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Supreme CourtPartially AllowedAdvisory Opinion Reference 2 of 2013

In the Matter of the Speaker of the Senate & another (Advisory Opinion Reference 2 of 2013)

Supreme Court of Kenya
1 November 2013
Willy MutungaWilly MutungaKalpana RawalK.H. RawalPhilip Kiptoo TunoiP.K. TunoiMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguN.S. Ndungu
37,299 words in judgment
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The bottom line

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The Supreme Court ruled the Senate must be involved in passing the Division of Revenue Bill.

What this practically means

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The Supreme Court gave an advisory opinion on a dispute between the Senate and National Assembly over the Division of Revenue Bill. The Court said it had the power to hear the case because the Bill affects county governments. It ruled that the Bill is not a Money Bill, so the Senate must participate in its passage. The Speakers must work together to decide if a Bill concerns counties.

Executive summary

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This was an advisory opinion reference by the Speaker of the Senate and the Senate itself, seeking the Supreme Court's guidance on the constitutional process for enacting the Division of Revenue Bill, 2013. The dispute arose after the Speaker of the National Assembly initially referred the Bill to the Senate, but later reversed his decision, had the National Assembly pass it alone, and transmitted it for presidential assent without Senate involvement. The applicants argued that the Bill concerned county government and required Senate participation. The interested parties, including the Attorney General, contested the Court's jurisdiction, arguing the matter was adversarial and should be litigated in the High Court. The Supreme Court, by a majority of 6 to 1, held that it had jurisdiction under Article 163(6) as the matter concerned county government. The Court exercised its discretion to render an Advisory Opinion, finding that the Division of Revenue Bill was a Bill concerning county government and that the Senate had a clear role to play in its processing. The Court declared that the Speaker of the National Assembly should have complied with Articles 110(3), 112, and 113 of the Constitution, including resorting to mediation. The Court declined to declare the resulting Act unconstitutional, noting that the applicants had not sought such an order and that the object of efficacy in law-making favoured sustaining the legislation. The Chief Justice and Deputy Chief Justice wrote separate concurring opinions, while Justice Ndungu dissented, arguing the Court should have declined jurisdiction on grounds of separation of powers and the political question doctrine.

Questions the Court framed

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

  1. 1.What was the scope of the Supreme Court’s jurisdiction to render an advisory opinion?
  2. 2.Whether the Supreme Court had jurisdiction to render an Advisory Opinion regarding the constitutional process attending the enactment of the Division of Revenue Act, 2013 (Act No. 31 of 2013).
  3. 3.What was the Senate’s role in the legislative process for Bills concerning county government?
  4. 4.When and how did a question for the consideration of the two Speakers in the two houses arise under Article 110(3) of the Constitution?
  5. 5.What was the role of the National Assembly vis-à-vis the Senate in the origination, consideration and enactment of the division and allocation of revenue bills?
  6. 6.Whether the Supreme Court had jurisdiction to determine a dispute arising between the Senate and the National Assembly.
  7. 7.Whether the Supreme Court could interfere with the Parliament’s legislative authority, and if so in what circumstances.

Key legal issues

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01

Whether the Supreme Court had jurisdiction to render an Advisory Opinion on the legislative process for the Division of Revenue Bill.

Holding

The Court held that it had jurisdiction under Article 163(6) as the matter concerned county government, and it was appropriate to exercise its discretion to render an Opinion.

Reasoning

The Court found that the Division of Revenue Bill had a significant impact on county governments, satisfying the 'matter concerning county government' requirement. The Court further held that the dispute between the two Houses of Parliament was not a normal adversarial matter suitable for ordinary litigation but a broader constitutional question of great public interest requiring the Court's guidance. The Court rejected arguments that it should decline jurisdiction because the matter was a live controversy or that it would violate the separation of powers, stating that where a question arises as to the interpretation of the Constitution, the Court cannot invoke institutional comity to avoid its constitutional duty.

p. 15
02

What is the Senate's role in the legislative process for the Division of Revenue Bill?

Holding

The Senate has a clear role to play in the processing of the Division of Revenue Bill, which is a Bill concerning county government.

Reasoning

The Court interpreted the Division of Revenue Bill as one that deals with the equitable sharing of revenue, which certainly affects the functioning of county government. Therefore, it falls within the definition of a 'Bill concerning county government' under Article 110. Consequently, the Senate must participate in its enactment, and the Speaker of the National Assembly should have complied with Articles 112 and 113 of the Constitution, including the mediation process, rather than unilaterally excluding the Senate.

p. 33
03

Whether the Division of Revenue Bill is a 'Money Bill' under Article 114 of the Constitution.

Holding

The Division of Revenue Bill is not a 'Money Bill' as defined in Article 114(3) of the Constitution.

Reasoning

The Court reasoned that Article 114(3) defines a money Bill by reference to provisions dealing with taxes, charges on public funds, appropriation, etc., but expressly excludes Bills specified in Article 218. Since the Division of Revenue Bill is a Bill specified in Article 218, it is not a money Bill. The Court concluded that the Bill only deals with the manner in which revenue shall be divided between the national and county governments, not directly with the raising or spending of government revenue.

p. 33

Legal principles established

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  • The Supreme Court can give advisory opinions on disputes between the two Houses of Parliament if the matter concerns county government.
  • Courts can review whether Parliament followed the correct constitutional procedure when passing laws.
  • The Division of Revenue Bill is a Bill concerning county government, not a Money Bill.
  • Neither Speaker can unilaterally decide if a Bill concerns counties; they must resolve it jointly.
  • The Senate has a clear role in processing Bills that affect county governments.

