Independent Electoral and Boundaries Commission & 4 others v Ndii & 312 others; Kenya Human Rights Commisssion & 4 others (Amicus Curiae) (Petition E291 of 2021 & Civil Appeal E292, E293 & E294 of 2021 (Consolidated)) (20 August 2021) (Judgment) (with dissent) [2021] KECA 363 (KLR)
The bottom line
#Kenya's Court of Appeal upheld that core parts of the Constitution cannot be amended without the people's direct approval, stopping the BBI amendment process.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the basic structure doctrine in Kenya
The doctrine applies: the Constitution's essential features cannot be altered through secondary constituent power or constituted power but only through the primary constituent power of the people.
The majority traced the hyper-amendment history of the independence Constitution, the Njoya and Onyango decisions on constituent power, Article 255(1)'s entrenched themes, and the purposive interpretive command of Article 259. They held that alterations which fundamentally change the Constitution's identity amount to dismemberment, not amendment, and can only be legitimated by the same participatory process that birthed the Constitution. Sichale, JA dissented, holding the Constitution contains explicit amendment provisions with inbuilt safeguards and no implied bar.
Whether the BBI process was a valid popular initiative
No. The Amendment Bill was an executive-driven presidential initiative disguised as a popular initiative and was therefore constitutionally flawed.
The President appointed the BBI Taskforce and Steering Committee by Gazette Notice in his official capacity; the Bill emanated from the Steering Committee's report; and the process bore the imprimatur of State involvement throughout, including deployment of public officers to collect signatures. A popular initiative is a citizen-conceived, citizen-initiated and citizen-driven process. The lack of meaningful civic education and public participation before signature collection further vitiated the process.
Whether the President can initiate constitutional amendment by popular initiative
No. Article 257 is reserved for private citizens who have no access to the parliamentary route under Article 256.
Reading Article 1(2) with Articles 256 and 257, the Court held the popular initiative route exists for those without recourse to Parliament; the President, as head of the executive and symbol of national unity, cannot shed his office to act as an ordinary citizen. He may pursue amendments through Parliament via the Attorney General. A sitting President is in office twenty-four hours a day and cannot declothe himself of his official capacity.
Legality of the BBI Steering Committee
The Steering Committee, though not an unconstitutional or unlawful entity in its establishment, had no legal capacity to initiate or promote constitutional changes under Article 257.
The President acted lawfully in establishing the Taskforce and Steering Committee under Articles 131 and 132 to foster national unity, and the High Court erred in declaring the Steering Committee an unconstitutional entity (res judicata also applied in part per Okwengu, JA). However, a presidential creation mandated to propose constitutional changes could not hijack the citizens' popular initiative route; to that extent the Committee's promotion of the Bill was unconstitutional.
IEBC quorum and validity of its verification decisions
IEBC lacked the requisite quorum of five commissioners and all decisions connected with the Amendment Bill were invalid.
The Katiba Institute declaration of unconstitutionality of the 2017 amendment reducing quorum, being silent on effective date, meant the amendment was void and the pre-existing quorum of five remained the law. IEBC's own admission that its register was last updated in 2017 and the statutory command for prompt filling of vacancies reinforced this. The verification of signatures supporting a constitutional amendment was a policy-level exercise requiring a quorate Commission.
Presidential immunity under Article 143
The President does not enjoy absolute civil immunity; he may be sued during his tenure for acts or omissions outside the exercise of constitutional powers.
Article 143(2) limits immunity to acts done or not done in exercise of powers under the Constitution, unlike section 14 of the repealed Constitution which was absolute. Acts done in gross violation of the Constitution in official name enjoy only transient protection, with personal accountability deferred until the end of term, while immediate challenges proceed against the Attorney General. However, the declaration that the President personally contravened Chapter 6 was set aside for want of service.
Service and fair hearing in respect of the President
The President was not served with Petition No E426 of 2020; all adverse orders made against him personally were set aside.
