(d) (f) 174 and 175, 232(1)(i) 250(4) (11
6.1.4. Constitutionalism
Constitutionalism supports the idea of limited government, emphasizing that governmental powers
should be clearly defined and restricted to avoid overreach into the lives of individuals.
Constitutionalism is the theory, or concept of limited government. Constitutionalism accepts the
necessity of government recognises the inherent tendency of government towards arbitrariness and
designs restraints on the exercise of power. The restraints must not however render government
ineffective. So considerable discretion is permitted, and courts tend to defer to the policy choices
of the peoples democratically elected representatives. The constitution of Kenya 2010 specifically
provides that constitutionalism is a constitutional principle.
Under Article 249 (1), the objects of the commissions and the independent offices are to (a) protect
the sovereignty of the people; (b) secure the observance by all State organs of democratic values
and principles; and (c) promote constitutionalism.
In the Promulgation the people of Kenya collectively declare as follows: -

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 AND WHEREAS for the last two decades, the people of Kenya have yearned for a new
Constitution which— (a) guarantees peace, national unity and integrity of the Republic of
Kenya in order to safeguard the well-being of the people of Kenya; (b) establishes a free
and democratic system of Government that ensures good governance,
constitutionalism, and the rule of law, human rights and gender equity.
The courts of Kenya have recognised constitutionalism as a value or principle of the CoK 2010.
In the case of Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa,
Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy CIVIL
Appeal No. 105 OF 2017 the court found that constitutionalism is a justiciable constitutional value
6.1.5. The Rule of Law
The concept of the “rule of law’ is not easily defined. There is no academic or even a political
consensus on a comprehensive and exhaustive definition. Different authors define the concept
differently. Definitions tend to be descriptive and typically depend on the ideological orientation
of the authors. Broadly, it is the principle that everyone, including government officials, is subject
to the law. It ensures that decisions are made based on established legal principles rather than
arbitrary power.
G W Kanyeihamba (1975) at p 153)
‘The first point to make is that the ‘Rule of Law’ is not a ‘Rule’ that binds anyone. It is
merely a bundle of ideas intended to give law-makers, administrators and judges and law-
enforcement agencies in so-called free and democratic societies’
A V Dicey
No man is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of the law established in the country in a legal manner before the ordinary
courts of law.
Every man whatever his rank or condition, is subject to the ordinary law of the realm and
is amenable to the jurisdiction of ordinary tribunals.
General principles of constitutional law, e.g. the right of personal liberty, public meetings,
are the result of judicial decisions, determining the rights of private persons in particular
cases brought before the ordinary courts of the land
Nelson Mandela

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 ‘The rule of law, as I (admittedly a long retired old lawyer) understand it, refers to a
structural exercise of rule as opposed to the idiosyncratic will of kings and princes. Even
where the latter may express itself benevolently the former is morally and politically
superior. Where the rule of law does not apply, rulers assume entitlement to rule; The rule
of law, on the other hand, places the emphasis upon structured responsibility and obligation
According to AV Dicey, the rule of law implies ‘the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, of prerogative or even a wide discretionary authority on the part of the government
… Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals’. That those in authority must act according
to the principles established in the law of the land or justify any departures there from by bringing
themselves within the exceptions thereto
GW Kanyeihamba says the rule of law implies the absence of arbitrary government, government
according to law not according to whim and caprice, equality before the law, certainty and
predictability in the law. It abhors retrospective application of laws and abhors unlimited
discretion. It precludes arbitrary action.
The modern approach to the rule of law focusses on the components of the rule of law that flow
from its essence - the rule of law as opposed to the rule of man - and therefore require more than
just formalism in the making of the law. Focus is on implementation and adjudication, substance,
not the form.
According to Friedrich Hayek’s (1891-992) ‘The Rule of Law implies limits to the scope of
legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation
directly aimed at particular people. ‘The rule of law therefore requires deconcentration of power-
vertically and horizontally and due process in how laws are made, implemented and adjudicated
According to this approach, the key components of the rule of law would include principles like
legality, rationality, non-discretion, clear objectives, objective criteria, certainty, use of precedent
(stare decisis) and prospectivity. Other Components would include separation of powers, due
process, presumption of innocence, stability of the law, presumption of innocence, double
jeopardy (res judicata, equality at law, habeas corpus (ad subjiciendum) and access to legal
information

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These principles operates to limit the power of the legislature and the executive by subjecting them
to formal requirements of the law and even permitting an inquiry into the substantive fairness of
an otherwise formally correct action.
The rule of law is a foundational principle of the CoK 2010. The constitution is replete with
references to the rule of law. It is specifically mentioned in the preamble and in the promulgation
as a foundational principle of our democracy and, in article 10, as a national value. Other direct
references are:-
• Article 81 General principles of the electoral system
• Article 91 (1)(g) Basic requirements for political parties.
• Article 259(b) as a principle of interpretation of the constitution Indirect references
include
• Article 2 . Supremacy of the constitution
• Article 3. Defence of the constitution
• Article 47. Fair administrative action
• Article [Link] to justice
• Article 49 Rights of arrested persons
• Article 50 Right to a fair trial
If the Rule of Law gives us a yardstick against which we can evaluate the validity of a legal system
or individual laws within the system, laws which are patently inconsistent with the rule of law are
unconstitutional null and void. Our courts have consistently held that laws which are inconsistent
with the rule of law are unconstitutional.
Cases
• Aids Law Project v Attorney General & 3 others [2015] eKLR
• Geoffrey Andare vs AG and DPP & Anor HC Petition NO 149 of 2015
• Jacqueline Okuta & another v Attorney General & 2 others Petition No. 397 Of 2016
[2017] eKLR
• Patricia Asero Ochieng & 2ors vs AG &Anor HC Petition No. 409 OF 2009
• Coalition for Reform & Democracy(CORD), Kenya National Commission on Human
Rights & Samuel Njuguna Ng’ang’a v Republic of Kenya & another HC Petition No 628
of 2014

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In Aids Law Project v Attorney General & 3 others [2015] eKLR Nairobi Petition Number 97 OF
2010, Section 24 HAPCA was in issue. Section 24 is on prevention of transmission of HIV AIDS.
The section is couched as follows;
(1)A person who is and is aware of being infected with HIV or is carrying and is aware of
carrying the HIV virus shall—
(a)take all reasonable measures and precautions to prevent the transmission of HIV to
others; and (b) inform, in advance, any sexual contact or person with whom needles are
shared of that fact.
(2)A person who is and is aware of being infected with HIV or who is carrying and is aware
of carrying HIV shall not, knowingly and recklessly, place another person at risk of
becoming infected with HIV unless that other person knew that fact and voluntarily
accepted the risk of being infected
(3)A person who contravenes the provisions of subsection (1) or (2) commits an offence
and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings
or to imprisonment for a term not exceeding seven years, or to both such fine and
imprisonment
The court found that section 24 is vague overbroad and inconsistent with the rule of law
Geoffrey Andare vs AG et al: Petition No 149 of 2015 interrogated the constitutionality of Section
29 KICA. The section provides as follows:
A person who by means of a licensed telecommunication system—
(a)sends a message or other matter that is grossly offensive or of an indecent, obscene or
menacing character; or
(b)sends a message that he knows to be false for the purpose of causing annoyance,
inconvenience or needless anxiety to another person, commits an offence and shall be liable
on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term
not exceeding three months, or to both.
The court held that;
‘Sec 29 of KICA is over broad and vague, limits the right to freedom of expression and
thus unconstitutional. The provision is so wide and vague that its interpretation is left to
the subjective interpretation of the court. Sec 29 further imposes a limitation on freedom
of expression in vague, imprecise and undefined terms that go outside the scope of the

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 limitations allowed under Articles 33(2) and is thus unconstitutional. Sec 29 further lacks
mens rea on the part of the sender of the message that would render his or her act criminal
in nature but appears to be premised on how others interpret the message’.
The formalistic approach ensures government acts according to law. The modern approach gives
as a yardstick against which we can value a legal system or individual laws in the system. The rule
of law is a factor in the determination of the constitutionality of legislation. Politically, it is a factor
in evaluating the performance of government It is a powerful principle in the limitation of public
power
6.1.6. Democracy
Many constitutional systems emphasize democratic values, ensuring that leaders are elected by
the people and are accountable to them. This helps prevent authoritarianism and reinforces the idea
that government should serve the interests of the citizens.
6.1.7. Freedom of the Press
Freedom of the media acts as an important restraint on public power. Freedom of the press is
considered one of the essential pillars of democracy. It is considered a bulwark against secret
government, against authoritarianism and against tyranny. It promotes the constitutional values of
transparency and accountability.
"The basis of our governments being the opinion of the people, the very first object should
be to keep that right; and were it left to me to decide whether we should have a government.
Without newspapers or newspapers without a government, I should not hesitate a moment
to prefer the latter. But I should mean that every man should receive those papers and be
capable of reading them. (Thomas Jefferson (former) President of the US)
Articles 33 provides for freedom of expression. Article 34 provides for freedom of the media. The
constitutional right to privacy under Article 31 and right to information under article 35 augment
these freedoms
Kenya is ranked 97 in the world press freedom index. The most systematic attack on press freedom
came with the enactment of the Security Laws (Amendment) Act 2014. This led to a constitutional
challenge in Coalition for Reform & Democracy (Cord), Kenya National Commission on Human
Rights & Samuel Njuguna Ng’ang’a V Republic Of Kenya & another Petition No.628 OF 2014.
Among the impugned provisions were the following;
66A. (1) Penal Code

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 A person who publishes, broadcasts or causes to be published or distributed, through
print, digital or electronic means, insulting, threatening, or inciting material or images of
dead or injured persons which are likely to cause fear and alarm to the general public or
disturb public peace commits an offence and is liable, upon conviction, to a fine not
exceeding five million shillings or imprisonment for a term not exceeding three years or
both.
66A. (2) Penal Code
A person who publishes or broadcasts any information which undermines investigations or
security operations by the National Police Service, or the Kenya Defence Forces commits
an offence and is liable, upon conviction, to a fine not exceeding five million shillings or
imprisonment for a term not exceeding three years, or both.
30F. Prevention of Terrorism Act
Any person who, without authorization from the National Police Service, broadcasts any
information which undermines investigations or security operations relating to terrorism
commits an offence and is liable on conviction to a term of imprisonment for a term not
exceeding three years or to a fine not exceeding five million shillings, or both.
A person who publishes or broadcasts photographs of victims of a terrorist attack without
the consent of the National Police Service and of the victim commits an offence and is
liable on conviction to a term of imprisonment for a period not exceeding three years or to
a fine of five million shillings, or both.
The provisions were found to be inconsistent with freedom of the media under article 34 and are
therefore unconstitutional.
As we observed above, a law that limits a fundamental right and freedom must not be so
vague and broad, and lacking in precision, as to leave a person who is required to abide by
it in doubt as to what is intended to be prohibited, and what is permissible. With regard to
Section 30A for instance, how is “any information which undermines investigations or
security operations relating to terrorism” to be interpreted? Who interprets what
information “undermines investigations or security operations”? The effect of such a
prohibition, in our view, would amount to a blanket ban on publication of any security-
related information without consulting the National Police Service.

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 We agree that there is cause for concern with media conduct in relation to victims of terror,
particularly the use of graphic and shocking photographs in both broadcast and print media.
However, there are already in existence clear constitutional and legislative provisions to
cover such situations. Article 33(3) contains the restriction that forms the basis for the law
of defamation by providing that: “In the exercise of the right to freedom of expression,
every person shall respect the rights and reputation of others.” To criminalize matters that
have a civil remedy in defamation would, as submitted by Article 19, have a chilling effect
on the exercise of freedom of the media, and would consequently have a deleterious effect
on the right of the public to information
6.1.8. Separation of Church and State
Religion is dogmatic. The separation of the state and religion is therefore an important safeguard
against religious intolerance. Article 8 therefore provides that there shall be no State religion. The
separation of church and state limits the ability of the state to impose a national morality and
ensures accommodation of diverse views. It is in this spirit that the High Court quashed a decision
by the NGO board refusing to register an NGO that sought to promote homosexuality. (Eric Gitari
v Non- Governmental Organizations Co-ordination Board & 4 others Constitution & Judicial
Review Division Petition No 440 OF 2013 [2015] eKLR.) The court has also granted leave to a
self-confessed homosexual to challenge the constitutionality of section 162 and 165 of the penal
code which criminalise same sex relations between males. (Eric Gitari v Attorney General &
another Constitutional and Human Rights Division Petition No. 150 OF 2016 [2016] eKLR). The
court ultimately declined to declare the impugned provisions unconstitutional and the matter i
presently before the court of appeal.
Professor Githu Muigai has criticised the court’s decision saying it is inconsistent with the court
of appeal decision in COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018]
eKLR. In that case the appellants were arrested on 18th February 2015 from a bar in Diani as they
were ordering their drinks on suspicion of engaging in gay activities as well as distributing
pornographic material. According to Salim Yunis, the investigating officer, about 10 compact discs
containing pornographic material were retrieved from the 2nd appellant’s house. An attempt by
the police to have the appellants medically examined at a dispensary was thwarted by the
appellants who declined to take part in the same. As a result, the appellants were arraigned before
the subordinate court on 20th February 2015 to face several charges, namely, one count of

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committing an unnatural offence contrary to Section 162(a) as read with Section 162(c) of the
Penal Code; an alternative count of committing an indecent act with an adult contrary to Section
11(a) of the Sexual Offences Act; and one count of trafficking in obscene publications contrary to
Section 181(1) (a) of the Penal Code.
On that very day, the prosecution applied for the deferment of the appellants’ plea-taking to pave
way for further investigations. An order compelling the appellants to undergo necessary medical
tests was also sought. In response, Mr. Omuya who apparently was holding brief for Mr. Maundu,
then appearing for the appellants, stated as per the subordinate court’s record:
“We do not oppose the prosecution’s application and the same be done immediately to
avoid holding the accused indefinitely… The accused are ready to undergo any test.”
The appellants were presented at Makadara General Hospital where blood samples were taken for
purposes of HIV and Hepatitis B testing. They were also subjected to anal examination in line with
the subordinate court’s orders. The appellants described the examination, more specifically, the
anal examination, as inhuman and degrading, for the reason that first, they had not consented to
such an intrusive examination. Second, they were forced to undress in the full glare of the police
and medical personnel who witnessed the entire examination. To make matters worse the
examination entailed the appellants lying down and the insertion of spatulas into their anal orifices.
In addition, the appellant also took issue with the fact that the results derived from the examination,
were admitted by the subordinate court, contrary to the rule against self-incrimination and the right
to a fair hearing as enshrined under Articles 49(1) (d) and 50 of the Constitution. All in all, the
appellants claimed that not only was the anal examination of no probative value to prove the
offences they were charged with, but it was also unreasonable in the circumstances. The appellants
also contended that their rights to dignity under Article 28 & privacy under Article 31 of the
Constitution respectively were violated. The High court dismissed their petition. On appeal, the
Court of Appeal found that subjecting the petitioners to anal examinations violated the Petitioners’
rights under Articles 25,27,28 and 29 of the Constitution and accordingly, evidence obtained
through anal examinations of the petitioners in criminal proceedings against them violated their
rights under Article 50 of the Constitution and were to be excluded.
6.1.9. The Right to Bear Arms
The second Amendment to the US Constitution provides as follows.

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 A well-regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed
Professor Ali Mazrui in his video series, ‘The Africans, a Triple Heritage3’, refers to it as the
‘democratization of the instruments of violence’ implying that the state monopoly of the
instruments of violence is a threat to freedom.
The second amendment has been the subject of litigation in the US Supreme Court District of
Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010),
In United States v. Cruikshank 92 U.S. 542 (1875)" (1876), the Supreme Court ruled that, "The
right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon
that instrument for its existence. The Second Amendments [sic] means no more than that it shall
not be infringed by Congress and has no other effect than to restrict the powers of the National
Government."
In United States v. Miller 307 U.S. 174 (1939), the Supreme Court ruled that the Second
Amendment did not protect weapon types not having a "reasonable relationship to the preservation
or efficiency of a well-regulated militia."
In the twenty-first century, the amendment has been subjected to renewed academic inquiry and
judicial interest.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court handed down a
landmark decision that held the amendment protects an individual's right to keep a gun for self-
defense. This was the first time the Court had ruled that the Second Amendment guarantees an
individual's right to own a gun.
McDonald v. Chicago, 561 U.S. 742 (2010), the Court clarified that the Due Process Clause of the
Fourteenth Amendment incorporated the Second Amendment against state and local governments.
In Caetano v. Massachusetts 577 US (2016), the Supreme Court reiterated its earlier rulings that
"the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the founding" and that its protection is not
limited to "only those weapons useful in warfare."
6.1.10. Minority Rights Protection
In liberal democracies, the majority is sometimes constrained from having their way. This is
intended to prevent a tyranny of numbers. As indicated above the bill of rights provision has some
inbuilt weaknesses in protecting those who are numerically disadvantaged in political contests.

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One way of mitigating the excesses of majoritarian rule is to entrench certain provisions in the
constitution to guarantee the numerically disadvantaged minimum levels of participation in public
affairs. The entrenchments can be both substantive and procedural. Procedural entrenchments
include the requirements of consent of the minorities .Substantive entrenchments put certain
minority rights beyond the reach of the legislature. Others provide for affirmative action
The provisions on devolution facilitate and enhance minority participation in public affairs by
decentralising governmental functions and ensuring local execution of matters of local concern
• Art 10(2) nondiscrimination and protection of the marginalised is one of the national values
• Art 11(1)(2) protection of culture
• Art 12 Entitlement of citizens
• Art 21(3) state has a duty to address the needs of vulnerable groups, marginalised groups,
and particular religious ethnic or cultural communities
• Part V establishment of the Human rights and equality commission
• Part V protection of community land rights
• Art 81 general principles on electoral systems entrench minority rights protection
• Art 82 electoral law must provide for marginalised groupings
• Art 83(5) delineation of electoral units must factor in community interests
• Article 97 representation of the youth persons with disabilities and women in the NA
• Art 98 ditto above for senate
• Art 100 promotion of representation of marginalised groups
• Art 174 objects and principles of devolution includes minority rights protection
• Art 175 Gender parity in devolved government
• Art 177 membership of county assembly must ensure gender parity and representation of
disadvantaged groups
• Art 201-203 equitable distribution of public resources
• Art 204 establishment of an equalization fund
• Art 223(h)(i) community interest in allocation of public service jobs and equal
opportunities in public service jobs for all communities

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6.1.11. Rigid Constitutional Amendments Procedures
Constitutions can provide a high threshold for amending the constitution thereby allows for
changes to the fundamental law of the land but only if there is broad consensus that the proposed
changes reflect evolving societal values thereby limiting the potential for self-serving amendments
by those in positions of power and influence
6.1.12. Judicial Review.
Judicial review is the power of the court to interrogate the constitutionality of the acts of the
executive or the legislature or indeed any other organ of state. It owes its origins to the US Supreme
Court decision in Madbury vs Madison 103 1 Cranch. Judicial review empowers the courts assess
the constitutionality of laws and government actions. This serves as a normative restraint by
holding the government accountable to the constitution and ensuring that its actions align with
constitutional principles.
The foundation of this power of judicial review, as explained by the Supreme Court of India in
the case of Advocates on Record Association & Others vs Union of India, is the theory that the
Constitution which is the fundamental law of the land, is the ‘will’ of the ‘people’, while a statute
is only the creation of the elected representatives of the people; when, therefore, the “will” of the
legislature as declared in the statute, stands in opposition to that of the people as declared in the
constitution-the “will” of the people must prevail.
Judicial review limits power by ensuring both procedural and even substantive fairness of the acts
of the executive or legislature. In Namit Sharma vs Union of India Writ Petition (Civil) No. 210
of 2012 the Supreme Court of India found that the scope for judicial review had expanded over
the years.
“An enacted law may be constitutional or unconstitutional. Traditionally, this court had
provided very limited grounds on which an enacted law could be declared unconstitutional.
They were legislative competence, violation of the constitution and reasonableness of the
law. The first two were definite in their scope and application while the cases falling in the
third category remained in a state of uncertainty. With the passage of time, the law
developed and the grounds for unconstitutionality also widened ”
Judicial review is expressly provided for in the constitution of Kenya at articles 23)3) (f), 47
article 89(10) and 165. In CCK v Royal Media Services Ltd [2014] eKLR, the Supreme Court
recognized that the power of any judicial review is now found in the constitution

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Not infrequently judicial review creates tensions and competition between the judiciary and the
other arms of government. Courts try to reduce this tension by deferential treatment of the acts of
the other arms of government interfering only when there is a manifest procedural or substantive
irregularity.
In Hamdarddawa Khana vs Union of India AIR {1960} 554 the court vouched for the presumption
of constitutionality of legislation.
“In examining the Constitutionality of a statute, it must be assumed that the legislature
understand and appreciates the need of the people and the law it enacts are directed to
problems which are made manifest by experience and the elected representatives
assembled in a legislature enact laws which they consider to be reasonable for the purpose
for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of
an enactment.”
The presumption of constitutionality was reiterated in Connecticut Nat’l Bank v. Germain, 503
U.S. 249, 253-54 (1992
"Canons of construction are no more than rules of thumb that help courts determine the
meaning of legislation, and in interpreting a statute a court should always turn first to one,
cardinal canon before all others. Courts must presume that a legislature says in a statute
what it means and means in a statute what it says there. When the words of a statute are
unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”
But the courts will not hesitate to strike down executive or legislative action where there is a clear
violation of the constitution. A good example is the holding of the court in Independent Policing
Oversight Authority & another v Attorney General & 660 others Petition No.390 OF 2014 [2014]
eKLR
On October 31, the High Court nullified the entire recruitment of 10,000 police officers carried
out on July 14, on the grounds that the July 14, 2014, recruitment was tainted with corruption,
irregularities and blatant violations of the Constitution. The judge said the commission violated
the Constitution by delegating the duty to a non-entity at the county level
“In the instance case, I find and hold that the National Police Service Commission failed
itself, it failed Kenyans, it failed the recruits, it failed the Constitution, and it must be told
so. I am satisfied that drastic action must be taken, painful or unpopular as it may be,” the

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 judge ruled. The case leading to the entire nullification was filed by the Independent
Policing Oversight Authority chairman Macharia Njeru.
In April 2015, while the appeal was pending before the court of appeal there was a terrorist attack
on Garissa University. President Uhuru Kenyatta was reported as ordering the 10,000 police
recruits whose enrolment was stopped by the courts last year to immediately report to the Police
Training College in Kiganjo, Nyeri County.
I further direct the Inspector-General of Police to take urgent steps and ensure that the
10,000 recruits, whose enrolment is pending, promptly report for training at the Kenya
Police College, Kiganjo,” “I take full responsibility for this directive. We have suffered
unnecessarily due to shortage of security personnel. Kenya badly needs additional officers,
and I will not keep the nation waiting,” he noted.
Happily, common sense prevailed, and the president’s directive was not implemented. After a
national uproar, President Kenyatta has changed his earlier stance on police recruitment and asked
those hired in 2014 not to report for training on Sunday as earlier advised. President Kenyatta
explained that the agreement was reached after consultations with National Police Service
Commission Chairman Johnstone Kavuludi that fresh recruitment be held on April 20.
An appeal by the state to the court of appeal was subsequently dismissed by the court of appeal.
The Court of Appeal dismissed the Attorney-General’s appeal against the judgment by Justice
Isaac Lenaola, saying the High Court judge was right in every finding he made to order a repeat
recruitment. According to the appellate judges, the irregularities first occurred when the Inspector-
General of Police delegated the recruiting powers to sub- county committees without authority.
Said the judges:-
“Our hearts go out to the young people who are casualties of a dubious process. But we
want to tell the institutions that they must try and keep trying until they get it right.
Otherwise, we will be betraying the spirit of those who passed the Constitution,” the judges
said.
Other cases that have led to a push and pull between the three arms of government are;
• Judicial Service Commission v Speaker of the National Assembly & 8 others Petition No.
518 OF 2013 [2014] eKLR
• Republic v National Assembly Committee of Privileges & 2 others Ex-Parte Ababu
Namwamba JR Case No 129 OF 2015 [2016] eKLR

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 • James Opiyo Wandayi v Kenya National Assembly & 2 others JR Application No 258 of
2016 [2016] eKLR
6.2. Structural Restraints
"Structural restraints" refers to mechanisms or features within a constitutional system that are
designed to limit and balance the powers of government entities. Structural restraints are the
product of various constitutional principles that combine to create governance structures designed
to act as a system of inherent checks and balances. These structures thus created collectively
contribute to the concept of constitutionalism by emphasizing the rule of law , the limitation of
government power and the protection protect individual rights.
6.2.1. Separation of Powers
“Separation of Powers” is the constitutional principle that divides the powers of government
among different branches—usually the executive, legislative, and judicial branches. The principle
essentially creates three institutions each with distinct powers and responsibilities. The idea is to
prevent the concentration of power in one branch, thereby fostering a system of checks and
balances. Separation of powers has four aspects;
• Separation of functions (No organ should exercise the functions of the other two)
• Separation of personnel (The persons in one agency should not be permitted to hold

office in the other two)

• Non-subordination (One organ of the government should not be in a position to control

one or other of the remaining two)
• There is a system of checks and balances(Each arm of government influences the actions
of the other)
Separation power limits or restrains power by distribution it horizontally and then creating a
system of checks and balances. Each branch has its own distinct powers and responsibilities,
creating a system of checks and balances where no single branch can dominate the others. Checks
and balances refers to the ability of each branch of government to limit the powers of the other
branches. Each branch of government has some measure of influence over the other branches. For
example, the executive may veto legislation passed by the legislature, but the legislature can
override the veto with a predetermined super majority. The judiciary can review the
constitutionality of laws, but the legislature can limit the jurisdiction of the courts . The executive

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and legislature may have a significant say over the appointment members of the judiciary . The
Courts have emphasised the aspect of checks and balances to justify a review of the acts of the
other arms of government.
Separation of powers is provided for in the CoK 2010. It is a national value of power sharing
(Article 10).It is an object of devolution (Article 174(i)) and a principle of devolution (175(a). It
is a principle of the legislative authority of county assemblies (Article 185(3). The structure of
Government reflects the application of the principle (Chapter 8, the Legislature, Chapter 9, the
Executive, Chapter 10, the Judiciary, Chapter 11, Devolved Government and Chapter 15
Constitutional Commissions and independent offices)
Cases underscoring the application of the separation of powers doctrine and underscoring the
requirement of checks and balances include:-
• In the Matter of the National Land Commission Advisory Opinion Reference No. 2 of
2014 [2015] eKLR
• Martin Nyaga Wambora v County Assembly of Embu & 37 others Civil Appeal No 194
of 2015 [2015] eKLR
• James Opiyo Wandayi v Kenya National Assembly & 2 others JR Application No 258 of
2016 [2016] eKLR
• Republic v National Assembly Committee of Privileges & 2 others Ex-Parte Ababu
Namwamba JR CASE NO 129 OF 2015 [2016] eKLR
• Justus Kariuki Mate & another v Martin Nyaga Wambora & another PETITION NO. 32
OF 2014 [2017]eKLR
• Judicial Service Commission v Speaker of the National Assembly & 8 others Petition No.
518 OF 2013 [2014] eKLR
6.2.2. Federalism/Devolution
In countries with a federal system of government, power is divided between a central (national)
government and regional (state or provincial) governments . This distribution of powers helps
prevent the concentration of authority in one central entity and allows for more localized
governance. It is a vertical separation of powers. Federalism is the ultimate form of
decentralization. There are other less drastic versions of decentralization such as devolution,
delegation and deconcentration.

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Devolution, like federalism is the vertical separation of powers. Devolution, like federalism limits
public power by dispersing it vertically. Devolution is provided for as part of the structure of
government and of the state (Article 6) a national value, (article 10) and in Chapter 11 (Devolved
Government). The constitution devolves executive and legislative power. Allocation of
competence is provided for in schedule 4. Conflict of laws is resolved in accordance with article
191 and disputes are resolved in accordance with article 189
6.2.3. Term Limits and Elections
Setting term limits for elected officials and holding regular elections are structural restraints that
prevent the accumulation of too much power in the hands of a few individuals or groups.
6.2.4. Bicameralism
Bicameralism is the division of a legislative body into two separate chambers or houses. It is a
mechanism designed to act as a restraint on legislative power. Bicameralism creates a system of
checks and balances within the legislative branch. Each chamber typically has its own set of
powers, and one chamber's actions may be subject to review, revision, or rejection by the other.
Bicameralism acts as a restraint on legislative power by introducing additional layers of scrutiny,
deliberation, and representation. This system helps prevent the concentration of power, protects
minority interests, and promotes more thoughtful and well-balanced legislative decision-making.
Bicameralism is built on the foundations of heterogeneous societies that have either gone federal
or adopted some form of devolution. In Bicameralism, the structure of the legislature is designed
to ensure that one house represents the principle of one man one vote (democracy) and the other
one represents the principle of one interest one vote( constitutionalism). The objective is to
neutralise the numerical superiority of certain sections of the society that would otherwise create
a dictatorship of the majority. The legislature is designed in such a way that the diverse interest is
given more or less equal voting power thus rendering a tyranny of numbers irrelevant. In an ideal
situation both houses should have equal legislative authority. Both houses should have an equal
say in law making. But certain constitutional functions like the vetting of public servants and the
approval of appointments are best reserved for the house that represents constitutionalism.
Having two chambers encourages more extensive deliberation and debate on proposed legislation.
The different perspectives, experiences, and expertise of members in each chamber contribute to
a more comprehensive examination of the issues at hand. This process helps to refine legislation,

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identify potential flaws, and improve the overall quality of laws and prevents hasty or unilateral
decisions by ensuring that legislation undergoes a more thorough scrutiny
Bicameral systems often involve different methods of representation in each chamber. For
example, one chamber might represent counties or regions (as in the Senate), while the other
represents the population at large (as in the National Assembly). This ensures a more nuanced
consideration of diverse interests and prevents the domination of legislative decisions by a single
group or region.
Bicameralism can serve to protect the rights of minority groups. The requirement for approval
from both chambers can make it more difficult for a majority to pass legislation that disregards the
concerns or interests of minority members. This protection of minority rights contributes to a more
just and equitable legislative process.
The existence of two chambers can mitigate against hastily rushed legislation. It may be more
challenging for radical or hastily proposed legislation to pass both chambers, providing a buffer
against impulsive or extreme policy changes. This can lead to more measured and well-thought-
out legislative outcomes.
In many bicameral systems, changes to the constitution or fundamental laws often require approval
from both chambers. This adds an extra layer of protection to the constitutional order, making it
more difficult for a single chamber to alter the fundamental principles of governance without broad
consensus.
In countries with bicameral systems, treaties and international agreements often require approval
from both chambers. This ensures that the legislative branch, representing different constituencies,
has a say in the country's international commitments, preventing unilateral decisions that may have
significant implications.
The United States of America adopts the bicameral model. Congress is made up of the House of
Representatives and the Senate. Because of the relative importance attached to constitutionalism
over democracy, Senate is the Upper House, and the House of Representatives is the lower house
The composition of senate is designed to ensure the States have equal voting power. The
composition and powers of the Senate are established by Article One of the United States
Constitution Each state, regardless of its
population size, is equally represented by two senators who serve staggered terms of six years.
There being at present 50 states in the Union, there are presently 100 Senators. The composition

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of the House of Representatives is designed to reflect the population of the states. The House is
composed of Representatives who sit in congressional districts that are allocated to each of the 50
states on a basis of population as measured by the U.S. Census, with each district entitled to one
representative. Since its inception in 1789, all Representatives have been directly elected. The total
number of voting representatives is fixed by law at 435. As of the 2010 Census, the largest
delegation is that of California, with fifty-three representatives. Seven states have only one
representative: Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and
Wyoming.
Kenya has also adopted a bicameral legislature, the National Assembly and the Senate. The
National Assembly has more legislative power than the senate. A bill can originate in any house
but if it originates in Senate, the National Assembly must approve it. If it originates in the national
assembly, it requires the approval of the senate only if it is a bill concerning counties. Both houses
have a role in the impeachment of the president, but senate has the final say. Only Senate has a
role in the impeachment of Governors. Only the national assembly vets presidential appointees.
Apparently, both houses have oversight over the executive and the judiciary.
The constitutional mandate of the two houses was determined in an advisory opinion in Speaker
of the Senate & another v Attorney-General & 4 others Advisory Opinion Reference No. 2 Of
2013 [2013] eKLR (Coram: Mutunga, CJ; Rawal, DCJ; Tunoi, Ibrahim, Ojwang, Wanjala &
Ndungu, SCJJ,)
The county governments have not always felt that the Senate exists to protect their interests. The
competition between the Senate and devolved governments can be illustrated in the following
cases
International Legal Consultancy Group v Senate & Clerk of the Senate Petition No 8 OF 2014
[2014] eKLR (Kerugoya)
The petition challenged the decision of the Senate to summon 9 County Governors to appear before
it and produce various documents pertaining to the financial management within the said counties.
The Standing Committee on Economic and Finance affairs through the Clerk of the Senate, issued
witness summons dated 8th February 2014 to the Governors and County Executive Committee
members for finance to appear before it on diverse dates from 19th February 2014 and answer to
questions with respect to County fiscal management. The summons was expressed to be issued
pursuant to the provisions of Article 125 of the Constitution. The court rejected the argument that

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summons was unconstitutional but in the courts judgement, one can feel the undertones of the
political supremacy war between the governors and the senators. Tellingly the court was at pains
to warn that the power under Article 125 was not to be used capriciously and the constitutional
autonomy of the county governments must be detected.
Council of Governors & 3 others v Senate & 53 others NRB Petition No 381 OF 2014 [2015]
eKLR
The petitioners challenge the constitutionality of amendments to the County Government Act, No.
17 of 2012, through the County Governments (Amendment) Act, 2014 ( hereafter “the CGAA”).
They allege that the provisions of the CGAA grant powers to state organs in conflict with the
allocation of functions in the Constitution.
On 24th July 2014, the National Assembly of Kenya had, pursuant to consultation with the Senate,
enacted the CGAA. The CGAA amended the County Government Act by introducing a new
section 91A which establishes the County Development Boards (hereafter “CDBs”) in each of the
47 counties in Kenya. The CDBs were to comprise, inter alia, members of the National Assembly
representing constituencies within respective counties, members of county assemblies, as well as
members of the executive operating within respective counties, and were to be chaired by the
Senator from the county.
Following the enactment of the CGAA and the establishment of the CDBs, the Council of
Governors, a body comprising all the Governors of the 47 Counties, lodged Petition No. 381 of
2014 challenging the constitutionality of the CDBs. The CoG asked the Court to declare the
provisions of Section 91A of the CGAA, which vests various functions in the CDBs,
unconstitutional for violating Articles 6(2); 95, 96, 174(1), 175, 179(1), 179(4), 183(1), 185(3) and
189(1) of the Constitution. The basis of the challenge is that through the CDBs, Senators and
members of the National and County Assemblies would be undertaking executive functions at the
County level. Specifically, the Court has been requested to determine the constitutionality of
section 91A and declare the creation of the CDBs null and void. The Commission on the
implementation of the Constitution (CIC) agreed with the CoG that the CGAA, specifically section
91A thereof, is unconstitutional and must be struck out for being unconstitutional. It is its
contention that the CGAA contravenes Articles 1(3), 2, 6, 10, 11, 94 , 95, 96, 174, 175,
179, 183, 185, 189, 190, 201, 259 as well as the Fourth Schedule and sections of the Sixth Schedule
of the Constitution. The court agreed and declared the amendments to the CGA unconstitutional.

