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Supreme CourtOtherAdvisory Opinion Reference E001 of 2025

In re Commission on Administrative Justice (Applicant) (Advisory Opinion Reference E001 of 2025)

Supreme Court of Kenya
20 February 2026
6,104 words in judgment
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·~24 min to read original · ~4 min brief

The bottom line

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Supreme Court refuses to guide on CAJ's powers because no concrete dispute existed.

What this practically means

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The Commission on Administrative Justice (CAJ) asked the Supreme Court to clarify its powers over county officials. The Court said it cannot give advice on hypothetical questions; the CAJ must first try to use its powers and face a real dispute. Since the CAJ had not even issued a summons that was refused, the Court declined to help.

Executive summary

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The Commission on Administrative Justice (CAJ) sought an advisory opinion from the Supreme Court under Article 163(6) of the Constitution on the extent of its mandate, functions, and powers under Articles 59(2) and 252 concerning county government officers, state officers, and constitutional commissioners. The CAJ also questioned whether the Supreme Court's decision in Vision 2030 Delivery Board Case was per incuriam and sought clarification on its power to issue summons. The Court first affirmed its jurisdiction, finding that the CAJ is a state organ and the matter concerns county government. However, the Court declined to exercise its discretion to render an advisory opinion. It held that the questions were hypothetical and abstract, as the CAJ had not demonstrated any concrete dispute or challenge arising from the exercise of its powers. The Court noted that the CAJ had sought and received comprehensive advice from the Attorney General but failed to show how it was aggrieved by that advice. Additionally, the Court found that the CAJ was not genuinely seeking an advisory opinion but rather a departure from the Vision 2030 Delivery Board Case, which must be pursued through a formal application, not a reference. The Court emphasized that advisory opinions are not for hypothetical situations and that the CAJ should first exhaust its statutory powers before seeking judicial guidance. The Court made no order as to costs.

Questions the Court framed

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

  1. 1.Whether this Court has jurisdiction to render the advisory opinion sought and if so;
  2. 2.Whether the Court should exercise its discretion to give an advisory opinion in the terms set out in this matter

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(6) to render an advisory opinion on the mandate of the Commission on Administrative Justice concerning county governments.

Holding

The Court has jurisdiction because the applicant is a state organ and the matter concerns county government, as the reference relates to CAJ's powers over county government officers.

Reasoning

The Court applied the principles from the Interim Independent Electoral Commission case and the Speaker of the Senate case. It found that the applicant, being a state organ under Article 260, had locus standi. The subject matter concerned county government because the reference sought interpretation of CAJ's mandate regarding county government officers, state officers, and constitutional commissioners. The Court therefore affirmed its jurisdiction.

02

Whether the Court should exercise its discretion to render an advisory opinion on the questions raised.

Holding

The Court declined to exercise its discretion because the questions were hypothetical, the applicant had not demonstrated how it was aggrieved by the Attorney General's advice, and the applicant had not exhausted its own powers or shown a concrete dispute.

Reasoning

The Court noted that the applicant had not taken any concrete action (e.g., issuing summons that were denied) to crystallize the issues. The Court also found that the applicant was essentially seeking a departure from the Vision 2030 Delivery Board Case, which must be done by formal application, not by advisory opinion. The Court emphasized that advisory opinions are not for hypothetical or abstract questions, and that the applicant had not shown why the Attorney General's advice was unsatisfactory.

03

Whether the Vision 2030 Delivery Board Case was decided per incuriam and whether the Court should depart from it.

Holding

The Court declined to consider this issue because it was not properly before the Court; a party seeking departure from a previous decision must make a formal application, not raise it in an advisory opinion reference.

Reasoning

The Court applied the principles from Jasbir Singh Rai and Fredrick Otieno Outa, holding that the suggestion of per incuriam is serious and must be raised by formal application with clear justification. The Court found that the applicant was merely disagreeing with the earlier decision, which is insufficient to warrant departure.

Legal principles established

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  • The Supreme Court will not give advisory opinions on abstract or hypothetical questions.
  • A party seeking an advisory opinion must first get the Attorney General's advice and show they are aggrieved by it.
  • A party wanting the Court to depart from its own precedent must make a formal application, not just raise it in a reference.
  • The Court has jurisdiction to advise a state organ on a matter concerning county government.
  • The Court may decline to exercise its discretion even if jurisdiction exists, if the question is not ripe.
  • An advisory opinion is not a way to challenge a previous court decision; that requires a separate formal process.

