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Supreme CourtDismissedReference 1 of 2014

In the Matter of Kenya National Commission on Human Rights

Supreme Court of Kenya
27 February 2014
Philip Kiptoo TunoiP. K. TunoiMohammed Khadhar IbrahimMohammed K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguS. N. Ndungu
3,616 words in judgment
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The bottom line

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Only national or county governments can ask the Supreme Court for an advisory opinion.

What this practically means

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The Supreme Court dismissed a request by the Kenya National Commission on Human Rights (KNCHR) to declare a court rule unconstitutional. The Court said only the national government, a state organ, or a county government can ask for an advisory opinion, and the issue must involve county government. The KNCHR’s request did not meet this requirement. The Court also clarified that anyone can challenge a Supreme Court rule in the High Court, not through an advisory opinion.

Executive summary

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The Kenya National Commission on Human Rights (KNCHR), a State organ, filed a reference under Article 163(6) of the Constitution seeking an advisory opinion that Rule 41(1) of the Supreme Court Rules, 2012 is restrictive and discriminatory. The Rule limits the right to seek an advisory opinion to the national government, a State organ, or a county government. The KNCHR argued that the Rule violates the Bill of Rights by excluding individuals and other entities. The Attorney-General and the Commission on Administrative Justice opposed the reference, arguing that the Court lacked jurisdiction because the subject matter did not concern county government, and that the Rule accurately reflects Article 163(6). The Supreme Court unanimously dismissed the reference. The Court held that the application was not a genuine request for an advisory opinion but a disguised constitutional reference seeking a declaration of unconstitutionality, which is not a matter concerning county government. The Court reaffirmed its earlier decision in the Interim Independent Electoral Commission case, which established that only the national government, a State organ, or a county government may request an advisory opinion, and the subject matter must concern county government. The Court further held that Rule 41(1) is not discriminatory; it accurately replicates Article 163(6) and the Court's own guidelines, which already allow other parties to participate as interveners or amici curiae. The advisory opinion jurisdiction is exceptional and not a right enforceable by individuals; rights under the Bill of Rights are enforceable through regular court proceedings in the High Court. The Court also clarified that a party may challenge the constitutionality of a Supreme Court Rule in the High Court. No order as to costs was made.

Questions the Court framed

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

  1. 1.Whether the subject matter of the reference is one concerning county government.
  2. 2.Whether Rule 41(1) of the Supreme Court Rules, 2012 is restrictive and discriminatory and ought to be amended.

Key legal issues

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01

Whether the Supreme Court has jurisdiction to entertain a reference for an advisory opinion where the subject matter does not concern county government.

Holding

The Court lacks jurisdiction because the subject matter of the reference must be a matter concerning county government under Article 163(6).

Reasoning

The Court reaffirmed its earlier decision in the Interim Independent Electoral Commission case, which established that for a reference to qualify for the Supreme Court's advisory opinion discretion, it must be a matter concerning county government. The applicant's request sought a declaration that Rule 41(1) of the Supreme Court Rules is unconstitutional, which is not a matter concerning county government. Therefore, the reference was incompetent and fell outside the four corners of Article 163(6).

p. 6
02

Whether Rule 41(1) of the Supreme Court Rules, 2012, which restricts the right to seek an advisory opinion to the national government, a State organ, or a county government, is discriminatory and violates the Bill of Rights.

Holding

Rule 41(1) is not discriminatory; it accurately reflects Article 163(6) of the Constitution and the Court's interpretation thereof. The advisory opinion jurisdiction is exceptional and not a right enforceable by individuals.

Reasoning

The Court held that the advisory opinion jurisdiction is of an exceptional nature, designed to aid institutional governance. The rights in the Bill of Rights are enforceable by regular court proceedings in the High Court, not through advisory opinions. The Rule replicates Article 163(6) and the Court's own guidelines, which already allow other parties to participate as interveners or amici curiae. Therefore, the Rule does not hinder enjoyment of the Bill of Rights.

p. 8
03

Whether a party can challenge the constitutionality of a Supreme Court Rule in the High Court.

Holding

Yes, a party may challenge the constitutionality of a Supreme Court Rule in the High Court, as the High Court has original jurisdiction to determine whether legislation or subsidiary legislation is unconstitutional.

Reasoning

The Court rejected the applicant's argument that it would be ridiculous to file a petition in the High Court to challenge rules made by the Supreme Court. The Court stated that what is at stake is the constitutionality of the rule, not the reputation of the Supreme Court. Rules and regulations are subsidiary legislation and are subject to annulment by the High Court in exercise of its unlimited jurisdiction.

p. 7

Legal principles established

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  • Only the national government, a state organ, or a county government may request a Supreme Court advisory opinion.
  • An advisory opinion request must concern a matter about county government.
  • The advisory opinion jurisdiction is exceptional and not a right enforceable by individuals.
  • Rule 41(1) of the Supreme Court Rules is not discriminatory; it correctly reflects Article 163(6) of the Constitution.
  • A party may challenge the constitutionality of a Supreme Court Rule in the High Court.
  • Rights under the Bill of Rights are enforced through regular court proceedings, not advisory opinions.