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Council of Governors & 6 others v Senate NRB Petition No.413 OF 2014 [2015] eKLR
This Petition was about the constitutionality of summons issued to certain County Governors by
the Senate through its Sessional Committee on County Public Accounts and Investments. The
summoned Governors, namely; Isaac Ruto of Bomet County, William Kabogo of Kiambu County,
Mwangi wa Iria of Murang’a County and Jack Ranguma of Kisumu County were to appear before
the aforesaid Committee on 26th August 2014 to allegedly answer questions on County financial
management as raised in the Report of the Auditor General for the financial year 2012/2013.
The Governors did not appear before the Committee. Consequently, the Senate, allegedly
exercising powers under Article 228(4) and (5) of the Constitution, on 7th August 2014, resolved
that the Controller of Budget should not authorize any withdrawal of public funds for purposes of
the Counties headed by the aforementioned Governors until they had responded to the audit queries
raised to the satisfaction of the Senate. The court held that the summons were not unconstitutional
but the resolution requiring the Controller of budget not to authorise the withdrawal of public funds
for the affected counties was unconstitutional.
6.2.5. Public Participation
.Public participation is a key element of democratic governance and plays a crucial role in acting
as a restraint on government power. Through public participation, citizens become more informed
about government policies, issues, and decision-making processes. Informed citizens are better
equipped to critically evaluate government actions and policies, making it more challenging for
the government to manipulate information or act against the public interest.
Public participation acts as a safeguard against the concentration of power in the hands of a few.
By allowing citizens to voice their opinions and influence decision-making, participatory
processes help prevent the emergence of authoritarian tendencies. This diffusion of power helps
maintain a balance between the government and the people.
Public participation enhances accountability by providing a mechanism for citizens to scrutinize
government actions. When citizens actively engage in decision-making processes, they can hold
government officials accountable for their decisions and actions. This accountability can deter
abuses of power and ensure that government officials act in the best interests of the public.
Public participation promotes transparency in government activities. When citizens have access to
information and are involved in decision-making processes, it becomes more difficult for the

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government to operate in secrecy or make decisions that are not in the public interest. Transparency
helps prevent corruption and ensures that the government operates openly and responsibly.
Government actions gain legitimacy when they are the result of inclusive and participatory
processes. Public participation ensures that decisions are made with input from diverse
perspectives, making it more likely that government policies and actions will be accepted as
legitimate by the broader population. This, in turn, strengthens the government's authority and
reduces the likelihood of public discontent. A fortiori, lack of public participation delegitimizes
government action.
Public participation allows policymakers to tap into the knowledge, experiences, and expertise of
the wider population. Involving the public in decision-making processes increases the likelihood
of crafting policies that are effective and responsive to the needs and concerns of the people. This
can prevent the government from implementing policies that might be poorly conceived or have
unintended negative consequences.
6.3. Institutional Restraints
Institutional constraints refer to the mechanisms and structures in the form of specific institutions
within a government that limit the exercise of power and prevent abuses. The institutions are
designed to maintain a balance of power and ensuring that no single individual or branch of
government becomes too powerful. Institutional constraints are a fundamental aspect of
constitutional systems and contribute to the rule of law.
6.3.1. An Independent Judiciary
An independent judiciary ensures that the judicial branch can act as a check on the other branches
by interpreting laws and determining their constitutionality without undue influence. The power
of the judiciary to review and potentially invalidate actions taken by the legislative and executive
branches if they are deemed unconstitutional serves as a check on the powers of the other branches
of government.
6.3.2. Independent Institutions
The creation of independent bodies, such as election commissions, ombudsman offices, or anti-
corruption agencies, that operate outside the direct control of the executive or legislative branches.
The institutions thus created collectively prevent the abuse of power and protect the rights of
individuals.

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Constitutional commissions and independent offices are created by article 15. Under Article 249
(1) the objects of the commissions and the independent offices are to— (a) protect the sovereignty
of the people ;(b) secure the observance by all State organs of democratic values and principles;
and(c) promote constitutionalism.
Constitutional commissions were once considered a fourth arm of government within the
constitutional scheme of separation of powers. They are intended to serve as a watchdog over the
three arms of government and to protect against abuse of power. The perception of commissions
as a fourth arm of Government is canvassed by Professors P.L.O. Lumumba and L.G. Franceschi
in their work, The Constitution of Kenya, an Introductory Commentary, 2014 (page 19); they
observe that the newly-formed commissions and independent offices carry out functions which
were previously performed by the traditional arms of Government; and hence the framers of the
Constitution must have deliberately intended that certain Government functions be separated from
the familiar arms of Government, in order to promote transparency, fairness and objectivity
The traditional tripartite division of power was never cast in stone. There is nothing to stop further
horizontal separation by, for example creating independent institutions. The Supreme court of
Kenya has however held that sovereign power is only delegated to three arms, the executive, the
legislature and the judiciary. The court rubbished the concept of a fourth arm of government. (In
the Matter of the National Land Commission [2015] eKLR Advisory Opinion Reference NO 2 of
2014.
The constitutional commissions enjoy functional, operational, financial and even administrative
autonomy from the traditional three arms of government. But they are not immune to some
measure of checks and balances from the three arms of government (In the Matter of the National
Land Commission. Independence of commissions and independent offices does not, therefore,
entail a splendid isolation from other State organs... So they have to consult with other State organs,
and work with such State organs in co-operation and harmony...It is clear, for instance, that a
mandate borne by the commissions, namely, “democracy and participation of the people”, forms
an overlapping continuum with operational logistics devolving to all public agencies
In the Matter of the Interim Independent Electoral Commission Sup. Ct. Application No. 2 of 2011;
[2011] eKLR [In Re IIEC]. the Supreme Court said ‘that the independence of commissions does
not entail that they must act on their own accord (paragraph 59 and 60) …The several independent
Commissions and offices are intended to serve as ‘people’s watchdogs’ and, to perform this role

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effectively, they must operate without improper influences, fear or favour: this, indeed, is the
purpose of the ‘independence clause …These Commissions or independent offices must, however,
operate within the terms of the Constitution and the law: the ‘independence clause’ does not accord
them carte blanche to act or conduct themselves on whim; their independence is, by design,
configured to the execution of their mandate, and performance of their functions as prescribed in
the Constitution and the law.”
In the case, In Re Senate Matter Sup. Ct. Advisory No. 2 of 2013; [2013] eKLR the Supreme
Court, with regard to the separation of powers doctrine, remarked (paragraph 49): “Our perception
of the separation-of-powers concept must take into account the context, design and purpose of the
Constitution; the values and principles enshrined in the Constitution; the vision and ideals reflected
in the Constitution.”
The Court of Appeal , in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others,
Civil Appeal No. 290 of 2012; eKLR [2012],thus observed, in relation to the separation doctrine:
“It is not in doubt that the doctrine of separation of powers is a feature of our Constitutional design
and a per-commitment in our Constitutional edifice. However, separation of power does not only
proscribe organs of Government from interfering with the other's functions. It also entails
empowering each organ of Government with countervailing powers which provide checks and
balances on actions taken by other organs of Government. Such powers are, however, not a licence
to take over functions vested elsewhere. There must be judicial, legislative and executive deference
to the repository of the function. We therefore agree with the High Court’s dicta in the petition the
subject of this appeal that: Separation of powers must mean that the Courts must show deference
to the independence of the Legislature as an important institution in the maintenance of our
constitutional democracy as well as accord the Executive sufficient latitude to implement
legislative intent.”
The commissions may be functionally, financially, operationally and administratively independent
but they are constitutionally accountable to other organs of government and, according to SCORK,
they are not a fourth arm of government. But they do act as an institutional restraint on public
power.

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6.3.3. Independent Central Bank
Fiscal and monetary policies normally require delicate balancing acts. Constitutions therefore try
to insulate them from political control. The constitutional device used is an independent central
bank. Article 231 creates an independent Central Bank
231. (1) There is established the Central Bank of Kenya.
(2)The Central Bank of Kenya shall be responsible for formulating monetary policy,
promoting price stability, issuing currency and performing other functions conferred on it
by an Act of Parliament.
(3)The Central Bank of Kenya shall not be under the direction or control of any person or
authority in the exercise of its powers or in the performance of its functions
6.3.4. Civilian Control of the Armed Forces
One legal construct for the propagation of civilian control is the establishment of a civilian head
of state or head of government as the military's commander-in-chief within the chain of command.
It places the ultimate responsibility for a country's strategic decision-making in the hands of the
civilian political leadership, rather than professional military officers. It is a quintessentially
American innovation intended to ensure that important policy choices, such as the decision to go to
war, that have a significant impact on the state is left to civilians but executed by the military. It is
the antithesis of military rule. The US Supreme Court has described it as part of the US ‘political
philosophy and institutions’. (Duncan v. Kahanamoku, 327 U.S. 304 (1946)
Chapter 14 of the Constitution of Kenya 2010 is on national security. Article 238 provides for the
principles of national security as follows:
238. (1) National security is the protection against internal and external threats to Kenya’s
territorial integrity and sovereignty, its people, their rights, freedoms, property, peace,
stability and prosperity, and other national interests.
(2)The national security of Kenya shall be promoted and guaranteed in accordance with
the following principles––
(a)national security is subject to the authority of this Constitution and Parliament;
(b)national security shall be pursued in compliance with the law and with the utmost
respect for the rule of law, democracy, human rights and fundamental freedoms;
A post in the website of the US Department of Defence reads as follows:-

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 Civilian control of the military is so ingrained in America that we hardly give it a second
thought. Most Americans don't realize how special this relationship is and how it has
contributed to the country. The framers of the U.S Constitution worked to ensure the
military would be under civilian control. They did not want to emulate the European
experience. The colonies had just fought a war for freedom from Britain. The king
controlled the British military, and the framers had no interest in duplicating that system.
When they wrote the Constitution they separated the responsibilities for the military,
placing the responsibilities firmly in civilian hands.
Article 238(5) of the CoK 2010 provides that the national security organs are subordinate to
civilian authority. There is a significant civilian component of the national Security Council
(Article 240(1) & (2) and the defence council (240(4). Article 240 (3) gives the council supervisory
control over national security organs other functions prescribed by national legislation. The
defence Council is responsible for the overall policy, control, and supervision of the Kenya
Defence Forces and performs other functions prescribed by an act of parliament. There are similar
provisions with regard to the National Intelligence Service and the National Police Service. The
president is the commander in chief of the Kenya Defence Forces (Article 132(c) and the
chairperson of the National Security Council. The president, with the approval of parliament,
declares war. (Article 132 (4((e)
7. Characteristics of Good Control Devices
The devices of limiting or controlling public power are not mutually exclusive. They interact in
complex ways to deliver certain outcomes that can be self-reinforcing or mutually contradictory.
A good constitution-maker ought to understand how these devices interact so as to design a
constitution where the control devices reinforce rather than contradict each other

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 THE CATHOLIC UNINVERSITY OF EASTERN AFRICA

CUEA CLS 122

CONSTITUTIONAL PRACTICE

LECTURE NOTES

BY CHARLES B G OUMA

LLB MLB

LECTURER FACULTY OF LAW CUEA

‘THE EXECUTIVE’

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Lesson Contents
READINGS ...................................................................................................................................................................4
1. Executive Power Defined ................................................................................................................................5
1.1. Aristotle ...........................................................................................................................................................5
1.2. John Locke ......................................................................................................................................................6
1.3. Montesquieu ....................................................................................................................................................6
2. Interdependence of Governmental Functions ..................................................................................................6
3. Functions of the Executive ..............................................................................................................................7
4. General, Enumerated and Residual Powers .....................................................................................................7
5. The Nature and Characteristics of Executive Power .......................................................................................8
6. Importance of Executive Power .................................................................................................................... 14
7. Executive Power Distinguished from Administrative Power ........................................................................ 14
8. Facets of Executive Power ............................................................................................................................ 16
9. The Queen as the Ceremonial /Dignified Head ............................................................................................. 16
10. Types of Executive Power ............................................................................................................................. 17
10.1. Prerogative Powers ........................................................................................................................................ 17
10.2. Juridical Powers- ........................................................................................................................................... 17
10.3. Extra-Juridical Powers .................................................................................................................................. 18
11. Plural vs Unitary Executive ........................................................................................................................... 18
12. Executive Structures ...................................................................................................................................... 18
13. Presidential Systems ...................................................................................................................................... 19
13.1. Parliamentary Systems .................................................................................................................................. 19
13.2. Advantages of Parliamentary Systems .......................................................................................................... 19
13.3. Disadvantages of Parliamentary Systems ...................................................................................................... 20
14. Mixed or Hybrid Systems.............................................................................................................................. 20
15. Kenya’s Experience with a Mixed System .................................................................................................... 20
16. The Proposed Executive in the Failed Building Bridges Initiative............................................................... 23
16.1. Chapter Eight on the Legislature ................................................................................................................... 23
16.2. Chapter Nine on the Executive ...................................................................................................................... 23
17. The Executive in the CoK 2010 .................................................................................................................... 24
18. The President in the CoK 2010 ..................................................................................................................... 24
19. Elections ........................................................................................................................................................ 25
19.1. Nomination .................................................................................................................................................... 25
19.2. Procedure at Elections ................................................................................................................................... 25
20. Questions as to Validity of Presidential Election Article 140 NC ................................................................. 26
20.1. Threshold for challenging the election .......................................................................................................... 26

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20.2. Jurisdiction .................................................................................................................................................... 27
21. Death before Assuming Office ...................................................................................................................... 27
22. Assumption of Office .................................................................................................................................... 27
23. Term of Office ............................................................................................................................................... 28
24. Powers ........................................................................................................................................................... 28
25. Limitations on Presidential Powers ............................................................................................................... 28
26. Powers in Relation to Parliament .................................................................................................................. 28
27. Powers in Relation to the Judiciary ............................................................................................................... 29
28. Vacancy ......................................................................................................................................................... 30
29. Removal ........................................................................................................................................................ 30
30. Removal of the President Article 144 ........................................................................................................... 30
32. Impeachment Article 145 .............................................................................................................................. 30
34. The Deputy President .................................................................................................................................... 32
35. The Cabinet ................................................................................................................................................... 33
35.1. Collective Responsibility: The Meaning of the Doctrine British Practice..................................................... 33
35.2. Two Strands of the Doctrine ......................................................................................................................... 33
36. Tenure of Cabinet Secretaries ....................................................................................................................... 33
37. Secretary to the Cabinet ................................................................................................................................ 34
38. Principal Secretaries ...................................................................................................................................... 34
39. Director of Public Prosecutions ..................................................................................................................... 35
40. Control of prosecutorial discretion ................................................................................................................ 35
41. The Public Service ........................................................................................................................................ 40
41.1. The Public Service Commission ................................................................................................................... 43
41.2. Political neutrality of the Public Service ....................................................................................................... 45
41.3. Tenure ........................................................................................................................................................... 45
42. State Corporations ......................................................................................................................................... 46
42.1. Categorization ............................................................................................................................................... 47
42.2. Functions ....................................................................................................................................................... 47
42.3. Constitutional Status of State Corporations................................................................................................... 47
42.4. Appointment of Chairpersons and Board Members of State Corporations ................................................... 49
43. Power to Make Policy Choices...................................................................................................................... 52
44. The Executive and the Judiciary.................................................................................................................... 52
45. The Executive and Independent Institutions ................................................................................................. 52
46. Powers to Appoint ......................................................................................................................................... 52
47. Immunity ....................................................................................................................................................... 53
48. Immunity of other Sovereigns ....................................................................................................................... 55

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49. The Position of the Attorney General ............................................................................................................ 55

READINGS

1. Motola and Ramaphosa 2002 Opp. Cit pp 175 – 223

2. Kanyeihamba 1975 Opp. Cit. PP182-236
3. Ghai and McAuslan 1970 2001 Opp. Cit p 220 – 249
4. J.B. Ojwang, "The nature and scope of executive power in English and French speaking Africa: a
comparative perspective" (1980) 13 Verfasung and Recht in Uversee, 319-337

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 5. J.B. Ojwang Executive Power in Independent Kenya's Constitutional Context. Univ1ersity of Nairobi, LL.M.
dissertation, 1976.
6. S.A. de Smith, Constitutional and Administrative Law Penguin Books, Harmondsworth. 6th edn Penguin
Books London 1989 (Chapter on the executive)
7. B.O. Nwabueze, Presidentialism in Commonwealth Africa C. Hurst & Nwamife, London & Enugu, 1974

1. Executive Power Defined

Executive power does not easily lend itself to precise definition. Actually, it is much easier to list down executive
functions than it is to define executive power. According to Nwabueze1, ‘executive power’ is indeed a term of
uncertain meaning. Perhaps no other term in the science of government is so much taken for granted and yet so difficult
of precise delineation. Does executive power embrace all functions that are neither legislative nor judicial? More
importantly, can executive power be exercised independently of a law, a provision of the constitution or statute or
other law?” History traces the origin of the term as presently perceived to three philosophers, Aristotle, John Locke
and Montesquieu. The definition of the executive as proposed by the three philosophers is explored below;
1.1. Aristotle
In his Politics, Aristotle distinguished between three categories of state activity—deliberations concerning common
affairs, decisions of executive magistrates, and judicial rulings—and indicated that the most significant differences

1
Nwabueze, Ben (1974) Presidentialism in common wealth Africa, New York: St Martin’s Press
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among constitutions concerned the arrangements made for these activities. However, Aristotle did not believe in the
separation of powers in its present form. Aristotle in fact preferred that power should be wielded by one man. He was
merely making a theoretical distinction between state functions and at no stage does he suggest that these functions
be assigned to different organs of government or different persons. The distinction is however fundamental and forms
the basis for the modern approach to the separation of powers doctrine where those theoretical distinctions have been
elevated into practical distinctions between the roles of different organs of the state. Aristotle saw executive power as
‘that which is concerned with magistrates – deals with the distribution of public offices their authority and manner of
appointment, generate and implement policy and issue orders’.
1.2. John Locke
In the 17th century the English political philosopher John Locke also distinguished the legislative from the executive
function of government. Like Aristotle before him, John Locke failed to assign these functions to separate organs or
institutions of the state. Locke saw executive power as ‘the federative power’ which deals with matters of war, peace,
leagues and alliances.
1.3. Montesquieu
The modern tripartite division state functions among distinct arms of government, namely legislative, executive, and
judiciary is generally credited to Montesquieu. Unlike his predecessors who saw virtue as the sine qua non of political
association, Montesquieu argued that the purpose of political association is liberty. Accumulating all power in the
same hand leads to tyranny and accordingly power must be distributed to different organs of the state. Montesquieu
urged the division of the three functions of government among three separate institutions. He saw executive power as
the power by which the prince makes peace, sends and receives ambassadors and prevents invasion. This is the
classical definition of executive power. It is needless to add that it excludes many governmental functions that are
more easily assigned to the executive arm than to the other arms. For example, government exists to regulate economic
and social relationships among individuals and private organizations and this is a function which is more readily
associated with the executive than with the other arms of government.
Montesquieu’s model of the tripartite division of power quickly developed into one of the principal doctrines of
modern constitutionalism and became a feature of all modern constitutions such as the American Constitution, and
the French Declaration of the Rights of Man. Subsequent libertarian constitutions quickly caught on and it is safe to
say that it is now considered a standard feature of the constitutions of all liberal democracies.
2. Interdependence of Governmental Functions
The functional division among the branches of government is never precise and the doctrine of separations of powers
has been substantially relaxed to accommodate the exigencies of the interdependence of the functions of government.
In what is typically presented as ‘pure’ presidential systems, like the US system, the doctrine of checks and balances
justifies several departures from the strict assignment of functions among the branches. Parliamentary forms of
government, like the one in the United Kingdom, depart even further from the concept of separation and integrate both
the personnel and the functions of the legislature and the executive and , at least prior to the year 2009, the judiciary.
The modern approach appears to promote the concept of ‘shared’ rather than ‘separated’ powers as the true essence
of constitutionalism. Constitutionalism calls for the sharing or distribution of power and functions among the divisions
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of government in such a way that they are each subjected to reciprocal checks from each other and forced to cooperate
in the exercise of their respective powers and functions. This is because it is theoretically possible to have separate
institutions such as legislatures, executives, and judiciaries, but still concentrate real power in one organ that is
unchecked by the others. In such a situation power is separated but not shared. Because one organ is not subjected to
the checks of shared power, the exercise of power easily becomes uncontrolled or absolute and inevitably results in
totalitarianism. Accordingly, power must not only be separated, it must be shared. A system of checks and balances
compels cooperation while ensuring functional independence.
3. Functions of the Executive
Traditionally the core functions of government generally, and the executive in particular, fall within the definition by
Montesquieu. The core functions of government according to Montesquieu are as follows:
• Maintenance of law and order
• National defence
• Foreign relations
Other functions that have evolved over time are as follows;
• Provision of socio-economic services
• Quasi-judicial functions
• Subsidiary legislation
4. General, Enumerated and Residual Powers
There are two theories of Executive Power; The ‘inherent power’ theory and the ‘specific grant theory’. According to
the inherent power theory, executive power is any power that is neither legislative nor judicial. For as long as the
executive is neither exercising a legislative nor a judicial function, there need not be a specific grant by the law to
justify the action. Taken to its logical extreme, the inherent power theory has been used to justify unconstitutional acts
by the executive in terms of national emergency ostensibly to preserve the realm and the constitution. Its leading
proponents are John Locke and US President Abraham Lincoln. Professor JB Ojwang, former UON Scholar and
Supreme Court judge subscribes to the inherent power theory and coined the terminology of the extra-juridical power
of the executive to describe the non-enumerated functions of the executive.
The specific grant theory sees executive power as a power to execute laws. The executive cannot act absent a specific
grant of power by the law. Proponents of this theory include Professor Ben Sihanya and Dr Charles Mwaura Kamau,
both of the University of Nairobi2. These UON Scholars argues that the CoK 2010 has adopted the specific grant
theory.

Accordingly, the functions of the executive can be categorized as general, specific or residual. The general power is
typically donated by a vesting clause in the basic law such as the constitution of a state. Vesting clauses vest general
executive power in a person or in an institution. For example, article 2 of the Constitution of the US vests executive
power in the president. This was also the case with section 25 of the old constitution of Kenya. Article 130 of the CoK

2
See Mwaura Charles Kamau Principles of Constitutional Law, 2014 Law Africa Nairobi P 223-224
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2010 is ambiguous about the vesting of executive power3. Article 129(2) provides for the exercise of executive power4.
The constitution then proceeds to give the president both broad and more specific powers and functions but does not
vest general executive power in the president. One can argue that the Kenyan president is more limited in executive
authority than his US counterpart and he may have to point out a specific article of the constitution authorizing the
exercise of executive power. Styling the president as head of state and head of government does not amount to a
conferment of general executive powers. Indeed article 129 expects the president to exercise executive power only in
accordance with the constitution.

The specific functions are usually enumerated by the basic law or ordinary legislation and assigned to specific organs
of the executive. Because of the limitations of draftsmanship, it is usually impossible to list all functions. The non-
listed functions are referred to as residual functions. Proponents of the theory of the inherent power theory recommend
that these residual functions devolve to the executive5. Executive power then becomes that power that is neither
judicial nor legislative. “In its broadest sense, the executive department consists of all government officials except
those acting in legislative or judicial capacity. It includes all the agencies of government that are concerned with the
execution of states will as expressed in terms of law.”6

The executive arms of government tend to take a rather expansive definition of executive power. The courts have, for
most part allowed the executive considerable discretion in defining the boundaries of executive power and the mode
of executing it. In the United States of America for instance there has been much debate about whether executive
power is limited to the ‘execution of laws’ as enacted by Congress or extends to what are essentially prerogative
powers as were held by the Crown in the United Kingdom. The debate revolves around Article II of the constitution
which vests executive power in the president and then proceeds to enumerate specific executive functions. Questions
have been asked about whether the general vesting of executive power is limited by the subsequent enumeration of
executive powers or whether the enumeration is without prejudice to the vested power. It is argued that if the executive
were to be limited to the role of executing of laws, the executive would be reduced to no more than an errand boy of
the legislature and the judiciary and would probably be excluded from performing the many functions that executive
power is traditionally associated with.
5. The Nature and Characteristics of Executive Power
Executive power has been described as urgent, direct, discretionary and residual. Unlike legislative power which is
deliberative or judicial power which is adjudicative, executive function has a since of urgency and immediacy. It also
requires considerable discretion. To be effective executive power has to be urgent, efficient, direct and discretionary.

3
130. (1) The national executive of the Republic comprises the President, the Deputy President and the rest of the
Cabinet.
4
(2) Executive authority shall be exercised in a manner compatible with the principle of service to the people of
Kenya, and for their wellbeing and benefit.
5
Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39 (Harold C.
Syrett ed., digital ed. 2011) (“The enumeration [of specific presidential authorities later in Article II] ought rather
therefore to be considered as intended . . . to specify and regulate the principal articles implied in the definition of
Executive Power [in the Executive Power Clause]; leaving the rest to flow from the general grant of that power . . .”).
6
[Link]
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Because of its indeterminate and discretionary nature arbitrariness is inherent in executive power and a fundamental
objective of the principle of constitutionalism is the regulation of executive power. The courts have therefore fashioned
interpretational tools designed to check against possible abuse of executive discretion
Democratic Alliance vs President of South Africa & ors (CCT 122/11) [2012] ZACC 24 (5 October 2012)
The minister and Mr. Simelane accept that the executive is ‘constrained by the principle that it may exercise
no power and perform no function beyond that conferred...by law and that power must not be construed. It is
also accepted that the decision must be rationally related to the purpose for which the power was conferred.
Otherwise, the exercise of the power would be arbitrary and at odds with the constitution.
Abutt v Center for the study of Violence and Reconciliation and ors (2010) ZACC 4 2010 (3) SA 2937
‘The executive has a wide discretion in selecting the means to achieve its constitutionally permissible
objectives. Courts must not interfere with the means selected simply because they do not like them, or
because there are more appropriate means that could have been selected. But where the decision is
challenged on the grounds of rationality, courts are obliged to examine the means selected to determine
whether they are rationally related to the objective sought to be achieved. What must be stressed is
that the purpose of the inquiry is to determine not whether there are other means that could have been
used, but whether the means selected are rationally related to the objective sought to be achieved. And, if
objectively speaking, they are not, they fall short of the standard demanded by the constitution’.

Thirdway Alliance Kenya & another v Head of the Public Service-Joseph Kinyua & 2 others; Martin Kimani & 15
others (Interested Parties) [2020] eKLR
By Gazette Notice No. 5154 dated 24th May 2018, H.E. Uhuru Kenyatta, President of the Republic of Kenya
established a body known as the Building Bridges to Unity Advisory Taskforce whose terms of reference were to:-
• Evaluate the national challenges outlined in the Joint Communiqué of 'Building Bridges to a New Kenyan
Nation, and having done so, make practical recommendations and reform proposals that build lasting unity;
• Outline the policy, administrative reform proposals, and implementation modalities for each identified
challenge area; and
• Conduct consultations with citizens, the faith-based sector, cultural leaders, the private sector and experts at
both the county and national levels.
The petitioners challenged the president’s action on grounds, inter alia, that;
• The establishment of the body violates the spirit of Article 132 of the Constitution and the provisions of
Chapter 15 of the Constitution which establishes Commissions and independent offices because the
Taskforce is usurping the functions and roles of the already established commissions and independent offices
which are mandated to undertake the same functions that the Taskforce purports to undertake.

7
See also Bato Star Fishing (pty) Ltd vs Minister for Environmental Affairs and Tourism and others

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 • The Gazette Notice No. 5154 establishing the Taskforce is unconstitutional since it is pursuant to a personal
and private agreement between two individuals, which was never subjected to public participation as required
under Article 10 of the Constitution. That such an agreement cannot be imposed on the general public because
it amounts to imposing the objectives of two individuals against the laid down procedures under the
Constitution.
• The general public are aggrieved by the operationalization of the agreement between the President and Hon.
Raila Odinga which has occasioned expending of public funds and added unnecessary financial burden on
Kenyans in a cause that is not in the public’s best interests. Additionally, they state that the Members of the
Taskforce were not vetted as required by Article 10(c) and Chapter 6 of the Constitution, hence, the failure
to vet them before their appointment is unconstitutional and goes against the very fabric of the provisions of
Article 10 and Chapter 6 of the Constitution.
• The Constitution has established constitutional Commissions and Public bodies, which were formed under
the Constitution and relevant laws including but not limited to the national cohesion and integration
commission; the Ethics and Anti-corruption Commission; National Police Service Commission; Independent
Electoral and Boundaries Commission and the Kenya National Commission on Human Rights, hence, the
Taskforce usurps and interferes with the roles of these existing Constitutional Commissions, thus
undermining their Constitutional mandate.
• any findings under its terms of reference will undermine the previous findings and recommendations by the
constitutional commissions. In addition, they state that the Taskforce as per its terms of reference purports to
establish what allegedly ‘ails” our country, yet, what perennially ails our country has already been established
and documented in a raft of reports and previous Taskforces.
In response it was contended that;
• The Petitioners had not shown the extent to which the formation of the Taskforce is beyond the powers and
functions of the President.
• That setting up the Taskforce and appointing its membership was an exercise of executive authority and
prerogative of the President under Articles 131(2) (c) and 132(1) (c) (i) as read together with Articles 2(1),
3(1) and 10 of the Constitution. Under Article 131(2) (c), the functions of the President include to promote
and enhance the unity of the nation. Article 132(1) (c) (i) of the Constitution confers the President with a
distinct and/or independent mandate of ensuring the realization of the national values in Article 10 of the
Constitution and as such requires him to take specific measures to ensure the realization of the national
values.
• The Petition essentially challenges the exercise of executive prerogative and is otherwise an invitation to the
court to substitute its views on how the President ought to discharge his mandate under inter-alia Articles
131(2)(c) and 132(1)(c)(i) of the Constitution.

