In the Matter of an Application for an Advisory Opinion under Article 163(6) of the Constitution of Kenya by the County Assemblies of Kericho and Nandi Counties consolidated with In the Matter of an Application for an Advisory Opinion by the Governor, Makueni County
The bottom line
#Supreme Court refused to advise on BBI because High Court was already hearing the same issues.
What this practically means
#The Supreme Court of Kenya was asked for an advisory opinion on the constitutional amendment process, including the BBI. But the Court said no. It found that the same questions were already being argued in the High Court. The Supreme Court explained that it will not step in when a lower court is already handling a case. It wants to avoid confusion and conflicting decisions. The High Court will now decide those issues first.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the jurisdiction of this Court to render an advisory opinion has been properly invoked.
- 2.If so, whether the Court should exercise its discretion to render the opinion as prayed.
Key legal issues
#Whether the Supreme Court should exercise its discretion to render an advisory opinion when similar issues are pending before the High Court.
The Court declined to exercise its discretion because the issues in the References were substantively similar to those pending in the High Court, and the High Court petitions were filed first. The Court found that rendering an opinion could cause confusion and threaten certainty and finality in judicial pronouncements.
The Court noted that the High Court had identified issues including the constitutionality of the BBI process, the nature of the popular initiative, and the use of public resources. These overlapped with the questions in the References. The Court emphasized that the High Court was exercising its original jurisdiction to interpret the Constitution, and the Supreme Court should not usurp that role. The Court also considered the timing, noting that the High Court petitions were filed before the References, and that concurrent determinations could lead to conflicting outcomes.
Legal principles established
#- The Supreme Court can decline an advisory opinion if the same issues are pending in a lower court.
- A request for an advisory opinion must be truly exceptional, not a way to bypass normal court cases.
- The Supreme Court will not interfere with a lower court's original jurisdiction to interpret the Constitution.
- Rendering an advisory opinion on pending litigation risks confusion and undermines judicial certainty.
- State organs and county governments can seek advisory opinions, but the Court still has discretion to refuse.
Court orders
#- 1.The Court declines to exercise its discretion to render an Advisory Opinion as sought by the applicants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 163(6) of the Constitution
- Consolidated with
- Advisory Opinion Reference No. 4 of 2020
Relief refused
#Advisory Opinion on the questions posed in Reference No. 3 of 2020 and Reference No. 4 of 2020
The matters raised in the References are substantively similar to issues pending before the High Court in David Ndii & Others v. Attorney General & Others, Petition No. E282 of 2020, and the Court declined to usurp the High Court's role.
Costs
No order as to 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.
While it is our finding that this Court has jurisdiction to render an Advisory Opinion as prayed in the two References, we nonetheless decline to exercise our discretion in favour of rendering such opinion as sought by the applicants, on grounds of the reasons given in paragraphs 17, 18, and 19 of this Ruling.
Only a truly deserving case will justify the Court's Advisory Opinion, as questions amenable to ordinary litigation must be prosecuted in the normal manner; and the Supreme Court ought not to entertain matters which properly belong to first-instance-Court litigation.
The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court.
Key timeline
#Practical implications
#Strategic use of advisory opinions limited
Do not file a Supreme Court advisory opinion reference if the same constitutional issues are already before the High Court. The Court will almost certainly decline. Instead, focus on the High Court litigation or wait for its outcome. If you want an advisory opinion, file it before any related suit is lodged, or show the issue is of urgent public importance not covered by existing cases.
BBI uncertainty continues in courts
Your case must follow normal court hierarchy
If you have a constitutional question, start in the High Court, not the Supreme Court. The Supreme Court will only give advisory opinions in rare, urgent cases not already in lower courts. For most issues, you must go through the normal court system first. This ruling reinforces that you cannot skip steps.
Frequently asked questions
#Why did the Supreme Court refuse to give an advisory opinion on the BBI in Kenya?+
The Supreme Court refused because the same constitutional questions about the BBI process were already being heard by the High Court. The Court said it would not create confusion by giving an opinion on a matter already in litigation. It wants lower courts to finish their work first.
Can any Kenyan ask the Supreme Court for an advisory opinion?+
No. Only specific bodies can request an advisory opinion under Article 163(6) of the Constitution, such as the national government, a county government, or a state organ. Even then, the Supreme Court can refuse if the issue is already in another court or is not truly exceptional.
What is the difference between an advisory opinion and a normal court case in Kenya?+
An advisory opinion is a request for the Supreme Court to clarify the law without a dispute between parties. A normal case involves actual parties and a live controversy. The Supreme Court prefers to handle advisory opinions only when no other court is already dealing with the same issue.
Does this ruling mean the BBI process is unconstitutional in Kenya?+
No. The Supreme Court did not decide whether the BBI process is constitutional. It simply refused to give an opinion. The High Court will now decide that question in the pending case. The ruling only affects the procedure, not the substance of the BBI.
Cite this brief
#Cite this brief
Caselaw, "In the Matter of an Application for an Advisory Opinion under Article 163(6) of the Constitution of Kenya by the County Assemblies of Kericho and Nandi Counties consolidated with In the Matter of an Application for an Advisory Opinion by the Governor, Makueni County", Case Analysis (2021). Reference 3 & 4 of 2020 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/61/eng@2021-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.