Court orders

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  1. 1.The Court rendered an Advisory Opinion answering the questions raised.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Willy Mutunga
concurring

Wrote the judgment

The Chief Justice wrote a separate concurring opinion providing a historical background on devolution in Kenya, emphasizing the constitutional commitment to protect devolution and the Supreme Court's duty to safeguard it.

I concur with the majority Advisory Opinion, but write separately to give a historical background that clarifies the central goals and the significance of devolution in Kenya’s Constitution.p. 39
Kalpana Rawal
concurring

Wrote the judgment

The Deputy Chief Justice wrote a separate concurring opinion, adding further analysis on jurisdiction, the supremacy of the Constitution, and the legislative process for revenue bills, suggesting a review of the process by Parliament.

I concur with the opinion of the majority in this matter and must express my commendation of the meticulous, dexterous, and incisive scholarship expressed therein.p. 48
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
dissenting

Wrote the judgment

Justice Ndungu dissented, holding that the Court should not exercise its advisory jurisdiction because the matter was an adversarial dispute disguised as an advisory opinion, raised political questions, and would violate the separation of powers by interfering with the legislative process.

I have read the majority decision and, with respect, concur with it on only one of the issues to be determined.p. 51
Jurisdiction invoked
Article 163(6) of the Constitution of Kenya, 2010

Relief refused

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A declaration that the Division of Revenue Act, 2013 was unconstitutional and a nullity.

The Court was not asked to make a conventional judicial order annulling the Act, and the object of efficacy in law-making stood in favour of sustaining the legislation already achieved.

p. 5

Costs

No order as to costs was made in the judgment.

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 Division of Revenue Bill, 2013 was an instrument essential to the due operations of county governments, as contemplated under the Constitution, and so was a matter requiring the Senate’s legislative contribution.
p. 38 Senate's role in Division of Revenue Bill
We would state, as a legal and constitutional principle, that Courts have the competence to pronounce on the compliance of a legislative body, with the processes prescribed for the passing of legislation.
p. 20 Judicial review of legislative process
Neither Speaker may, to the exclusion of the other, “determine the nature of a Bill”: for that would inevitably result in usurpations of jurisdiction, to the prejudice of the constitutional principle of the harmonious interplay of State institutions.
p. 38 Joint role of Speakers in classifying Bills
It is our perception that all reading of the Constitution indicates that the ultimate judge of “right” and “wrong” in such cases, short of a resolution in plebiscite, is only the Courts and, ultimately, the Supreme Court.
p. 23 Supreme Court as ultimate arbiter of constitutional disputes
With regard to any future lack of accord of a similar nature, between the two Chambers of Parliament, there shall be an obligation resting on the State organs in question to resort to mediation, as a basis for harmonious functioning, as contemplated by the Constitution.
p. 39 Obligation to resort to mediation

Key timeline

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2013
Speaker of the National Assembly initially referred the Division of Revenue Bill to the Senate, then reversed the decision.
2013
National Assembly passed the Bill alone and sent it for presidential assent without Senate involvement.
2013
Speaker of the Senate and the Senate filed a reference to the Supreme Court seeking an advisory opinion.
2013
Supreme Court delivered its Advisory Opinion, ruling the Senate had a role in the Bill's processing.

Practical implications

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For lawyers

Advisory opinion jurisdiction clarified

When advising parliamentary clients, note that the Supreme Court will accept references under Article 163(6) for live disputes between Houses if they concern county government. You can argue procedural compliance without needing a full adversarial trial. Use this precedent to challenge unilateral actions by one House.

For businesses

Revenue allocation process now clearer

Businesses relying on predictable county revenue flows should monitor Senate involvement in Division of Revenue Bills. If the National Assembly tries to bypass the Senate, the process may be challenged, delaying budget approvals. Engage with both Houses to ensure timely passage of revenue laws affecting county services and contracts.

For individuals

County government voice strengthened

As a citizen, you can expect the Senate to have a say in how national revenue is shared with counties. If you see the National Assembly passing revenue Bills alone, you can raise concerns with your Senator. This ruling protects county interests by requiring joint decision-making between the two Houses.

Frequently asked questions

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What is the Division of Revenue Bill in Kenya?+

It is a Bill that decides how national revenue is shared between the national government and county governments. The Supreme Court ruled it is not a Money Bill, so the Senate must be involved in passing it.

Can the Supreme Court tell Parliament how to pass laws in Kenya?+

Yes, the Supreme Court can review whether Parliament followed the correct constitutional procedure when passing laws. It gave an advisory opinion in this case, saying the Senate must participate in Bills concerning county government.

What happens if the National Assembly ignores the Senate on a county Bill in Kenya?+

The Supreme Court said the Speakers must jointly decide if a Bill concerns counties. If the National Assembly acts alone, the Senate can ask the Court for guidance, and the Court may declare the process invalid.

Why did the Senate take the National Assembly to court in Kenya?+

The Senate argued that the Division of Revenue Bill affects county governments, so it should have a role in passing it. The National Assembly tried to pass it alone, so the Senate asked the Supreme Court to clarify the correct procedure.

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 Speaker of the Senate & another (Advisory Opinion Reference 2 of 2013)", Case Analysis (2013). Advisory Opinion Reference 2 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2013/7/eng@2013-11-01

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