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Held
115. It is not in dispute that the President is obligated by the Constitution to ensure national unity is
realized. It is not in dispute that the president has the power to appoint the Taskforce to advise him on
among other means of realizing this constitutional requirement. In this regard, I have no doubt that the
legality constraint was thus adhered to. The President cannot be said to have acted ultra vires the
Constitution. He acted intra vires in taking steps to achieve this noble constitutional requirement. The
President’s decision meets both the proportionality and rationality tests which are core requirements for the
decision to pass the principle of legality test.
Zivotofsky v. Kerry, 576 U.S. (2015) No. 13–628. Argued November 3, 2014—Decided June 8, 2015
This is a case about the indeterminate executive power: exclusive power to conduct foreign relations
Zivotofsky was born to U.S. citizens living in Jerusalem. Under the Foreign Relations Authorization Act,
2003, 116 Stat. 1350, his mother asked Embassy officials to list his place of birth as “Israel” on his
passport. Section 214(d) of the Act states for “purposes of the registration of birth, certification of
nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary
shall, upon the request … record the place of birth as Israel.” Embassy officials refused to list Zivotofsky’s
place of birth as “Israel,” citing the Executive Branch’s position that the U.S. does not recognize any
country as having sovereignty over Jerusalem. The D. C. Circuit held the statute unconstitutional. The
Supreme Court affirmed. The President has the exclusive power to grant formal recognition to a foreign
sovereign. The Court cited the Reception Clause, which directs that the President “shall receive
Ambassadors and other public Ministers,” and the President’s additional Article II powers, to negotiate
treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. The Constitution
assigns the President, not Congress, means to effect recognition on his own initiative. The Nation must
“speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and
which are not, and only the Executive has the characteristic of unity at all times. If Congress may not pass a
law, speaking in its own voice, effecting formal recognition, then it may not force the President, through
section 214(d), to contradict his prior recognition determination in an official document issued by the
Secretary of State.
Held
Under the Reception Clause in Article II of the U.S. Constitution, only the President may grant formal recognition to
a foreign sovereign, and Congress may not pass a law under its own authority to grant formal recognition or require
the President to override a prior official determination of recognition.
Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4
others.[62]
On 23rd February 2015, the National Government through President Uhuru Kenyatta issued a directive to
all County Commissioners and the 1st to 4th Respondents to collect up to-date data and prepare a report
inter alia on all school going children living with the Human Immunodeficiency Virus (HIV) and Acquired
Immune Deficiency Syndrome (AIDS)
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 The Petitioners have filed this Petition alleging that the act of collecting the names of persons living with
HIV/AIDS in a format that links their names to their HIV status is unconstitutional and a violation of
fundamental rights and freedoms under Articles 27, 28, 29, 31, 43, 47 and 53 of the Constitution.
The main question before court was whether the exercise of executive power is subject to the constitutional
requirement of public participation.
Held;
“It is further not lost to me that public participation in the legislative process is crucial in a democratic
society generally and the question I set out to answer elsewhere above is whether the Constitution imposes
an obligation on the President to facilitate public participation before issuing a directive like the one before
me. I can only answer that question in the negative. ...
I should add that if such an obligation were to exist every time the President was to exercise his
executive authority, especially in the most urgent of situations as they will arise from time to time, it
would be difficult for him to utilize his executive powers. In stating so, I am conscious of the fact that an
executive directive is a serious order and the President ought to issue one in the most deserving of
situations and upon taking into consideration the full effect of the directive on the well being of the people
of Kenya. It is for that reason that the President has an adviser – the Attorney General, who is mandated
under Article 156(4)(a) to be the Principal Legal Adviser to the Government and to ensure that the
Executive, including the President, always act within constitutional parameters. Be that as it may, if a
directive violates any Constitutional provision, it ought to be challenged in Court as there is no doubt that
the President is bound by the provisions of the Constitution and his actions must be within the four
corners of the Constitution. …
I am in agreement and given that what is before me is a policy directive and as I said earlier there is no
obligation imposed on the President to ensure there is public participation, I shall not get into the issue as
to whether the participation was adequate or not.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Argued May 12-13, 1952 Decided June 2, 1952* U.S.
Supreme Court
To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the
President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills.
The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the
President by the Constitution and laws of the United States and as President of the United States and Commander in
Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to
operate them as operating managers for the United States in accordance with his regulations and directions. The
President promptly reported these events to Congress; but Congress took no action. It had provided other methods of
dealing with such situations and had refused to authorize governmental seizures of property to settle labor disputes.
The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive
relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.

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Held:
Although this case has proceeded no further than the preliminary injunction stage, it is ripe for determination
of the constitutional validity of the Executive Order on the record presented. The Executive Order was not
authorized by the Constitution or laws of the United States, and it cannot stand. There is no statute which
expressly or impliedly authorizes the President to take possession of this property as he did here. In its
consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of
property as a method of preventing work stoppages and settling labor disputes. Authority of the President to
issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers
under Article II of the Constitution. The Order cannot properly be sustained as an exercise of the President's
military power as Commander in Chief of the Armed Forces. Nor can the Order be sustained because of the
several provisions of Article II which grant executive power to the President. The power here sought to be
exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad
times.
Katiba Institute & another v Attorney General & another [2020] eKLR
A question arose as to the constitutionality of various acts of parliament giving the president and his ministers the
power to appoint chairpersons and directors of state corporations. The petitioners argued that directors of state
corporations are public officers who should be appointed by the Public Service Commission.
The petitioners also argued, relying on section 3(3) of the Public Officer Ethics Act, that the PSC is responsible for
the public officers in respect of which it exercises disciplinary control and those described in paragraphs (d) and (e)
of section 107 (4) of the repealed Constitution, and for public officers, employees or members of state corporations
that are public bodies. In their view, the various statutory provisions under which the impugned appointments were
made contravene Article 233(2) (a) (ii). It is the petitioners’ case that the PSC is constitutionally mandated to make
all other appointments in the public service except those in Article 234(3)(4).
The Attorney General submitted that the President has executive power under Article 132 (4)(a) to perform executive
functions provided for under the Constitution or national legislation. In his view, the powers given to the President
under the Constitution are not exhaustive and that national legislation could grant additional authority to the President
to perform other functions.
It was the Attorney General’s case that the fact that national legislation grants the President and or members of his
cabinet powers and functions not expressly provided for in the Constitution, is not derogation from the Constitution.
He argued that provisions in the State Corporations Act and other statutes giving power to the President and members
of his cabinet to make appointments are statutes envisaged under Article 132(4) (a) and, therefore, the persons
empowered by those statutes to make appointments are the proper appointing authorities.
Held
The Constitution confers on the President in Article 132(4) (a), powers to perform any other executive
function provided for in the Constitution or in national legislation. The impugned provisions are
national legislations which give the President power to appoint persons to positions of chairpersons or
members of boards in respective state corporations and parastatals. Where national legislation provides that
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 an appointment be made by the President, the appointment can only be made as provided for and not as the
petitioners urged.
This view is also buttressed by the decision of the Court of Appeal in Attorney General v Law Society of Kenya & 4
others [2019] eKLR :
“The Constitutional architecture creates room under Article 132 for the President to perform some duties as
a Head of State, which is a noble thing in a constitutional democracy. One of the noble tasks given to
the President is to make state and public appointments, even where he has no other role to play in the
process of appointment.”
6. Importance of Executive Power
The rise of welfare state has tremendously increased the functions of the state and, in reality, the executive. In common
parlance, people tend to identify the ‘executive’ with the ‘government’. The executive branch is often considered more
important in the constitutional scheme of separation of powers. While it's important to emphasize that the separation
of powers principle aims to prevent the concentration of power, the executive is often perceived as having a distinct
role that is more closely associated with the concept of 'government than the legislature and the judiciary.'
This perception of primacy of the executive is rooted in several historical, practical, and functional reasons. The
executive branch plays a vital role in responding to crises and managing national security. During emergencies, the
ability to make swift decisions and coordinate responses is crucial, and this is a function typically associated with the
executive. In systems with a presidential model, the executive, usually the president, serves as the commander-in-
chief of the armed forces. This underscores the executive's role in matters of defense and national security. The
executive, especially the head of state or head of government, is the primary representative in international relations.
Diplomacy, treaty negotiations, and foreign policy decisions are typically within the purview of the executive. The
executive formulates and executes government policy. It also implements and enforces the law as laid down by the
legislature and interpreted by the judiciary. It is tasked with translating legislative policies into practical actions and
ensuring the enforcement of laws on a day-to-day basis. The head of the executive is often the most visible and
recognizable figure in government. This individual symbolizes the government and is seen as the primary
representative of the state. This operational role makes the executive central to the functioning of government. It is
the implementation role and the general perception of the ‘executive’ as being synonymous with ‘government’ that
probably gives the executive a sense of primacy among the three arms of government. The exercise of executive power
best illustrates the practical limits of the theory separation of powers; the executive that we know typically exercises
legislative and judicial functions. It is the part of government that citizens mostly interact with.
7. Executive Power Distinguished from Administrative Power
In constitutional theory, the concepts of executive power and administrative power refer to different aspects of
government authority and function. While they are closely related, they have distinct characteristics and roles within
a constitutional framework. Executive power is the broader concept that encompasses the overall authority of the
executive branch, while administrative power is a more specific aspect that deals with the practical implementation
and management of laws and policies. Administrative power is a subset of executive power It relates to the
implementation and management of government programs, regulations, and services. It involves the execution of laws
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through the development and implementation of administrative rules and regulations. This includes activities such as
licensing, permitting, inspections, and other regulatory functions. Administrative power is often delegated to
specialized agencies and bodies within the executive branch. These agencies have the authority to make rules,
adjudicate disputes, and undertake specific functions within the scope of their delegated powers.
The distinction is important in understanding the division of powers within a constitutional framework . In many
constitutional systems, administrative power is generally more amenable to judicial review for constitutionality
compared to executive power. The reason for this lies in the more specific and concrete nature of administrative
actions, which often involve the application and interpretation of laws in specific cases. Judicial review serves as a
mechanism to ensure that administrative actions are consistent with constitutional principles and legal standards.
While executive actions are also subject to judicial review, they often involve broader policy decisions, national
security matters, or discretionary powers that courts may be more hesitant to scrutinize closely. However, in both
cases, the ultimate goal of judicial review is to ensure that government actions, whether executive or administrative,
comply with constitutional norms and principles. The courts take a more deferential approach when the action is
deemed to be executive. Administrative action is more amenable to review.
Thirdway Alliance Kenya & another v Head of the Public Service-Joseph Kinyua & 2 others; Martin Kimani & 15
others (Interested Parties) [2020] eKLR
At the center of the above questions is a fundamental issue, namely, whether the President’s decision is an
administrative or executive action" Answering this question is important. If it amounts to an administrative
action, it is subject to a higher level of scrutiny in terms of the Fair Administrative Action Act…On the other
hand, if it is an executive action, it is subject to the less exacting constraints imposed by the principle
of legality.
In determining the nature of a power, it is helpful to have regard to how closely the decision is related to
the formulation of policy, on the one hand, or its application, on the other. A power that is more closely
related to the formulation of policy is likely to be executive in nature and, conversely, one closely related to
its application is likely to be administrative. The President’s power to appoint a Taskforce is closely related
to his broad, policy-formulating function; hence it is an executive power. It is a mechanism whereby the
President can obtain information and advice so as to achieve his desired goal, in this case of promoting and
ensuring
It may be useful to consider the source of the power. Where a power flows directly from the Constitution,
this could indicate that it is executive rather than administrative in nature, as administrative powers are
ordinarily sourced in legislation. For this proposition I am fortified by Moseneke DCJ’s holding in the
majority decision in Masethla v President of the Republic of South Africa where he said that the President’s
power to dismiss the Director-General of the National Intelligence Agency was sourced in and flowed from
the Constitution. This was partly the basis for the conclusion that the power under consideration was an
executive power as contemplated in the Constitution of South Africa.

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8. Facets of Executive Power
In English constitutional law, executive power was understood as having two facets: royal prerogative, typically
referred to as the ceremonial/dignified facet, and statutory powers typically referred to as the efficient facet. The royal
prerogative refers to the historic discretionary powers that were originally exercised by the monarch but are now
exercised by government ministers on behalf of the Crown. The powers were inherent to the crown and were not
granted by statute. The powers covered a broad range of areas, such as foreign affairs, defense, the grant of honors,
and the appointment of ambassadors. Royal prerogative tended to be a more symbolic role, symbolizing nationhood
and attended with more ceremony.
The efficient facet of executive power involved powers granted to the executive by statutes (laws passed by
Parliament). The efficient facet is concerned with the day to day running of the affairs of the state. Statutory powers
are more explicitly defined and limited than the discretionary powers associated with the royal prerogative. The
dichotomy of the two facets created an inbuilt system of checks and balances because it enabled parliament to exercise
a certain amount of control over executive power without compromising the necessary separation of powers between
the two arms of government.
Presidential systems vest both facets in the same person. The constitution of a presidential system typically outlines
the powers and responsibilities of the president. It may explicitly grant certain powers, such as the commander-in-
chief authority over the military, the power to appoint certain officials, and the authority to conduct foreign affairs.
The president in a presidential system often possesses inherent or implied powers, similar to the royal prerogative in
the British system such as powers related to national security, diplomacy, and assenting to laws in addition to statutory
powers granted by parliament.
In presidential systems, the two facets are fused. For example, Article 131(1) of the CoK 2010 provides that the
president is the head of state and the symbol of national unity (131(1) (e). Article 131(1) provides that the president
is the head of government. Parliamentary systems seek to separate the two facets. When the two facets are separated,
the ceremonial facet goes to the head of state and the efficient facet goes to the head of government
9. The Queen as the Ceremonial /Dignified Head
The ceremonial and dignified facet is typically incompatible with partisan politics save in mature democracies like
the US. De Smith summarizes the role of the queen as head of state in the following terms;
• A symbol of national identity
• A focal point of loyalty
• Transcends partisan rivalry
• Strengthens national cohesion
• Preeminently a dignified element in the British constitution
• The pillar of the established church
• The exemplar of family virtue
• Expected to do what no ordinary mortal can expect to achieve
• Not allowed the smallest indiscretion or verbal lapse

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 • Must comport herself so as not to give offense to nobody. Must not do or say anything wrong
• Must always do the right thing irrespective of her private inclinations

When she does all the above her office is attended by magic and mystery
10. Types of Executive Power
In English constitutional law, the concept of executive power was categorized into three types: prerogative powers,
juridical powers, and extra-juridical powers. Each type represents a distinct aspect of the executive's authority
10.1. Prerogative Powers
Prerogative powers are historically derived discretionary powers that originally belonged to the monarch but are now
exercised by government ministers on behalf of the Crown. These powers are inherent and were not explicitly
conferred by statute. They were personal to the king and could not be [Link] powers include the ability
to conduct foreign affairs, grant pardons, issue passports, deploy armed forces, and confer honors. A consequence of
the CoK 2010 is that these powers are now codified in the constitution.
At common law these included

• The power to make war and peace 8

• The power to send and receive ambassadors9
• Maintenance of internal order
• The power to summon and prorogue parliament
• The power to dissolve parliament
• The power to assent to bills
• Immunity for civil and criminal processes
• The power to appoint the vice president
• The power to appoint ministers

10.2. Juridical Powers-

Juridical powers are those powers exercised by the executive that have a legal or judicial character. Juridical powers
are conferred by statute and can also be exercised through subordinates. The powers involve the enforcement and
application of laws, often in a quasi-judicial capacity. Juridical powers may include the power to issue regulations,
make administrative decisions, grant licenses, and adjudicate disputes within the framework of administrative law.
Juridical powers are often delegated to administrative agencies through legislation, specifying the conditions and
limits within which these powers can be exercised. Because the exercise of these powers is subject to legal standards
and procedural fairness, administrative decisions made under juridical powers are subject to judicial review to ensure
compliance with legal norms.

8
Mortenson, Julian Davis. "Article II Vests Executive Power, Not the Royal Prerogative." Colum. L. Rev. 119, no. 5
(2019): 1169-272. 1173 ([Link]

9
Ibid
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10.3. Extra-Juridical Powers
Extra-juridical powers refer to those powers exercised by the executive that are not strictly legal or juridical in nature.
These powers may involve discretionary actions that fall outside the realm of established legal procedures. These are
powers which are incidental to and flow naturally and directly from prerogative and juridical powers. They are said
to be the residual powers and are penumbral in nature. Some of these powers may even depend on the personal
charisma of the chief executive. Extra-juridical powers could include actions taken for reasons of state policy, national
security, or in emergencies where specific legal procedures may not be practical. These powers often involve a
significant degree of executive discretion. While extra-juridical powers recognize the need for executive discretion,
their exercise is not unlimited. They are subject to accountability and oversight, either through political mechanisms
or, in some cases, through subsequent legal scrutiny.
11. Plural vs Unitary Executive
The concept of the unitary executive refers to the exclusive vesting of all executive authority in one institution such
as the presidency. The unitary executive systems consolidates executive power in a single individual, often a president
or governor in a federal or devolved system. In a unitary system, the executive branch is more centralized, and the
head of the executive has the authority to appoint and remove subordinate officers.
The unitary executive is associated with a strong and unified executive branch, where the president or governor has
significant control over the administration and execution of laws. This model is believed to provide for more decisive
and efficient governance but raises concerns about the potential for unchecked executive authority.
The United States has a unitary executive system, at the federal level, with a president as the head of the executive
branch. The president has the authority to appoint and remove key executive officers, subject to Senate confirmation
for certain appointments. It is considered a consequence of Article II of the US Constitution vesting executive power
in the president.
The plural executive is the exact opposite. In a plural executive system, executive power is distributed among multiple,
independently elected officials who collectively form the executive branch. Each official typically has a specific area
of responsibility. The idea behind a plural executive is to diffuse executive power, preventing any single individual
from accumulating too much authority. It is thought to enhance checks and balances within the executive branch, as
well as between the executive and legislative branches.
States in the United States often adopt a plural executive structure, where executive officers are elected independently
rather than being appointed by the governor. Some states, like Texas have a plural executive where some officials like
the lieutenant governor, attorney general, comptroller, and secretary of state are elected independently of the governor
and given specific executive powers. Some countries, like Switzerland, have a collegial executive where one member
is periodically made a first among equals but executive power vests in the team and not on any individual.
12. Executive Structures
The concept ‘ Executive Structure’ speaks to the constitutional design of the executive. The structure of executive
determines where the center of power is. It is a principle determinant of the constitutional architecture for the
limitations of executive power

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Different countries adopt various executive structures based on their constitutional designs and political traditions.
The three main types of executive structures are presidential, parliamentary, and mixed. Variations and nuances exist
within each type, and the actual operation of these systems can differ based on specific constitutional provisions and
historical developments in each country. It is important to consider where the “efficient” and the “dignified” facet of
executive power is intended to lie and to allocate power as appropriate.
13. Presidential Systems
In presidential systems, the head of state and head of government is a single individual, the president. The president
is elected independently of the legislature for a fixed term. In a presidential system, the president has significant
decision-making authority and is not dependent on the legislature. The president has significant powers, including the
ability to veto legislation, command the armed forces, and make key appointments. Examples of presidential systems
include the United States and Kenya under the CoK 2010
Presidential systems emphasize a clear separation of powers between the executive and legislative branches. In
parliamentary systems, the executive is drawn from and accountable to the legislature, blurring the separation of
powers. Presidential systems often provide more stable executive leadership with fixed terms, while parliamentary
systems may lead to more frequent changes in government because in a parliamentary system, the executive's survival
depends on legislative support.
13.1. Parliamentary Systems
In a parliamentary system, the head of state and head of government are separate individuals. The head of state may
be a monarch or a ceremonial president, while the head of government is usually the prime minister. The prime
minister is typically the leader of the majority party in the legislature and is responsible for forming a government.
The prime minister and the cabinet derive their authority from the legislature and must have its support to remain in
office
The best example is the UK system. There are two centers of power with clearly defined roles. The executive is part
of the legislature. There is a head of state and a head of Government. The Queen is the head of state; the prime minister
is the head of Government .Executive power is vested in the cabinet headed by the prime minister as a ‘first among
equals’. The queen is the head of state – Her roles are largely ceremonial. The dignified/ceremonial facet vests in the
queen. She is the symbol of nationhood and its continuity. The prime minister is the head of government. The efficient
facet vests in the cabinet, of which the prime minister is a first among equals. Other examples are of parliamentary
systems are Canada and India.
13.2. Advantages of Parliamentary Systems
Parliamentary systems offer more immediate accountability as the executive is directly responsible to the legislature.
In presidential systems, the president may serve a fixed term irrespective of legislative support. Parliamentary systems
are arguably less likely to become dictatorial as the opposition constantly keeps the government on its toes with
prospects of replacement without the need for a general election. Ironically , parliamentary systems actually promote
stability because government can change without triggering a general election. The system is more responsive to the
coalition building needs of a heterogeneous society. It also offers an opportunity to create a non-partisan head of state
that can be a true symbol of national unity and a focal point of loyalty
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13.3. Disadvantages of Parliamentary Systems
A parliamentary system is a violation of the concept of separation of powers. The government is inherently unstable
as it can be changed by legislators without the participation of the people. Tight party discipline requirements limit
the initiative of parliamentarians. The system is prone to conflicts between the head of state and head of government
as it potentially creates two centers of power. Parliamentary systems tend to be more expensive to operate as the
government tends to be unwieldy. The system is also prone to incessant struggles between the ruling party and the
opposition as the opposition is seen as a government in waiting with a very strong incentive to destabilize and replace
the government.
14. Mixed or Hybrid Systems
Hybrid systems combines elements of both the presidential and parliamentary systems. The head of state and head of
government may be separate, or a single individual may hold both roles. The executive may be elected independently
of the legislature, but the legislature has a significant role in the formation and survival of the government.
France is an example of a semi-presidential system where both a president and a prime minister exist. The president
is elected independently, while the prime minister is responsible for the day-to-day administration and is accountable
to the legislature. Executive power may be shared with a prime minister .The PM may be no more than an
administrative technocrat. E.g. TZ. Govt. is answerable to both the president and the legislature. There is need to
carefully and precisely define executive powers when the same are divided. The constitution should specify clearly
where the efficient and ceremonial facets lie to avoid stalemate
15. Kenya’s Experience with a Mixed System
At independence Kenya experimented with a parliamentary system with a prime minister as head of government and
the Queen of England as head of state. This however lasted only until 12th December 1963 when Kenya became a
Republic with the president as head of state and head of government but within a parliamentary system of government
where the president and his cabinet were part of the legislature and the president had extraordinary powers over the
legislature including dissolution and prorogation at will.
The old constitution of Kenya created a strong central authority of Government founded on an executive presidency
.He was the head of state, the head of govt and the c-in-c of the armed forces. The presidency combined the powers
of the US president with the privileges of the queen of England. Kanyeihamba GW (1975) P182- says there is nothing
unusual about this structure. Powers functions and privileges are necessary for an effective coordination of
Governmental powers. Ghai & McAuslan (1970) P 232 say these powers are necessary and characteristic of similar
political dispensations.
According to Kanyeihamba GW (1970) et al, African countries need a strong President who can override advice that
is contrary to public policy. The Executive needs wide discretionary power to make bold and necessary decisions.
Presidential discretion needs to be immune from court challenges. Even in America, executive power is considered
discretionary, and courts defer to executive discretion and do not second guess executive discretion as long as it is
constitutional. It is important to note that the president may enjoy judicial but not parliamentary immunity.

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Ghai &McAuslan 1970, 2001) argues that in the peculiar circumstances of Kenya’s political heritage a division
between the two functions at the top would have been confusing and weakening, invited a clash of personalities and
failed to provide a clear focal point for loyalty and support
According to the late President Jomo Kenyatta the presidency ‘ should embody the fact of national leadership as seen
in the eyes of the people, the concept of collective ministerial responsibility and also guarantee the supremacy of
parliament’10
The pushing of the boundaries of executive power is not an African peculiarity. US presidents are notorious for
insisting on the independence of the executive from congressional and judicial control in the exercise of executive
discretion. US presidents argue that … the central purpose of the executive power, to respond quickly and decisively
to unforeseen crises and emergencies in foreign affairs. A former US president Thomas Jefferson pushed the argument
even further and that the executive could act outside the Constitution to protect the national interest in moments of
great crisis or opportunity.
The former Prime Minister, Gordon Brown, set out some of the arguments for the efficiency of a mixed system:

My hon. Friend is proposing the American constitution for Britain. He knows the deadlock that often happens
with the American constitution when Congress, the Senate and the President cannot agree on what needs to
be done. If he looks back to what has happened over the past few months, he will see that we were able to
persuade Parliament to put our banking reforms through and were able to finance our banks so that we could
rescue them, whereas it took the Americans weeks and months to get those provisions through their
legislature as a result of the issues that arise from the separation of powers. 11

In the year 2008, following the National Accord and Reconciliation Agreement, dated 28 February 2008, Parliament
enacted the Constitution of Kenya Amendment Act No 3 of 2008 and the National Accord and Reconciliation Act no
4 of 2008. The executive was restructured by creating the position of prime minister and two deputy prime ministers.
However, either by design or by poor drafting, the president remained head of state and head of government. But
there was real power sharing, and the prime minister was responsible for proposing half the cabinet
appointees and his nominees could not be fired by the president without his consent. The preamble to the
National Accord and Reconciliation Agreement (NARA) provided as follows:
‘Given the current situation, neither side can realistically govern the country without the other. There
must be real power-sharing to move the country forward and begin the healing and reconciliation
processes’
The Key points in NARA were as follows:
• There will be a Prime Minster of the Government of Kenya, with authority to co-ordinate and supervise
the execution of the functions and affairs of the Government of Kenya.

10
Excerpt from Ghai and McAuslan( 1970) P 221

11
HC Deb 10 June 2009 : Column 808
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 • The Prime Minister will be an elected member of the National Assembly and the parliamentary leader of the
largest party in the National Assembly, or of a coalition, if the largest party does not command a majority.

• Each member of the coalition shall nominate one person from the National Assembly to be appointed a
Deputy Prime Minster.

• The Cabinet will consist of the President, the Vice President, the Prime Minister, the two Deputy Prime
Ministers and the other Ministers. The removal of any Minister of the coalition will be subject to
consultation and concurrence in writing by the leaders.

• The Prime Minister and Deputy Prime Ministers can only be removed if the National Assembly passes a
motion of no confidence with a majority vote.

• The composition of the coalition government will at all times take into account the principle of portfolio
balance and will reflect their relative parliamentary strength.

The Constitution of Kenya Amendment Act 2008 exempted the National Accord and Reconciliation Act from the
supremacy clause and entrenched the executive structure thereby created in the constitution.
Section 4 of the National Accord and Reconciliation Act provided as follows;
4 (1) There shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers, who
shall be appointed by the President in accordance with this section

4(2) The person to be appointed as Prime Minister shall be an elected member of the National Assembly
who is the parliamentary leader of ;

(a) the political party that has the largest number of members in the National Assembly; or

(b) a coalition of political parties in the event that the leader of the political party that has the largest
number of members in the National Assembly does not command the majority in the National Assembly

4 (3) Each member of the coalition shall nominate one person from the elected members of the National
Assembly to be appointed a Deputy Prime Minister

(3) The composition of the coalition Government shall at all times reflect the relative parliamentary strength
of the respective parties and shall at all times take into account the principle of portfolio balance.

4 (5) The removal of any Minister nominated by a parliamentary party of the coalition shall be made only
after prior consultation and concurrence in writing with the leader of that party.

The so called-grand coalition government was attended with a lot of infighting but is still credited with being the best
performing government ever! Part of the contest was the meaning of the words ‘with authority to co-ordinate and
supervise the execution of the functions and affairs of the Government of Kenya’ or indeed, what constituted
‘consultation between the president and the prime minister. Matters came to a head with the appointment of Chief

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Justice, Attorney General and Auditor General by President Mwai Kibaki. The ODM wing of the coalition complained
that the appointments were made without ‘consultation’. The matter ended up in a speakers ruling by Speaker Kenneth
Marende who solomonically ruled that there is no consultation when one party says there is consultation and another
one says there is not12. The matter also ended up in a judicial determination when Justice Musinga ruled preliminarily
that ‘consultation’ does not mean ‘concurrence13’. The matter was resolved when the president withdrew the
nominations.
16. The Proposed Executive in the Failed Building Bridges Initiative
The BBI proposes the following amendments to the constitution.
16.1. Chapter Eight on the Legislature
Remodel the Parliamentary system by bringing the Government back into the House, including the Prime Minister,
Deputy Prime Ministers, Cabinet Ministers, the Attorney-General and the Leader of the Official Opposition, being the
person who was the runner-up in the Presidential election.
16.2. Chapter Nine on the Executive
Expand the national executive in order to promote greater inclusivity and mitigate the drawbacks of the winner-take-
all electoral formula by the introduction of the office of the Prime Minister and two Deputy Prime Ministers. Allow
for the appointment of Cabinet Ministers from among members of the National Assembly.
The procedure for the appointment of the prime minister is provided for under Clause 151 of the Kenya Constitution
Amendment Act 2020. The prime minister is appointed by the president with the approval of parliament. The president
must appoint the leader of the party with a majority in parliament. If the president’s nominee is rejected, the majority
party proposes a nominee. If the proposal by the majority party is rejected, the president is free to appoint the person
who, in his opinion, commands the majority in parliament. The prime minister can be dismissed by the president or
by a vote of no confidence by the National Assembly. The Deputy Prime ministers are appointed by the president and
can be dismissed by the president or removed by a vote of no confidence by the National Assembly
These provisions are intended to avoid the stalemate in government that sometimes attended the grand coalition
arrangement. However, there exist sufficient checks and balances against the president’s power as he is obliged to
nominate the leader of the party with a majority and as long as the prime minister commands the majority in
parliament, the president’s power of dismissal may be more theoretical than practical.
There is potential trouble if the president and the prime minister come from the ruling party and the opposition party.
The risk of stalemate in government would be real. However, this is what would have called for a real sharing of
power and compel cooperation as envisaged by the modern-day approach to power sharing rather than separation of
powers.

12
(Speaker’s ) Communication from the chair on the constitutionality of the nomination of certain office holders;
Thursday 3rd February 2011.(Handout)
(Speaker’s) Ruling on admissibility of proposed motions to adopt the reports of the departmental committee on
finance, planning and trade and the departmental committee on justice and legal affairs on the nomination of certain
constitutional office holders ; Thursday, 17th February, 2011.(Handout
13
HCC Petition No 16 of 2011CREAW and 6 ors vs AG( Ruling of Musinga J) Handout)
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17. The Executive in the CoK 2010
Article 129 (1) Executive authority derives from the people of Kenya and shall be exercised in accordance with this
Constitution (2) Executive authority shall be exercised in a manner compatible with the principle of service to the
people of Kenya, and for their wellbeing and benefit.
130. (1) The national executive of the Republic comprises the President, the Deputy President and the rest of the
Cabinet.(2) The composition of the national executive shall reflect the regional and ethnic diversity of the people of
Kenya.
18. The President in the CoK 2010
Article 1

Executive authority is delegated

Article 130

Vests general executive power in the President the deputy president and the rest of the cabinet

Article 130

Executive power is exercised by the president with the assistance of the president and cabinet secretaries

Article 131

The president (a) is the head of state, head of government (b) exercises the executive authority of the Republic, with
the assistance of the Deputy President and Cabinet Secretaries; (c) is the Commander-in-Chief of the Kenya Defence
Forces; (d) is the chairperson of the National Security Council; and (e) is a symbol of national unity

Article 131(2) Obligations of the President

(2) The President shall—

(a) respect, uphold and safeguard this Constitution;

(b) safeguard the sovereignty of the Republic;

(c) promote and enhance the unity of the nation;

(d) promote respect for the diversity of the people and communities of Kenya; and

(e) ensure the protection of human rights and fundamental freedoms and the rule of law.

(3) The President shall not hold any other State or public office.

Article 132: Specific Powers Functions of the president

Article 132 enumerates specific powers and functions of the president.

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Article 133: Power of Mercy

The power of mercy is significantly limited by the constitutional requirement that the President may exercise a power
of mercy in accordance with the advice of the Advisory Committee

Article 134 : Acting President

The exercise of presidential powers during temporary incumbency has constitutional limitation

Article 135: Decisions of the President

A decision of the President in the performance of any function of the President under this Constitution shall be in
writing and shall bear the seal and signature of the President.
19. Elections
Articles 136-138 regulate the election of the president
The constitution contemplates the enactment of legislation to regulate the process of elections. This has been done.
Presently, it is the Elections Act as read with the Independent Electoral and Boundaries Commission Act
19.1. Nomination
137. (1) A person qualifies for nomination as a presidential candidate if the person—
(a) is a citizen by birth;

(b) is qualified to stand for election as a member of Parliament;

(c) is nominated by a political party, or is an independent candidate; and

(d) is nominated by not fewer than two thousand voters from each of a majority of the counties.

International Centre for Policy and Conflict & 5 Others v The Hon. Attorney-General & 4 Others [2013] eKLR
See also sections 14 and 15 Elections Act
19.2. Procedure at Elections
Possibility of unopposed candidate 138(1)
All and only registered voters entitled to vote 138(3) (a)

• Voting is by secret ballot 138(3) (b)

• Counting and verification of votes is at the polling station 138(3) (c)
• Results transmission system must guarantee results transmission is simple and verifiable
• For a candidate to win he needs a 50% + one majority plus 25% of the votes cast in each of more than half
of the counties 138(4)
• If there is no clear winner there is a runoff within 30 days between the top two candidates 138 (5)
• In the runoff the winner only needs a simple majority
• 138 (8) A presidential election shall be cancelled and a new election held if—

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 • no person has been nominated as a candidate before the expiry of the period set for the delivery of
nominations;
• a candidate for election as President or Deputy President dies on or before the scheduled election date; or
• a candidate who would have been entitled to be declared elected as President, dies before being declared
elected as President.

(9) A new presidential election under clause (8) shall be held within sixty days after the date set for the previous
presidential election

20. Questions as to Validity of Presidential Election Article 140 NC

140. (1) A person may file a petition in the Supreme Court to challenge the election of the President-elect
within seven days after the date of the declaration of the results of the presidential election.
(2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and
determine the petition and its decision shall be final.
(3) If the Supreme Court determines the election of the President elect to be invalid, a fresh election shall
be held within sixty days after the determination
Bush v. Gore, 531 U.S. 98 (2000),

The US Supreme Court voted 5–4, in December 2000, to end the disputed Florida recount and hand the White House
to George W. Bush after it emerged that the states that were undertaking the recount would not be able to meet the
constitutional deadline for certification of results. The court also found that allowing the recount would occasion
irreparable harm to the petitioner by casting a cloud on the legitimacy of his election. The petitioner had questioned
the constitutionality of the recount.

