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Case Brief · caselaw.co.ke
Supreme CourtOtherConstitutional Application 2 of 2011

In the Matter of Interim Independent Electoral Commission

Supreme Court of Kenya
15 November 2011
Willy MutungaWM MutungaNancy Makokha BarasaNancy Makokha BarasaMohammed Khadhar IbrahimMK IbrahimPhilip Kiptoo TunoiPK TunoiSmokin Charles WanjalaSC WanjalaJackton Boma OjwangJB OjwangNjoki Susanna NdunguN Ndungu
1,066 words in judgment
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The bottom line

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Supreme Court declined to rule on election date, preserving High Court's first-instance constitutional role.

What this practically means

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The Supreme Court refused to answer a request about the election date because it said the High Court should first interpret the Constitution. The Court set rules: the High Court has the first right to hear constitutional questions, the Supreme Court must protect that right, and anyone asking for an advisory opinion must first try other options.

Executive summary

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This was an application by the Interim Independent Electoral Commission (IIEC) seeking an advisory opinion from the Supreme Court under Article 163(3) of the Constitution, regarding the date of the next general election. The application sought interpretation of Articles 101(1), 136(2)(a), 177(1)(a), and 180(1) of the Constitution, and Clause 9(1) of the Sixth Schedule. A preliminary objection was raised. The Supreme Court, in a unanimous decision, declined to give an advisory opinion on the next general election, reserving its reasons for a later ruling. The court laid down guiding principles for exercising its advisory opinion jurisdiction: the High Court has original jurisdiction under Article 165(3)(d) to interpret the Constitution; the Supreme Court must protect that first-instance jurisdiction; entitled organs must exhaust internal recourses before seeking an advisory opinion; and subject to these principles, the Court will exercise its discretion on a case-to-case basis. The court also directed that the matter be placed before the Constitutional and Human Rights Division of the High Court for hearing on priority, and listed related High Court petitions for mention and directions.

Questions the Court framed

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

  1. 1.What were the guiding principles governing the Supreme Court in exercising its jurisdiction to issue advisory opinions?
  2. 2.Nature of the jurisdiction of the High Court in determining a justiciable matter when seen in parallel with the invocation of the Supreme Court’s advisory opinion jurisdiction
  3. 3.The situations in which the Constitution authorized the giving of an advisory opinion
  4. 4.Practical considerations that should guide the court’s decision to render an advisory opinion

Key legal issues

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01

What are the guiding principles governing the Supreme Court in exercising its jurisdiction to issue advisory opinions?

Holding

The Supreme Court is guided by: (1) the High Court's original jurisdiction under Article 165(3)(d) to interpret the Constitution; (2) the Supreme Court's obligation to protect that first-instance jurisdiction; (3) the requirement that entitled organs exhaust internal recourses before seeking an advisory opinion; and (4) the Court's discretion to accept requests on a case-to-case basis.

Reasoning

The court considered the parallel jurisdictions of the High Court and the Supreme Court regarding constitutional interpretation. It emphasized that the High Court has first-instance jurisdiction under Article 165(3)(d), and the Supreme Court, as the ultimate interpreter, must protect that jurisdiction. The Supreme Court's Rules require exhaustion of internal recourses. Subject to these principles, the Court retains discretion to accept advisory opinion requests on a case-by-case basis.

p. 3

Legal principles established

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  • The High Court has original jurisdiction to interpret the Constitution under Article 165(3)(d).
  • The Supreme Court must protect and reinforce the High Court's first-instance jurisdiction.
  • Entitled organs must exhaust internal recourses before seeking an advisory opinion from the Supreme Court.
  • The Supreme Court has discretion to accept advisory opinion requests on a case-by-case basis.