The petitioner's claimed service to cos@president.go.ke was not shown to be the President's personal email, was effected before the court's service directions, and the trial court made no enquiry into service before proceeding against an unrepresented party. Denial of the right to be heard renders any decision null and void ab initio. The trial court ought to have satisfied itself on the record of proper service before hearing the matter.
Creation and allocation of 70 additional constituencies
The second schedule to the Amendment Bill, insofar as it predetermined the allocation of 70 constituencies and directed the IEBC on delimitation, was unconstitutional.
The task of delimiting constituencies exclusively belongs to the IEBC under Article 89; entrusting allocation to persons with declared political interests amounts to gerrymandering. The transitional provisions impermissibly suspended the operation of Article 89 without textually amending it, creating a constitutional loophole through which the basic structure could be amended without triggering the primary constituent power.
Justiciability, mootness and ripeness
The petitions were justiciable and ripe: threatened violation of the Constitution suffices to found jurisdiction under Articles 22, 165(3) and 258.
The issues were constitutional rather than political questions; the political question doctrine cannot oust the High Court's jurisdiction under Article 165. Where the basic structure or design of the Constitution is under threat, courts can genuinely intervene even before a violation crystallises; a party need not wait for actual violation. Had the judges declined jurisdiction they would have violated their oaths of office.
Referendum questions and the omnibus Bill
A divided court: the lead judgment held the Bill itself (not separate questions) is submitted to referendum, the IEBC framing the question(s); a strong minority (Nambuye, Kiage; Okwengu concurring with Kiage) held Article 257(10) requires separate and distinct referendum questions, and all agreed a 74-clause omnibus Bill was impermissible.
Kiage, JA reasoned that the singular conception of 'an amendment' in Articles 255 and 257 means each proposed amendment must be presented separately and distinctly, avoiding laundering of unpopular provisions and preserving voter freedom of choice. Musinga, P held what goes to the people is the Bill, with the IEBC framing questions subject to Article 10 values. The Court was unanimous that lumping 74 amendments into one Bill was improper.
Need for a referendum legal framework and continuous voter registration
There is no constitutional or statutory requirement for a nationwide voter registration exercise before a referendum, but IEBC is under a continuing obligation to conduct continuous registration; a proper legal/regulatory framework for referenda is needed though the Elections Act contains broad provisions.
IEBC failed to adduce sufficient evidence of continuous voter registration or sensitisation, but the lack of a specific Referendum Act was held not per se to suspend the constitutional process provided constitutional values, especially Article 10, are observed. The Court recommended enactment of a dedicated Referendum law.
Legal principles established
#- The basic structure doctrine is part of Kenyan constitutional law and binds all courts: fundamental aspects of the Constitution of Kenya, 2010 cannot be amended through the ordinary amendment procedures in Articles 255-257 but only through the primary constituent power of the people.
- A popular initiative under Article 257 is reserved for ordinary citizens; neither the President nor any State organ may initiate a constitutional amendment through that route.
- County Assemblies and Parliament cannot alter the contents of a popular-initiative amendment Bill; their mandate is limited to approval or rejection.
- The quorum for IEBC to transact any business is five commissioners as per paragraph 5 of the Second Schedule to the IEBC Act, since the unconstitutional 2017 amendment reducing it to three did not revive or survive.
- Presidential immunity under Article 143(2) is limited: the President may be sued during his tenure for acts or omissions not done in exercise of constitutional powers.
- Where a declaration of unconstitutionality of a statute is silent on its effective date, the declaration takes effect from the date of judgment; the pre-amendment statutory position remains the law.
- The IEBC's role under Article 257(4) includes verifying that a popular initiative is supported by at least one million registered voters, and a legal/regulatory framework is required for that verification.
- Before proceeding to hear a matter in the absence of a party, a court must satisfy itself on the record that there was proper service; failure to do so vitiates adverse orders made against the unserved party.