The BBI has proposed to extend the period of determination to 30 days. Challenges with compliance with the 14-day
deadline were experienced in Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions Nos.
3,4 and 5 of 2013 (2013) eKLR (Raila 1) and Raila Odinga & Stephen Kalonzo Musyoka vs IEBC & others Supreme
Court of Kenya, Petitions No 1 of 2017 (2017) eKLR (Raila 2). In Raila 1, the challenges were responsible for the
exclusion of a 900-page affidavit that allegedly contained evidence that would have influenced the determination of
the court. In Raila 2, the Supreme court exercised more flexibility on compliance with the procedural rules but still
within the constitutional timelines.
20.1. Threshold for challenging the election
Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions Nos. 3,4 and 5 of 2013 (2013)
eKLR
Raila Odinga & Stephen Kalonzo Musyoka vs IEBC & others Supreme Court of Kenya, Petitions No 1 of 2017 (2017)
eKLR
Chilima & Chakwera vs Mutharika High Court Malawi Constitutional Reference No 1 of 2019
The general position is that it requires a strong showing indeed to persuade the court to overturn a presidential election.
The courts have consistently held that there are no perfect elections and not every irregularity will justify interference
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with an electoral outcome. There should be evidence that the irregularities are of such a magnitude as to impact on the
results (quantitative) or the irregularities have so tainted the results as to cast serious doubts on the very integrity of
the results (qualitative)

The test is therefore both qualitative and quantitative. The courts will not interfere lightly. Sampling can be used to
test the quality of the elections. The findings on the sample can be generalized to the whole election. The election is
to be treated as a process, not an event and the court must consider the process holistically to determine if it meets the
constitutional standard of fairness, accuracy and verifiability
20.2. Jurisdiction
International Centre For Policy And Conflict & 5 Others vs The Hon. Attorney-General & 4 Others[2013]eKLR
The Supreme Court has exclusive authority. But it would appear that pre-election disputes on eligibility are to be
settled by the IEBC

Hon. Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad Supreme Court Petition No 7 of 2018

Luka Angaiya Lubwayo & another v Gerald Otieno Kajwang & another[2013] eKLR

Njiru & 10 others v Ruto & 5 others; Azimio la Umoja One-Kenya Coalition & 3 others (Interested Parties) (Petition
22 (E25) of 2022) [2022] KESC 55 (KLR) (Civ) (6 September 2022) (Ruling)

IEBC vs Sabina Wanjiru Chege SCORK Pet No 23(E026) Of 2022

Ethics and Anti-Corruption Commission v Granton Graham Samboja & another; Kenyatta University & another
(Interested Parties) [2021] eKLR

William Kabogo Gitau v. Ferdinand Ndung’u Waititu [2016] eKLR

Josiah Taraiya Kipelian Ole Kores v Dr. David Ole Nkedienye & 3 others Nairobi Petition No. 6 of 2013 (2013)
eKLR, 49 w
21. Death before Assuming Office
The deputy president is sworn in as acting president
Elections to be held within 60 days
Speaker to act if both the president and deputy presidents die before assuming office
22. Assumption of Office
See the Assumption of the Office of President Act No. 21 of 2012 (Revised Edition)
141. (1) The swearing in of the President-elect shall be in public before the Chief Justice, or, in the absence of the
Chief Justice, the Deputy Chief Justice.

(2) The President-elect shall be sworn in on the first Tuesday following––

(a) the fourteenth day after the date of the declaration of the result of the presidential election, if no petition
has been filed under Article 140; or

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 (b) the seventh day following the date on which the court renders a decision declaring the election to be valid,
if any petition has been filed under Article 140
(3) The President-elect assumes office by taking and subscribing the oath or affirmation of allegiance, and
the oath or affirmation for the execution of the functions of office, as prescribed in the Third Schedule.
(4) Parliament shall by legislation provide for the procedure and ceremony for the swearing-in of a President-
elect.
23. Term of Office
See Kibaki – v- Moi 2 KLR 301 on an illustration of what constitutes two terms

142. (1) The President shall hold office for a term beginning on the date on which the President was sworn in, and
ending when the person next elected President in accordance with Article 136 (2) (a) is sworn in.

(2) A person shall not hold office as President for more than two terms.
24. Powers
• Head of state and head of government
• Executive power no longer vests in him exclusively
• The president is the commander in chief of the armed forces
• Declares peace and war but with the approval of parliament
• Can declare a state of emergency but with stringent control by parliament and the judiciary
• Appointment powers seriously curtailed by the involvement of other arms of government and independent
institutions
• Security of tenure for holders of constitutional offices and independent commissions
• Civil service insulated theoretically from politics and presidential control
• Police service initially insulated from politics presidential control, but statute has now restored presidential
control.

25. Limitations on Presidential Powers

• Appointment powers curtailed by the involvement of other arms of government and independent institutions
but in practice the president has had his way. Not so with the position of Chief Justice and Deputy Chief
Justice
• Security of tenure for holders of constitutional offices and independent commissions. However, the case of
Edward Ouko is a good illustration on the limitation of these protections
• Civil service insulated from politics and presidential control but control of the appointment process by the
executive has rendered this provision meaningless

26. Powers in Relation to Parliament

• Is no longer a member of parliament
• Cabinet secretaries not members of parliament

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 • Can no longer prorogue and dissolve parliament
• Has a right to address parliament
• Can be impeached by parliament
• Must make a state of the nation address to parliament
• Accountable to parliament
27. Powers in Relation to the Judiciary
• Appoints the CJ and the DCJ only on the recommendation of the JSC and on the approval of parliament
• Appoints judicial officers only on recommendation of JSC
• Still has the prerogative (power) of mercy but on recommendations of a committee of mercy

Law Society of Kenya vs Office of the Attorney General & another & Judicial Service Commission (Interested Party)
Constitutional & Human Rights Division Petition No. 203 OF 2020 [2020] eKLR On Executive Order No 1 of 2020.
Makau J

25. Applying the above-mentioned principles and considering the facts of the subject matter; it is apparently
that it is possible that the President has invoked his powers wrongfully and used administrative process to
purport to restructure and re-organize independent Constitutional offices. It has been shown that various
independent offices including the Judiciary and some of its Tribunals have now been placed under various
State Departments and Ministries, which amounts to direct contravention of the Constitutional principles and
values on Judicial Independence; the rule of law; transparency and accountability amongst others. At this
stage I am alive to the fact, that the Court is not supposed to examine the merits of the Petition but has to
consider whether the Petitioner, has established a prima facie case to warrant interim orders of Protection, in
order to secure the substratum of the suit and not to render the petition herein nugatory and become a mere
academic exercise.

32. The upshot is that the Petitioner’s application dated 17th June 2020 is meritorious. I proceed to grant the
following orders:

a) Conservatory order staying and/or suspending and/or halting the further and continued implementation of
the Executive Order No. 1 of 2020 dated 11th May 2020 in respect of the Judiciary and the following
independent institutions;- The Public Service Commission, Teachers Service Commission; The National
Police Service Commission; Parliamentary Service Commission; Judicial Service Commission; Independent
Boundaries and electoral Commission; Office of the Director of Public Prosecution; Ethics and Anti-
corruption Commission; Commission on Administrative Justice; The National Land Commission; The
Officer of Controller of Budget; Commission on Revenue Allocation, Salaries and Remuneration
Commission; Kenya National Commission on Human Rights and National Gender and Equality
Commission, more specifically;- PARAGRAPHS (1), (3), (5), (7), (10), (11), (16), (18), (21), (22), (27) and
(28) BE AND IS HEREBY granted pending the hearing and determination and final disposal of the Petition.

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28. Vacancy
• Article 134
• Article 146
29. Removal
• Article 144 on grounds of incapacity
• Article 145 by impeachment
30. Removal of the President Article 144
• matter originates in the NA
• Motion by any member
• Must be supported by a majority of all members of the NA
• Speaker to inform CJ within 2 days
• CJ to appoint tribunal within 7 days.
• Tribunal composed of 5 members. Four appointed by the CJ
• Of the four three must be qualified to practice medicine , nominated by the body responsible for the regulation
of medical practitioners and one advocate nominated by the body responsible for the regulation of advocates
• President nominates one member of the tribunal
• Tribunal to investigate and report to the speaker within 14 days
• If the tribunal finds in the positive the NA votes to ratify or reject its findings
• If the tribunal finds in the negative , its decision is final
31. Important Changes Introduced
• Strict timelines for the process
• Limited role of the president in constitution the tribunal
• Ceremonial role of the CJ in appointing the members
• Role of the National Assembly in the event of a positive finding. No rationale is discernible!
• Contrast with the provisions of the old constitution
• Problem – Absence of any role of the Senate. Dictatorship of the majority needs control!
32. Impeachment Article 145
The threshold for impeachment of governors on analogous grounds

Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others Nyeri Civil Appeal No 21 OF 2014 [2014]
eKLR

The role of the court on an impeachment process

Justus Kariuki Mate & another v Martin Nyaga Wambora & another SC PET NO 34 of 2014 [2017] eKLR decided
15th December 2017

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The Hansard Wednesday, 7th September 2016 on the impeachment of Paul Kiprono Chepkwony14

The Hansard Wednesday, 14th September 2016, full senate hearing on the impeachment of Nderitu Gachagua
governor of Nyeri County15

The report of the special committee on the proposed removal from office of prof. Paul Kiprono Chepkwony, the
governor of Kericho County16

Supplementary Order Paper on the impeachment of Nderitu Gachagua governor of Nyeri County17

Gazette Notice No. 3378 special sitting by senate to hear impeachment motion against Paul Kiprono Chepkwony, the
governor of Kericho County18

Censure motion against William Samoei Ruto19

33. Grounds for Impeachment

• on the ground of a gross violation of a provision of this Constitution or of any other law;
• where there are serious reasons for believing that the President has committed a crime under national or
international law; or
• for gross misconduct.
Step 1.

• Matter originates by motion being moved in the NA

• Mover supported by 2/3rds of all the members of the NA
• 145. (1) A member of the National Assembly, supported by at least a third of all the members, may move a
motion for the impeachment of the President

Step 2

• Motion must be supported by 2/3rds of all the members of the NA

• (2) If a motion under clause (1) is supported by at least two-thirds of all the members of the National
Assembly –

Step 3.

• Speaker of the NA informs the speaker of the Senate.

14
[Link]
16_-_Special_Sitting%20Paul%20Kiprono%[Link]
15
[Link]
16
[Link]
[Link]
17
[Link]
18
[Link]
19
[Link]
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 • President continues to perform his functions pending the outcome of the proceedings
• 144(2)(a) the Speaker shall inform the Speaker of the Senate of that resolution within two days;
• and 144(2)(b) the President shall continue to perform the functions of the office pending the outcome of the
proceedings required by this Article.

Step 4 Convening of the Senate and Appointment of Special Committee

• Speaker of the senate convenes a meeting of the senate. Senate may, by resolution, form a committee of 11
to investigate the matter
• (3) Within seven days after receiving notice of a resolution from the Speaker of the National Assembly—(a)
the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the President; and(b)
the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate
the matter.

Step 5 Senatorial Hearing

• (4) A special committee appointed under clause (3) (b) shall –

• Investigate the matter; and
• report to the Senate within ten days whether it finds the particulars of the allegations against the
President to have been substantiated.
• (5) The President shall have the right to appear and be represented before the special committee during its
investigations

Step 6 Senatorial committee reports its findings (Negative)

• (6) If the special committee reports that the particulars of any allegation against the President – have not been
substantiated, further proceedings shall not be taken under this Article in respect of that allegation; or

Step 7 Senatorial committee reports its findings (Positive)

• (b) have been substantiated, the Senate shall, after according the President an opportunity to be heard, vote
on the impeachment charges.

Step 8

• Senate votes (7) If at least two-thirds of all the members of the Senate vote to uphold any impeachment
charge, the President shall cease to hold office.

34. The Deputy President

• Is the principle assistant to the president
• He/She is not an MP

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 • He is a running mate of the president
• He/She cannot be dismissed by the president
• He/She can be impeached by parliament
• If the president ceases to hold office, he serves in the expired term art 146
• Like the president his salary and benefits cannot be varied to his disadvantage during his/her lifetime
• He is a key member of the executive
• Acts as a president if the president dies before being sworn in
• He takes over the unexpired term a president
• Can only be removed by impeachment
35. The Cabinet
Part 3 articles 152-154
Article 152-the cabinet consists of the president, the deputy president, the attorney general and a minimum of 14 and
a maximum of 22 cabinet secretaries. The cabinet is now an indispensable part of the executive. Cabinet secretaries
are appointed by the president with the approval of the National Assembly. Members of the cabinet are called ‘cabinet
secretaries’. They are not members of parliament. The composition of the Cabinet must reflect the face of Kenya.
Cabinet secretaries can be fired by the president or removed upon impeachment by parliament. Cabinet secretaries are
collectively and individually responsible to parliament. There are no deputies or assistants
35.1. Collective Responsibility: The Meaning of the Doctrine British Practice
‘The substance of the Government’s collective responsibility could be defined as its duty to submit its policy to and
defend its policy before the House of Commons and to resign if defeated on an issue of confidence’ (excerpt from G
and A P 72)
35.2. Two Strands of the Doctrine
Collective responsibility has two strands

• Resignation following a defeat of a no confidence motion .This must be distinguished from any other loss of
confidence as in the defeat of a government policy
• Submission of policy and defence thereof before the national assembly

Under the doctrine ministers cannot repudiate the decisions of another minister whether or not the decision has been
discussed in the [Link] object of the second strand of the rule is to prevent confusion in the legislature, and to
present to it and the general public a stable and united administration. It is important to note that the doctrine is a
constitutional requirement and not just some rule of practice and a departure therefrom is a violation of the constitution.
An oath to uphold the constitution includes an oath to uphold the doctrine.

36. Tenure of Cabinet Secretaries

Tom Luusa Munyasya & another v Governor, Makueni County & another Industrial Court Cause Number 103 of 2014
[2014] eKLR Nairobi

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The application by the claimants is based on the grounds that on 28th January 2014; the respondents without notice
illegally terminated their employment with the 2nd respondent contrary to the law. The 1st claimant was the Executive
Committee Member ICT and Special Programmes whereas the 2nd claimant was the County Secretary who had served
the 2nd respondent for 8 months. The claimants were diligent in their work but on 28th January 2014 they were
terminated without due process or justification. That all efforts to seek audience and explanation from the respondents
have not been successful and hence the termination was inhumane and unfair. The claimants also state that they were
not accorded a hearing or given the reasons for their termination against the rules of natural justice making their
termination a nullity and to avoid further injustice, they should be reinstated.

Held

By reason of politics and public policy, the President and County Governor should not be, and are not bound
to employ Members of their Cabinets, otherwise than at pleasure. Although these Employees are not ‘status’
Employees, there is a strong reason to view them as working under special contracts, contracts which carry in them
an implied term, that the Officers are dismissible at any time, at the will of the Crown. The President and the Governor
exercise their roles as popularly elected CEOs. They exercise a sovereign power which belongs to the People under
Article 1 of the Constitution, as submitted by the Claimants...The Court agrees that the President and the Governor
could wake up in the morning and announce dismissal of their entire Members of the Cabinet, without exposure to
claims of unfair removal from Office. If they are erratic and irrational in deciding so, they answer to the People, not
to the Court. The pure Presidential System does not distinguish between the prerogative of the President and that of
the Governor. There is nothing left for the Court to adjudicate, and the Court must respectfully, down its tools and
decline further jurisdiction in this dispute.
37. Secretary to the Cabinet
The office of Secretary to the Cabinet is an office in the public service. The secretary to the cabinet is appointed by
president with the approval by the National Assembly.20The secretary to the cabinet. According to Article 154 (3),
the (3) The Secretary to the Cabinet shall—(a) have charge of the Cabinet office;(b) be responsible, subject to the
directions of the Cabinet, for arranging the business, and keeping the minutes, of the Cabinet; (c) convey the decisions
of the Cabinet to the appropriate persons or authorities; and(d) have other functions as directed by the Cabinet. The
president may dismiss the secretary to the cabinet.

38. Principal Secretaries.

20
Article 154
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The office of the Principal Secretary is an office in the public service21. ) Each State department shall be under the
administration of a Principal Secretary22. The principal secretaries are nominated for appointment by the president
with the approval of the National Assembly.23The president can only nominate from amongst persons recommended
by the PSC.24 There is no provision for the dismissal of a principal secretary by the president.
39. Director of Public Prosecutions
This is an independent constitutional office. The DPP is nominated by the PSC, appointed by the president with the
approval of the National Assembly. The DPP can direct the Inspector-General of the National Police Service to
investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such
direction. A DPP holds office for 8 years and is not eligible for reappointment. The DPP is in charge of the
prosecutorial functions of the executive but is not subject to control by any authority and has security of tenure.
The DPP may institute criminal proceedings, take over proceedings instituted any other persons with the authority of
that person and withdraw criminal prosecutions but with the permission of the court

Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170
(prosecutorial independence of the AG as it then was.)

George Joshua Okungu & another vs. Chief Magistrate’s Court Anti-Corruption Court at Nairobi & Another [2014]
eKLR

Kenya Commercial Bank Limited & 2 others vs. Commissioner of Police and Another, Nairobi Petition No. 218 of
20122 (2013) eKLR

Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-Corruption Commission & 4 others PETITION NO. 230
OF 2015 [2016] eKLR
Thuita Mwangi & Anor vs. the Ethics and Anti-Corruption Commission & 3 Others petition no. 153 & 369 of 2013
40. Control of prosecutorial discretion
The power of the DPP is judicially reviewable. Article 157(11) provides;

in exercising the powers conferred by this article, the director of public prosecutions shall have regard to the
public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the
legal process.

The courts have however emphasised that whereas the courts have an undoubted power to intervene, they will only
do so to give effect to constitutional values and will, as a general rule, respect the functional independence of the DPP

Thuita Mwangi & Anor vs. the Ethics and Anti-Corruption Commission & 3 Others Petition no. 153 & 369 of 2013

21
Article 155(1)
22
Article 155(2)
23
Article 155(3)(b)
24
155(3)(a)
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 “the decision to institute criminal proceedings by the DPP is discretionary. such exercise of power is not
subject to the direction or control by any authority as Article 157(10)…These provisions are also
replicated under Section 6 of the Office of the Director Public Prosecutions Act, No. 2 of 2013…In
the case of Githunguri –vs- Republic (Supra at p.100), the Court observed…The Attorney General
of Kenya…is given unfettered discretion to institute and undertake criminal proceedings against any
person “in any case in which he considers it desirable so to do… this discretion should be
exercised in a quasi-judicial way. That is, it should not be exercised arbitrarily, oppressively or contrary to
public policy …”

The courts are shy to second guess the decision of the DPP to institute criminal proceedings. In Thuita Mwangi (supra)
the court had this to say

“… I am afraid that the High Court at this point is not the right forum to tender justifications concerning
the subject transaction let alone test the nature and veracity of these allegations…the Court held that “It is
the trial Court which is best equipped to deal with the quality and sufficiency of the evidence gathered to
support the charge. It would be a subversion of the law regulating criminal trials if the judicial review court
was to usurp the function of a trial court”. Similarly…the point being made above is that the DPP though
not subject to control in exercise of his powers to prosecute criminal offences, must exercise that power on
reasonable grounds. Reasonable grounds, it must be noted, cannot amount to the DPP being asked to prove
the charge against an accused person at the commencement of the trial but merely show a prima facie
case before mounting a prosecution. The proof of the charge is made at trial.”

And in Michael Sistu Mwaura Kamau & 12 other Ethics and Anti-Corruption Commission & 4 others PETITION
NO. 230 OF 2015 [2016] eKLR, the court took a similar position.

We therefore associate ourselves with the decision of Majanja, J in Kenya Commercial Bank Limited &
2 others vs. Commissioner of Police and Another, Nairobi Petition No. 218 of 20122 (2013) eKLR, where
the learned Judge held that: “the office of the Director of Public Prosecution and Inspector General of the
National Police Service are independent, and this court would not ordinarily interfere in the running of their
offices and exercise of their discretion within the limits provided by the law. But these offices are
subject to the Constitution and the Bill of Rights contained therein and in every case, the High Court as
the custodian of the Bill of Rights is entitled to intervene where the facts disclose a violation of the rights
and fundamental freedoms guaranteed under the constitution”.

But the court will intervene where there is abuse of power. In George Joshua Okungu & another vs. Chief Magistrate’s
Court Anti-Corruption Court at Nairobi & Another [2014] eKLR the Court expressed itself as follows:

“This Court appreciates the fact that the discretion on whom to prefer charges against is on the prosecuting
authority who was then the Attorney General and now the Director of Public Prosecution(hereinafter referred
to as the DPP). It is also within the discretion of the said Authority, and it is perfectly in order for the Authority

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 to call some of the accomplices in a criminal trial as prosecution witnesses. The weight of their evidence is
of course subject to the law relating to accomplice evidence…It is therefore clear that the terrain under the
current prosecutorial regime has changed, and that the discretion given to the DPP is not absolute but must
be exercised within certain laid down standards provided under the Constitution and the Office of the Director
of Public Prosecutions Act. Where it is alleged that these standards have not been adhered to, it behooves
this Court to investigate the said allegations and make a determination thereon. To hold that the discretion
given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront
to judicial conscience and above all, the Constitution itself… Where therefore it is clear that the discretion
is being exercised with a view to achieving certain extraneous goals other than those legally recognised under
the Constitution and the Office of the Director of Public Prosecutions Act, that would, in our view, constitute
an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful
exercise of discretion.”

Similarly, in Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA
170, the Court of Appeal held:

“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal
or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction
or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also
for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice
or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the
High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a
subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an
abuse of the process of the court and is oppressive and vexatious, the Judge has the power to
intervene, and the High Court has an inherent power and the duty to secure fair treatment for all persons
who are brought before the court or to a subordinate court and to prevent an abuse of the process of
the court.”

Philomena Mbete Mwilu v Director of Public Prosecution & 4 others Constitutional And Human Rights Division
Petition No 295 OF 2018 [2018] eKLR

The petitioner, a sitting Deputy Chief Justice in the Republic of Kenya filed this petition challenging her intended
prosecution by the DPP for offences arising from certain commercial transactions with Imperial Bank Ltd.
According to the Petitioner, the allegations against her arise from pure commercial or civil transactions concluded in
the normal course of the banking relationship between her and the Bank and have no rational correlation with the
pursuit of criminal justice in the public interest. Further, that the actions of the DPP and DCI are an abuse of power
and arbitrary exercise of authority to achieve a purpose unconnected with the rule of law or objectives of the system
of the administration of justice. She alleged that the prosecution was part of a systematic scheme by the president of

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the republic of Kenya to ‘revisit’ the judiciary as retaliation to the nullification of the presidential election petition of
2017 where she was part of the majority that ruled to nullify the election.
On behalf of the ODPP, it was submitted that the Petitioner has been charged in her individual capacity for acts
committed that violate penal laws of this country and the sole purpose of the prosecution is to ensure that justice is
served without regard to any other considerations. That in making the decision to prosecute the Petitioner and the
Interested Party, the DPP acted independently, was not influenced by any political statements, and the decision reached
was purely based on evidence, law and public interest. She deposes that the Petitioner’s contention that this matter is
borne out of the decision made in the Presidential election petition is misconstrued as, upon perusal of the evidence
collected by the DCI, the DPP did not find any material connected either directly or remotely to her participation in
the decision.

Held

425. This Petition raised challenging questions relating to the manner in which allegations of criminal
conduct against a sitting judge of a superior court should be addressed. The Petitioner alleged that the
manner in which she was dealt with by the Respondents threatens not only her position as Deputy Chief
Justice but also the independence of the judiciary. Balancing the competing challenges that require that the
independence of the judiciary is protected, while endeavouring not to immunise judges and judicial officers
from liability for criminal conduct, is no mean feat. At the end of anxious deliberations on the issues, we
have come to the following conclusions:

(i) We have found no violation of Articles 27, 28, 47, and 50(2) (a), (b,) (c),(j) and (k), as well as Article
157(11) of the Constitution with respect to the decision to prosecute the Petitioner.

(ii) There was a factual and legal basis for the initiation of the charges in respect to counts I and II against
the Petitioner.

(iii) The charges were not defective for lack of a complainant as the Republic, through the National Police
Service, is a proper complainant.

(iv) There was no factual or legal basis for initiation of the prosecution of the Petitioner on counts III, IV,
V, VI, VII, VIII, X, XI and XII.

(v) The media coverage of the investigations, arrest and intended prosecution did not affect the Petitioner’s
right to a fair trial or infringe on her right to dignity.

(vi) The decision of the DPP to prosecute the Petitioner was not taken in contravention of Article 157(11)
and was not tainted by any irrationality or unreasonableness.

(vii) Judicial immunity does not shield a judicial officer from criminal prosecution.

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 (viii) Acts of a criminal nature committed outside the scope of official judicial function may be investigated
and the judicial officer arrested and prosecuted directly without recourse to the disciplinary or removal
process.

(ix) While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific
constitutional and legal framework for dealing with misconduct and/or removal of judges. Consequently,
cases of misconduct with a criminal element committed in the course of official judicial functions, or which
are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first
instance.

(x) The offence of abuse of office in count I of the charges against the Petitioner may amount to official
misconduct as it relates to an alleged advantage obtained by virtue of her office as a Judge of the Court of
Appeal and if proved, is in breach of the Judicial Code of Conduct, and ought, in the first instance, to have
been referred to JSC.

(xi) Count II of the charges relates to obtaining of execution of security by false pretences contrary to
section 314 of the Penal Code. The circumstances were outside the scope of the Petitioner’s judicial duties
and functions, and it could therefore be tried directly without recourse to JSC.

426. Having found, however, that the DCI illegally obtained evidence against the Petitioner by gaining
access to her accounts with IBL through the use of a court order that had no bearing on her accounts and
having found that the DCI thereby misrepresented facts and misused the court order, we have come to the
conclusion that the prosecution against the Petitioner cannot proceed. For this limited reason, we allow the
Petition and grant the following orders:

a. A declaration be and is hereby issued that the evidence underpinning the intended prosecution of the
Petitioner in Nairobi Chief Magistrate’s Court ACC Criminal Case No. 38 of 2018 Republic v Philomena
Mbete Mwilu and Stanley Muluvi Kiima was illegally obtained in a manner that was detrimental to the
administration of justice.

b. An order of certiorari be and is hereby issued to quash the criminal proceedings in Nairobi Chief
Magistrate’s Court ACC Criminal Case No. 38 of 2018 Republic v Philomena Mbete Mwilu and Stanley
Muluvi Kiima as against the Petitioner.

427. In view of our findings with respect to the peripheral role that an interested party plays in a
constitutional petition, we are unable to issue any orders in respect to the Interested Party.

428. Each party shall bear its own costs of the Petition.

(Dated Delivered and Signed in Nairobi this 31st day of May 2019 H. A. Omondi, Mumbi Ngugi, Francis
Tuiyott,W, W. M. Musyoka, E. C. Mwita JJ)

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41. The Public Service
Wikipedia defines the civil service as ‘

a collective term for a sector of government composed of career administrators hired on professional merit
rather than appointed or elected, whose institutional tenure typically survives transitions of political
leadership. A civil servant or public servant is a person employed in the public sector by a government
department or agency. Civil (or public) servants work for government departments, and answer to the
government, not a political party. 25

Wikipedia is not a scholarly source and can hardly be cited as authority, but this definition is correct! A key
characteristic of the civil service or public service is the mode of appointment of its members. They are appointed on
merit. Another key characteristic is its tenure. Civil servants’ tenure survives political transitions. This is not accidental
as the civil service provides continuity during political transitions. Finally, a key characteristic of the civil service is
political neutrality. Civil servants serve the government of the day, not a political party.

The CoK 2010 uses the terminology of public servant rather than civil servant. The word ‘Public Servant’ and ‘Public
Office are defined in article 260 as follows

“public service” means the collectivity of all individuals, other than State officers, performing a function
within a State organ;

“public office” means an office in the national government, a county government or the public service, if
the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out
of money provided by Parliament;

See also;

• Section 2 of the Public officer Ethics

• Section 2 of the Political Parties Act
• Section 10 of the Public Service (Values and Principles) Act
• Section 2 of the Leadership and Integrity Act

Richard Bwogo Birir v Narok County Government & 2 others Industrial Court Petition NO. 1 OF 2014 [2014] eKLR
Nakuru

The petitioner prayed for a declaration that the removal and dismissal of the petitioner as the Executive Committee
member for Agriculture, Livestock and Fisheries vide the 2nd respondent’s letter dated 23.01.2014 is unconstitutional
and therefore unlawful on account of violation of sections 31 and 40 of the County Government Act, 2012 as read
with Articles 47 and 236 of the Constitution of Kenya and section 41 of the Employment Act.

25
[Link]
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An order of certiorari to issue to bring into the honourable court for purposes of being quashed the decision of the 2nd
respondent removing and dismissing the petitioner as the Executive Committee member for Agriculture, Livestock
and Fisheries vide the 2nd respondent’s letter dated 23.01.2014 for being in contravention of sections 31 and 40 of the
County Government Act, 2012 as read with Articles 47 and 236 of the Constitution, 2010 as well as the section 41 of
the Employment Act.

A declaration to issue to declare that under sections 31 and 40 of the County Governments Act, 2012 as read with
Article 236 of the Constitution the petitioner remains the lawful holder of the position of the Executive Committee
member for Agriculture, Livestock and Fisheries of the County Government of Narok.

The honourable court to find and uphold that the decisions, actions and omissions of the 2nd respondent in respect of
the removal and dismissal of petitioner from his position constitute conduct that violates Articles 10, 41 and 236 of
the Constitution.

The honourable court to be pleased to order for compensation to issue for violation of the petitioner’s rights and an
inquiry into quantum be gone into.

Held

The court further finds that the string that flows through the constitutional provisions is that removal from public or
state office is constitutionally chained with due process of law. In the opinion of the court, at the heart of due process
are the rules of natural justice. Thus, the court finds that the pleasure doctrine for removal from a state or public office
has been replaced with the doctrine of due process of law. Article 236 is particularly clear on the demise of the pleasure
doctrine in Kenya’s public or state service. Due process of law or simply, “due process” entails according the
concerned person proceedings in which rules and principles for the protection and enforcement of private rights are
upheld by the decision maker or relevant authority. At the core of due process is according the concerned person a
reasonable notice with sufficient particulars to prepare for a fair hearing, the second crucial element of due process
(see definition and explanation in Black’s Law Dictionary, 9th Edition). Thus the court holds that due process will
not be said to exist in absence of a reasonable notice with sufficient particulars to prepare for a fair hearing. In
the court’s considered opinion, the holding in Muriithi – versus – Attorney General (1983) KLR 3 is no longer
the law in Kenya as it has expressly been overridden by the Constitution through the demise of the pleasure
doctrine. In the new Republic, the court holds that public service by public and state officers is guided by the doctrine
of servants of the people and the doctrine of due process and not by the doctrines of the servants of the crown and the
pleasure doctrine. In the opinion of the court, the demise of the pleasure doctrine and the demise of the doctrine of
servants of the crown in the new Republic’s constitutional framework constitute the very foundation of the Republic,
namely, Kenya is a sovereign Republic, and all sovereign power belongs to the people of Kenya and shall be exercised
only in accordance with the Constitution.

Valerie Rugene v Public Service Commission & 2 others ELRC 93 of 2015(Nairobi [2016] eKLR

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Fredrick Otieno Outa vs. Jared Odoyo Okello SCK Petition No. 6 of 2014 [2014]eKLR

Kenya Tea Development Agency Ltd vs. Ismael Ombati Ochieng & 9 Others [2015] eKLR.

Felix Kiprono Matagei v Attorney General & 3 others CHRD 61 of 2016 [2016] eKLR

Kenya Union of Domestic, Hotels, Education and Allied Workers (KUDHEHA Workers) v Salaries and Remuneration
Commission CHRD 294 of 2013 [2014] eKLR

The Petitioner alleges that its members are not public officers as envisioned by Article 260 of the Constitution and
Section 11 of the Salaries and Remuneration Commission Act No. 10 of 2011 (hereinafter “the SRC Act”) and that
the SRC has violated the Constitution in classifying, defining and describing such unionsable employees as public
officers/and or state officers. That some members of the Petitioner such as specifically employees at Moi Teaching
and Referral Hospital, Kenyatta National Hospital, public universities, domestic workers, allied workers, employees
in public educational institutions, hotels, workers in Kenya Power and Lighting Company Ltd, do not fall within the
category of state officers or public officers as defined under Article 260 of the Constitution as they are neither public
officers nor state officers thus it is unconstitutional for the 1st Respondent to describe them as such.

The Petitioner further submitted that according to the definition of 'public office', 'public service' and 'state organ' as
provided for under Article 260 of the Constitution, the employees of state corporations and parastatals do not fall
within the group of employees whose salaries is to be set and/or reviewed by SRC. That the Petitioner members are
not officers in the national government or county government, Commissions or agencies established under the
Constitution, and as such the SRC does not have the mandate to interfere with their renumeration. In support of that
submission, she relied on the case of National Union of Water and Sewerage Employees v Mathira Water and
Sanitation Company Ltd & 2 Others (2013) e KLR; where the Industrial Court defined a 'public officer'

Held

To my mind State corporations are part of the National Government. Black's Law Dictionary, 8th
Edition defines the term 'government' as being “(i) The structure of principles and rules determining
how a state or organization is regulated. (ii) The sovereign power in a Nation or State. (iii) An
organization through which a body of people exercises political authority, the machinery by which
sovereign power is expressed”.

definition of 'the sovereign power in a nation or State' in the context of this petition, Article 260 defines the
term 'state' as follows;

“When used as a noun, means the collectivity of offices, organs and other entities comprising the
government of the Republic under this Constitution.”

Article 248 of the Constitution then creates Commissions and independent offices. Taking all the above
definitions of the Government and the state, it is difficult not to appreciate that state corporations are

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 entities comprised in the National Government. For instance, The Kenyatta National Hospital, The Moi
Teaching and Referral Hospital, are state corporations are within the Ministry of Health, KPLC within the
Ministry of Energy, The Public universities within the Ministry of Education and Technology. That being
so, it automatically follows that their employees are public servants, and any other finding would be absurd,
illogical and impractical given the design and structure of our Constitution. In passing I would like to
reiterate my earlier sentiments in Okiya Omtatah Okoiti and Another v Attorney General and Another
Petition No. 446 of 2013 where I stated thus.

“It seems to me that the 1st Petitioner has taken a very narrow meaning of 'government' to mean 'executive'
and in fact only 'the national executive' in the traditional 'serikali' meaning. The national executive as
structured in the Constitution is quite different from the National Government”.

