County Government of Nairobi v Attorney General
The bottom line
#Supreme Court struck out Nairobi County's reference because it skipped the required step of seeking Attorney-General's advice.
What this practically means
#The County Government of Nairobi asked the Supreme Court to give an advisory opinion on devolution debts. The Court refused because the County did not first seek the Attorney General's advice, as required by court rules. The Court also noted that the County had instructed its lawyers to withdraw the case. The Supreme Court said it is not a legal adviser for state organs. Seeking the Attorney General's advice does not compromise independence.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the advisory opinion is premature for lack of the Attorney General’s advice
- 2.Whether this court should exercise its jurisdiction and render an advisory opinion
Key legal issues
#Whether a party must seek the Attorney-General's advice before moving the Supreme Court for an advisory opinion
Yes, as a matter of good practice anchored on rule 53 of the Supreme Court Rules, the opinion of the Attorney-General should be sought. The court may reject a reference if such advice has not been sought and the matter could be resolved by that advice.
The court examined rule 53(1)(c) of the Supreme Court Rules, which allows the court to reject a reference if the matter can be resolved by the Attorney-General's advice and such advice has not been sought. The court relied on its earlier decisions in Re IIEC and Re National Gender and Equality Commission, which established that seeking the Attorney-General's advice does not compromise a state organ's independence and is a matter of good practice. The court found no reason to derogate from this settled procedure.
Whether the court should exercise its discretion to render an advisory opinion where the applicant failed to seek the Attorney-General's advice and the proceedings lacked the applicant's authority
The court declined to exercise its discretion, upholding the preliminary objection and striking out the reference, because the applicant had not sought the Attorney-General's advice and the proceedings lacked the applicant's authority as demonstrated by a letter instructing withdrawal of the reference.
The court noted that the applicant had been directed on multiple occasions to seek the Attorney-General's advice but failed to comply without explanation. Additionally, the Attorney-General produced a letter from the applicant instructing its advocates to withdraw the reference, which the applicant did not controvert. The court found that the proceedings lacked the applicant's authority and that the issues raised could be resolved through the Attorney-General's advice or by competent courts. Consequently, the court invoked rule 53(1)(c) and declined jurisdiction.
Legal principles established
#- A state organ must seek the Attorney-General's advice before asking the Supreme Court for an advisory opinion.
- Seeking the Attorney-General's advice does not compromise a state organ's independence or give the Attorney-General veto power.
- The Supreme Court is not a legal adviser for state organs; its advisory opinion does not extend to offering legal advice.
- The Supreme Court may reject a reference if the Attorney-General's advice was not sought and the matter could be resolved by that advice.
- A party must demonstrate authority to bring proceedings; failing to controvert withdrawal instructions can lead to the case being struck out.
Court orders
#- 1.The preliminary objection by the Attorney General is upheld
- 2.The reference dated July 15, 2021 and filed on July 19, 2021 be and is hereby struck out
- 3.Each party shall bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(6) of the Constitution of Kenya, 2010
Relief refused
#Advisory opinion on the four substantive questions raised by the applicant
The applicant failed to seek the Attorney-General's advice as required by rule 53(1)(c) of the Supreme Court Rules, and the proceedings lacked the applicant's authority.
Costs
Each party shall bear its costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
seeking the advice of the Attorney-General, or being required to do so by a rule of procedure, does not compromise the independence of a State organ in any way, nor does it vest a veto power in that office
We, therefore, restate that, as a matter of good practice and anchored on rule 53 aforesaid, such opinion should be sought
the Supreme Court is not a legal adviser of state organs. Further, the scope of an advisory opinion under article 163(6) of the Constitution does not extend to offering legal advice
Key timeline
#Practical implications
#Required procedural steps for state organs
When representing a state organ seeking an advisory opinion, always obtain the Attorney-General's advice first. The Supreme Court will strike out a reference if this step is skipped. Also verify that your client has not instructed withdrawal; otherwise the proceedings lack authority. The Court will not act as a legal adviser.
Impact on contracting with counties
If you have a contract dispute with a county government, note that they must follow strict procedures before the Supreme Court can give guidance. This case shows that procedural missteps can delay resolution. Consider alternative dispute resolution or direct engagement with the Attorney-General's office to speed up matters.
Understanding government legal procedures
As a citizen, you cannot directly use this advisory opinion process. But if you have a dispute with a county government, be aware that they may be required to seek legal advice from the Attorney-General before taking certain actions. This could affect timelines for resolving your issue.
Frequently asked questions
#What is an advisory opinion under Article 163(6) of the Constitution in Kenya?+
It is a request to the Supreme Court for its opinion on a constitutional question. State organs like county governments can ask. But they must first seek the Attorney-General's advice, as the Supreme Court is not a legal adviser.
Do I need to seek Attorney General advice before applying to the Supreme Court for an advisory opinion in Kenya?+
Yes, if you are a state organ. The Supreme Court rule requires you to seek the Attorney-General's opinion first. Failing to do so can lead to the case being struck out, as happened to Nairobi County.
Can a county government ask the Supreme Court for legal advice in Kenya?+
Not directly. The Supreme Court gives advisory opinions on constitutional questions, not legal advice. The county must first seek the Attorney-General's advice. This case shows the Court will reject a reference if that step is missed.
What happens if a state organ fails to seek the Attorney General's advice before going to the Supreme Court in Kenya?+
The Supreme Court may strike out the case. The Court has discretion to reject the reference if the matter could be resolved by the Attorney-General's advice. The Nairobi County case was struck out for this reason.
Cite this brief
#Cite this brief
Caselaw, "County Government of Nairobi v Attorney General", Case Analysis (2023). Reference 1 (E001) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/65/eng@2023-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.