Senate suffers fresh setback in turf war with National Assembly


The Supreme Court of Kenya. FILE PHOTO | LUCY WANJIRU | NMG

The Supreme Court has declined to review its ruling that allowed the National Assembly to exclude the Senate when making laws, which do not affect or concern counties pending the determination of an appeal.

The five-judge bench dismissed a request by the Senators to review its decision to turn down a proposal to suspend implementation of a Court of Appeal's judgement that allowed the exclusion of Senators by MPs.

The disputed judgment, which irked Senators, declared that not all Bills tabled at the National Assembly require to be referred to the Senate.

“It has not been demonstrated by the Senate that the disputed ruling was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its ruling on review under a mistaken belief that the parties had consented,” said the bench led by Deputy Chief Justice Philomena Mwilu.

The other judges are Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

The judges said what the Senate sought was for the apex court to exercise an authority that it lacks, “namely to review or re-litigate the question of stay, which has been settled by this court with finality”.

The ruling that the Senate wanted the top judges to review and set aside was delivered on June 3, 2022.

In that ruling, the top court stayed its earlier decision that had compelled MPs to involve Senators in the enactment of all laws, pending the determination of the appeal.

The Supreme Court said compelling the two houses to engage on all Bills will cripple the running of the government.

But while urging for review and setting aside of the ruling, the Senate said the Court of Appeal had erred in its decision.

“This court erred in its ruling by failing to consider the effect of the same on the legality of the Bills that the National Assembly has been given latitude to enact. The said ruling has given the National Assembly latitude to pass Bills without the concurrence between the two houses, an issue that is the subject of the main petition before this court,” said the Senate.

It added that some of the Bills the National Assembly seeks to pass without the requisite concurrence are clearly in contravention of the Constitution.

The case stems from the Court of Appeal’s judgment that the Bills which should be subjected to joint resolution and mandatory concurrence process of both Speakers are only those concerning counties.

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