I am also in agreement with the sentiments of Rika J in National Union of Water and Sewerage Employees
v Mathira Water and Sanitation Company Ltd where he expressed himself as follows while considering
definition of a public officer;

“From these definitions, a Public Officer executes government functions, not for profit or personal interest.
His position is created by the Constitution, Act of Parliament, or of Municipality or other legally
constituted bodies. The functions and powers of the Public Officer are defined and executed through the
law. The public officer is employed to execute government functions and therefore, remunerated directly
from the consolidated fund or money authorized by Parliament”.

For all the above reasons, I find and hold that the members of the Petitioners are public servants and subject
to all laws governing such persons.

Looking at the provisions of Article 230 of the Constitution as well as the provisions of Section 11 of the
SRC Act, it is clear that the SRC has the mandate of setting and regularly review the renumeration and
benefits of all state officers and advising the national and county government on the renumeration and
benefits of all other public officers. I therefore find that the SRC acted within its constitutional mandate in
describing the employees of the state organisations represented by the Petitioners as public servants and
they are subject to the mandate of the SRC in relation to setting and reviewing of their salaries.

41.1. The Public Service Commission

The Public Service Commission (PSC) is an independent Commission established under Article 233 of the
Constitution of Kenya. The mandate of the commission is spelt out in Articles 234, 155(3)(a), 158(2)(3) and (4),
171(2), 230(2)(b) and 236 of the Constitution. The mandate of the Commission includes establishment and abolition
of offices, provision of competent human resource, promotion of good governance and ensuring efficiency and
effectiveness in the provision of quality services in the Public Service.

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The functions and powers of the Commission are set out in Article 234 of the Constitution and legislation as follows:

a) Subject to the Constitution and legislation: (i) Establish and abolish offices in the public service; and (ii)
Appoint persons to hold or act in those offices, and to confirm appointments;
b) Exercise disciplinary control over and remove persons holding or acting in those offices;
c) Promote the values and principles referred to in Articles 10 and 232 throughout the public service;
d) Investigate, monitor and evaluate the organization, administration and personnel practices of the public
service;
e) Ensure that the public service is efficient and effective;
f) Develop human resources in the public service;
g) Review and make recommendations to the national government in respect of conditions of service, code of
conduct and qualifications of officers in the public service;
h) Evaluate and report to the President and Parliament on the extent to which the values and principles referred
to in Articles 10 and 232 are complied with in the public service;
i) Hear and determine appeals in respect of county governments’ public service; and
j) Nomination of persons to the Judicial Service Commission and Salaries Remuneration Commission under
Articles 171(2) and 230(2){b} respectively;
k) Recommendation of persons to be appointed as Principal Secretaries under Article 155 (3) (a);
l) Receiving and processing petitions for the removal of the Director of Public Prosecutions and recommending
the appointment of a tribunal to investigate the complaints under Article 158(2) (3) and (4);
m) Receiving petitions for the removal of the Registrar and Assistant Registrars of political parties in accordance
with Section 37 of the Political Parties Act; and
n) Protection of public officers against victimization and discrimination while discharging their duties in
accordance with Article 236 of the Constitution.
o) Recruitment and selection of Vice Chancellors, Deputy Vice Chancellors of Public Universities and
Principals and Deputy Principals of Constituent Colleges, under the Universities Act, 2012 (No. 42 of 2012)
section 35(1) (a)(v) as amended in the Statute Law (Miscellaneous Amendments) Act 2018.
p) 16. Perform any other functions and exercise any other powers conferred by national legislation

The implementation of these functions is subject to other provisions of the Constitution and the Public Service
Commission Act, 2017.

Article 234 (3) excludes the Commission from exercising these functions on State offices, Office of the High
Commissioner, Ambassador or other diplomatic or consular representative of the Republic and any office or position
subject to Parliamentary Service Commission, the Judicial Service Commission, the Teachers Service Commission,
the National Police Service Commission and an office in the service of a county government

Fredrick Otieno Outa v Jared Odoyo Okello & 4others

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 “Strictly speaking, the proper meaning of “public officer”, for purposes of the electoral law, is that
embodied in Article 260 of the Constitution as read together with Section 2 of the Elections Act. The
different definitions in other statutory provisions, such as those enumerated earlier on, ought not to take
precedence over the said constitutional provision. And thus, the proper meaning of “public officer” –
currently is; (i) the person concerned is a State officer; or (ii) any other person who holds “public office” –
an office within the national government, county government, or public service; (iii) a person holding such
an office, being sustained in terms of remuneration and benefits from the public exchequer.”

Katiba Institute & another v Attorney General & another [2020] eKLR

To answer the first issue in this petition, we find and hold that positions of chairpersons and members of boards of
state corporations and parastatals are not offices in the public service.

Council of Governors v Attorney General & 7 others [2019] EKLR

Members of university council do not hold office in the public service

41.2. Political neutrality of the Public Service

A key characteristic of the public service is that it must be politically neutral by which is meant that it serves the
government of the day and serves all citizens irrespective of their political affiliation. Challenges however arise
because in serving the government of the day, the public service is expected to implement the politically driven
programmes and policies of the government of the day and maintaining neutrality can be a challenge. There is therefore
an inherent tension between political neutrality and responsiveness to the government of the day. It is in fact suggested
that the public service must be politically involved if it is to be sufficiently responsive to make it possible for the
government of the day to change policy direction.
41.3. Tenure
Public servants need secure tenure to protect them from the vagaries of politics. However, this must also be balanced
against the need to have the government of the day appoint public servants whose loyalty is not in doubt. The standard
approach is to give wide discretion to appointments ant senior level because those are more likely to be concerned
with policy and to put the technocrats beyond the reach of politicians. This is the only way to ensure continuity and
institutional memory during political transition.
Article 77(2) of the Constitution, which prohibits appointed public officers from holding office in political parties.
Section 23 of the Leadership and Integrity Act, 2012, prohibits appointed public officers from engaging in activities
of any political party or candidate, or acting as an agent of a political party or candidate in an election. Section 16 (2)
of the Public Officer Ethics Act stipulates that "a public officer shall not engage in political activity that may
compromise or be seen to compromise the political neutrality of his office." section 14(2) of the Elections Offences
Act prohibits government from advertising in print or electronic media or by way of banners or hoardings in public
places its achievements during election period

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Union of Civil Servants & 2 others v Independent Electoral and Boundaries Commission (IEBC) & another [2015]
eKLR 18th March 2015 Lenaola J

Eric Cheruiyot & 7 others v Independent Electoral and Boundaries Commission & 7 others [2017] eKLR (ELRC) 29th
March 2017 Njagi Marete J
42. State Corporations
State corporations are Government Owned Entities (GOEs) with an important role to play in the national development
effort. Section 2 of the State Corporations Act Cap 446 Laws of Kenya defines a ‘State Corporation’ as follows;
“state corporation” means—
(a) a state corporation established under section 3;

(b) a body corporate established before or after the commencement of this Act by or under an Act of Parliament or
other written law but not—

(i) the Permanent Secretary to the Treasury incorporated under the Permanent Secretary to the Treasury
(Incorporation) Act (Cap. 101);

(ii) a local authority established under the Local Government Act (Cap. 265);

(iii) a co-operative society established under the Co-operative Societies Act (Cap. 490);

(iv) a building society established in accordance with the Building Societies Act (Cap. 489);

(v) a company incorporated under the Companies Act (Cap. 486) which is not wholly owned or
controlled by the Government or by a state corporation;

(vi) the Central Bank of Kenya established under the Central Bank of Kenya Act (Cap.491);

(vii) any other body corporate established by or under any written law declared by the President by
notice in the Gazette not to be a state corporation for the purposes of this Act;

(c) a bank or a financial institution licensed under the Banking Act (Cap. 488) or other company
incorporated under the Companies Act (Cap. 486), the whole or the controlling majority of the shares or
stock of which is owned by the Government or by another state corporation;

(d) a subsidiary of a state corporation;

GOEs play a major role in enabling social and economic transformation of the economies in which they operate. GOEs
can be used in promoting or accelerating economic growth and development, building the capability and technical
capacity of the state in facilitating and/or promoting national development, improving the delivery of public services,
including meeting the basic needs of citizens, creating good and widespread employment opportunities in various

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jurisdictions and targeted and judicious building of international partnerships 26. In enabling states achieve the above
goals, GOEs play a major role in enabling social and economic transformation of the economies in which they operate.

State Corporations are established under the state corporations Act or by written law. Pursuant to section 3(1) of the
State Corporations Act Cap 446 LoK ‘the President may, by order, establish a state corporation as a body corporate
to perform the functions specified in that order’.
42.1. Categorization
State corporations are categorized as follows;27
• Financial
• Commercial and manufacturing
• Training and Research
• Service Corporations
• Regional Development
• Tertiary Education and Training
• Regulatory

42.2. Functions
The functions of a state corporation are specified in the constitutive document namely, an Act of parliament, an order
or other constitutive document, for example, articles of incorporation.
42.3. Constitutional Status of State Corporations
Katiba Institute & another v Attorney General & another [2020] eKLR
To answer the first issue in this petition, we find and hold that positions of chairpersons and members of boards of
state corporations and parastatals are not offices in the public service.
Council of Governors v Attorney General & 7 others [2019] EKLR
The Applicant, the Council of Governors (CoG), moved the Court on 26th April 2017 by filing a Reference dated 19th
April 2017 invoking this Court’s Advisory Opinion jurisdiction under Article 163(6) of the Constitution. In laying a
basis for the Reference, the Applicant averred that it receives funding from the Exchequer through allocations for
operationalization of devolution activities from the Ministry of Devolution and Planning (MoDP) informed by Section
37 of the Intergovernmental Relations Act No 2 of 2012 (IRA).
Held
The establishment of any state organ must be traceable to the Constitution. There are other independent
offices whose establishment can be traced to the Constitution e.g. The Office of Auditor General and that of
the Controller of Budget.
The Council of Governors is not a state organ established under the constitution and therefore lacks the locus
standii to apply for an advisory opinion

26
[Link] (extracted 21/1/2021)
27
[Link]
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 [54] We therefore must distinguish the Applicant’s and Katiba’s submission that Ethics and Anti-
Corruption Commission is not established by the Constitution but is a State Organ. Such an assertion is
misplaced. EACC is a constitutional commission expressly decreed by the Constitution. The founding basis
for the EACC is in Article 79 of the Constitution thus: “Parliament shall enact legislation to establish an
independent ethic and anti-corruption commission, which shall be and have the status and powers of a
commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the
provisions of this Chapter.”
There is no equivalent constitutional provision for the establishment of the Applicant, which is purely a
statutory creature. Article 189 that the Applicant alludes to does not provide for creation of the Applicant as
an entity. It advocates for procedures for settling disputes as between the national and county governments.
Article 189(4) provides:

“National legislation shall provide procedures for settling inter-governmental disputes by alternative
dispute resolution mechanisms, including negotiation, mediation and arbitration.”

It therefore follows that even where National legislation, under Article 189(4), creates a body in which it
vests the procedures for settling inter-governmental disputes, such a body does not acquire the status of a
State Organ.

[56] This constitutive Statute, IRA, does not in fact help the Applicant’s case in this matter. A perusal of
the Act reveals that, the Applicant’s legal status is ambiguous.

[55] Hence we find that the definition of a State Organ under Article 260 to include agency or other body
established under this… [58] Suffice it to say that consequent upon our findings above, the Applicant is not
a state organ under Article 260 of the Constitution and as such, it has no capacity to seek an advisory
opinion under Article 163(6) of the Constitution, does not cover the Applicant. It is thus clear that the
Applicant is not a commission, office, agency or body established under the Constitution. The constituting
statute is the IRA which by any definition cannot grant the Applicant constitutional credentials.

[66]As we have already stated, public service is the collectivity of all individuals, other than state officers,
performing a function within a State organ; while State organ is either, a commission, office, agency or
other body established under the Constitution. That means, the collectivity of the individuals must be
performing a function within a state organ established under the Constitution. It is clear to us that offices in
state corporations and parastatals are not commissions, offices, agencies or other bodies established under
the Constitution. They are, therefore, not state organs within the meaning of the Constitution.
Elgeyo Marakwet Civil Society Organisation Network v Ministry of Education, Science and Technology & 2 others
[2016] eKLR,
Members of university council do not hold office in the public service

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42.4. Appointment of Chairpersons and Board Members of State Corporations
Republic v Attorney General & 3 others Ex-Parte Tom Odoyo Oloo [2015] eKLR
By a Notice of Motion dated 30th June, 2015 the ex parte applicant herein Tom Odoyo Oloo seeking an order of
certiorari to bring into the court for purposes of its being quashed, Gazette Notice No. 2831 dated 17th April 2015 on
published on 27th April 2015 by which the president appointed the Interested Party as the Chairman of the Board of
directors of the Anti-Counterfeit Agency. It was contended that the appointment of the 2 nd Respondent is provided for
in the Anti-Counterfeit Act and it is the Minister and not the president to appoint. Additionally the Anti-Counterfeit
Act provides for both the criteria and procedure for appointment. It was contended that the procedures were not
followed and the criteria was not met. On behalf of the president, it was contended that section 7 of the State
Corporations Act empowers the president to appoint directors and chairmen of the Boards of State Corporations
notwithstanding the provisions of any law to the contrary
Held

Section 7 of the State Corporations Act empowers the president to appoint directors and chairmen of state
corporations notwithstanding the provisions of any written law. . However, apart from that in exercise of the
powers conferred upon the President under section 7(3) of the State Corporations Act, the President is
required by law to satisfy himself that a Board has failed to carry out its functions in the national interest.
Accordingly the President’s powers under the said provision are not unfettered and he can only lawfully
exercise those powers in strict compliance therewith lest he is accused of abusing the same

Katiba Institute & another v Attorney General & another NRB HC PET 331 of 2016 [2020] eKLR 95.

The petitioners brought an action to quash the appointment of chairpersons and the members of boards of various state
corporations on the basis that that the appointments were not made in accordance with the Constitution and applicable
principles. The petitioners argued that that there was no openness in the process, no advertisement of the positions or
record of the criteria used in the appointments…

The respondents opposed the petition arguing that the legal instruments creating the respective entities provided for
the appointment of their respective chairpersons and directors. The respondents held a contrary view, contending that
the appointments were properly made, and in accordance with, the Constitution and the law. They submitted that the
guidelines in Mwongozo were applied in the process of appointment and, therefore, there was compliance with the
constitutional principles. They further argued that the selection procedure in each nominating entity is subject to
internal processes whose outcome and contribution to the overall character of the board is not under the control of the
appointing authority. It is therefore impracticable to manoeuvre the legal processes in order to accommodate the
principles of inclusivity, fair competition and merit.

Held

The appointments were unconstitutional for non compliance with the principles of public service in article
232 namely openness, competitiveness merit and affirmative action.

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 99. Our Constitutional scheme does not require deliberate or progressive reforms. It is the supreme law and
binds all persons, state and public officers. Compliance with constitutional principles of public service
entails putting in place mechanisms that guarantee enforcement of those requirements. When the
Constitution speaks to transparency, fair competition and merit, it means just that. The Constitutional
principles of public service are not mere suggestions. They are commands that must be complied with and
obeyed without exception.

100. We emphasize that the Constitution also requires appointments be subject to affirmative action. That
is, the marginalized, gender and persons with disabilities be considered and adequately represented. This, in
our respectful view, confers a guaranteed right to those groups, which right is protected by the Constitution.

Community Advocacy and Awareness Trust and Others v Attorney General Nairobi Petition No 243 of 2011:

“[73] 27th August 2010 ushered in a new regime of appointments to public office. Whereas the past was
characterised by open corruption, tribalism, nepotism, favouritism, scrapping the barrel and political
patronage, the new dispensation requires a break from the past. The Constitution signifies the end of ‘jobs
for the boys’ era. Article 10 sets out the values that must be infused in every decision making process
including that of making appointments

Benson Riitho Mureithi v J.W Wakhungu and 2 Others Petition No. 19 of 2014

“[84] It may seem that the Constitution has imposed an irksome and onerous burden on those responsible
for making public appointments by requiring that they make the appointments on the basis of clear
constitutional criteria; that they allow for public participation; and that those they appoint meet certain
integrity and competence standards. This burden, however, is justified by our history and experience, which
led the people of Kenya to include an entire chapter on leadership and integrity in the Constitution.”

KUDHEIHA Workers v SRC and AG [2014] e KLR

KUDHEHA challenged some regulations enacted by SRC regarding the Remuneration and Benefits of State and
Public Officers vide gazette notice no 2 of 2013; the role of SRC was challenged in that case. Lenaola J. interpreted
Article 230 of the Constitution and Section 11 of SRC Act and held that SRC acted within its constitutional mandate
in describing the employees of state organizations represented by KUDHEHIA as public servants who are subject to
the mandate of SRC.

‘What constitutes a constitutional advice was also determined by the Supreme Court in the case of; - In the
Matter of Advisory Opinion of the Court, Constitutional Application No. 2 of 2011. In that case the
Supreme Court held;- “On this account, it is inappropriate that the Supreme‘s Court‘s Advisory Opinion
should be sought as mere advice. Where a government or State organ makes a request for an Opinion, it is
to be supposed that such organ would abide by that Opinion; the Opinion is sought to clarify a doubt, and to
enable it to act in accordance with the law.’

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Kenya National Commission on Human Rights (KNHCR) vs. Attorney General &Anor.[2015] e KLR.

KNHCR, a Constitutional Commission established under Article 59 of the Constitution filed a constitutional petition
seeking a declaration that the Presidential Retirement Benefit (Amendment) Act No. 9 of 2013 contravened the
provisions of among others;- Article 234 (a) of the Constitution. The issue was when Parliament enacted the
Presidential Benefit Amendment Act it failed to involve SRC thereby usurping their mandate.

Lenaola, J. set out the mandate of SRC as provided for in the Constitution and SRC Act and concluded as follows:-

“In the above context, it has not been contested that the SRC was not involved in the process leading to the
enactment of the impugned statute. It has also not been controverted that the President is a state officer and
therefore his salary and remuneration is subject to the mandate of the SRC. I have already found that
section 11 (g) of the SRC Act gives the Commission the sole power to make recommendation on the
matters relating to salaries and remuneration of a particular state officer. In addition, Section 11 (f) makes it
clear that it is only the SRC that can make recommendation on the review of any pension payable to
holders of public offices. It is therefore my finding that the law gives the SRC powers to set and review the
remuneration and befits of (sic) state officers including a retired president.

George Bala v Attorney General HC Petition No. 238 of 2016[2017] eKLR

Apart from that in exercise of the powers conferred upon the President under section 7(3) of the State Corporations
Act, the President is required by law to satisfy himself that a Board has failed to carry out its functions in the national
interest. Accordingly the President’s powers under the said provision are not unfettered and he can only lawfully
exercise those powers in strict compliance therewith lest he is accused of abusing the same.

David Kariuki Muigua –v- Attorney General & Another HCCP No. 161 of 2011

In his petition dated the 16th September, 2011, the petitioner challenged his removal as the Chairman of the Standards
Tribunal by the Minister for Industrialisation by Gazette Notice No. 2911 dated 17th March, 2011 on the grounds that
the removal did not follow the procedure provided for in the Standards Act and the appointment of the new Chairman
was also not in accordance with the Act. The court agreed that termination was not in accordance with the Act, neither
was the appointment of the new Chairman. The court however declined to grant the prayers sought because the
removal did not rise to the threshold of a violation of a constitutional right and the new chairman was not a party to
the proceedings wherefore the court could not make adverse orders against the new chairman.

‘From the material before me and as submitted by the respondent, it would appear that not only had the
appointment of the petitioner not been in accordance with the Standards Act in view of the fact that it was
made for a period of 3 years instead of the 5 year period provided for under Section 16A (7) of the
Standards Act, it had not itself followed the constitutional principles set out in the Constitution at Article
10. There is no evidence that there was a competitive process that would enable public participation in the
process and show the transparency and accountability required under the Constitution, thereby giving

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 legitimacy to the appointment of the petitioner. Like his successor, the petitioner was appointed on the
basis of a Gazette Notice; the basis of the appointment, the criteria followed in appointing him and the
other members of the Tribunal was, from all appearances and regrettably so, more in keeping with the pre-
new Constitution days when public officers were appointed at the whim of the Minister or President’.
43. Power to Make Policy Choices
Luco Njagi & 21 others v Ministry of Health & 2 others Nairobi Constitution and Human Rights Division Petition
NO. 218 OF 2013 [2015] eKLR
The question was whether the court could order the National Government through the National Hospital Insurance
Fund to make available opportunities for treatment of Kidney Patients in public hospitals or pay for such treatment in
Private hospitals. The court found that it had no jurisdiction to direct the government on how to allocate funds and it
was sufficient for the government to show that it had taken legislative and other measures towards the realization of
article 43 rights.
44. The Executive and the Judiciary
Law Society of Kenya v Attorney General & others HC PETITION NO 3 of 2016 [2016] eKLR
The question was whether the president has an obligation to appoint as judges persons recommended to him by the
Judicial Services Commission. The court answered the question in the affirmative.
45. The Executive and Independent Institutions
In the Matter of the National Land Commission Advisory Opinion Reference No. 2 of 2014 [2015] eKLR

The question was how the Minister as a member of the Executive should relate with the National Land Commission,
an independent constitutional commission.

The court found that constitutional commissions are not the 4 th arm of government and must relate with the other
organs on the basis of interdependence and cooperation. Commissions are functionally, operationally and financially
independent. They must also be seen to be independent. However, the commissions must collaborate and consult with
the other arms of government and state organs.

‘It emerges from precedent, that independence of commissions and independent offices does not, perforce,
entail a splendid isolation from other State organs. This is demonstrated by Article 249(1), which expressly
entrusts the National Land Commission with the duty to “protect the sovereignty of the people”, “secure the
observance by all State organs of democratic values and principles”, and “promote constitutionalism”. By
the broad and diffuse nature of such a mandate, commissions acting in isolation, have no capacity to
discharge their mandate. So they have to consult with other State organs, and work with such State organs
in co-operation and harmony. The Commissions are required to promote the national values and principles
entrenched in Article 10 of the Constitution’.
46. Powers to Appoint
1. Republic v Attorney General & 3 others Ex-Parte Tom Odoyo Oloo HC MISC 196 of 2015 JR [2015] eKLR

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 2. Benson Riitho Mureithi v J. W. Wakhungu & 2 others [2014]eKLR Mumbi Ngugi J 28th day of February
2014
3. Minister For Internal Security and Provincial Administration v Centre For Rights Education & Awareness
(CREAW) & 8 others Civil Appeal No. 218 OF 2012 [2013] eKLR
47. Immunity
Abdul Karim Hassanally vs Westco Kenya Limited [2003] EKLR (Githinji J, as he then was.
Section 14(2) of the Constitution construed with the aid of the marginal notes, in my view, means what it says, that
Civil Proceedings cannot be instituted against the President while he holds office or if instituted before he became the
President such civil Proceedings cannot continue against the President. But Section 14(2) does not absolve the
President from Civil Liability in respect of claims arising either before or after he becomes the President. He can still
be sued after he leaves office. That is to say that section 14(2) of the Constitution merely suspends the recovery of any
claim of a civil nature through legal proceedings against a President and denies court jurisdiction against the President
while he holds office but does not protect the President from any civil liability. Indeed section 14(3) of the Constitution
protects any such claims which cannot be brought or continued while the President holds office from being defeated
by any law of limitation.

The Constitution is the will of the people and I do not think that the constitutional provisions protecting the
President from legal proceedings can be said to be against the Public Policy. The President has his
constitutional rights like everybody else and this court is bound to protect such Constitutional rights from
violation. For the foregoing reasons I allow the oral application and strike out the name of the second
defendant from the suit without prejudice to the right of the plaintiffs to re-institute the suit after the second
defendant ceases to be the President of the Republic of Kenya. Each party will bear his own costs of the
application and of the suit.

Republic v President & 12 Others Ex-parte Soet Kenya Limited & 2 Others NRB MISC 698 of [2004] eKLR

At the hearing of the application the court, of its own motion, raised the preliminary point of law as to whether the
application is properly before the court having due regard to the protection afforded the 1st Respondent against both
criminal and civil proceedings under section 14 of the Constitution of Kenya. The court directed Mr. Stephen
Mwenesi, learned counsel for the Applicants, to address it on this point first for determination.

In his submissions, Mr. Mwenesi urged that section 14 (2) of the Constitution does not apply to the application as that
section refers specifically to “civil proceedings” which, by their very nature, judicial proceedings are not. He cited
the decision in The Commissioner of Lands v. Kunste Hotel Ltd. (Civil Appeal No. 234 of 1995) (unreported) in
which the Court of Appeal distinguished judicial review proceedings in the following terms:-

“….in exercising the powers to issue or not to issue an order of certiorari the court is neither exercising
Civil nor Criminal jurisdiction. It would be exercising special jurisdiction………”

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 In my view, the intention of section 14 is absolute and in the widest terms in affording the President
protection against all legal proceedings while in office the only exception being as is provided in section
10(2) of the Constitution. While fully agreeing that even the sitting President is subject to the provisions of
the Constitution and any other written law, the same Constitution provides for the protection of the
President in respect of any and all legal proceedings. Judicial proceedings are legal proceedings, albeit
within a special jurisdiction, within the ambit of section 14 of the Constitution which, by virtue of section 3
thereof, must override sections 8 and 9 of the Law Reform Act [Cap. 26] and order 53 of the Civil
Procedure Rules insofar as any proceedings against the President are concerned.

Having come to this conclusion, I find that I would have no jurisdiction to entertain proceedings against the
1st Respondent and accordingly do hereby order that the First Respondent namely, His Excellency the
President, be and is hereby struck out from the application dated the 10th June 2004 and from all other
documents filed therewith herein.

Republic vs. Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua Miscellaneous Civil Application
Number 1298 of 2004

“As a matter of constitutional practice, it is of course well known that the President is not above the reach of
the courts and cannot be put in a situation where he is above the constitution. We must add that the courts
have no power to review the exercise of powers by the President provided that the President is acting
within the scope of his powers and within the confines of the constitution. And that he is within the legal
nature of the exercise of his powers and responsibilities. No doubt the courts have powers to restrict and
review decisions made by a sitting President which is in contravention of the Constitution, and which is
against public interest and policy. We hold that there was nothing wrong in the applicant suing the
respondents since their decision which was made, or which would be made is likely to affect his rights and
interests.”

Republic v President & 7 others Exparte Wilfrida Itolondo & 4 others HC MISC CA 232 0f 2012 [2014] eKLR JR

The Application is based on the Statutory Statement filed with the Chambers Summons for leave on the 31 st of May
2012 and a verifying affidavit sworn on the 30th of May 2012 by Wilfrida Itolondo. The 1st, 2nd and 5th Respondents
filed Grounds of Opposition dated the 26th of June 2012 where they opposed the Notice of Motion on the grounds
that judicial review remedies cannot issue as against the 1st Respondent.

Held

The next issue is whether judicial review orders can issue to question the conduct of the 1st Respondent
herein. In dealing with this issue the Respondents have relied on the English authorities. One must however
remember that unlike in United Kingdom where there is no written Constitution, in Kenya we have a
written Constitution and under Articles 2(1) and (2) thereof all persons and all State organs at both levels of

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 government are bound by the Constitution which is the supreme law of the Republic and no person may
claim or exercise State authority except as authorised under the Constitution. Accordingly, In Kenya we
have the supremacy of the Constitution as opposed to the Supremacy of Parliament. Therefore where it is
alleged that the President’s action has contravened the Constitution, I do not see why the same cannot be
questioned before this Court unless the action falls within the realm of a purely political question.

I share in the view expressed in Republic vs. Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya
Ole Keiwua Miscellaneous Civil Application Number 1298 of 2004 that:

“As a matter of constitutional practice it is of course well known that the President is not above the reach of
the courts and cannot be put in a situation where he is above the constitution. We must add that the courts
have no power to review the exercise of powers by the President provided that the President is acting
within the scope of his powers and within the confines of the constitution. And that he is within the legal
nature of the exercise of his powers and responsibilities. No doubt the courts have powers to restrict and
review decisions made by a sitting President which is in contravention of the Constitution and which is
against public interest and policy. We hold that there was nothing wrong in the applicant suing the
respondents since their decision which was made or which would be made is likely to affect his rights and
interests.”

The arguments by the Applicants that the President is immune to civil and criminal proceedings as
provided for under Article 143 of the Constitution is in my view untenable in the current constitutional
dispensation because the High Court in the exercise of its judicial review jurisdiction exercises neither a
criminal jurisdiction nor a civil one since the power of the High Court to grant judicial review remedies is
sui generis. I therefore find that the Applicants did not err in suing the President as an institution and indeed
judicial review proceedings can be instituted against the President in so far as he makes decisions that are
ultra vires the law.

Minister For Internal Security and Provincial Administration v Centre For Rights Education & Awareness (CREAW)
& 8 others Civil Appeal No. 218 of 2012 [2013] eKLR
There were also issues raised regarding the immunity of the President as provided in the Constitution in
respect of civil and criminal litigation. We wish to say no more on this issue as the Constitution is clear, if
the President violates the law, he or she can only be subjected to the process of impeachment, however the
former Constitution did not have provisions of impeachment.
48. Immunity of other Sovereigns
Talaso Lepalat v Embassy of the Federal Republic of Germany & 2 others CHRD No 393 of 2014 [2015] eKLR
Karen Njeri Kandie v Alssane Ba & another CA CA No 20 of 2013 CA [2015] eKLR
49. The Position of the Attorney General
George Bala v Attorney General [2017] eKLR

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On the 20th May, 2013, the president released executive order No. 2/12013 was released and published by the
President on the strength of the powers vested in the President by Article 152 of the Constitution by which executive
order the respondent was assigned portfolio responsibilities and functions that, inter alia, relate to the Council of Legal
Education as established by the Legal Education Act, No. 27 of 2012 (hereinafter referred to as “the Act”). According
to the Petitioner, whereas the president is perfectly in order to assign duties and functions to the respondent by virtue
of Article 156(4)(c) of the Constitution, the President is not allowed to assign the respondent functions and duties that
an Act of Parliament has bestowed on a Cabinet Secretary and that in assigning functions to the respondent, the
President must be in clinical compliance with the Constitution and there is no room for the President to assign functions
to the Respondent that offends the constitution.

According to the petitioner, the offices of Attorney General and Cabinet Secretary are separate and distinct and the
manner and procedure of appointment to those offices are different, separate and distinct. Further, the Constitution
provides and envisages that the functions of the offices of Attorney General and Cabinet Secretary are distinct, separate
different. To the petitioner, the makers of the Kenyan Constitution could not have envisaged, on a true interpretation
of the Constitution, that one person holds concurrent offices of Attorney General and Cabinet Secretary. It was
therefore the Petitioner’s position that the Attorney General is not a Cabinet Secretary and therefore cannot purport to
perform the functions of a Cabinet Secretary

It was averred that the Act makes provision for certain acts to be performed expressly by a Cabinet Secretary such as
the appointment of the members of the Council of Legal Education and that the Respondent has been purporting to
exercise those functions in his capacity as a Cabinet Secretary, yet these functions are reserved for a Cabinet Secretary
under the Legal Education Act, No. 27 of 2012.

Held (Odunga J),

114. Having considered the issues raised in this petition, the orders which commend themselves to me and which I
hereby grant are as follows:

• A declaration that whereas the respondent the Attorney General, is a member of the Cabinet, he is not a
Cabinet Secretary and therefore cannot, where to do so would be contrary to an Act of Parliament, perform
or purport to perform the functions specifically reserved for a Cabinet Secretary under any piece of
legislation.
• A declaration that the respondent’s purported exercise of Cabinet Secretarial functions under the Legal
Education Act, 27 of 2012 or under any other piece of legislation, where the same is inconsistent with or
contrary to the spirit Constitution or the law in null and void.
• A declaration that before performing Cabinet Secretarial duties, where permitted by the Constitution and the
law, the Attorney General must take the oath appropriate to Cabinet Secretaries.
• A declaration that the Attorney General, while performing the duties of a Cabinet Secretary is subject to the
process of removal from that position of a Cabinet Secretary.

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 • A declaration that any executive order that purports to assign the respondent, the Attorney General, cabinet
secretarial functions and powers contrary to the letter and spirit of the Constitution and the law, is invalid,
null and void.
• I however appreciate that the effect of immediate invalidity of the appointment of the Respondent as a Cabinet
Secretary may not uphold public interest. In the circumstances and pursuant to Article 23 of the Constitution
I declare that this decision will only affect future actions of the Respondent and the declaration of
unconstitutionality of the Cabinet Secretarial functions of the Respondent will be suspended for a period of
three months to enable the executive take appropriate remedial action.

Isaac Aluoch Polo Aluochier v Uhuru Muigai Kenyatta & another CHRD Petition 360 of 2013 [2014] eKLR

The question before court was whether the Attorney General could represent the president and the deputy president
when the two are sued in a personal capacity. The court found that such representation would be unconstitutional.

