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Supreme CourtPartially AllowedConstitutional Application 2 of 2011

In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application 2 of 2011)

Supreme Court of Kenya
20 December 2011
Willy MutungaW.M. MutungaNancy Makokha BarasaNancy BarazaPhilip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguN.S. Ndungu
12,403 words in judgment
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The bottom line

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Supreme Court can interpret the Constitution but will not bypass lower courts on pending cases.

What this practically means

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The Supreme Court of Kenya has the power to give advisory opinions interpreting the Constitution. However, in this case, the Court refused to do so because the same question about the election date was already being argued in the High Court. The Supreme Court said that allowing an advisory opinion would interfere with the High Court's work and the right of parties to appeal. Importantly, the Court also clarified that an advisory opinion is a binding decision, not just advice.

Executive summary

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This ruling by the Supreme Court of Kenya addresses a preliminary objection to an application by the Interim Independent Electoral Commission (IIEC) for an Advisory Opinion under Article 163(6) of the Constitution on the date of the next general election. The IIEC argued that constitutional provisions on election dates were contradictory. Several interested parties, including petitioners with pending cases in the High Court on the same issue, objected, arguing that the Supreme Court lacked jurisdiction because the matter was a justiciable constitutional interpretation question properly belonging to the High Court. The Attorney-General and amici curiae also opposed the application, contending that the IIEC should have first sought the Attorney-General's opinion and that the matter was too abstract for an Advisory Opinion. The Supreme Court held that it has jurisdiction to entertain the application and that the IIEC, as a State organ, has standing. The Court also held that an Advisory Opinion is a 'decision' under Article 163(7) and is binding on lower courts and the parties. However, the Court exercised its discretion to decline the request, finding that the application was essentially a request for constitutional interpretation, which was already properly before the High Court in pending petitions. The Court ruled that to proceed would interfere with due process and the High Court's jurisdiction. The Court set out guidelines for the future exercise of its advisory jurisdiction, emphasizing restraint where matters are pending in lower courts. The final orders upheld the preliminary objection, declined to give the Advisory Opinion, and directed the High Court to proceed with the pending petitions.

Questions the Court framed

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

  1. 1.Whether the Supreme Court has jurisdiction to entertain the application for an Advisory Opinion under Article 163(6) of the Constitution.
  2. 2.Whether the matter in respect of which the Advisory Opinion is sought is a 'matter concerning county government' within the meaning of Article 163(6).
  3. 3.Whether the applicant ought to have first sought the opinion of the Attorney-General before moving the Supreme Court.
  4. 4.What is the juridical status and binding effect of an Advisory Opinion rendered by the Supreme Court?

Key legal issues

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01

Whether the Supreme Court has jurisdiction to entertain an application for an Advisory Opinion under Article 163(6) when the same constitutional question is pending before the High Court.

Holding

The Supreme Court has jurisdiction, but it will exercise its discretion to decline the request where the matter is properly before the High Court, to avoid interference with due process and the jurisdiction of the lower court.

Reasoning

The Court held that while it has jurisdiction under Article 163(6), the application before it was essentially a request for constitutional interpretation, which is the primary preserve of the High Court under Article 165(3). The existence of pending petitions in the High Court seeking the same interpretation made it inappropriate for the Supreme Court to give an Advisory Opinion, as doing so would interfere with the rights of parties to be heard and the appellate process. The Court emphasized the need to protect the jurisdiction entrusted to the High Court.

p. 15
02

What is the binding effect of an Advisory Opinion rendered by the Supreme Court under Article 163(6)?

Holding

An Advisory Opinion is a 'decision' of the Supreme Court within the meaning of Article 163(7) and is binding on lower courts and the parties who sought it.

Reasoning

The Court rejected the argument that an Advisory Opinion is merely non-binding advice. It reasoned that the Constitution provides for Advisory Opinions, and to treat them as mere advice would reduce Article 163(6) to an 'idle provision'. The Court noted that the proceedings in this case involved robust intellectual rigour and competing interpretations, similar to adversarial proceedings. It held that the Opinion must be treated as an authoritative statement of the law, binding on the requesting organ and all governmental or public action thereafter, consistent with the rule of law.

03

Whether the applicant, a State organ, was required to first seek the opinion of the Attorney-General before moving the Supreme Court for an Advisory Opinion.

Holding

While there is no constitutional requirement, the Court held that seeking the advice of the Attorney-General, or being required to do so by a rule of procedure (Rule 40(4)(c) of the Supreme Court Rules), does not compromise the independence of a State organ.

