Apex court upholds rejection of 3 laws passed without Senate input consent

The Supreme Court has affirmed the Court of Appeal’s orders outlawing three laws passed by the National Assembly without the Senate’s consensus.

Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko unanimously agreed that three laws—the Equalization Fund, the Saccos Societies Amendment Law, and the amendments to the Kenya Medical Supplies Authority Act—should have been passed by the Senate and were therefore, unconstitutionally enacted.

However, the top judges granted Parliament an 18-month grace period to amend the Sacco Societies (Amendment) Act, 2018, as the law impacted the core operations of savings societies.

According to the judges, the issue was with the procedure, not the substance of the law, and therefore, it did not have a significant impact on the affected parties.

“We also affirm the Court of Appeal’s finding that the Sacco Societies (Amendment) Act, 2018, No 16 of 2018, and the amendments to Sections 3 and 4 of the KEMSA Act by the Health Laws (Amendment) Act, No 5 of 2019, affected the functions and powers of counties and shouldhave been considered by the Senate. Therefore, they are unconstitutional,” the bench, led by Justice Koome, ruled.

At the same time, they determined that 20 other laws, including the Huduma Namba, Cybercrimes law, and National Government Constituency Development Fund (NGCDF), did not require consensus from the Upper House.

“They also agreed with the Court of Appeal’s ruling, which excludes the Senate from the consideration and enactment of money bills. According to the Supreme Court, the design of the Constitution aims to prevent a crisis if both Houses disagree on financial matters.”

“Recognizing the critical role of financial legislation in ensuring the smooth functioning of the state and the effective delivery of public services, many constitutions prescribe specific legislative procedures for money bills.”

“These provisions are designed to avoid conflicts between the two chambers of a bicameral parliament and to prevent prolonged deadlocks over financial matters that could hinder governance and economic stability,” they said.

The High Court invalidated all 23 laws but allowed the two Houses to consult and validate them before July 29, 2021.

After a spirited plea by National Assembly lawyers Paul Muite and Issa Mansur, Court of Appeal judges Agnes Murgor, Jessie Lesiit, and Pauline Nyamweya upheld 20 laws. However, they affirmed that three laws—the Equalization Fund, the Saccos Societies Amendment Law, and the amendments to the Kenya Medical Supplies Authority Act—were unconstitutional. 

According to the judges, the three laws also affected counties, and therefore, the National Assembly should have sought consensus from the Senate. Justices Murgor, Lesiit, and Nyamweya also agreed with High Court judges Jairus Ngaah, Anthony Ndung’u, and Teresiah Matheka that the National Assembly’s standing orders were unconstitutional, as members had deleted a clause requiring them to seek consensus on bills, particularly those affecting counties.

Regarding the 20 laws, the judges criticized the High Court, stating that it speculated on all the bills presented to the National Assembly, rather than focusing on those presented to the Senate.