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 THE CATHOLIC UNINVERSITY OF EASTERN AFRICA

CUEA CLS 122

CONSTITUTIONAL PRACTICE

LECTURE NOTES

BY CHARLES B G OUMA

LLB, MLB

LECTURER FACULTY OF LAW CUEA

TOPIC 4 LEGISLATIVE POWER

1
Contents
1. Introduction. ........................................................................................................................ 5
2. Types of Legislatures .......................................................................................................... 5
3. Legislative Structures.......................................................................................................... 6
4. Why Bicameralism? ............................................................................................................ 8
5. Sovereignty of the Legislature vs Supremacy of the Legislature ...................................... 8
5.1. Supremacy of the Legislature vs Supremacy of the Constitution ....................................... 9
5.2. The Concept of Parliamentary Sovereignty-Dicey ........................................................... 10
5.3. Sovereignty of the Kenyan Parliament ............................................................................. 13
6. Functions of the Legislature.............................................................................................. 18
6.1. Formation of Government................................................................................................. 19
6.2. Law-Making ...................................................................................................................... 20
6.3. Policy Formulation............................................................................................................ 20
6.4. Representation................................................................................................................... 20
6.5. Representation of Minority Views .................................................................................... 20
6.6. Oversight or Scrutiny of the Actions of Government ....................................................... 20
6.7. Providing the Funds Needed for Government Through the Budget Process .................... 21
6.8. Constitutional Amendment ............................................................................................... 21
6.9. Conflict Resolution ........................................................................................................... 21
7. Article 94 Role of Parliament ........................................................................................... 21
8. Role of the National Assembly ......................................................................................... 22
9. Role of the Senate ............................................................................................................. 22
10. Limitations on Legislative Power ..................................................................................... 23
10.1. Types of Limitations ......................................................................................................... 23
10.1.1. Substantive Limitations .................................................................................................... 23
10.1.2. Procedural Limitations ...................................................................................................... 24
10.1.3. Some Generic Limitations ................................................................................................ 24
a) Separation of Powers ........................................................................................................ 24
b) Bill of Rights ..................................................................................................................... 24
c) Judicial Review ................................................................................................................. 25
d) Bicameralism and Multi-tiered Legislation ...................................................................... 25
e) Executive Veto or Approval ............................................................................................. 25

2
f) Public Opinion and Accountability................................................................................... 25
11. The Legislature in the CoK 2010 ...................................................................................... 25
12. The Vesting of Legislative Power..................................................................................... 26
13. Which House is Superior? ................................................................................................ 26
14. The Composition of Parliament ........................................................................................ 28
15. The Legislative Process .................................................................................................... 29
15.1. What is a Legislative Proposal? ........................................................................................ 29
15.2. Policy Making ................................................................................................................... 29
15.3. Importance of Policy Preceding Legislation ..................................................................... 29
15.4. Important Considerations to be taken into account by the Sponsor Of A Legislative
Proposal......................................................................................................................................... 30
15.5. Actors in the Legislative Process ...................................................................................... 30
16. Bills ................................................................................................................................... 31
16.1. Origination of Bills ........................................................................................................... 31
16.2. Where to Originate a Bill .................................................................................................. 31
16.3. Introduction of a Bill ......................................................................................................... 32
16.4. Pre-Publication Scrutiny. .................................................................................................. 32
16.5. Role of the Speaker ........................................................................................................... 32
16.6. Role of the Clerk ............................................................................................................... 32
16.7. Processing the Bill ............................................................................................................ 32
16.8. Non-money Bill ................................................................................................................ 32
16.9. Money Bill ........................................................................................................................ 33
16.10. Publication Period ............................................................................................................. 33
16.11. Stages of a Bill .................................................................................................................. 33
a) 1st Reading ........................................................................................................................ 33
b) 2nd Reading........................................................................................................................ 34
c) Committee Stage ............................................................................................................... 34
d) Report Stage ...................................................................................................................... 34
e) Third Reading ................................................................................................................... 34
f) Assent ................................................................................................................................ 34
g) Referral ............................................................................................................................. 35
17. Bills Concerning County Governments ............................................................................ 35
18. Special Bill Concerning County Governments. ................................................................ 37

3
19. Processing of Bills Concerning County Governments ..................................................... 37
20. Procedure on ‘Special Bill Concerning County Governments ......................................... 37
21. Mediation .......................................................................................................................... 38
22. Further Reading ................................................................................................................ 39

4
1. Introduction.
The legislature is one of the three arms of government in Montesquieu’s separation of powers
trilogy. According to Montesquieu, legislative power is the power by which the prince makes,
amends and repeals the law. Legislative power in constitutional law therefore refers to the
authority granted to a legislative body, typically a parliament or congress, to create, amend, or
repeal laws within a specified jurisdiction. But legislatures also pay other roles such as
representation of the people, oversight and accountability, budget approval and allocation.
Representation of the People: In democratic systems, legislative bodies represent the will of the
people, as members are typically elected by citizens to act on their behalf. This ensures that laws
reflect the interests and values of the society.
Oversight and Accountability: In many systems, the legislature also holds the executive branch
accountable, scrutinizing government actions and expenditures to ensure they align with the law
and serve public interests.
Budget Approval and Allocation: Legislative bodies often have the exclusive power to approve
budgets and allocate public funds, ensuring transparency in government spending.
2. Types of Legislatures
There are two main types of legislature, congresses’ and ‘parliaments’. The terms "parliament"
and "congress" both refer to legislative bodies, but they represent different systems of governance
and have distinct structures and functions based on the principles of parliamentary and presidential
systems.
Parliament: Typically found in parliamentary systems of government, such as those in the United
Kingdom, Canada, and India. In these systems, the executive branch (the Prime Minister and
Cabinet) is derived from the legislature. The Prime Minister is usually the leader of the majority
party in the parliament and is directly accountable to it. If the parliament loses confidence in the
Prime Minister, it can force them to resign, leading to new elections or the formation of a new
government.
Congress: Commonly found in presidential systems of government, like the United States and
Mexico. In these systems, the executive branch (the President) is separate from the legislative
branch (Congress), and the President is independently elected by the people. The President does
not need congressional confidence to remain in office, and Congress does not control executive
appointments directly.

5
In systems with ‘congresses’ , the executive is not drawn from the legislature, e.g. the US
Congress .Congresses are structured around a system of checks and balances where the executive
branch, headed by the President, is separate from the legislative branch. In systems with
‘parliaments’, on the other hand, the executive is drawn from the legislature e.g. the UK
parliament, the parliament of Kenya under the old constitution. Accordingly, the executive branch
in parliamentary systems is often led by the head of government, who is usually the leader of the
majority party in the parliament (such as the Prime Minister in the UK).
But the terminologies can be misleading and may not always perfectly align with the actual
practices. The Kenyan legislature under the CoK is called a ‘parliament’ (Article 94) but the
executive is not drawn from the legislature. The Indian legislature is called a ‘congress’ but the
executive is drawn from the legislature.
3. Legislative Structures
There are two types of legislative structures, bicameral and unicameral. The key difference
between bicameral and unicameral legislative structures lies in the number of chambers or houses
that make up the legislature. Bicameral systems have two chambers, e.g. the US Congress which
has a House of Representatives(Lower House) and a Senate (Upper House) and the UK
parliament which has a House of Commons (Lower House) and House of Lords (Upper House),
or the parliament of Kenya under the 1963 constitution which had a national assembly and senate,
while unicameral systems have only one like the parliament of Kenya under the 1969 Constitution.
Each system has its own advantages and is often chosen based on the historical, political, and
cultural context of a particular country.
In a bicameral system, each house often represents different interests or constituencies, and both
chambers typically must pass legislation for it to become law. The upper house might represent
regions or states (as in the US Senate or the German Bundesrat), while the lower house often
represents the population directly. Bicameral legislatures can provide a system of checks and
balances, ensuring that laws are thoroughly debated and preventing the dominance of one faction
or interest group.
Each house is by design intended to give effect to a constitutional principle. One house, typically
regarded as the ‘lower house’ is intended to promote democracy-one man one vote. The other
house, typically regarded as the upper house, is intended to give effect to constitutionalism ,one

6
interest one vote. The upper house, which is designed to give effect to constitutionalism is intended
to neutralise the numerical superiority of certain interests and to limit dictatorship by the majority.
In a unicameral system, there is only one legislative body responsible for making laws and passing
legislation. Members are usually elected directly by the citizens of the country. Unicameral
legislatures are often seen as more streamlined and efficient since there is no need for bills to pass
through multiple chambers. They may also be more responsive to the will of the people, as there
is no potential for gridlock between two houses.
One example of a bicameral legislature that demonstrates the implementation of two competing
principles is the United States Congress. With a total of 535 voting members, Congress consists
of 100 senators and 435 representatives. (Notably, the U.S. vice president holds a tie-breaking vote
in the Senate only when senators are equally divided. Additionally, the House of Representatives
includes six non-voting members from Washington, D.C.)
The number of members in each of the two houses of Congress in the United States is determined
through a combination of population-based apportionment for the House of Representatives, with
each state receiving a number of seats proportional to its population, and equal representation of
states in the Senate, with each state receiving two seats regardless of population. The process
involves census-taking, reapportionment, and the drawing of congressional districts for the House,
while the Senate maintains a fixed number of members per state. The senate represents the
principle of one interest one vote(one state one vote). The House of representatives represents the
principle of one man one vote.
Each chamber possesses distinct powers granted by the Constitution. For instance, the Senate is
responsible for ratifying treaties and confirming presidential appointments, whereas the House has
the authority to initiate bills related to revenue. Furthermore, the House initiates impeachment
proceedings, while the Senate holds the responsibility of deciding impeachment cases. But in the
in the legislative process, the House and Senate serve as equal partners, with both chambers
required to consent for legislation to be enacted.
The composition of the parliament of Kenya represents a similar approach but the apportionment
of legislative power favours the National Assembly. Curiously, it is the National Assembly rather
than the Senate that approves presidential appointments!

7
4. Why Bicameralism?
The rationale for bicameralism in Kenya was judicially considered and determined in The
Speaker of the National Assembly of the Republic of Kenya & 20rs vs The Senate of the Republic
of Kenya & 13 ors Civil Appeal No. E084 of 2021(the concurrence decision. The issue before
court was the manner of the exercise of the legislative mandates of the National Assembly and
Senate in the passing of Bills concerning the Counties. The Senate’s contention was that as at 2nd
July 2019, the National Assembly passed various Bills concerning Counties without involving the
Senate, and the Speaker of the National Assembly unilaterally determined that the said Bills do
not concern Counties, contrary to article 110(3) of the Constitution and the Supreme Court of
Kenya’s advisory opinion. In the Matter of the Speaker of the Senate & another [2013] eKLR
(“Advisory Opinion Reference No 2 of 2013”).
The Appellants and the Respondents in their submissions seemed to suggest that a unitary
state and bicameral legislatures are mutually exclusive, and that such legislature can only
exist in federal states. A bicameral legislature is simply a legislature made up of two
chambers, and the purpose and composition of the second chamber differs, depending on
the needs of a particular state and its political system.
The second chamber can exist to provide technical review and scrutiny of legislation, to
provide territorial representation of states, provinces or regions, to provide breadth of
representation by including certain minority communities or by giving an institutional
voice to certain social, economic and cultural interests, and to provide an additional
democratic ‘check and balance’ to the incumbent government
Our structure of government is a devolved structure with distinct national and county
governments, as specifically acknowledged by Article 6 of the Constitution. Therefore, a
bicameral legislature is necessary in such a structure to represent and protect the interests
of the county governments at the national level, for reasons that even though we are
territorially one state, the counties are constitutionally recognized as distinct political social
and economic entities.
5. Sovereignty of the Legislature vs Supremacy of the Legislature
The concepts of sovereignty of parliament and supremacy of parliament are closely related but
have a subtle distinction. The sovereignty of parliament refers to the ultimate legal authority
possessed by a country's legislative body to enact, amend, or repeal laws without being subject to

8
any higher authority. For example , in the United Kingdom, the principle of parliamentary
sovereignty means that Parliament is the supreme legal authority and can make or overturn any
law. Parliamentary sovereignty implies that Parliament has the power to make or unmake any law,
and its decisions cannot be challenged or overturned by any other body within the country's legal
framework. This means that no other institution, including the judiciary, can override or invalidate
an Act of Parliament.
The sovereignty of parliament emphasizes the ultimate legal authority of the legislative body to
make or unmake any law within its jurisdiction. In parliamentary systems like the United
Kingdom, parliament is considered sovereign, and its enactments cannot be overturned by the
judiciary or any other body.
The supremacy of parliament refers to the principle that the laws enacted by the legislative body
take precedence over other sources of law within the legal system of a country. In countries like
the United Kingdom and New Zealand, parliamentary supremacy means that laws passed by
Parliament are considered the highest form of law and take precedence over common law, judicial
decisions, and even constitutional provisions. This principle ensures that the will of Parliament
prevails over other sources of authority within the legal system.
In the UK the concepts ‘legislative sovereignty’ and ‘parliamentary supremacy’ are used
interchangeably because both apply to the UK parliament. This is because the UK does not have a
written supreme constitution.
Parliamentary sovereignty in the UK implies that parliament can amend or repeal any law,
including constitutional provisions, through ordinary legislative processes. However, even where
parliament is considered sovereign and supreme, the constitution may explicitly recognize the
sovereignty of parliament within certain limits. For example, while the UK parliament is
sovereign, it has voluntarily chosen to bind itself to some constitutional conventions and respects
certain fundamental principles entrenched in its unwritten constitution.
5.1. Supremacy of the Legislature vs Supremacy of the Constitution
The supremacy of the constitution means that the constitution is the highest law in the land. It
establishes the framework for the organization of government, delineates the powers and
limitations of each branch of government, and often contains fundamental rights and principles.
In countries with a written constitution, such as Kenya, the United States and Germany, the
constitution serves as the supreme law of the land, and all other laws, including those passed by

9
parliament, must conform to its provisions. Constitutional supremacy implies that any law or
action of government that violates the constitution can be declared null and void by the judiciary,
which serves as the guardian of constitutional principles.
In systems where the constitution and parliament's sovereignty are perceived to be in conflict, the
judiciary may play a crucial role in mediating disputes. Courts may interpret and apply
constitutional provisions to determine the validity of laws passed by parliament, ensuring that they
do not infringe upon constitutional rights or exceed constitutional limits.
Accordingly, a supreme parliament cannot co-exist with a supreme constitution. A sovereign
parliament can coexist with a supreme constitution provided the sovereignty is exercised within
the boundaries set by the constitution.
5.2. The Concept of Parliamentary Sovereignty-Dicey
In Dicey’s view ‘the basic principle of the British constitution can be summed up in a fairly bold
statement. A statute , that is, a piece of legislation, produced by parliament, is generally regarded
as the highest form of law within the British constitutional structure. The British parliament it is
said is a sovereign law-maker. According to Dicey the concept of the sovereignty of parliament
has two limbs, the positive limb and the negative limb. The positive limb implies that there are no
legal limits to the substance of statute law. Provided the procedural requirements are complied
with in the sense that it is passed by the commons, approved by the lords and assented to by the
monarch, it is law and courts are bound to obey it. The negative limb implies that the legality of
an act of parliament cannot be challenged in any British court. her is no higher law than the will
of parliament expressed in a statute.
The Concept of Parliamentary Sovereignty: Blackstone Commentaries 1765
Blackstone’s Commentaries on the Laws of England, published in 1765, is a foundational work in
the field of English law. Regarding parliamentary sovereignty, Blackstone's Commentaries assert
the supremacy of Parliament within the English legal system. Blackstone describes parliamentary
sovereignty as the principle that Parliament has the absolute authority to make or unmake any law,
and that no other body or institution can challenge or override its legislative power. Specifically,
Blackstone emphasizes that Parliament's authority is unlimited and omnipotent, meaning that it
can enact laws on any subject matter and amend or repeal existing laws without restriction. He
describes Parliament as the highest and supreme legislative body in the English legal system, with
the power to create and shape the legal framework of the nation.

10
 I know it is generally laid down that acts of parliament contrary to reason are void. But if
parliament will positively enact a thing to be done which is unreasonable, I know no power
that can control it….for that were to set judicial power above that of legislative which
would be subversive of all Government
City of London vs. Wood (1701)
In the case of City of London v. Wood (1701), the court affirmed the principle of parliamentary
sovereignty. The essence of the judgment was that the authority of Parliament is supreme and
cannot be challenged by the courts. Specifically, the court ruled that acts of Parliament are binding
and must be upheld, even if they conflict with common law or previous statutes. The case) involved
a dispute between the City of London and Sir Henry Wood, who was a sheriff of London. The
specific facts of the case revolved around financial matters related to taxation and the collection
of duties. The City of London argued that certain duties and taxes imposed by Parliament were
unlawful because they exceeded the authority granted by law. Sir Henry Wood, as the sheriff, was
responsible for collecting these duties on behalf of the Crown. The central issue in the case was
whether the duties imposed by Parliament were legally valid, despite any perceived conflicts with
common law or previous statutes. The City of London contended that the duties were illegal and
beyond the scope of Parliament's authority.
The court ruled in favor of Sir Henry Wood and upheld the legality of the duties imposed by
Parliament. The judgment affirmed the principle of parliamentary sovereignty, establishing that
the authority of Parliament to enact laws is supreme and cannot be questioned by the courts. Said
the court
An act of parliament can do no wrong, though it may do several things that look pretty odd
Forbes v. Cochrane1824
Lord Mansfield reportedly suggested that the court would not enforce law permitting slavery as it
would be against the law of nature and God
The Enrolled Bill Rule (Edinburgh and Dalkeith Rly Co vs. Wauchope (1842)
The Enrolled Bill Rule is a legal doctrine that generally holds that once a bill has been duly enacted
by the legislative body and signed into law by the appropriate authority, the courts will not inquire
into the internal processes or irregularities that may have occurred during the legislative process.
In Edinburgh and Dalkeith Rly Co vs. Wauchope (1842),the plaintiff sought to challenge an act

11
of parliament on the grounds that certain notices had not been given to affected landowners as by
law required;
Held;
It was beyond the courts power to judge the adequacy of proceedings in either House of
Commons or the Lords.’ ‘all that a court can do is to look at the parliamentary roll; if from
that it should appear that a bill has passed both houses and received royal assent, no court
can inquire into the mode in which it was introduced. Or what passed during its progress
in its various stages through parliament
Lee vs. Bude & Torrington Junction Rly Co (1871)
If an act of parliament is obtained improperly it is for the legislature to correct it by
repealing it or amending it; so long as it exists as law the courts are bound to obey it
British Rlys Board vs. Pickin 1974 AC 765
The plaintiffs case was that British Rail had steered a private bill through parliament without giving
mandatory notices and had also misled parliament about the true intentions of the bill.
Held;
The courts have no power to question the legality of a bill’s passage through parliament.
Any such investigation would bring the courts into conflict with parliament. The whole
trend of authority for over a century is clearly against permitting such an investigation. ‘A
concomitant of the sovereignty of parliament is that the houses of parliament enjoy certain
privileges. Among those privileges is the exclusive right to determine their own
procedures’.
Inconsistency with International Law Cheney vs. Conn 1968 1 All ER 779
The issue before the court was whether the Finance Act 1964 was unlawful in that tax money was
being used to fund nuclear arms programmes in breach of Britain’s commitments at international
law
Held; No
‘What the statute itself enacts cannot be unlawful because what the statute itself says is
itself the law and the highest form of law and it is not for the court to say that parliamentary
enactment the highest law in this country is unlawful’
H. M. Seerval, Constitutional Law of India: A Critical Commentary, 3rd ed.
Parliaments have the right to be guardians of their internal affairs.

12
5.3. Sovereignty of the Kenyan Parliament
The situation is a little different in Kenya. Parliamentary sovereignty is recognised in Kenya but
is constrained by the supremacy of the constitution. The constitution provides that sovereignty
vests in the people. Legislative sovereignty at national level is delegated to, vested in, and
exercised by Parliament which is made up of the National Assembly and Senate (Article 1, 94).
Parliament is the highest law-making authority. The Kenyan parliament is sovereign, not supreme
This is because it is the constitution of the country , not their parliament, which is supreme
Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others
Petition 628, 630 of 2014 & 12 of 2015 (Consolidated) [2015] eKLR
([Link]
In 2014, Kenya's National Assembly passed the Security Laws (Amendment) Act amid
controversy and allegations of irregularities, including claims that non-members of parliament
(strangers) participated in the voting process1. The bill aimed to amend various laws related to
security and counter-terrorism measures in Kenya.
One particular incident that attracted attention was the chaotic session in which the bill was passed.
Opposition members of parliament (MPs) protested against the proposed legislation, arguing that
it threatened civil liberties and human rights. During the voting process, scuffles broke out, and
tear gas was reportedly used to disperse the protesting MPs.
There were allegations that individuals who were not MPs were present in the chamber and
participated in the voting process. The opposition claimed that these "strangers" were brought in
to manipulate the outcome of the vote in favor of the ruling party. However, the government denied
these allegations and insisted that only duly elected MPs participated in the voting.
Despite the controversy surrounding its passage, the Security Laws (Amendment) Act was
eventually signed into law by President Uhuru Kenyatta.
In a case filed to challenge the constitutionality of the resultant Act, the opposition party CORD
criticized the Speaker of the National Assembly for the manner in which proceedings were handled
on December 18, 2014, when the Security Laws (Amendment) Act (SLAA) was passed. They
argued that neither the Constitution, the Standing Orders, nor parliamentary customs and traditions
were followed to ensure orderly and effective conduct of business while upholding freedom of
speech and debate. Mr. Nyenze, on behalf of CORD stated in his supporting affidavit that during

1
Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR

13
the vote on the Bill, unauthorized individuals, referred to as "strangers," participated in a voice
vote, which contradicted Article 122(1) and (2) of the Constitution. He also claimed that there was
chaos and disorder in the Chamber, and the debate did not adhere to the Rules of Debate outlined
in the Standing Orders.
The Attorney General argued that members of the Coalition for Reforms and Democracy (CORD)
were responsible for the misconduct witnessed in the National Assembly on December 18, 2014.
Accordingly , said the AG, CORD should not be allowed to complain about the compromised
legislative process regarding the Security Laws (Amendment) Act (SLAA), nor should they benefit
from any illegal actions. The Attorney General maintained that the legislative process was not
compromised, as members of the National Assembly debated and voted on the proposed
amendments. He rejected the claim that non-members participated in the process leading to the
enactment of the statute. The Attorney General asserted that the Speaker maintained control over
the proceedings at all times and did not relinquish the legislative authority or independence of the
National Assembly to any other individual.
One of the issues framed by the court for determination was whether he legislative process was
unconstitutional in light of the chaotic manner of enactment of SLAA that was in breach of
Parliamentary Standing Orders with regard to Parliamentary debate and voting;
The court found that it had jurisdiction to intervene if there was a clear demonstration that the
standing orders of the house were not followed.
‘172. In our view, the principle that emerges from the above decisions read together with
Article 124(1) of the Constitution is that in a jurisdiction such as ours in which the
Constitution is supreme, the Court has jurisdiction to intervene where there has been
a failure to abide by Standing Orders which have been given constitutional
underpinning under the said Article. However, the court must exercise restraint and only
intervene in appropriate instances, bearing in mind the specific circumstances of each case’
On the facts of the case the court found that there was no evidence of violation of standing orders.
As for the possible participation of strangers in the voting process, the court invoked article 124(3)
of the constitution which provides that-
The proceedings of either House are not invalid just because of- (a) A vacancy in its
membership; or (b) The presence or participation of any person not entitled to be
present at, or to participate in, the proceedings of the House.

14
Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No. 2 of
2011 [para.61-62]
We are persuaded by the reasoning in the cases we have referred to from other jurisdictions
to the effect that Parliament must operate under the Constitution which is the supreme law
of the land. The English tradition of Parliamentary supremacy does not commend itself to
nascent democracies such as ours. If Parliament violates the procedural requirements of the
supreme law of the land, it is for the courts of law, not least the Supreme Court to assert
the authority and supremacy of the Constitution. It would be different if the procedure in
question were not constitutionally mandated. This Court would be averse to questioning
Parliamentary procedures that are formulated by the Houses to regulate their internal
workings as long as the same do not breach the Constitution. Where however, as in this
case, one of the Houses is alleging that the other has violated the Constitution and moves
the Court to make a determination by way of an Advisory Opinion, it would be remiss of
the Court to look the other way. Understood in this context therefore, by rendering this
Opinion, the Court does not violate the doctrine of separation of powers. It is simply
performing its solemn duty under the Constitution and the Supreme Court Act. While
Parliament is within its general legislative mandate to establish procedures of how it
conducts its business, it has always to abide by the prescriptions of the Constitution. It
cannot operate besides or outside the four corners of the Constitution. This Court will not
question each and every procedural infraction that may occur in either of the Houses of
Parliament. The Court cannot supervise the workings of Parliament. The institutional
comity between the three arms of government must not be endangered by the unwarranted
intrusions into the workings of one arm by another. [62] However, where a question arises
as to the interpretation of the Constitution, this Court, being the apex judicial organ in the
land, cannot invoke institutional comity to avoid its constitutional duty
Doctors for Life International v. Speaker of the National Assembly and Others (CCT 12/05) [2006]
ZACC 11
“…under our constitutional democracy, the Constitution is the supreme law. It is binding
on all branches of government and no less on Parliament. When it exercises its legislative
authority, Parliament ‘must act in accordance with, and within the limits of, the
Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed

15
 by it must be fulfilled.’ Courts are required by the Constitution ‘to ensure that all branches
of government act within the law’ and fulfil their constitutional obligations.”.
Zimbabwe Biti & Another v. Minister of Justice, Legal and Parliamentary Affairs and Another
(46/02) (2002) ZWSC10,
The Supreme Court of Zimbabwe was called upon to determine the constitutional validity of the
General Laws Act, 2002 (Act No. 2 of 2002). It had been claimed that the passing of the said
statute was characterized by irregularities that constituted a breach of the Standing Orders as well
as the Constitution of Zimbabwe and that, consequently, the statute was unconstitutional.
Held:
“In a constitutional democracy it is the Courts, not Parliament, that determine the
lawfulness of actions of bodies, including Parliament….In Smith v. Mutasa it was
specifically held that the Judiciary is the guardian of the Constitution and the rights of
citizens
Canada Amax Potash Ltd. v. government of Saskatchewan [1977] 2 S.C.R. 576 [at p.590]
“A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom
of legislative will. As a broad statement of principle that is undoubtedly correct, but the
general principle must yield to the requisites of the constitution in a federal state. By it the
bounds of sovereignty are defined, and supremacy circumscribed. The Courts will not
question the wisdom of enactments which, by the terms of the Canadian Constitution are
within the competence of the Legislatures, but it is the high duty of this Court to ensure
that the Legislatures do not transgress the limits of their constitutional mandate and engage
in the illegal exercise of power.
Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of
2012
‘Separation of powers must mean that the Courts must show deference to the independence
of the Legislature as an important institution in the maintenance of our constitution
democracy as well as accord the executive sufficient latitude to implement legislative
intent….Yet as the Respondents concede, the Courts have an interpretive role, including
the last word in determining the Constitutionality of all Governmental actions’.
James Opiyo Wandayi v Kenya National Assembly & 2 others [2016] eKLR
S 29, National Assembly (Powers and Privileges) Act (Cap. 6, Laws of Kenya) provides

16
 “…neither the Speaker nor any officer of the Assembly shall be subject to the jurisdiction
of any court in respect of the exercise of any power conferred on or vested in the Speaker
or such officer by or under this Act or the Standing Order.”
Hon. James Opiyo Wandayi, an elected Member of Parliament representing Ugunja Constituency
in Siaya County attended a joint session of parliament during the state of the nation address by the
President on March 31, 2016. During the session, some Members of Parliament disrupted the
proceedings, making it very difficult for the President to address the House. Despite repeated
warnings, the MPs continued to engage in disruptive behavior. In response to the disorderly
conduct, the Speaker ordered Hon. Wandayi and other disorderly members to withdraw from the
chamber under Standing Order 107. While several members complied with the order, Hon.
Wandayi refused to do so. The Speaker invoked Standing Order 111 cited Hon Wandayi for
contempt, ordered his removal from the chamber for grossly disorderly conduct and suspended
him for the remainder of the parliamentary session. Standing Order 111 allows the Speaker to
remove a member who refuses to withdraw, and the member is then suspended from the House for
the remainder of the parliamentary session. Hon Wandayi insisted that he peacefully exercised his
constitutional rights of representation and protest to highlight the issues facing his constituents. He
alleged that his attempts to seek redress internally have been fruitless, and he has been further
marginalized by being denied access to parliamentary facilities and barred from fulfilling his
constitutional duty to represent his constituents. Wandayi file a petition for judicial review of the
speaker’s ruling
In response the Speaker argued that the Standing Orders of the National Assembly were
established for the orderly conduct of proceedings, and the Speaker's role is to enforce them.
According to the Speaker, the actions against Wandayi were lawful under Article 124 of the
Constitution as Standing Order 111 provides a mechanism for dealing with disorderly conduct.
The Speaker emphasized that the applicant had the opportunity to challenge the decision internally
but failed to do so. The Speaker further argued that the issue of Wandayi’s suspension was a matter
of privilege for the House to resolve. Accordingly, the petition before court and the accompanying
application violated the constitutional powers granted to Parliament to regulate its internal
procedures and the principle of separation of powers. The Speaker urged the court to decline to
exercise its powers of judicial review because the court cannot supervise the proceedings of
Parliament, and the institutional comity between the three arms of government must be respected.

17
The issue before the court was whether a judicial review of the Speaker’s internal disciplinary
action against a member of parliament would violate the doctrine of separation of powers and
infringe on parliamentary sovereignty. The court found that in the context of the Constitution of
Kenya 2010, judicial review lies against such a decision subject to the need for judicial restraint.
The court relied on the Supreme Court decision in Speaker of National Assembly –vs. Attorney
General and 3 Others (2013) eKLR where the Supreme Court stated as follows:
“Parliament must operate under the Constitution which is the supreme law of the land. The
English tradition of Parliamentary supremacy does not commend itself to nascent
democracies such as ours. Where the Constitution decrees a specific procedure to be
followed in the enactment of legislation, both Houses of Parliament are bound to follow
that procedure. If Parliament violates the procedural requirements of the supreme law of
the land, it is for the courts of law, not least the Supreme Court, to assert the authority and
supremacy of the Constitution. It would be different if the procedure in question were not
constitutionally mandated. This Court would be averse to questioning Parliamentary
procedures that are formulated by the Houses to regulate their internal workings as long as
the same do not breach the Constitution. Where however, as in this case, one of the Houses
is alleging that the other has violated the Constitution and moves the Court to make a
determination by way of an Advisory Opinion, it would be remiss of the Court to look the
other way. Understood in this context therefore, by rendering his Opinion, the Court does
not violate the doctrine of separation of powers. It is simply performing its solemn duty
under the Constitution and the Supreme Court Act.”
6. Functions of the Legislature
The legislature plays several vital functions in a democratic system. These functions include:
• Formation of a government (In parliamentary executive structures)
• Law making
• Policy formulation
• Providing the funds needed for government through the budget process
• Providing a forum for popular representation
• Representation of Minority Views
• Oversight or scrutiny the actions of government.
• Constitutional Amendment

18
 • Conflict Resolution
6.1. Formation of Government
In parliamentary systems, where the executive branch is drawn from the ranks of the legislature,
the legislature plays a crucial role in the formation and functioning of government. In
parliamentary systems, the executive branch, including the head of government (such as the Prime
Minister), is typically drawn from the legislature. Following a general election, the political party
or coalition that wins a majority of seats in the legislature usually forms the government. The
leader of the majority party or coalition is often invited by the head of state (such as the monarch
or president) to become the Prime Minister and form a government.
In well-developed parliamentary systems, once the leader of the majority party or coalition is
designated as the head of government, they must seek the confidence of the legislature. The new
government presents its policy agenda and legislative program to the legislature for approval.
Members of the legislature then vote on a motion of confidence or no confidence in the
government. If the government fails to win a majority of votes of confidence, it may be compelled
to resign, leading to the formation of a new government or the calling of new elections.
In parliamentary systems, the head of government appoints members of the cabinet (ministers)
from among the members of the legislature. The cabinet is responsible for implementing
government policies, managing government departments, and making collective decisions on
matters of state. Cabinet ministers are accountable to the legislature and may be called upon to
defend government policies and actions through parliamentary debates and question sessions.
While the executive branch is separate from the legislature in systems like the United States, in
parliamentary systems, the government is directly accountable to the legislature. The government
relies on the support of the legislature to pass legislation, approve budgets, and implement policies.
The government must maintain the confidence of the legislature to remain in power, and failure to
secure legislative support may result in the collapse of the government.
In multiparty systems or in situations where no single party wins a majority in the legislature,
coalition governments may be formed. Political parties must negotiate and build alliances to secure
enough support to form a stable government. The formation of coalition governments often
involves complex negotiations over policy agreements, ministerial positions, and distribution of
power.

19
 6.2. Law-Making
One of the primary functions of the legislature is to make laws. Members of the legislative body
propose, debate, amend, and ultimately enact legislation that addresses various issues, concerns,
and needs within society. These laws can cover a wide range of topics, including public safety,
education, healthcare, taxation, and civil rights.
6.3. Policy Formulation
Policy making is an integral part of the legislative function, encompassing the formulation,
oversight, advocacy, innovation, coordination, and implementation of policies aimed at addressing
societal challenges and promoting the public interest. By engaging in policy making, the legislature
plays a crucial role in shaping the direction and trajectory of public policy, governance, and society
as a whole. While laws provide the legal framework for governing society, policies offer specific
guidelines, strategies, and objectives for addressing various social, economic, and environmental
issues. Members of the legislative body propose, debate, and develop policies in response to
emerging challenges, societal needs, and public demands.
6.4. Representation
Legislatures serve as representative bodies, where elected officials represent the interests,
concerns, and preferences of their constituents. Through regular elections, citizens choose
representatives who will advocate for their interests and viewpoints within the legislative process.
This representation ensures that diverse voices and perspectives are considered when making laws.
6.5. Representation of Minority Views
Legislatures play a crucial role in representing minority viewpoints and protecting minority rights
within society. Even if a particular political party or group holds a majority in the legislature,
minority parties or legislators can still voice their concerns, propose alternative policies, and
participate in decision-making processes. This inclusivity helps ensure that the rights and interests
of all citizens are respected and considered.
6.6. Oversight or Scrutiny of the Actions of Government.
Legislatures provide oversight of the executive branch of government, ensuring accountability
and transparency in the implementation of laws and policies. This oversight function may include
scrutinizing the actions of government officials, conducting investigations, holding hearings, and
reviewing government expenditures. Through checks and balances, the legislature helps prevent
abuses of power and maintains the separation of powers.

