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Supreme CourtDismissedPetition (Application) 19 (E027) of 2021

Senate & 3 others v Speaker of the National Assembly & 10 others

Supreme Court of Kenya
15 August 2025
5,495 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses Senate's bid to reopen settled law on money Bills.

What this practically means

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The Senate asked the Supreme Court to review its March 2025 judgment on how money Bills are classified. The Court said no, because review is not a second chance to argue a lost case. You can only ask for review if there was fraud, the court lacked jurisdiction, or a law was hidden. The Senate did not prove any of those. The judgment stands, and each side pays its own costs.

Executive summary

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This is an application by the Senate, the Speaker of the Senate, and the Senate Majority and Minority Leaders seeking review of the Supreme Court's judgment of March 21, 2025 in Petition 19(E027) of 2021. That judgment had affirmed the Court of Appeal's decision on the legislative roles of the Senate and National Assembly, particularly regarding the interpretation of Articles 110(3) and 114 of the Constitution on money Bills and Bills concerning county governments. The applicants argued that the March 2025 judgment had grave implications for devolution, departed from prior Supreme Court decisions without explanation, and created confusion about the notification mechanism between Speakers. They also sought an oral hearing. The 1st, 2nd, and 4th respondents opposed the application, contending it was a disguised appeal, that the court was functus officio, and that the grounds for review under section 21A of the Supreme Court Act were not met. The Supreme Court dismissed the application. It held that the applicants failed to demonstrate any of the limited grounds for review: fraud, deceit, nullity, lack of consent, or reliance on a repealed law. The court emphasized that an application for review is not an opportunity to relitigate a concluded matter, and that once it has delivered a final judgment, it becomes functus officio. The court found the application to be a disguised appeal attempting to reargue issues already determined. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the applicants have established a basis for the review of this court’s decision.

Key legal issues

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01

Whether the applicants established a basis for review of the Supreme Court's judgment of March 21, 2025.

Holding

The applicants failed to demonstrate any of the grounds for review under section 21A of the Supreme Court Act or the principles in the Outa case. The application was a disguised appeal attempting to relitigate issues already determined.

Reasoning

The court examined the application against the statutory and jurisprudential framework for review. It found that the applicants did not allege or prove fraud, deceit, nullity, lack of consent, or reliance on a repealed law. Instead, the applicants sought to reargue the interpretation of articles 110(3) and 114 of the Constitution and complained about the consequences of the judgment, which is not a valid ground for review. The court emphasized that it becomes functus officio after final determination and cannot sit on appeal over its own decisions.

Legal principles established

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  • Review is not an appeal; you cannot relitigate just because you dislike the outcome.
  • Once the Supreme Court decides a case, it becomes functus officio and cannot reopen it except in very narrow circumstances.
  • The only grounds for Supreme Court review are fraud, lack of jurisdiction, mistaken consent, or reliance on a repealed or concealed law.
  • A party unhappy with a Supreme Court judgment cannot use review to reargue constitutional interpretation.
  • The losing party bears its own costs unless the court orders otherwise.

Court orders

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  1. 1.The applicants’ notice of motion dated June 20, 2025 and filed before this court on June 24, 2025 be and is hereby dismissed.
  2. 2.Each party will bear their own costs of the application.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Supreme Court Petition 19(E027) of 2021
Jurisdiction invoked
Sections 3A, 21 and 21A of the Supreme Court Act, Cap 9B; Rules 3(5) and 28(5) of the Supreme Court Rules, 2020

Relief refused

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Review, set aside and/or correct the Judgment, Order and decree of this Court in Supreme Court Petition 19(E027) of 2021 delivered on March 21, 2025.

The applicants failed to demonstrate that the matter conforms to the specific parameters for review under section 21A of the Supreme Court Act or the Outa case.

Oral hearing of the application.

The applicants did not demonstrate any special and compelling circumstances to warrant an oral hearing in exception to rule 31(1) of the Supreme Court Rules.

Costs of the application.

The court ordered each party to bear its own costs.

Costs

Each party will bear their own costs of the application.

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 applicants’ notice of motion dated June 20, 2025 and filed before this court on June 24, 2025 be and is hereby dismissed.
p. 12 Final orders dismissing the application for review
Each party will bear their own costs of the application.
p. 12 Costs order
an application for review is not meant to afford the losing party an opportunity to re-litigate or re-open a matter merely because such party is unhappy with the outcome.
p. 11 Nature and scope of review jurisdiction
Once the Court has heard and determined an appeal from the Court of Appeal, it becomes functus officio. The Judgment stands until such time, if at all, that it is departed from in a future case or, reviewed, within the confines that we have clearly outlined.
p. 11 Functus officio doctrine after final determination
The applicants have not demonstrated how their matter conforms to the specific parameters enumerated under section 21A of the Supreme Court or in the Outa case.
p. 11 Failure to meet threshold for review

Key timeline

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2021
Petition 19(E027) of 2021 filed, challenging legislative roles of Senate and National Assembly on money Bills.
2025-03-21
Supreme Court delivers judgment affirming Court of Appeal's interpretation of Articles 110(3) and 114.
2025-06-20
Senate and others file notice of motion seeking review of the March 21 judgment.
2025-06-24
Application filed before the Supreme Court.
2025
Supreme Court dismisses the review application, holding functus officio and no valid grounds.

Practical implications

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For lawyers

Review applications must meet strict grounds

When advising clients on Supreme Court review, stress that section 21A of the Supreme Court Act and the Outa case limit grounds to fraud, nullity, lack of consent, or repealed/concealed law. Do not file a disguised appeal. The court will dismiss it and may order costs against your client. Prepare evidence of the specific ground from the outset.

For businesses

Finality of court decisions protects certainty

Businesses relying on Supreme Court judgments can now be more confident those decisions are final. The Senate's failed review shows courts will not reopen settled law just because a party disagrees. This reduces legal risk for long-term contracts and investments that depend on clear constitutional rules about which legislative body handles money Bills.

For individuals

You cannot reargue a case you lost

If you lose a case in the Supreme Court, you cannot ask the same court to hear it again just because you think the decision was wrong. You must prove fraud, that the court had no power to decide, or that a key law was hidden. This ruling protects you from endless litigation by the other side after a final judgment.

Frequently asked questions

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What does functus officio mean in Kenyan law?+

It is a Latin term meaning 'having performed its office.' Once a court like the Supreme Court delivers a final judgment, it cannot change or reopen that decision. The only exceptions are very narrow grounds like fraud or lack of jurisdiction, as this case confirms.

Can the Senate appeal the Supreme Court's review dismissal in Kenya?+

No. The Supreme Court is the highest court in Kenya. Its decision on a review application is final. There is no higher court to appeal to. The Senate must accept the judgment unless it can later prove one of the limited review grounds, which it failed to do here.

What are the grounds for Supreme Court review in Kenya?+

Under section 21A of the Supreme Court Act, you can only ask for review if: (1) the judgment was obtained by fraud or deceit; (2) the court lacked jurisdiction; (3) the court was misled into thinking parties consented; or (4) the decision relied on a repealed law or a deliberately hidden statutory provision.

How does this case affect devolution in Kenya?+

The Supreme Court's March 2025 judgment on money Bills and county government Bills remains in force. This dismissal means the Senate cannot relitigate its role. County governments and the National Assembly now have clearer rules on which Bills go to which House, affecting how devolved funds are allocated.

Later judgments citing this (8)

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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, "Senate & 3 others v Speaker of the National Assembly & 10 others", Case Analysis (2025). Petition (Application) 19 (E027) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/49/eng@2025-08-15

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