Court orders
#- 1.Upheld the judgment of the High Court in part, affirming that the basic structure doctrine is applicable in Kenya (Sichale, JA dissenting)
- 2.Affirmed that the basic structure doctrine limits the amendment power set out in articles 255-257 (Okwengu & Sichale, JJA dissenting)
- 3.Affirmed that the basic structure of the Constitution can only be altered through the Primary Constituent Power which must include civic education; public participation and collation of views; Constituent Assembly debate; and ultimately, a referendum (Okwengu, Gatembu & Sichale, JJA dissenting)
- 4.Affirmed that civil court proceedings can be instituted against the President or a person performing the functions of that office during their tenure in respect of anything done or not done contrary to the Constitution (Tuiyott, JA dissenting)
- 5.Affirmed that the President does not have authority under the Constitution to initiate changes to the Constitution by popular initiative
- 6.Affirmed that the BBI Steering Committee has no legal capacity to initiate any action towards promoting constitutional changes under article 257
- 7.Affirmed that the Constitution of Kenya Amendment Bill, 2020 is unconstitutional and a usurpation of the People's exercise of sovereign power
- 8.Affirmed that the Bill cannot be subjected to a referendum in the absence of evidence of continuous voter registration (Sichale, JA dissenting)
- 9.Affirmed that the IEBC does not have the requisite quorum for purposes of carrying out its business relating to the proposed referendum (Sichale, JA dissenting)
- 10.Affirmed that at the time of launch of the Bill and collection of signatures there was neither legislation governing the collection, presentation and verification of signatures nor an adequate legal/regulatory framework to govern the conduct of referenda (Sichale, JA dissenting)
- 11.Affirmed that County Assemblies and Parliament cannot change the contents of a popular initiative amendment Bill
- 12.Affirmed that the second schedule to the Bill, insofar as it predetermines allocation of the additional seventy constituencies and directs the IEBC on constituency delimitation, is unconstitutional (Sichale, JA dissenting)
- 13.Affirmed that the Administrative Procedures for verification of signatures are illegal, null and void for want of quorum and violation of sections 5, 6 and 11 of the Statutory Instruments Act, 2013 (Sichale, JA dissenting)
- 14.Issued a permanent injunction restraining the IEBC from undertaking any processes required under article 257(4) and (5) in respect of the Bill
- 15.Set aside the declaration that President Uhuru Muigai Kenyatta contravened Chapter 6 of the Constitution and specifically article 73(1)(a)(i)
- 16.Set aside the declaration that article 257(10) requires all specific proposed amendments to be submitted as separate and distinct referendum questions (Nambuye, Okwengu & Kiage, JJA dissenting)
- 17.Set aside the declaration that the BBI Steering Committee established by the President is an unconstitutional and unlawful entity
- 18.Dismissed the cross-appeals
- 19.Ordered that each party bear their own costs in the appeals and in the High Court
- On appeal from
- High Court of Kenya at Nairobi, Constitutional and Human Rights Division
- Constitutional Petition No E282 of 2020 consolidated with Petition Nos 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021
- Jurisdiction invoked
- First appeal from the High Court exercising original constitutional jurisdiction under Articles 22, 23 and 165 of the Constitution; appeals as of right to the Court of Appeal under Article 164
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dapasha & another v Marriot International & 4 others; East African Wildlife Society & another (Interested Parties) (Environment and Land Petition E003 of 2025) [2026] KEELC 848 (KLR)[2026] KEELC 848 (KLR)17 Feb 2026
- Kenya Hospitals Association t/a Nairobi Hospital v Kenya Medical Practitioners, Pharmacists and Dentists Union & another (Civil Appeal (Application) E505 of 2024) [2025] KECA 1133 (KLR)[2025] KECA 1133 (KLR)20 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Independent Electoral and Boundaries Commission & 4 others v Ndii & 312 others; Kenya Human Rights Commisssion & 4 others (Amicus Curiae) (Petition E291 of 2021 & Civil Appeal E292, E293 & E294 of 2021 (Consolidated)) (20 August 2021) (Judgment) (with dissent) [2021] KECA 363 (KLR)", Case Analysis (2021). Civil Appeal Nos E291, E292, E293 & E294 of 2021 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/363/eng@2021-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.