Court orders

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  1. 1.The reference for an advisory opinion is hereby dismissed.
  2. 2.No order as to costs.

The bench

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

Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
S. N. NdunguSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution

Relief refused

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Advisory opinion that Rule 41(1) of the Supreme Court Rules, 2012 is restrictive and requires re-drafting/amendment to enable parties other than the national government, county governments and State organs to seek advisory opinions.

The application is not a genuine request for an advisory opinion but a constitutional reference in disguise, and the subject matter does not concern county government.

p. 7

Advisory opinion that Rule 41(1) violates Articles 19, 20, 21, 22, 48 and 50 of the Constitution and should be repealed, re-written, re-drafted and/or amended.

The Rule accurately reflects Article 163(6) of the Constitution and the Court's interpretation thereof; it is not restrictive or discriminatory.

p. 8

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.

The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus Curiae.
p. 6 Advisory opinion jurisdiction - standing
For a reference to qualify for the Supreme Court's Advisory Opinion discretion, it must fall within the four corners of Article 163 (6): it must be 'a matter concerning county government.'
p. 6 Advisory opinion jurisdiction - subject matter
Do persons in general, have a right to an advisory opinion of the Supreme Court? We do not think so: for the rights declared in the Constitution are, by Article 22, enforceable by way of regular 'court proceedings'. Such proceedings, in our perception, do not necessarily include the Supreme Court's advisory opinions.
p. 8 Nature of advisory opinion jurisdiction
what the applicant seeks is not an advisory opinion, but a declaration that Rule 41(1) of the Supreme Court Rules of 2012 is unconstitutional. This 'reference for an advisory opinion' is actually a constitutional reference in disguise.
p. 7 Disguised constitutional reference
We, however, see no hierarchical impropriety if a party were to challenge a Supreme Court Rule in the High Court. What would be at stake in such circumstances is not the reputation of the Supreme Court, but the constitutionality of the rule in question.
p. 7 Jurisdiction to challenge Supreme Court Rules
in view of the foregoing, this reference for an advisory opinion is hereby dismissed. We make no order as to costs.
p. 9 Final orders

Key timeline

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2023-01-01
KNCHR files reference for advisory opinion under Article 163(6) of the Constitution.
2023-01-01
Supreme Court hears arguments on jurisdiction and constitutionality of Rule 41(1).
2023-01-01
Supreme Court unanimously dismisses the reference, holding it lacks jurisdiction.

Practical implications

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For lawyers

Advisory opinion jurisdiction clarified

When advising clients on Supreme Court advisory opinions, confirm the requesting party is the national government, a state organ, or a county government, and the issue concerns county government. For challenges to Supreme Court rules, direct clients to file a constitutional petition in the High Court, not an advisory opinion reference.

For businesses

No direct advisory opinion access

Businesses cannot directly ask the Supreme Court for an advisory opinion. If you need clarity on a legal issue affecting your operations, consider filing a case in the High Court or engaging a state organ to raise the matter. Alternatively, seek to intervene as an interested party in an existing advisory opinion proceeding.

For individuals

Use High Court for rights claims

If you believe a Supreme Court rule violates your rights, do not seek an advisory opinion. Instead, file a constitutional petition in the High Court, which has original jurisdiction to hear such challenges. The Supreme Court made clear that advisory opinions are not the proper avenue for individual rights enforcement.

Frequently asked questions

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Who can ask the Supreme Court for an advisory opinion in Kenya?+

Only the national government, a state organ, or a county government can request an advisory opinion from the Supreme Court. Individuals, businesses, or other entities cannot directly ask for one, but they may join as interveners or amici curiae with the Court's permission.

Can I challenge a Supreme Court rule in Kenya?+

Yes, you can challenge a Supreme Court rule by filing a constitutional petition in the High Court. The High Court has original jurisdiction to determine whether any law, including subsidiary legislation like court rules, is unconstitutional. This was confirmed by the Supreme Court in this case.

What is the difference between an advisory opinion and a regular court case in Kenya?+

An advisory opinion is a request for the Supreme Court's guidance on a legal matter concerning county government, made only by specific state entities. A regular court case is a dispute between parties that can be filed by anyone in the appropriate court, such as the High Court, to enforce rights or resolve disagreements.

Does Rule 41(1) of the Supreme Court Rules violate the Bill of Rights in Kenya?+

No, the Supreme Court held that Rule 41(1) does not violate the Bill of Rights. The rule simply reflects Article 163(6) of the Constitution, which limits advisory opinion requests to certain state entities. Individuals can still enforce their rights through regular court proceedings in the High Court.

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 Kenya National Commission on Human Rights", Case Analysis (2014). Reference 1 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/33/eng@2014-02-27

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