20
6.7. Providing the Funds Needed for Government Through the Budget Process
The legislature holds the power of the purse, meaning it has the authority to approve government
budgets and allocate funds for various programs, services, and initiatives. Through the budgetary
process, legislators prioritize spending, set fiscal policies, and ensure that public resources are used
efficiently and effectively to meet the needs of society.
6.8. Constitutional Amendment
In systems with written constitutions, the legislature often has the authority to amend the
constitution. Constitutional amendments may be necessary to adapt to changing societal needs,
address constitutional deficiencies, or strengthen democratic principles. However, this function
typically requires special procedures and may involve higher thresholds for approval than regular
legislation. Article 255-257 provides for amendment of the constitution by parliamentary initiative.
6.9. Conflict Resolution
Legislatures serve as forums for peaceful debate and negotiation, where conflicting interests and
viewpoints can be discussed, compromised, and resolved through democratic processes. By
providing a platform for dialogue and consensus-building, the legislature helps manage societal
conflicts and promote social cohesion. The 2023 National Dialogue Committee, jointly initiated
by Kenya Kwanza and Azimio la Umoja, exemplifies the utilization of elected officials to address
political disputes. According to an opinion poll conducted between June 24 and 30, which
surveyed 1,530 individuals, 48 percent of respondents expressed strong support for the bipartisan
discussions aimed at resolving the impasse between the government and the opposition. An
additional 16 percent indicated some level of support for the initiative. Conversely, 19 percent
voiced strong opposition to the talks, while 4 percent somewhat endorsed the dialogue. Meanwhile,
13 percent remained neutral, neither supporting nor opposing the dialogue.2
7. Article 94 Role of Parliament
94. (1) The legislative authority of the Republic is derived from the people and, at the
national level, is vested in and exercised by Parliament (5) No person or body, other than
Parliament, has the power to make provision having the force of law in Kenya except under
authority conferred by this Constitution or by legislation.
Parliament

2
[Link]

21
 manifests the diversity of the nation, represents the will of the people, and exercises their
sovereignty.
may consider and pass amendments to this Constitution and alter county boundaries as
provided for in this Constitution.
shall protect this Constitution and promote the democratic governance of the Republic
8. Role of the National Assembly
Article 95 provides for the role of the National Assembly
95. (1) The National Assembly represents the people of the constituencies and special
interests in the National Assembly. (2) The National Assembly deliberates on and resolves
issues of concern to the people. (3) The National Assembly enacts legislation in accordance
with Part 4 of this Chapter. (5) The National Assembly— (a) reviews the conduct in office
of the President, the Deputy President and other State officers and initiates the process of
removing them from office; and (b) exercises oversight of State organs. (6) The National
Assembly approves declarations of war and extensions of states of emergency
The Speaker of the National Assembly of the Republic of Kenya & 20rs vs The Senate of the
Republic of Kenya & 13 ors Civil Appeal No. E084 of 2021
As regards the lawmaking functions, which is the focus of this appeal, Articles 95(3) of the
Constitution provides that the National Assembly enacts legislation in accordance with Part 4 of
Chapter Eight, which part provides for the procedures for enacting legislation in Articles109 to
116 of the Constitution
9. Role of the Senate
Article 96 provides for the role of the Senate.
96. (1) The Senate represents the counties and serves to protect the interests of the counties
and their governments. (2) The Senate participates in the law-making function of
Parliament by considering, debating and approving Bills concerning counties, as provided
in Articles 109 to 113. (3) The Senate determines the allocation of national revenue among
counties, as provided in Article 217, and exercises oversight over national revenue
allocated to the county governments
The Speaker of the National Assembly of the Republic of Kenya & 20rs vs The Senate of the
Republic of Kenya & 13 ors Civil Appeal No. E084 of 2021

22
 On the other hand, Article 96(2) of the Constitution provides that the Senate participates in
the law-making function of Parliament by considering, debating and approving Bills
concerning counties, as provided in Articles 109 to 113 of the Constitution
10. Limitations on Legislative Power
Legislative power can be limited through various mechanisms within a constitutional framework.
These limitations are often designed to prevent the concentration or abuse of legislative authority
and to ensure that the legislative branch operates within defined boundaries. Limitations are
typically intended to constrain the ability of the legislature to change the laws that are regarded as
fundamental to the well-being of the society. The more a particular law is regarded as fundamental
to the way in which a country is to be governed the more difficult it should be to change that law.
Constitutions therefore tend to set down the manner and form of constitutional change in such a
way that distinguishes constitutional amendments from the amendments of ordinary laws of the
land. It is undesirable that the fundamental way in which a society is run should be vulnerable to
reform which does not attract the consent of the governed. The question arises as to how the
framers of the constitution can ascribe importance to certain societal values, how much
importance should be attached to those values , how much consent is necessary to change those
values, in what ways should the consent be given and whether the consent can be transferred
irrevocably. A constitution ought to mark out stable and predictable legal boundaries which
express the nature of the peoples consent to the powers of government. Law making then takes
place within the set boundaries of consent as outlined in the constitution.
10.1. Types of Limitations
There are two types of limitations, substantive and procedural limitations. Substantive limitations
focus on the content or substance of legislation and restrict the types of laws that the legislature
can enact. Procedural limitations govern the process by which legislative decisions are made and
implemented. Both types of limitations are essential for ensuring that legislative power is exercised
responsibly, in accordance with democratic principles, the rule of law, and respect for individual
rights and liberties.
10.1.1. Substantive Limitations
Substantive limitations refer to restrictions on the content or substance of legislation. These
limitations define the subject matter or areas in which the legislature is authorized to act and the
boundaries beyond which legislative action is prohibited. Substantive limitations may include

23
constitutional provisions protecting fundamental rights and freedoms, prohibitions on
discrimination, restrictions on the government's ability to infringe upon individual liberties, and
limitations on the scope of legislative authority specified in a constitution or legal framework. The
purpose of substantive limitations is to safeguard individual rights, ensure the rule of law, and
prevent the abuse of legislative power by constraining the types of laws that the legislature can
enact.
10.1.2. Procedural Limitations
Procedural limitations refer to constraints on the process by which legislation is enacted, rather
than the substance of the laws themselves. These limitations govern the procedures, rules, and
mechanisms through which legislative decisions are made and implemented. Procedural
limitations may include requirements for public notice and hearings, rules for the introduction and
consideration of bills, provisions for committee review and amendment, voting procedures, and
requirements for the enactment of legislation, such as supermajority or bicameral approval. The
purpose of procedural limitations is to ensure transparency, accountability, and fairness in the
legislative process. By establishing clear procedures and rules for decision-making, procedural
limitations help prevent arbitrary or unjust exercises of legislative power and promote democratic
governance.
10.1.3. Some Generic Limitations
The traditional constitutional restraints on public power can be used to limit legislative power. But
it is also possible to design more context specific limitations as hereinafter illustrated.
a) Separation of Powers
A fundamental principle of many democratic systems is the separation of powers among the
executive, legislative, and judicial branches of government. This division of authority ensures that
no single branch becomes too powerful. The legislature is limited in its power by the other
branches, which have their own distinct functions and checks on legislative action.
b) Bill of Rights
Many constitutions include a bill of rights or a similar set of protections for individual liberties
and freedoms. These rights may be explicitly guaranteed and immune from legislative
infringement. The legislature is limited in its ability to pass laws that violate these rights, and
judicial review may be available to strike down unconstitutional legislation.

24
c) Judicial Review
Independent judiciaries play a crucial role in interpreting and applying the law, including the
constitutionality of legislation. Judicial review allows courts to assess the compatibility of
legislative actions with constitutional principles and to strike down laws that exceed legislative
authority or infringe upon individual rights.
d) Bicameralism and Multi-tiered Legislation
Bicameral legislatures, consisting of two chambers, and multi-tiered legislative processes can
serve as checks on legislative power. Additional layers of scrutiny and review may help prevent
hasty or ill-considered legislation, ensuring that laws are thoroughly debated, scrutinized, and
refined before enactment.
e) Executive Veto or Approval
In systems with a separate executive branch, the executive may possess the power to veto
legislation passed by the legislature. This executive check serves as a limitation on legislative
power, requiring legislative consensus or compromise to override a veto and enact laws into effect.
f) Public Opinion and Accountability
Ultimately, the power of the legislature is constrained by public opinion and accountability to the
electorate. Elected representatives are accountable to the people they serve, and public pressure
can influence legislative decision-making, ensuring that lawmakers act in the public interest and
in accordance with democratic values.
11. The Legislature in the CoK 2010
The peoples’ sovereignty is delegated inter alia to the Legislature Art 1. Legislative power is
derived from the people and is vested in and exercised by parliament. (Article 94). Parliament
allowed to delegate its legislative power see Article 94(5)
The legislature in the CoK 2010 is a limited legislature exercising delegated sovereignty under
Article 1. The legislature is bicameral (Articles 93-95 )and works through committees (Art 117)
The constitution has both substantive and procedural entrenchment clauses. Examples of
substantive limitations in the CokK2010 include the supremacy clause e.g. article 2, entrenched
constitutional provisions such as Article 25 and allocation of competence in article 191
Examples of Procedural Limitations in the CoK 2010 include the requirement for special
procedures or special majorities(super majorities) such as Articles 255(3) on amendment of the
constitution. Art 1, 2 19,20,24 25 chapter 16 109-115

25
The legislature is devolved and there is general, specific and residual allocation of competence
allocation of competence- general, specific concurrent between the two levels of legislative
authority. (Article 1(4) 109-113 185 189 191 4th Sch)
12. The Vesting of Legislative Power
Art 1(3) Sovereign power under this Constitution is delegated to the following State organs,
which shall perform their functions in accordance with this Constitution––(a) Parliament
and the legislative assemblies in the county governments;
Art. 94. (1) The legislative authority of the Republic is derived from the people and, at the
national level, is vested in and exercised by Parliament.(Article 94)
Article 94(5) No person or body, other than Parliament, has the power to make provision
having the force of law in Kenya except under authority conferred by this Constitution or
by legislation.
13. Which House is Superior?
During the constitution review process, the COE tried to make the senate the more powerful
chamber, but MPs shot down the proposal at Naivasha Ever since, there have been supremacy wars
between the two houses.
The Senate is tasked with representing the interests of the counties and overseeing devolved
functions. The National Assembly, on the other hand, is the lower house and is responsible for
national legislation and oversight. One key area of contention has been the allocation of funds
between the two houses and the extent of the Senate's authority in matters related to devolution.
The Senate has argued for greater autonomy and control over funds allocated to the counties,
emphasizing its role in safeguarding devolution and ensuring equitable distribution of resources.
However, the National Assembly has often sought to assert its supremacy and control over
budgetary matters, leading to disputes and power struggles between the two houses. These
conflicts have sometimes resulted in delays in budget approval and legislative gridlock, hampering
the effective functioning of government.
The supremacy battles between the Senate and the National Assembly in Kenya have been a
significant point of contention in the country's political landscape, reflecting broader struggles over
power and authority within the government structure. These battles primarily revolve around the
interpretation and implementation of devolution, which was introduced in Kenya's 2010
Constitution.

26
The Supreme Court of Kenya has attempted to resolve these supremacy battles by providing legal
clarity and guidance on constitutional matters and reminding the two houses of parliament that it
is unconstitutional for them to create a constitutional crisis by precipitating a stalemate in the
legislative process. For example, in a landmark ruling in 2019, following a stalemate in the
enactment of the Division of Revenue Bill, the Supreme Court reaffirmed the Senate's role in
overseeing the division of revenue between the national and county governments, emphasizing the
Senate's constitutional mandate to protect devolution.
According to the SCORK the supremacy war is an unnecessary, perhaps idle debate motivated
by ignorance about the respective roles of the parties. In 2013, the court had effectively poured
cold water on the debate over the supremacy of the National Assembly in budgetary matters,
affirming the Senate's authority and ensuring that devolution remains a cornerstone of Kenya's
governance framework. In The Matter of the Speaker of the Senate & another [2013] eKLR,
Advisory Reference No 2 of 2013 the court held as follows;
‘[197]One of the cardinal principles of the Constitution that can be gleaned from its
architecture and wording is,” the more checks and balances, the better” for good
governance. The relationship between the two Parliamentary Chambers should be
reinforced by this principle. After all, legislative authority is derived from the people. Both
Houses of Parliament represent the same people, and the resources at the core of this
dispute, are owned by the people of Kenya. In the equitable distribution of resources owned
by the people of Kenya, the principles of checks and balances, mediation, dialogue,
collaboration, consultation, and interdependence are not necessarily conflictual, granted
that they are all invoked in the interests of the people of Kenya. Since judicial authority is
also derived from the people of Kenya, the constitutional duty of the Supreme Court in this
Reference is to reinforce these principles, so as to ensure that the rights and interests
(economic, social, political, and cultural) of the people of Kenya trump once and for all,
the narrative of which of the two Houses is superior (emphasis added).
Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of 2021)
[2021] KECA 282 (KLR) (19 November 2021) (Judgment)
An important observation and implication in terms of context that arises from Article 109,
is that the law-making powers and functions of the National Assembly and of the Senate
are asymmetric. A bicameral Parliament is asymmetrical when the law-making powers of

27
 one of the houses is constitutionally restricted or has limited powers over some areas of
legislation and stronger powers over others. In symmetrical bicameralism on the other
hand, the two houses have equal or nearly equal powers: the consent of both houses is
usually needed for the enactment of laws, and the lower house cannot unilaterally override
vetoes or amendments adopted by the upper house, or can do so only with difficulty
normally by a supermajority
The Senate’s law-making power was limited to Bills concerning county government…The
import of the provisions in article 111 to 113 of the Constitution was that even though the
law-making powers of Senate were limited to Bills concerning county governments, the
Senate also had extensive powers in relation to special Bills concerning county
governments that originated from it, as the same could not easily be overridden or vetoed
by the National Assembly…Senate was specifically excluded from the law-making
procedures set out in articles 114 of the Constitution as regards money Bills, being the bills
related to taxation, loans and appropriations (spending).

14. The Composition of Parliament

The National Assembly
Article 98 [Link]
‘Article 97. (1) The National Assembly consists of— (a) two hundred and ninety members,
each elected by the registered voters of single member constituencies; (b) forty-seven
women, each elected by the registered voters of the counties, each county constituting a
single member constituency; (c) twelve members nominated by parliamentary political
parties according to their proportion of members of the National Assembly in accordance
with Article 90, to represent special interests including the youth, persons with disabilities
and workers; and (d) the Speaker, who is an ex officio member.
(2) Nothing in this Article shall be construed as excluding any person from contesting an
election under clause (1) (a)’
The Senate ([Link]
Article 98
‘98. (1) The Senate consists of— (a) forty-seven members each elected by the registered
voters of the counties, each county constituting a single member constituency; (b) sixteen

28
 women members who shall be nominated by political parties according to their proportion
of members
of the Senate elected under clause (a) in accordance with Article 90; (c) two members,
being one man and one woman, representing the youth; (d) two members, being one man
and one woman, representing persons with disabilities; and (e) the Speaker, who shall be
an ex officio member.
(2) The members referred to in clause (1) (c) and (d) shall be elected in accordance with
Article 90. (3) Nothing in this Article shall be construed as excluding any person from
contesting an election under clause (1) (a)’
15. The Legislative Process
Since parliament has many roles and many functions, the term ‘legislative process’ arguably refers
how the legislature goes about executing its roles or functions. Initially, the term was synonymous
with the execution of parliamentary roles and functions, but it now primarily denotes the process
of making laws . Hence, the 'legislative process' now denotes the journey of transforming a
legislative proposal into law.
15.1. What is a Legislative Proposal?
A proposal is a plan or an idea, often a formal or written one, which is suggested for people to
think about and decide upon. Legislation is the process of making and passing laws. A legislative
proposal is therefore a formal proposal to the legislature to make law.
15.2. Policy Making
The legislative process ideally begins with the formulation of policy. Policy should therefore
precede legislation. A policy is a statement of intent that the government’s objectives and the
strategy to achieve them. Black’s Law Dictionary as “the general principles by which a
government is guided in its management of public affairs.”
Whereas some policies may be implemented administratively, most require a binding legal
instrument in the form of an Act of parliament.
15.3. Importance of Policy Preceding Legislation
According to the Kenya Law Reform Commission, ‘the ideal and recommended position in the
legislative process is that policy precedes the formulation of a Bill or any other legislative
instrument’.(RoK 2015)3. When policy precedes legislation, there is ample opportunity to ensure

3
[Link]

29
harmony of the legislative agenda with the executive developmental initiatives, ensure the
proposed legislation is harmonised with the overall statutory framework, critical stakeholders are
consulted, a regulatory impact assessment is done and the cost implications of the proposed
legislation is considered. The policy making process also provides the ideal opportunity to
determine if a legislative response is the most appropriate solution.
15.4. Important Considerations to be taken into account by the Sponsor Of A Legislative
Proposal
The Kenya Law Reform Commission (KLRC) recommends several essential considerations for
sponsors of legislative proposals to bear in mind. The considerations are essential for ensuring that
legislative proposals are well-founded, effective, and in line with the broader legal and policy
framework.
Firstly, sponsors should ensure that their proposals are in line with the constitution and do not
conflict with constitutional principles. Additionally, they should take care to avoid contradictions
with international treaties and conventions ratified by the state. It is crucial to prevent the proposed
legislation from having unnecessary extraterritorial effects, and sponsors should strive to align it
with national policies. In cases where no such policies exist, sponsors are advised to establish
policy frameworks before proceeding with legislation. Conflict of law issues must be addressed to
promote statutory harmony and coherence within the legal framework.
Sponsors should adequately address any ethical, social, or cultural concerns implicated by the
proposed legislation. Technical soundness and practicality of the proposed legislation should be
verified to minimize challenges during implementation. Finally, sponsors are required to conduct
a mandatory regulatory impact analysis to assess the potential effects of the proposed legislation
comprehensively.
15.5. Actors in the Legislative Process
The KLRC lists the actors in the legislative process at National and County level as follows;
National Level
• The National Executive, which is the source of most of the legislation;
• The Cabinet Secretaries or respective MDAs;
• Parliament (National Assembly and Senate);
• Political Parties;
• The Public;

30
 • AG., CIC and KLRC; and
• (The Civil Society and other non-State actors.
County Government Level
• The County Executive;
• Members of the County Executive Committee;
• County Attorney;
• County Assembly;
• he Public; and
• (The Civil society and other non-State actors.
16. Bills
Once published, the legislative proposals becomes a ‘Bill’. A bill is therefore defined as a
published set of legislative proposals.
16.1. Origination of Bills
A Bill can be originated by;
a) A parliamentary party, in which event it is introduced by the leader of the majority or
minority.
b) By the executive through the majority leader, leader of minority or chairperson of a relevant
departmental committee.
c) By a committee of parliament in the name of the chair of the committee or other designated
member of the committee.
d) By a private member of parliament in the name of such member.
e) By a member of the public by way of a petition.

16.2. Where to Originate a Bill

Any Bill may originate in the National Assembly4. Only Bills concerning counties may be
originated in the Senate. A Bill not concerning county government is considered only in the
National Assembly5.A Bill concerning county government may originate in the National Assembly
or the Senate and is passed in accordance with Articles 110 to 113, 122 and 123 and the Standing
Orders of the Houses.6

4
Art 109 (2)
5
Art. 109(3)
6
Art 109(4)

31
16.3. Introduction of a Bill
The person who introduces the bill is called the sponsor. The sponsor submits the proposal to the
speaker for approval. The proposal must be accompanied by a memorandum of objects and
reasons. The memorandum of objects and reasons must contain a statement on;
a) The objects and reasons for the bill
b) Delegation of legislative powers and limitations on fundamental rights and freedoms,
if any.
c) Whether the bill concerns county governments
d) The financial implications of the bill and whether public expenditure will be
required if the bill is enacted and if so, estimates of such expenditure
16.4. Pre-Publication Scrutiny.
The legislative proposal must be approved by the speaker. The issues of interest during pre-
publication scrutiny are constitutionality, technical and substantive soundness, whether it is a
money bill and whether it is a bill concerning county governments.
16.5. Role of the Speaker
Upon receipt of the bill, the speaker refers the proposal to the clerk who engages the sponsor in
drafting he proposal according to the technical and substantive requirements of the house.
16.6. Role of the Clerk
The role of the clerk is to assist with the redrafting of the proposal to meet the requirements of the
house as to style and substance. The clerk must comment on-
a) Whether the proposal is or is not a proposal for a bill concerning county governments.
b) Whether the proposal is or is not a proposal for a money bill.
c) The constitutionality of the proposal.
16.7. Processing the Bill
The procedure of processing a Bill depends on whether it is an ordinary, special or money bill.
Once the speaker receives the redrafted proposal together with the comments of the clerk, the next
step depends on whether the proposed bill is or is not a proposal for money bill
16.8. Non-money Bill
If the proposal comes from a parliamentary committee, the speaker approves it or publication. If
the proposal comes from a private member, the speaker refers the proposal to the relevant
departmental committee for pre-publication scrutiny and engagement with stakeholders in the

32
law-making process such as the office of the Attorney General and Kenya Law Reform
Commission and the relevant state department. On receipt of the views of these stakeholders the
speaker approves the proposal for publication into a bill.
16.9. Money Bill
A ‘money bill’ is a bill containing provisions dealing with tax, imposition or variation of charges
on a public fund, appropriation, receipt, custody, investment or issue of public money, or raising
or guaranteeing of any loan or its repayment.7 A ‘money bill’ may only be proceeded with in
accordance with the recommendations of the relevant committee. The speaker refers the proposals
to the Budget and Appropriations Committee. The committee analyses the financial implications
of the proposal and after taking into account the views of the treasury, makes its recommendations
to the speaker for further necessary action. The speaker then decides whether to approve the
proposal or not.
16.10. Publication Period
Bills are typically published in a special or supplementary issue of the Kenya Gazette. The purpose
of publication is to notify the public and invite representations through the elected Members or
direct submission of memoranda and petitions.
16.11. Stages of a Bill
A bill goes through six or seven stages depending on what happens at the sixth stage.
a) 1st Reading
The Clerk reads out the Title of the Bill. No discussion may take place on the Bill at this stage
save by way of an issue as to the constitutionality of the Bill. The purpose of the 1st reading is to
draw the attention of the Members and the public to the Bill. Once read, the Bill stands committed
to the relevant departmental/sectoral committee. The relevant departmental/sectoral committee
facilitates public participation on the Bill. The committee also engages with the sponsor ,other
actors in the legislative process like the AG , the KLRC and stakeholders like the relevant state
department. The committee may propose amendments to the Bill. At the conclusion of its task, the
committee prepares a report for the house.

7
Article 114 CoK 2010

33
b) 2nd Reading
This is the main debating stage. The house debates the bill in plenary. At the conclusion of the
debate, the speaker calls on the proposer to respond to the issues on the bill. The Bill is then put to
vote to determine if it is to move to the next stage.
c) Committee Stage
If parliament votes to send the bill to the next stage, the bill is committed to a committee of the
whole house. The speaker moves from his chair and the deputy speaker, or a member of the
chairperson’s panel presides over the discussion seated at the clerk’s table. The mace is removed
from the table and parliament stands constituted as a committee of the whole house. The clauses
of the bill are called out sequentially and any proposals or amendment voted on clause by clause.
d) Report Stage
Once the committee of the whole house has completed its task, a vote is taken on the bill. A
member may request that the bill be recommitted to the committee of the whole house to debate
certain clauses again. If there is no further debate , the speaker resumes his seat and parliament
reconstitutes itself as such. The report of the committee of the whole house is then presented to the
house or a vote. No further amendments may be taken after the report of the committee of the
whole house. A member may however move house to defer the third reading by six months.
e) Third Reading
This is the final stage. No further substantive amendments are allowed . The only amendments
permitted are drafting amendments and renumbering of clauses. However, members are free to
debate any aspect of the bill. At the conclusion of the debate, the speaker calls on the proposer to
respond. Thereafter the speaker puts the question to the house and a final vote on the bill is taken
f) Assent
I the Bill is passed; the speaker refers the Bill to the president for assent. The president may;
• Assent to the Bill
• Refer the Bill back to parliament with a memorandum indicating any reservations and
proposals or amendments
The president must either assent or refer the Bill back to parliament within fourteen days. In default
the bill automatically becomes law.

34
g) Referral
If the bill is referred, parliament may accept the president’s reservations, or override the
reservations with a 2/3rds majority and send the bill back to the president for assent. The president
must assent to the bill within fourteen days failing which, the bill automatically becomes law.
17. Bills Concerning County Governments
Section 110 of the CoK 2010 defines a bill concerning county governments as (a) a Bill containing
provisions affecting the functions and powers of the county governments set out in the Fourth
Schedule;(b) a Bill relating to the election of members of a county assembly or a county executive;
and(c) a Bill referred to in Chapter Twelve affecting the finances of county governments.
There is no clear constitutional distinction between a bill which affects counties and one that does
not. The Constitution defines a bill concerning county governments as one which affects the
powers of county governments which are listed under the Fourth Schedule to the constitution. This
is not a very helpful definition. A bill concerning counties also includes one that relates to the
election of the county executive or legislature, or a bill that affects the finances of county
governments
The constitution requires the two speakers to resolve the question of whether a bill affects counties
or not before it is introduced to either chamber. This lack of clarity has in some cases led to
attempts to exclude the Senate and subsequent conflict between the two chambers
Bills concerning counties are divided into two further categories: ordinary and special bills
concerning counties. Special bills require a special majority vote (two-thirds) of the National
Assembly to veto the decision of the Senate to pass the bill into law. Ordinary bills, on the other
hand, only require a simple majority to be overturned by either House. Special bills concerning
counties include bills relating to the election of members of a county assembly or the county
executive, or the annual County Allocation of Revenue Bill (CARB) which divides national
revenue allocated to counties amongst the forty-seven counties. In these two bills, the National
Assembly can only veto the Senate decision after garnering two-thirds of the vote.
Emerging practice shows that the executive is ready to side-step the Senate and deal exclusively
with the National Assembly. In some cases discussed later, the desire to avoid the Senate has
resulted in the Senate’s unconstitutional exclusion from legislative business (engineered by the
executive and the National Assembly).22 This is primarily because the ruling coalition (Jubilee

35
Alliance) that won the March 2013 election has majorities in both Houses, and support for its
agenda is guaranteed more in the National Assembly than the Senate for a number of reasons.
The ratio of members from the ruling coalition to that of the opposition coalition is far greater in
the National Assembly than Senate
In the March general election, parties affiliated to the ruling coalition secured 162 seats of the 349
seats while parties from the second largest political coalition (Coalition for Reform and Democracy
(CORD)) secured 138 seats. Amani Coalition, the third coalition, secured fourteen seats while the
rest of the seats (nine) were shared between individual parties and an independent candidate.23 In
the Senate, the ruling coalition narrowly clinched the majority with twenty-one elected senators
against CORD’s twenty elected senators. The other six seats were taken by the smaller coalitions
and parties
Representation in the National Assembly is mostly based on population criteria and this ensured
high numbers of members for the ruling coalition whose support base was mainly in highly
populated regions of the country. Elected seats of the Senate, on the other hand, are based on the
forty-seven counties. The executive is therefore more likely to side with the National Assembly
where it is stronger in numbers than the Senate
Bicameralism complicates legislative business as the executive has to work out strategies of
ensuring its agenda goes through the two chambers. The additional task of passing through the
Senate after the National Assembly is an inconvenience that the Executive may wish to avoid.
Furthermore, the nature of mandate of the Senate (safeguarding county autonomy) requires
measures such as pushing for the transfer of more powers and resources to counties from the center
and the executive may not be entirely comfortable with such an agenda
Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Const. Appl. No. 2 of
2011 [para.40]:
“We consider that the expression ‘any matters touching on county government’ should be so
interpreted as to incorporate any national-level process bearing a significant impact on the conduct
of county government.”
Followed in In the Matter of the Speaker of the Senate & another [2013] eKLR, Advisory
Reference No 2 of 2013 para 197
In the Matter of the Speaker of the Senate & another [2013] eKLR, Advisory Reference No 2 of
2013 para 32

36
Now in the case of the Division of Revenue Bill (now an Act), it makes provision for the division
of revenue that is nationally collected, and for its sharing between the two levels of government.
It certainly has a significant impact on the county governments. We hold, in the circumstances,
that the Reference herein properly falls under Article 163(6) of the Constitution, as a “matter that
concerns county governments.”
Council of Governors & 47 others v Attorney General & 3 others (Interested Parties); Katiba
Institute & 2 others (Amicus Curiae) [2020] eKLR
In the event of an Impasse over the Division of Revenue Bill, the solution prescribed in paragraphs
81 to 91 of this Opinion shall apply; The Supreme Court or any other court for that matter, is not
the appropriate forum for setting timelines as to when the National Treasury must transfer the
equitable share of revenue to counties; and Parliament cannot enact the Appropriation Act before
the enactment of the Division of Revenue Act.
18. Special Bill Concerning County Governments.
According to Article 110, a bill concerning county governments is a ‘special bill concerning
county governments’ if the bill- (i) relates to the election of members of a county assembly or a
county executive; or (ii) is the annual County Allocation of Revenue Bill mentioned in Article
218; In all other cases a bill concerning county governments is an ‘ordinary bill concerning
county governments’8
19. Processing of Bills Concerning County Governments
Before a bill can be considered in either house , the Speakers of the National Assembly and the
senate must collaboratively determine if the Bill is bill concerning county governments and, if so,
whether it is a special or an ordinary Bill Concerning County Governments. Upon passage of a
Bill concerning county government by one house of parliament, the speaker of that house shall
forward it to the speaker of the other house. If both houses approve the bill in identical form, the
speaker of the originating house shall promptly refer the Bill to the president for assent within
seven days.
20. Procedure on ‘Special Bill Concerning County Governments.’
A Special Bill Concerning County Governments shall proceed in the same manner as an ordinary
bill concerning county government, subject to clauses (2) and (3).9 The National Assembly may

8
Article 110 CoK 2010
9
Article 111. (1)

37
amend or veto a special Bill that has been passed by the Senate only by a resolution supported by
at least two-thirds of the members of the Assembly. If a resolution in the National Assembly to
amend or veto a special Bill fails to pass, the Speaker of the Assembly shall, within seven days,
refer the Bill, in the form adopted by the Senate, to the President for assent.
21. Mediation
Article 113 of the Constitution of Kenya establishes a mechanism for resolving disputes between
the National Assembly and the Senate. If the two houses fail to agree on a particular bill, they may
attempt to resolve the dispute through mediation. If mediation fails, the President may summon a
joint sitting of Parliament to resolve the matter.
If one House passes an ordinary Bill concerning counties, and the second House–– (a) rejects the
Bill, it shall be referred to a mediation committee appointed under Article 113; or (b) passes the
Bill in an amended form, it shall be referred back to the originating House for reconsideration.10
If, after the originating House has reconsidered a Bill referred back to it under clause (1) (b), that
House–– (a) passes the Bill as amended, the Speaker of that House shall refer the Bill to the
President within seven days for assent; or (b) rejects the Bill as amended, the Bill shall be referred
to a mediation committee under Article 113.11 If a Bill is referred to a mediation committee under
Article 112, the Speakers of both Houses shall appoint a mediation committee consisting of equal
numbers of members of each House to attempt to develop a version of the Bill that both Houses
will pass.12 If the mediation committee agrees on a version of the Bill, each House shall vote to
approve or reject that version of the Bill.13 If both Houses approve the version of the Bill proposed
by the mediation committee, the Speaker of the National Assembly shall refer the Bill to the
President within seven days for assent.14 If the mediation committee fails to agree on a version of
the Bill within thirty days, or if a version proposed by the committee is rejected by either House,
the Bill is defeated.15
While formal mediation may not have been used frequently, informal negotiations and discussions
between the leadership of the two houses are common in parliamentary practice. These informal
processes often aim to find consensus and resolve disputes without the need for formal mediation.