Reasoning

The Court distinguished between independence and isolation. It held that the 'independence clause' in Article 249(2) protects Commissions from direction or control, but does not grant them carte blanche. Seeking advice from the Attorney-General demonstrates fidelity to due process and does not vest a veto power in that office. The Court took judicial notice that the applicant had in fact written to the Attorney-General without response.

p. 18

Legal principles established

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  • An advisory opinion under Article 163(6) is a binding decision of the Supreme Court, not mere advice.
  • The Supreme Court can interpret the Constitution while rendering an advisory opinion.
  • The Court will hesitate to give an advisory opinion if the same matter is pending in a lower court, unless great public importance and urgency are shown.
  • 'Matters touching on county government' can include national-level processes with significant impact on county government, interpreted case-by-case.

Court orders

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  1. 1.Notwithstanding that the Supreme Court, indeed, has the jurisdiction to hear the reference application, we uphold the preliminary objections, and decline to give an Advisory Opinion on the date of the next general election.
  2. 2.The High Court shall proceed, on the basis of priority, and on the basis of the Orders of 15th November, 2011 to hear and determine the several petitions pending before it, in which the issue as to the date of the next general election has been raised in substantive pleadings.

The bench

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

Willy Mutunga
majority

Wrote the judgment

Nancy Makokha Barasa
majority
Philip Kiptoo Tunoi
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N.S. NdunguSCJ
Currently serving
majority
On appeal from
High Court of Kenya
Nairobi H.C. Const. Petition No. 65 of 2011
Jurisdiction invoked
Article 163(6) of the Constitution of Kenya, 2010

Relief refused

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An Advisory Opinion on the date of the next general election

The application amounts to a request for constitutional interpretation, which is properly before the High Court in pending petitions; granting it would interfere with due process and the jurisdiction of the High Court.

p. 26

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 uphold the preliminary objections, and decline to give an Advisory Opinion on the date of the next general election.
p. 26 Final Orders
It follows that the Supreme Court may, indeed, while rendering an Advisory Opinion under Article 163(6) of the Constitution, undertake any necessary interpretation of the Constitution.
p. 15 Constitutional Interpretation in Advisory Opinions
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.
p. 23 Guidelines for Advisory Opinion Jurisdiction
We consider that the expression 'any matters touching on county government' should be so interpreted as to incorporate any national-level process bearing a significant impact on the conduct of county government.
p. 13 Scope of 'Matter Concerning County Government'

Key timeline

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2011-11-15
High Court issues orders on pending petitions challenging the date of the general election.
2011 (date of ruling not specified)
Supreme Court upholds preliminary objections, declines to give advisory opinion on election date, and directs High Court to proceed with petitions.

Practical implications

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For lawyers

Advisory Opinions are Binding

The Supreme Court ruled that advisory opinions under Article 163(6) are binding decisions. Lawyers should treat them as authoritative precedent, not mere advice. When advising clients, note that the Court will not issue an advisory opinion if the issue is already before a lower court, so plan litigation strategy to avoid delays.

For businesses

Election Date Uncertainty

Businesses relying on a fixed election date should monitor the High Court's decision, as the Supreme Court refused to resolve the interpretation. The ruling means the High Court will first determine the date, potentially causing delays. Businesses should prepare for flexibility in planning around election timelines.

For individuals

Access to Justice Preserved

The Supreme Court's decision protects your right to have your case heard by the High Court first. If you are involved in a constitutional case, the Supreme Court will not step in while it is pending in the lower court. You can still appeal to the Supreme Court after the High Court decides.

Frequently asked questions

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What is an advisory opinion in Kenya?+

An advisory opinion is a legal interpretation given by the Supreme Court under Article 163(6) of the Constitution. It is binding on the parties and lower courts. The Court uses it to clarify constitutional questions without deciding a specific dispute.

Can the Supreme Court refuse to give an advisory opinion in Kenya?+

Yes. The Supreme Court can refuse if the same issue is already before a lower court, to avoid interfering with that court's jurisdiction. The Court will only give an advisory opinion if the matter is of great public importance and urgency.

What is the binding effect of a Supreme Court advisory opinion in Kenya?+

A Supreme Court advisory opinion is a binding decision under Article 163(7). It is not just advice; it must be followed by all government bodies and lower courts. It has the same authority as any other Supreme Court judgment.

Who can request an advisory opinion from the Supreme Court in Kenya?+

Under Article 163(6), the national government, a state organ, or a county government can request an advisory opinion on matters concerning county government. The applicant does not need to first seek the Attorney-General's opinion.

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 the Interim Independent Electoral Commission (Applicant) (Constitutional Application 2 of 2011)", Case Analysis (2011). Constitutional Application 2 of 2011. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2011/1/eng@2011-12-20

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