Court orders

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  1. 1.We decline to exercise our discretion in rendering an opinion in this matter.
  2. 2.We shall make no Order as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M K KoomeCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N NdunguSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
William Ouko
W OukoSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution

Relief refused

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Advisory opinion on the extent of CAJ's mandate, functions and powers under Article 59(2) and 252 of the Constitution concerning county governments officers, state officers or constitutional commissioners

The Court found the questions were hypothetical, not ripe for determination, and the applicant had not demonstrated how it was aggrieved by the Attorney General's advice or how it had exhausted its powers.

Departure from the Supreme Court's decision in Vision 2030 Delivery Board Case

The Court held that the applicant was not seeking an advisory opinion but a departure from a previous decision, which must be done by a formal application, not in the course of a reference.

Costs

We shall make no Order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We decline to exercise our discretion in rendering an opinion in this matter.
p. 11 Disposition - Court declines advisory opinion
We shall make no Order as to costs.
p. 11 Costs order
advisory opinions are not rendered in the abstract. The time of this Court is too valuable to be frittered away on hypothetical fears or contingent future events, that may not occur as anticipated, or indeed, may not occur at all.
p. 9 Advisory opinion jurisdiction - no hypothetical questions
a party moving this Court for an advisory opinion, must demonstrate how they are aggrieved by the advice from the Attorney General, and why this Court must exercise its discretion to render an advisory opinion.
p. 8 Advisory opinion procedure - need to show dissatisfaction with Attorney General's advice
what the applicant seeks is not an Advisory Opinion, but this Court’s departure from its previous decision in the Vision 2023 Delivery Board Case.
p. 10 Advisory opinion - cannot be used to seek departure from precedent

Key timeline

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2025
Commission on Administrative Justice files advisory opinion reference E001 of 2025 in the Supreme Court.
2026
Supreme Court delivers judgment [2026] KESC 21 (KLR), affirming jurisdiction but declining to exercise discretion.
Before decision
CAJ obtains advice from the Attorney General but does not demonstrate how it is aggrieved by that advice.
Before decision
CAJ has not issued any summons or taken concrete action that was denied, so the dispute remains hypothetical.

Practical implications

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For lawyers

Advisory opinions require concrete disputes

When advising a client who wants a Supreme Court advisory opinion, ensure there is a real, crystallised controversy. The Court will not answer hypothetical questions. First, pursue all available remedies and get the Attorney General's advice. If the client is dissatisfied, document exactly how the advice is inadequate before filing the reference.

For businesses

CAJ still has powers but must be used properly

The Commission on Administrative Justice can still investigate county government officers. However, the Court has not yet defined the limits of those powers. If you are a county official or business dealing with the CAJ, note that the CAJ must first exhaust its own processes (e.g., issuing summons, requesting information) before seeking judicial clarification. The Court's refusal does not mean the CAJ has no power; it means the question was premature.

For individuals

Your rights when dealing with CAJ remain intact

If you are a citizen or state officer contacted by the CAJ, the Court has not yet ruled on the exact scope of the CAJ's authority. The CAJ must still follow the law. The Supreme Court's refusal to give an opinion does not weaken the CAJ's mandate, but it also does not expand it. You can still challenge any CAJ action if it exceeds its powers, but the Court has not yet defined those limits.

Frequently asked questions

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Can the Commission on Administrative Justice (CAJ) summon county officials in Kenya?+

The Supreme Court has not yet answered this question. The CAJ asked for guidance, but the Court said it was too early because the CAJ had not actually issued a summons that was contested. The CAJ must first try to use its powers and face a real dispute before the Court will clarify the limits.

What is an advisory opinion in Kenya's Supreme Court?+

An advisory opinion is a legal interpretation the Supreme Court gives on a constitutional question, without a full court case. Under Article 163(6), the Court can advise state organs or county governments. But the Court will only do so if there is a real, concrete dispute—not a hypothetical or future question.

How can I get the Supreme Court of Kenya to interpret the Constitution?+

You must first show that you have a specific, actual dispute that needs interpretation. If you are a state organ or county government, you must also first seek the Attorney General's advice. If you are dissatisfied, you can file a reference under Article 163(6). The Court will only act if the question is not hypothetical.

What is the effect of the Vision 2030 Delivery Board case in Kenya?+

The Vision 2030 Delivery Board case is a Supreme Court decision that may define the limits of certain state bodies' powers. If you want the Court to overturn or change that decision, you must file a formal application explaining why the case was wrongly decided. You cannot ask for that in an advisory opinion reference.

Cite this brief

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Cite this brief

Caselaw, "In re Commission on Administrative Justice (Applicant) (Advisory Opinion Reference E001 of 2025)", Case Analysis (2026). Advisory Opinion Reference E001 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/21/eng@2026-02-20

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