10
Article 112. (1)
11
Article 112(2)
12
Article 113
13
Article 113(2)
14
Article 113(3)
15
Article 113(4)

38
In Reference No 3 of 2019 ([Link]
of-2019-issued-by-the-supreme-court/) the Supreme Court of Kenya referred back to parliament
a dispute about the Division of Revenue Bill 2019 to be resolved by way of [Link] court
also had to consider what happens when the National Assembly and the Senate fail to agree on a
Division of Revenue Bill, thereby triggering an impasse
The first Division of Revenue Bill passed by the National Assembly in March 2019 was rejected
by the Senate, leading to an impasse. Despite mediation efforts mandated by Article 113 of the
Constitution, no agreement was reached between the two houses, prolonging the deadlock until
July 2019. Both the National Assembly and the Senate republished their versions of the bill, but
disagreement persisted, necessitating a second mediation process at the request of the court. The
impasse lasted until September 2019 when the two houses finally agreed on a mediated version of
the bill, which was eventually passed into law. The prolonged stalemate had serious consequences,
including delayed funds disbursement to counties and disruptions to their budgetary and program
implementation cycles, with lingering effects on the financial system of county governments. The
resolution of the impasse avoided potentially more severe consequences had the deadlock
persisted.
The court took the position that should an impasse occur due to the failure of the mediation process,
occasioned by the lack of concurrence between the two Houses over the Division of Revenue Bill,
the National Assembly shall, for the purpose of meeting the expenditure necessary to carry on the
services of the County Government during that year until such time as the Division of Revenue
Act is assented to authorize the withdrawal of money from the Consolidated Fund under Article
222. The percentage of the money to be withdrawn is based on the equitable allocation to Counties
in the Division of Revenue Act of the preceding financial year. In keeping with the spirit of
Article 222 (2) (b) of the Constitution, the money to be withdrawn shall be 50% of the total
equitable share allocated to the Counties in the Division of Revenue Act
22. Further Reading
(See the following publications from parliament uploaded to ODEL but also accessible on my
google drive folder at
[Link]
1. How Parliament Works
2. The Clerk of the National Assembly

39
 3. Role of the Public in the Budget Process
4. How Law is Made
5. Public Participation in the Legislative Process
6. The Mediation Process in Law Making
7. The Budget Process ([Link]
hUGHavwyTaApPjNX49yTQuffE)
Cases Available at KLR and ODEL
Supremacy Wars
8. Speaker of the National Assembly & another v Senate & 12 others (Civil Appeal E084 of
2021) [2021] KECA 282 (KLR) (19 November 2021) The 'concurrence decision' Court of
Appeal
9. Reference 3 of 2019 Council of Governors & 47 others v Attorney General & 3 others
(Interested Parties); Katiba Institute & 2 others (Amicus Curiae) [2020] eKLR
10. Advisory Opinion Reference 2 of 2013 In the Matter of the Speaker of the Senate & another
[2013] eKLR
Parliamentary Sovereignty vs Supremacy of the Constitution
1. James Opiyo Wandayi v Kenya National Assembly & 2 others [2016] eKLR
2. Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR
Public Participation
1. British American Tobacco Kenya, PLC (Formerly British American Tobacco Kenya
Limited) vs. Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco
Control Alliance and Another (Interested Parties); Mastermind Tobacco Kenya Limited
(the affected party), SC
2. Petition No. E031 of 2024 as Consolidated With Petition NOS. E032 & E033 OF 2024 The
Cabinet Secretary For The National Treasury And Planning & 4 ors vs Okiya Omtatah
Okoiti & 53 ors Petition No. 5 of 2017; [2019] eKLR (BAT Case),
3. County Government of Kiambu & another v Senate & others [2017] eKLR

40
The Budget Process
1. Petition No. E031 of 2024 as Consolidated With Petition Nos. E032 & E033 of 2024 The
Cabinet Secretary For The National Treasury And Planning & 4 ors vs Okiya Omtatah
Okoiti & 53 ors Petition No. 5 of 2017; [2019] eKLR (BAT Case),
2. Reference 3 of 2019 Council of Governors & 47 others v Attorney General & 3 others
(Interested Parties); Katiba Institute & 2 others (Amicus Curiae) [2020] eKLR
3. Advisory Opinion Reference 2 of 2013 In the Matter of the Speaker of the Senate & another
[2013] eKLR
4. Jayne Mati & another v Attorney General & another [2011] eKLR

41
CUEA CLS 122
Topic 5: The
Judiciary

CHARLES B G OUMA
LLB MLB
 Definition of terms and concepts.

The place of the judiciary in the context of the

doctrine of separation of powers.

Separateness and independence of the

Topic Content judiciary.

Judicial accountability.

The vetting of judges under the CoK 2010 as a

model of individual accountability of judges

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Reading
• Hon. Mr. Justice (DcD)
J. E. Gicheru, E.G.H
Independence of the
Judiciary:
Accountability and
Contempt of
Court(Handout)

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 1. The Bangalore Principles of
Judicial Conduct
2. Beijing Statement of Principles
of the Independence of the
Judiciary in the LawAsia Region
3. Commonwealth (Latimer
House) Principles on the
Reading Accountability of and the
Relationship between the Three
Branches of Government ("the
Principles").
4. Latimer House Guidelines on
Parliamentary Supremacy and
Judicial Independence

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 ❑ Separation of powers and
Judicial Review
1. Madbury vs Madison 5 U.S. (1
Cranch) 137 (1803)
❑ Vesting of Judicial Power
1. Attorney General v Law Society
of Kenya & another [2017] eKLR
Cases Civil Appeal No. 133 OF 2011
❑ Jurisdiction
1. Law Society of Kenya Nairobi
Branch v Malindi Law Society & 6
others [2017] eKLR Civil Appeal
No. 287 OF 2016(Jurisdiction)

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 ❑ Accountability and Independence
1. Judicial Service Commission v Speaker of
the National Assembly & 8 others [2014]
eKLR NRB HC Petition No. 518 of 2013
2. In the Matter of the National Land
Commission [2015] eKLR SCt. Advisory
Opinion Reference No. 2 of 2014
3. Immunity
4. Hon Philomena Mbete Mwilu vs Director
Cases of Public Prosecutions & 3 others; Stanley
Muluvi Kiima (Interested Party);
International Commission of Jurists Kenya
Chapter (Amicus)NRB HC Petition No. 285
of 2018 [2019] eKLR
5. Edgar Kagoni Matsigulu & 4 others v
Director of Public Prosecutions &
another; Law Society of Kenya & another
(Interested Parties) MSA HC Petition No.
144 of 2019 [2019] eKLR

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 What is Judicial
Power?
• According to Montesquieu
Judicial power is the power by
which the prince interprets the
law and adjudicates disputes
• The judiciary does not have the
power to enforce the law( an
executive function ) or to make
the law( a legislative function)

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 The Vesting of Judicial
Power
• The general position in common
law is that the primary
responsibility to interpret the law
authoritatively is with the Judiciary
( Madbury vs. Madison)
• In some socialist countries, the
responsibility for interpreting the
law authoritatively is with the
legislature

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The Vesting of Judicial Power

CoK 2010
Specifically delegated to
the Judiciary (Art 1) and
Judicial power is
specifically vested
therein (Art. 159)

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 The Vesting of Judicial
Power
• The question arises whether judicial
powers can be vested in institutions
other than the courts
• In Attorney General v Law Society of
Kenya & another [2017] eKLR Civil
Appeal No. 133 OF 2011, the Court
of Appeal answered the question in
the affirmative and found nothing
unconstitutional about the vesting
of judicial functions in institutions
other than the courts.

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 The Vesting of Judicial
Power
• In Attorney General v Law Society of
Kenya & another [2017] eKLR Civil
Appeal No. 133 OF 2011,
• The question before the court was
the constitutionality of various
provisions of the Work Injury
Benefits Act 2007 which divested
the jurisdiction on claims under the
WIBA from the courts and
confedered jurisdiction on the
Director of Employment.

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 The Vesting of Judicial Power
• In Attorney General v Law Society of
Kenya & another [2017] eKLR Civil
Appeal No. 133 OF 2011,
• ‘It is now well settled on the authority
of the Supreme Court in the decision of
Samuel Kamau Macharia & Another V.
Kenya Commercial Bank Limited & 2
others, S.C. Civil Application No. 2 of
2011, and in a long line of others, that a
court’s jurisdiction flows from either
the Constitution or legislation or both;
that it cannot arrogate to itself
jurisdiction exceeding that which is
conferred upon it by law; and that
jurisdiction goes to the very heart of
the dispute and that it is equally
accepted that;
• “…….where there is a clear procedure
for the redress of any particular
grievance prescribed by the
Constitution or an Act of Parliament,
that procedure should be strictly
followed”

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 The Vesting of Judicial Power
• In Attorney General v Law Society of
Kenya & another [2017] eKLR Civil
Appeal No. 133 OF 2011,
• The jurisdiction donated to the Director
is therefore not unique. In our view, it is
lawful. The quarrel with section 23,
according to the learned Judge is that it
grants to the Director an unlimited
judicial powers in “making inquiries” in
relation to a work-related accident, and
in making awards; that after receiving
the complaint he alone is required to
proceed to determine the question, and
to resolve the claim on liability; that
since personal injury and death in the
workplace is, by nature so litigious, such
a claim ought to go through a judicial
process. For the same reasons we have
given above in respect of section 16, we
do not find anything in this section that
is inconsistent with the Constitution.
The powers of the Director are
donated by statute and are legitimate

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 The Vesting of Judicial Power
• Neither is the interpretation of the
law the exclusive mandate of the
judiciary. Article 10 contemplates
the interpretation of the
constitution by other arms of
government and state organs.
• However, the courts have the final
word on the determination of what
the law is.( Mumo Matemu v Trusted
Society of Human Rights Alliance & 5
Others, Civil Appeal No. 290 of 2012
• Marbury v. Madison (1803-It is
emphatically the duty of the Judicial
Department to say what the law is.
Those who apply the rule to particular
cases must, of necessity, expound and
interpret the rule. If two laws conflict
with each other, the Court must decide
on the operation of each.

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 The Vesting of Judicial Power
• Mumo Matemu v Trusted Society of
Human Rights Alliance & 5 Others, Civil
Appeal No. 290 of 2012
• We therefore agree with the High
Court's dicta in the petition the subject
of this appeal that: Separation of
powers must mean that the Courts
must show deference to the
independence of the Legislature as an
important institution in the
maintenance of our constitution
democracy as well as accord the
executive sufficient latitude to
implement legislative intent. Yet as the
Respondents concede, the Courts have
an interpretive role, including the last
word in determining the
Constitutionality of all Governmental
actions.”(emphasis added)

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 In common law countries the
judiciary has the primary
responsibility to authoritatively
interpret the constitution

The authority of the courts is also

Functions of the referred to as ‘jurisdiction’ and is
usually conferred by statute save
Judiciary in the case of inherent jurisdiction

In so doing it also reviews

legislative and executive acts for
their constitutionality

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 • The power to interpret the
law and the power of judicial
review frequently resembles
an exercise of law making
power
• In civil law systems any
Functions of the resemblance of law in
Judiciary judicial functions is frowned
upon
• That is why civil law
jurisdictions resist the
adoption of the doctrine of
precedent and stare decisis

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 • Article 10 presupposes that the
executive, the legislature, the
judiciary, constitutional
commissions or independent
constitutional office holders
will be involved in interpreting
the constitution
Functions of the • But Article 165 gives the courts
the last word in determining
Judiciary the meaning of the
constitution.
• (3) Subject to clause (5), the
High Court shall have— d)
jurisdiction to hear any
question respecting the
interpretation of this
Constitution…’

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 • “We therefore agree with the
High Court's dicta in the
Functions of the petition the subject of this
Judiciary appeal that: Separation of
powers must mean that the
Mumo Matemu v Courts must show deference to
the independence of the
Trusted Society of Legislature as an important
institution in the maintenance
Human Rights of our constitution democracy
Alliance & 5 as well as accord the executive
sufficient latitude to
Others, Civil implement legislative intent.
Yet as the Respondents
Appeal No. 290 of concede, the Courts have an
interpretive role, including the
2012 last word in determining the
Constitutionality of all
Governmental
actions.”(emphasis added)

05/04/2023 CHARLES B G OUMA LLB MLB 19

The Place of the Judiciary in the
Doctrine of Separation of Powers
• In western constitutionalism the
doctrine of separation of powers
assumes there are three categories
of public power;
1. Legislative
2. Executive
3. Judicial
• “When the legislative and Executive
powers are united in the same
person, or in the same body of
magistrates, there can be no liberty-
there is no liberty if the power of
judging is not separated from the
legislative and Executive-there
would be an end to everything, if the
same man or the same body were to
exercise those three powers.” The
Spirit of the Laws (1948)

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The Place of the Judiciary in
the Doctrine of Separation
of Powers
• Historically the courts have been
regarded as the vanguard for the
protection of fundamental rights
and liberties and the only institution
that can guarantee the impartial
and deliberative determination of
conflicts or disputes
• Alexander Hamilton argued that
whoever considers the different
departments of power must
perceive that the judiciary from the
nature of its function will always be
the least dangerous to the rights of
the individual as enshrined in the
constitution

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The Place of the Judiciary in the
Doctrine of Separation of Powers:
Lessons from the Federalist Papers

• The Federalist Papers were a

series of eighty-five essays
written by James Madison,
Alexander Hamilton, and John
Jay under a pseudonym. The
essays were written between
October 1787 and August
1788, and were intended
drum up support for the draft
US Constitution proposed by
the Philadelphia Convention
on the proposed constitution.

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 The Place of the Judiciary in the Doctrine of Separation of
Powers: Lessons from the Federalist Papers
• Whoever attentively considers the different departments of power must
perceive, that, in a government in which they are separated from each other,
the judiciary, from the nature of its functions, will always be the least
dangerous to the political rights of the Constitution; because it will be least
in a capacity to annoy or injure them. The Executive not only dispenses the
honors, but holds the sword of the community. The legislature not only
commands the purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated. The judiciary, on the contrary, has
no influence over either the sword or the purse; no direction either of the
strength or of the wealth of the society; and can take no active resolution
whatever. It may truly be said to have neither FORCE nor WILL, but merely
judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments.
• [Link]

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The Place of the Judiciary in the Doctrine of Separation of Powers:
Lessons from the Federalist Papers

• This simple view of the matter suggests several important

consequences. It proves incontestably, that the judiciary is
beyond comparison the weakest of the three departments of
power; that it can never attack with success either of the other
two; and that all possible care is requisite to enable it to defend
itself against their attacks. It equally proves, that though
individual oppression may now and then proceed from the
courts of justice, the general liberty of the people can never be
endangered from that quarter; I mean so long as the judiciary
remains truly distinct from both the legislature and the
Executive. For I agree, that "there is no liberty, if the power of
judging be not separated from the legislative and executive
powers.''
• [Link]

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 The Place of the Judiciary in the Doctrine of Separation of
Powers: Lessons from the Federalist Papers

• And it proves, in the last place, that as liberty can have nothing to
fear from the judiciary alone, but would have every thing to fear
from its union with either of the other departments; that as all the
effects of such a union must ensue from a dependence of the former
on the latter, notwithstanding a nominal and apparent separation;
that as, from the natural feebleness of the judiciary, it is in continual
jeopardy of being overpowered, awed, or influenced by its co-
ordinate branches; and that as nothing can contribute so much to its
firmness and independence as permanency in office, this quality
may therefore be justly regarded as an indispensable ingredient in
its constitution, and, in a great measure, as the citadel of the public
justice and the public security.
• [Link]

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 Separateness and Independence of the Judiciary

• In order to discharge its heavy responsibility, it is

essential that the Judiciary
❑ Be independent , and
❑ Be seen to be independent.(Perception of
Independence)
• Independence of the executive and legislative arms of
government is central to the notion but it is no longer
the only independence that is relevant.
• Independence must be predicated of any influence
that might tend, or be thought reasonably to tend, to
a want of impartiality in decision-making.

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 • ‘Justice is administered by
human institutions; they can
be fallible, but they should
never be perverse. Being
human institutions, continual
Separateness vigilance is needed to ensure
that they are isolated from
and impermissible influences and
strengthened by the pressure
Independence of a peer group devoted to
of the impeccable standards of
independence’.
Judiciary • Per The Hon Sir Gerard
Brennan, AC KBE
[Link]
eeches/brennanj/brennanj_aj
[Link]

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Separateness and Independence of the Judiciary

• Judicial independence is the priceless possession of any country

under the rule of law. The public are entitled to insist on its
observance by the judges and on its protection by the
Parliament and the Executive.
• But in the ultimate, judicial independence rests on the caliber
and the character of the judges themselves. Judicial
independence is not a quality that is picked up with the judicial
gown or conferred by the judicial commission.
• It is a cast of mind that is a feature of personal character honed,
however, by exposure to those judicial officers and professional
colleagues who possess that quality and, on fortunately rare
occasions, by reaction against some instance where
independence has been compromised.
• Per The Hon Sir Gerard Brennan supra

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Separateness and Independence of the Judiciary

• ‘Perhaps the independence that is most difficult for a judge to achieve

is independence from those influences which unconsciously affect
our attitudes to particular classes of people.
• Attitudes based on race, religion, ideology, gender or lifestyle that are
irrelevant to the case in hand may unconsciously influence a judge who
does not consciously address the possibility of prejudice and
extirpate the gremlins of impermissible discrimination.
• Such gremlins are not extirpated by mere declaration. Indeed, too
vocal a judicial protest of impartiality may bespeak an overreaction to
prejudice in one direction by forming a prejudice in the other. Or it
may indicate a failure to employ that worldly wisdom which
permissibly takes account of differences that are relevant for some
purposes but irrelevant for others.
• Per The Hon Sir Gerard Brennan ibid

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Separateness and
independence of the judiciary

• The appearance of independence

is as important as it’s reality
• Real and apparent independence
helps to build the confidence of
the litigants in the justice system
• The open-ended texture of
modern statutes makes this
independence all the more
necessary as in interpreting such
legislation judges effectively make
law
• The public confidence would be
seriously eroded if improper
influences personal prejudices are
reflected in judicial decisions
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 Separateness and Independence of the
Judiciary: Pillars of Independence
• The twin constitutional pillars of judicial independence are
1. Security of tenure see sections articles 160 167 168 CoK 2010
2. Conditions of service that the Executive cannot touch See Art 160 166 CoK
2010
• According to Brennan ‘ if either of these pillars is eroded, in time
society will pay an awful price’
• The two pillars are buttressed by
3. The power to punish for contempt (Section 8 Judicature Act )
4. Immunity from civil and criminal proceedings for acts done or purported to
be done in the course of judicial proceedings(Section 6 Judicature Act )
5. Financial autonomy for the judiciary (Article 173 CoK 2010)

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Jurisprudence on
Independence
• In the Matter of the National
Land Commission Advisory
Opinion Reference No. 2 of
2014 [2015] eKLR
• The Supreme court discusses
the concept of independence of
constitutional commissions. The
principles are analogous to the
independence of the judiciary
1. Functional independence
2. Operational /Administrative
independence
3. Financial independence
4. Perception independence
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Jurisprudence on Independence

• In the Matter of the National Land Commission Advisory Opinion

Reference No. 2 of 2014 [2015] eKLR
• [158]According to the CKRC Report (page 79), the reason for the
formation of the current set of commissions was to introduce the
element of independence from the influence of other arms of
Government.
• [161] The foregoing provision establishes two broad principles. Firstly, it
asserts the duty of the commissions and independent offices to protect
the sovereignty of the people, ensure that all State organs adhere to and
observe the democratic values and principles, and promote
constitutionality-three of the key pillars of the Constitution. Secondly,
the Constitution ordains that the commissions, and the holders of
independent offices, are subject only to the Constitution and the law,
and are independent, and not subject to the direction or control by any
person or authority. This is the pivotal provision guaranteeing
independent status to the commissions and independent offices.

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Jurisprudence on Independence

• In the Matter of the Interim Independent Electoral Commission

Sup. Ct. Application No. 2 of 2011; [2011] eKLR [In Re IIEC].
• “While bearing in mind that the various Commissions and
independent offices are required to function free of subjection
to ‘direction or control by any person or authority’, we hold
that this expression is to be accorded its ordinary and natural
meaning; and it means that the Commissions and independent
offices, in carrying out their functions, are not to take orders or
instructions from organs or persons outside their ambit. ...For
due operation in the matrix, ‘independence’ does not mean
‘detachment’, ‘isolation’ or ‘disengagement’ from other
players in public governance.

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Jurisprudence on Independence

• In the Matter of the Interim Independent Electoral Commission Sup. Ct.

Application No. 2 of 2011; [2011] eKLR [In Re IIEC].
• Indeed, for practical purposes, an independent Commission will often
find it necessary to co-ordinate and harmonize its activities with
those of other institutions of Government, or other Commissions, so
as to maximize results, in the public interest. Constant consultation
and co-ordination with other organs of Government, and with civil
society as may be necessary, will ensure a seamless, and an efficient
and effective rendering of service to the people in whose name the
Constitution has instituted the safeguards in question. The moral of
this recognition is that Commissions and independent offices are
not to plead ‘independence’ as an end in itself; for public
governance tasks are apt to be severely strained by possible
‘clashes of independences.”

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Separateness and Independence of the
Judiciary
• Communications Commission of Kenya and 5 Others v. Royal
Media Services and 5 Others, Sup. Ct. Petition Nos. 14,14A,
14B and 14C of 2014; [2014] eKLR [CCK],
• “‘Independence’ is a shield against influence or interference
from external forces. In this case, such forces are the
Government, political interests, and commercial interests.
The body in question must be seen to be carrying out its
functions free of orders, instructions, or any other intrusions
from those forces. However, such a body cannot disengage
from other players in public governance. Para 169 and 170

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 • In the Matter of the National Land
Commission Advisory Opinion
Reference No. 2 of 2014 [2015] eKLR,
the SCORK reviewed the jurisprudence
on independence ( In Re IIEC (SCORK)
and the CCK case (SCORK), JSC v.
Speaker of the National Assembly(HC)
Jurisprudence and Others, and Independent Policing
Oversight Authority & Another(HC) and
on identified the following aspects of
‘independence’
Independence 1. Functional /administrative
independence
2. Operational independence (includes
functional independence)
3. Financial independence
4. Perception of Independence
5. Collaboration and consultation.

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 • In the Matter of the National Land
Commission Advisory Opinion
Reference No. 2 of 2014 [2015]
eKLR,
• Functional /administrative
independence
Jurisprudence • This entails commissions exercising
on their autonomy through carrying out
their functions, without receiving
Independence any instructions or orders from other
State organs or bodies. This has also
been referred to as administrative
independence. Functional
independence is in line with the
general functions and powers of
commissions, as provided under
Articles 252 and 253 of the
Constitution.
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 • In the Matter of the National
Land Commission Advisory
Opinion Reference No. 2 of
2014 [2015] eKLR,
• Operational Independence:
Jurisprudence this includes functional
on independence, and is a
safeguard or shield for
Independence independence, manifested
through the procedure of
the appointments of
commissioners; composition
of the commission; and
procedures of the
commission.

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 • In the Matter of the National
Land Commission Advisory
Opinion Reference No. 2 of
2014 [2015] eKLR,
• Financial independence: it
Jurisprudence means that a commission
on has the autonomy to access
funds which it reasonably
Independence requires for the conduct of
its functions. However,
according to Article 249(3) of
the Constitution, Parliament
is mandated to set for the
commission the budget
considered adequate for its
functions..

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 • In the Matter of the National
Land Commission Advisory
Opinion Reference No. 2 of
2014 [2015] eKLR,
• Perception of independence:
Jurisprudence this means the commissions
must be seen to be carrying
on out their functions free from
external interferences. In CCK
Independence and Independent Policing
Oversight Authority & Another,
this Court, and the High Court
respectively held that the
perception of independence is
crucial in showing proof of
independence..

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 • In the Matter of the National
Land Commission Advisory
Opinion Reference No. 2 of
2014 [2015] eKLR,
Jurisprudence • Collaboration and consultation
with other State organs:
on • it emerges from precedent,
Independence that independence of
commissions and independent
offices does not, perforce,
entail a splendid isolation from
other State organs

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Jurisprudence on Independence
• Communications Commission of Kenya and 5 Others v. Royal Media
Services and 5 Others, Sup. Ct. Petition Nos. 14,14A, 14B and 14C of
2014; [2014] eKLR [CCK],
• “How is the shield of independence to be attained?" In a number of
ways. The main safeguard is the Constitution and the law. Once the law,
more so the Constitution, decrees that such a body shall operate
independently, then any attempt by other forces to interfere must be
resisted on the basis of what the law says. Operationally however, it may
be necessary to put other safeguards in place, in order to attain
‘independence’ in reality. Such safeguards could range from the manner
in which members of the said body are appointed, to the operational
procedures of the body, and even the composition of the body.
However, none of these ‘other safeguards can singly guarantee
‘independence’. It takes a combination of these, and the fortitude of
the men and women who occupy office in the said body, to attain
independence. ”

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Jurisprudence on
Independence
• Judicial Service Commission v.
Speaker of the National Assembly
& 8 Others, Petition No. 518 of
2013; [2014] eKLR para 213
• “Like other constitutional
commissions and independent
offices, the JSC must however
operate within the confines of
the Constitution and the law.
While enjoying financial and
administrative independence,
the JSC is accountable to
Parliament. The JSC is also a
partner to Parliament in
supporting constitutional
democracy.”
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Jurisprudence on
Independence
• In the Matter of the Interim
Independent Electoral Commission
Sup. Ct. Application No. 2 of 2011;
[2011] eKLR [In Re IIEC].
• “In dealing with the independence
of the Commission, it is necessary to
make a distinction between two
factors, both of which, in my view,
are relevant to ‘independence’. The
first is ‘financial independence’. This
implies the ability to have access to
funds reasonably required to enable
the Commission to discharge the
functions it is obliged to perform
under the Constitution and the
Electoral Commission Act. This does
not mean that it can set its own
budget. Parliament does that.
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 Jurisprudence on
Independence
• In the Matter of the Interim
Independent Electoral Commission Sup.
Ct. Application No. 2 of 2011; [2011]
eKLR [In Re IIEC].
• . What it does mean, however, is that
Parliament must consider what is
reasonably required by the Commission
and deal with requests for funding
rationally, in the light of other National
interests. It is for Parliament, and not the
Executive arm of Government, to provide
for funding reasonably sufficient to
enable the Commission to carry out its
constitutional mandate. The Commission
must accordingly be afforded an
adequate opportunity to defend its
budgetary requirements before
Parliament or its relevant committees.
Para 98 and 99
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Jurisprudence on Independence
• Independent Policing Oversight
Authority & Another v. Attorney
General & 660 Others, Petition No.
390 of 2014; [2014] eKLR
• “The second factor, ‘administrative
independence’, implies that there
will be control over those matters
directly connected with the
functions which the Commission has
to perform under the Constitution
and the Act. The Executive must
provide the assistance that the
Commission requires ‘to ensure [its]
independence, impartiality, dignity
and effectiveness’. The department
cannot tell the Commission how to
conduct registration, whom to
employ, and so on; Para 98 and 99

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Jurisprudence on Independence
• Independent Policing
Oversight Authority & Another
v. Attorney General & 660
Others, Petition No. 390 of
2014; [2014] eKLR
• “It is important that the NPSC
should not be seen to have
been directed and/or
controlled by any person or
authority because that would
be a direct affront to the
independence granted to it by
Article 249 (2) (b) of the
Constitution.”

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Separateness and Independence of the
Judiciary: Criticism
• The Westminster constitutional model sought to
completely shield the judiciary from politics. This was
probably unwise as it resulted in an elitist oligarchy that
was answerable to no one but itself
• Unlike the two other arms of government the judiciary
does not account to any institution nor do judges present
themselves for periodic elections where the citizens may
express their approval or otherwise of judicial decisions
• There is a case for both the executive and the legislature
to play some role as a check and balance on the Judiciary.
Modern constitutions, like the CoK 2010, have attempted
to design such a system of checks and balances through a
broad variety of mechanisms of accountability

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Separateness and
Independence of the
judiciary: Criticism
Some scholars have criticized the insulation of
judges from politics on the ground that it does
not factor in the politics of judicial decision
making

Some judicial decisions are political by nature or

may involve second guessing the acts of the
legislature and the executive

This second guessing of purely political acts

requires judicial self restraint but is probably best
controlled by factoring political realities into
judicial decision making

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Separateness and Independence of the judiciary:
Criticism
• Speaker of the Senate & another v. Attorney-General & 4 Others, Sup.
Ct. Advisory Opinion Reference 2 of 2013; [2013] eKLR
• “The system of checks and balances that prevents autocracy,
restrains institutional excesses and prevents abuse of power apply
equally to the Executive, the Legislature and the Judiciary. No one
arm of Government is infallible, and all are equally vulnerable to the
dangers of acting ultra vires the Constitution. Whereas the Executive
and the Legislature are regularly tempered and safeguarded through
the process of regular direct elections by the people, the discipline of
an appointed and unelected Judicial arm of Government is largely
self-regulatory. The parameters of encroachment on the powers of
other arms of Government must be therefore clearly delineated,
[their] limits acknowledged, and restraint fully exercised. It is only
through the practice of such cautionary measures, that the remotest
possibility of judicial tyranny can be avoided.” per Njoki Ndungu J SCt
Accountability of the
Judiciary
• Lately there has been a new
interest in the judiciary as an
institution and in the issue of the
accountability of judges and the
judiciary.
• In Kenya between 2008 and 2009
the judiciary had to contend with
pressure from the executive to
sign performance contracts
• In its presentation to the CoE on
constitutional reform, the
judiciary took the position that
performance contracts are
inconsistent with the
independence of the judiciary.

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Accountability of the
Judiciary
• Both individual judges and the
judiciary as a branch of the
state are already subject to
several forms of accountability
which are not incompatible
with their individual and
institutional independence.
• The question is what are the
necessary limits to judicial
accountability required to
protect that individual and
institutional independence.

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Accountability of the
Judiciary
1. What is meant by
“accountability”?
a) Accountability of individual
judges?
b) Accountability of the judiciary
as an institution?
2. To whom are individual judges
accountable?
3. To whom is the judiciary as an
institution accountable?
4. For what should individual
judges be accountable?
5. For what the judiciary as an
institution be accountable?

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 Accountability of the
Judiciary:Accountability
to who?

• There are two strands of

accountability
❑ Internal accountability
❑ External accountability

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 • Internal accountability to more
senior judges or courts by way of (a)
the system of appeals against judicial
decisions, and (b)Internal
procedures for dealing with
complaints about the conduct of
judges,
Accountability of • External accountability to the
executive branch of the state (all
the organs of state), and
Judiciary:Accounta • External accountability to the
bility to who? legislative branch of the state
(Parliament).
• External accountability to the public
by way of amenability to scrutiny in
particular by the media, but more
widely by civil society,

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Accountability of the
Judiciary:Account to Who?

• These forms of accountability

overlap.
• For instance, the appeal and
complaints processes provide both
internal accountability and
accountability to the public, and
the giving of evidence to legislative
committees provides direct
accountability to Parliament and
indirect accountability to the
public.

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 Sacrificial and explanatory
accountability
• Professor Vernon Bogdanor’s
distinguishes between “sacrificial”
and “explanatory” accountability.
• The former involves taking the
blame for what goes wrong, and
forfeiting one’s job if something
goes seriously wrong
• The latter involves giving an
account of stewardship, for
instance, in the case of ministers to
Parliament and to the electorate

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Accountability under
the CoK 2010
• Internal accountability through
an appellate and supervisory
system
• Through vetting under 6th Sch.
Art 23
• To parliament under Art 173 on
matters financial
• To the public through the JSC
under Art 168 (2) on the
discipline and removal of judges

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Accountability under
the CoK 2010
• Other forms of accountability
❑To the public through the
press and civil society
❑To the public and the legal
profession through law
reporting and public
hearings

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Accountability under
the CoK 2010
• In the Matter of the National Land
Commission [2015] eKLR
• [187] It was recorded in the Committee
of Experts Final Report (page 26) that
the Kenyan people had expressed lack of
faith in the formation of commissions,
because the reports of such
commissions had not been made public,
and had then been shelved, and not
implemented. [188] Such a record
signals that the public had wanted all
commissions to be accountable. Good
governance, integrity, accountability
and transparency are perceived as core
values in the functioning of public
institutions

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Accountability Under
the CoK 2010
• In the Matter of the National Land Commission
[2015] eKLR
• [189] The commissions and independent offices are
required to operate only subject to the Constitution
and the law. Article 249(3) establishes a mechanism
by which Parliament is to allocate adequate funds to
commissions, to enable them to perform their
functions. Article 254 sets up further mechanisms
for the guidance of commissions and independent
offices, in the discharge of their functions: as soon
as practicably possible, at the end of each financial
year, they are to submit a report to President and to
Parliament; at any time, the President, the National
Assembly or the Senate may require a commission
or holder of an independent office to submit a
report on a particular issue; and, every report
required to be submitted by the commissions and
independent bodies shall be published and
publicised. These Articles establish mechanisms of
checks and balances, directed towards the
workings of the Constitutional commissions, by
other State organs.

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 Accountability under
the CoK 2010
• In the Matter of the National Land
Commission [2015] eKLR
• [192] The broad principle of
“separation of powers”, certainly,
incorporates the scheme of “checks
and balances”; but the principle is not
to be applied in theoretical purity-for
its ultimate object is good governance,
which involves phases of co-operation
and collaboration, in a proper case.

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 Accountability under the CoK
2010:In Re IIEC

• “The essence of separation of powers, in this

context, is that the totality of governance-powers is
shared out among different organs of Government,
and that these organs play mutually-countervailing
roles. In this set-up, it is to be recognized that none
of the several governmental organs functions in
splendid isolation. These Commissions or
independent offices must, however, operate within
the terms of the Constitution and the law: the
‘independence clause’ does not accord them carte
blanche to act or conduct themselves on whim;
their independence is, by design, configured to the
execution of their mandate, and performance of
their functions as prescribed in the Constitution
and the law.”
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 Vetting the Judges
• Prior to 2010, and possibly even today,
there was a general perception that the
judiciary is corrupt and incompetent
• The problem in the judiciary has its roots
in the appointment process under the old
constitution and the political dispensation
under Moi’s Govt
• The judiciary has more than once indicted
itself through the Kwach and Ringera and
Ouko Reports

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 Vetting the Judges
• There was a feeling that the judiciary was
part and parcel of the oppressive system
that denied Kenyans their fundamental
rights and freedoms and its members
cannot be trusted to preside over the
implementation of the progressive bill of
rights under the new constitution
• Accordingly in the new constitutional
dispensation Judges were given the option
to retire or be vetted afresh

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 Vetting the Judges
• The judiciary resisted the vetting
process alleging that it infringed upon
the independence of the judiciary
• But proponents of accountability won
the battle
• The vetting process was an expression
of the tension between the twin
concepts of accountability and
independence of the judiciary

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THE END
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PARTICIPATING

QUESTIONS ? CHARLES B G OUMA

LLB MLB

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