Speaker of the County Assembly of Meru v Independent Electoral & Boundaries Commission & another

2. Noting That the applicant proposes that the Independent Electoral and Boundaries Commission and the Ethics and Anti-Corruption Commission should be admitted as interveners because of their constitutional mandate regarding the integrity and qualications of candidates for election to certain public oces; and further noting that, during the pre-trial directions, learned counsel for the applicant conceded that he had not sought the Hon. Attorney General’s advice before ling the Referencedeliberately so; his submission in that regard being that seeking advice from the Hon. Attorney General, as understood from In Attorney General (On Behalf of the National Government) Vs Karua [2024] KESC 21 (KLR), is not mandatory; and that, in the scheme of devolution, seeking the advice of the Hon. Attorney General might not be the best route to take in the circumstances of this case; and 3. Noting the pleadings and submissions before us, we now opine as follows: i. Rule 53 (c) of the Supreme Court Rules, 2020 provides that: i. The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if – … (c) the matter in respect of which the reference is made can, in the opinion of the court, be resolved by the advice of the Attorney General, and such advice has not been sought. [Emphasis added] ii. In the Matter of Speaker, County Assembly of Siaya County, (Reference No 4 of 2017) [2020] KESC 40 eKLR and Matter of the National Gender and Equality Commission, Reference No 1 of 2013; [2014] KESC 42 (KLR), we stated that, while it is not a matter of law that an applicant ought to seek the Attorney General’s opinion on a matter forming the subject matter of a Reference to this court, as a matter of due process that an applicant, like other government institutions and agents, should adopt the practice of resorting to the oce of the Attorney General rst and before seeking this Court’s opinion. The need to seek an opinion from the Attorney General before approaching this court has also been reiterated In the Matter of Speaker, County Assembly of Siaya County, Reference No 4 of 2017; [2020] eKLR, County Government of Nairobi v Attorney General (Reference 1 (E001) of 2021) [2023] KESC 65 (KLR). Similarly In the Matter of an Application for an Advisory Opinion under article 163(6) of the Constitution of Kenya by the County Assemblies of Kericho and Nandi Counties consolidated with In the Matter of an Application for an Advisory Opinion by the Governor, Makueni County Reference No. 3 of 2020 [2021] KESC 61 (KLR) the Court directed the parties to rst seek the advice of the Attorney General, and that the Attorney General should give such advice within seven (7) days before the Court could proceeded with the matter; and iii. In Attorney General (On Behalf of the National Government) Vs Karua [2024] KESC 21 (KLR), (Martha Karua case), this Court outlined why the Attorney General’s advice could not be sought in the specic circumstances of that case. The Court determined as follows at paragraph 42 of that decision: “ …Taking the above provisions into consideration, it is our considered view that the AG led this reference pursuant to the authority granted to his oce under article 156(4)(a) and (b) of the Constitution. In line with rule 53 of the Supreme Court, Rules 2020, and our reasoning in Re IIEC (supra) https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/57/eng@2026-07-17 2

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it is absurd to require the oce of the AG to seek a legal opinion from itself. If it had the capacity to resolve the matter on its own then it would have advised the national government expressly and not invoked this court’s advisory opinion jurisdiction….” [Emphasis Ours] 4. iv. Rule 53 of the Supreme Court Rules 2020, together with the list of authorities cited by the applicant, clearly set out the requirement to seek the Attorney General’s advice before ling a Reference. Such advice may resolve the question before us to the applicant's satisfaction, thus saving precious judicial time. The devolution system as presently designed does not also preclude the Attorney General from giving advice, particularly in a matter of public interest. Further, the present case is distinguishable from the Martha Karua (supra) case, where the Oce of the Attorney General was the applicant and, as such, could not render advice to itself. v. We therefore nd no justication for the applicant’s failure to seek the Attorney General’s advice in this case and his reliance on the Martha Karua case is obviously misguided. vi. For the reasons above, we hereby direct that the applicant ought rst to seek the Attorney General’s advice before we proceed to hear the application to admit the proposed interveners, and the eventual hearing and determination of the Reference, if at all. vii. We also direct that the Reference herein together with this Ruling be served upon the Oce of the Attorney General by the applicant for advice which ought to be given within twenty-one (21) days from the date hereof. Thereafter the matter shall be mentioned before the Deputy Registrar of this Court for further directions. Accordingly, we make the following orders: i. The applicant is directed to seek the Hon. Attorney General’s advice, and such advice is to be given within twenty-one (21) days from the date of this Ruling. ii. The matter be thereafter mentioned before the Deputy Registrar of the Court to conrm compliance with our directions above. iii. There shall be no order as to costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2026 ………………………………………..……………………… P.M. MWILU DEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT ………………………………………………. …………………………………………….. S. WANJALA I. LENAOLA JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT ….………………………………………… ……………………………………….. W. OUKO M. WARSAME https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/57/eng@2026-07-17 3

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JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT I certify that this is a true copy of the original. REGISTRAR, SUPREME COURT OF KENYA https://new.kenyalaw.org/akn/ke/judgment/kesc/2026/57/eng@2026-07-17 4

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