Speaker, Nairobi City County Assembly & another v Attorney General & 3 others
The bottom line
#Supreme Court refused to advise on filling Nairobi governor vacancy due to pending lower court cases.
What this practically means
#The Supreme Court declined to give an advisory opinion on how to fill the Nairobi governor position after the former governor was suspended and the deputy resigned. The Court said it has the power to advise, but will not do so when the same issues are already being handled by lower courts. It also struck out the County Assembly Clerk from the case, saying only the Speaker can request such advice.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to render an advisory opinion?
- 2.If yes, whether the Court should exercise its discretion to give an advisory opinion in this matter?
Key legal issues
#Whether the Supreme Court has jurisdiction to render an advisory opinion under Article 163(6) of the Constitution.
The Court has jurisdiction under Article 163(6) as the matter concerns county government, and the Speaker of the County Assembly is a proper applicant as a State organ. However, the Clerk of the County Assembly lacks locus standi.
The Court found that the Reference concerns matters relating to county government, specifically the filling of the position of Governor and Deputy Governor upon a double vacancy. The Speaker of the County Assembly is an office established under Article 178 of the Constitution and is therefore a proper applicant under Article 163(6). However, the Clerk of the County Assembly does not have the locus standi to bring such a request and was struck out.
Whether the Court should exercise its discretion to give an advisory opinion when some issues are pending before lower courts.
The Court declined to exercise its discretion because, although the issues met the element of public importance, they did not meet the criteria of urgency, and the applicant did not demonstrate that the matters were not amenable to expeditious resolution through adversarial court process.
The Court identified two issues pending before lower courts: whether court pronouncements declared vacancies, and whether a Governor barred from office could appoint a Deputy Governor. Applying the guidelines from Re Matter of the Interim Independent Electoral Commission, the Court found that while the Reference met the 'general public interest' element, it failed the urgency requirement. The Court stated that both elements must be met, and since urgency was not demonstrated, it declined to entertain those issues, directing that they reach the Supreme Court through the normal appellate mechanism.
Whether the Court should render an advisory opinion on an issue already determined in a previous advisory opinion.
The Court declined to render further advice on the issue of whether the Speaker can assume the office of Governor in the absence of both Governor and Deputy Governor, as it had already been determined in Re Speaker, County Assembly of Embu.
The Court noted that Article 182(4) of the Constitution provides that in the absence of both Governor and Deputy Governor, the Speaker shall act as County Governor. Additionally, in Re Speaker, County Assembly of Embu, the Court had already held that the office of Deputy Governor remains vacant until the election of a new Governor, who must nominate a person within 14 days. The Court saw no justification for issuing further advice on the same issue.
Whether the Court should render an advisory opinion on a hypothetical issue.
The Court declined to exercise its jurisdiction on the hypothetical question of what happens if the Speaker declines to assume the office of Governor, as it had not yet occurred.
The Court agreed with the Attorney General's submission that the question was hypothetical as it was yet to occur. Citing Re Matter of the Interim Independent Electoral Commission, the Court emphasized that given the practical and legal constraints attendant on advisory opinions, the Court will exercise that jurisdiction with appropriate restraint and will not do so in hypothetical situations.
Legal principles established
#- Only the national government, a state organ, or a county government can request a Supreme Court advisory opinion; a Clerk of a County Assembly cannot.
- The Supreme Court will not give an advisory opinion on issues already pending before lower courts unless the applicant proves both great public importance and urgency.
- The Court will not issue advisory opinions on hypothetical situations that have not yet happened.
- The Speaker of a County Assembly is a proper applicant for an advisory opinion under Article 163(6) as a state organ.
- The Court will not re-advise on an issue it has already settled in a previous advisory opinion.
Court orders
#- 1.The 2nd Applicant is hereby struck out of the Reference at this stage.
- 2.We decline to exercise our discretion in rendering an opinion in this matter.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 163(6) of the Constitution
Relief refused
#Advisory opinion on all five issues raised in the Reference
The Court declined to exercise its discretion to render an advisory opinion for various reasons including pending proceedings in lower courts, prior determination of the issue, hypothetical nature of the question, and availability of alternative mechanisms.
Costs
No order as to costs
Quotable passages
#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 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.
the other Applicant, the Clerk of the County Assembly, unlike the Speaker, does not have the locus standi to bring a request for an advisory opinion before this Court.
We shall not, therefore, exercise our jurisdiction in hypothetical situations.
Ultimately, based on our finding above, we decline to exercise our discretion in rendering an opinion in this matter.
Key timeline
#Practical implications
#Advisory opinion strategy for clients
When considering a Supreme Court advisory opinion under Article 163(6), first check whether any part of the issue is pending in a lower court. If it is, you must demonstrate both great public importance and urgency, and show the matter cannot be resolved quickly through normal court processes. Otherwise, the Court will likely decline, as it did here.
County leadership gaps affect contracts
When a county governor and deputy both vacate office, the Speaker acts as governor temporarily. But if the process to fill the vacancy gets stuck in court, business contracts, permits, and county payments may face delays. The Supreme Court's refusal to give quick guidance means you should plan for extended uncertainty and monitor lower court timelines.
Know who can ask for legal clarity
If you are a county employee or official, remember that only certain people can ask the Supreme Court for an advisory opinion on county matters. The County Assembly Clerk cannot do it alone. The Speaker can, but the Court may still refuse if the issue is already in another court. This affects how quickly county leadership gaps can be resolved.
Frequently asked questions
#Who can request a Supreme Court advisory opinion in Kenya?+
Under Article 163(6) of the Constitution, only the national government, a state organ, or a county government can request an advisory opinion. The Clerk of a County Assembly does not have that right, but the Speaker does as a state organ.
Why did the Supreme Court refuse to advise on the Nairobi governor vacancy in Kenya?+
The Court refused because some of the issues were already being handled by lower courts. The Court said it will only give advisory opinions on such matters if the applicant proves both great public importance and urgency, which was not shown here.
What happens when both governor and deputy governor are absent in a Kenyan county?+
Article 182(4) of the Constitution says the County Assembly Speaker acts as governor. The Supreme Court has already ruled that the deputy governor position stays vacant until a new governor is elected, who must then nominate a deputy within 14 days.
Can the Supreme Court give an advisory opinion on a hypothetical situation in Kenya?+
No. The Supreme Court will not exercise its advisory opinion jurisdiction on hypothetical issues that have not yet occurred. It only advises on real, current disputes that meet strict criteria of public importance and urgency.
Cite this brief
#Cite this brief
Caselaw, "Speaker, Nairobi City County Assembly & another v Attorney General & 3 others", Case Analysis (2021). Reference 1 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/52/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.