Court orders

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  1. 1.We decline to give our Advisory Opinion on the next general election.
  2. 2.We reserve the reasons, to be set out in a Ruling upon notice.
  3. 3.Responding to the High Court’s request, of 13th October, 2011 for directions, the matter herein shall be placed before the Constitutional and Human Rights Division of that Court, for hearing on priority and on a day-to-day basis.
  4. 4.High Court Petition Nos. 123 of 2011, 65 of 2011 and 185 of 2011 shall be listed for mention and directions before the Head of the High Court’s Constitutional and Human Rights Division on 18th November, 2011.

The bench

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

Willy Mutunga
majority
Nancy Makokha Barasa
majority
Mohammed Khadhar Ibrahim
majority
Philip Kiptoo Tunoi
majority
Smokin Charles Wanjala
SC WanjalaSCJ
Currently serving
majority
Jackton Boma Ojwang
majority
Njoki Susanna Ndungu
N NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(3) of the Constitution

Relief refused

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Advisory Opinion on the next general election

The court declined to give the advisory opinion, reserving reasons for a later ruling, and directed the matter to the High Court for hearing.

p. 3

Costs

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 give our Advisory Opinion on the next general election.
p. 3 Advisory opinion declined
the High Court is, by Article 165(3)(d) of the Constitution, entrusted with the original jurisdiction to hear and determine any question entailing the interpretation of the Constitution
p. 3 High Court's original jurisdiction
it is the obligation of the Supreme Court, as the ultimate interpreter of the Constitution, to protect and reinforce the conferment of first-instance jurisdiction upon the High Court
p. 3 Supreme Court's obligation
Subject to those principles, the Supreme Court will exercise its discretion appropriately, on a case-to-case basis, in accepting requests for an Advisory Opinion.
p. 3 Discretion in advisory opinions

Key timeline

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2011-10-13
High Court requests directions from the Supreme Court.
2011
Supreme Court declines to give advisory opinion, sets guiding principles.
2011-11-18
Related High Court petitions listed for mention and directions.

Practical implications

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For lawyers

Strategic use of advisory opinions

When seeking a Supreme Court advisory opinion, first ensure the High Court's original jurisdiction under Article 165(3)(d) is not bypassed. Exhaust all internal recourses and frame the request to address a novel constitutional question rather than one that can be litigated at first instance. This preserves the issue for Supreme Court discretion.

For businesses

Election timelines and legal certainty

Businesses relying on election dates for planning cannot use the Supreme Court to bypass the High Court. Challenges to election timelines must first go to the High Court, which has priority. Expect delays if constitutional interpretation is needed, and plan for multiple court stages.

For individuals

Your constitutional rights start in High Court

If you have a constitutional question, you must first file a case in the High Court, not the Supreme Court. The Supreme Court only steps in after the High Court has ruled. This ensures your issue gets a full hearing at the trial level before any appeal.

Frequently asked questions

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What is an advisory opinion from the Supreme Court in Kenya?+

An advisory opinion is a formal legal opinion by the Supreme Court on a constitutional question, requested by certain state organs. The Court can accept or decline such requests, and it will only do so after other legal avenues, like the High Court, have been used.

Can the Supreme Court refuse to answer a constitutional question in Kenya?+

Yes. The Supreme Court has discretion to decline advisory opinion requests. In this case, it refused to answer about the election date because the High Court has original jurisdiction to interpret the Constitution and must hear the matter first.

What is the High Court's role in interpreting the Constitution in Kenya?+

Under Article 165(3)(d), the High Court has the first right to hear any case involving constitutional interpretation. The Supreme Court protects this role and will not interfere unless the High Court has already ruled or the issue is exceptional.

How does the Supreme Court protect the High Court's jurisdiction in Kenya?+

The Supreme Court refuses to take cases that the High Court should hear first. It also requires state organs to exhaust all internal processes before seeking an advisory opinion. This ensures the High Court remains the primary constitutional interpreter.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "In the Matter of Interim Independent Electoral Commission", Case Analysis (2011). Constitutional Application 2 of 2011. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2011/3/eng@2011-11-15

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