Blow to Senate as court upholds laws passed by National Assembly

Chief Justice Martha Koome addressing during the Selection Panel for the Recruitment of Nominees for Appointment as the Chairperson and Members of the Independent Electoral and Boundaries Commission (IEBC) swearing-in at the Supreme Court in Nairobi on January 31, 2025. [Boniface Okendo, Standard]

The Supreme Court has dismissed an appeal by the Senate challenging the constitutionality of 21 Acts passed by the National Assembly without the Senate’s input.

On Friday, the court upheld 21 out of 23 Acts that were disputed by the Senate. The court termed the 21 Acts as constitutional.

Justice Martha Koome, Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Issac Lenaola, and William Ouko said that the National Assembly did not require consideration and enactment by the Senate to pass the laws.

The Supreme Court ruled that all the eight statutes under the Supplementary Appropriations Act, Tax Law, and Finance Act were like money bills, which did not require the Senate’s involvement in their enactment.

“We uphold the following findings by the Court of Appeal, that the under listed Acts passed by the National Assembly did not require consideration and enactment by the Senate and hence are constitutional,” said Justice Koome.

However, the Apex Court said that the Parliament should have involved the Senate in the enactment of sections 3 and 4 of the Kenya Medical Supplies Authority (KEMSA) Act, Equalisation Fund Appropriation Act, No. 3 of 2018, and the Sacco Societies Amendment Act 2018.

The top judges said that the three Acts passed by the National Assembly are in contravention of Articles 96, 109, 110, 111, 112, and 113 of the Constitution and are therefore unconstitutional, thus null and void.

The Senate, Speaker of the Senate, Senate Majority Leader, and minority leaders filed an appeal against the National Assembly and Speaker of the National Assembly seeking an interpretation of Article 110(3) of the Constitution, which requires the speakers of both houses to jointly determine whether a bill concerns county government.

The Senate said that during the 12th Parliament, the National Assembly curtailed its legislative role and passed several bills, which were subsequently enacted into law, without the participation of the Senate contrary to the Constitution.

The Senate also accused Parliament of declining to consider several bills originating from the Senate, claiming they were money bills that ought to originate in the National Assembly.

The Senate said that Parliament consistently and unilaterally passed legislation that ought to have been considered by both Houses of Parliament.

They asserted that the said bills were signed into law by the President despite the absence of a certificate from both Speakers to the effect that the procedure under Articles 109-115 of the Constitution had been complied with.

The Senate sought a declaration that any bill or delegated legislation that provides for the mandate of the Parliamentary Service Commission must be considered by the Senate.

The Apex Court said the enactment of amendments to Sections 3 and 4 of the KEMSA Act in line with the dictates of Article 110 of the Constitution affects the functions and powers assigned to counties.

“Accordingly, we agree with the findings by the Court of Appeal that the purchase of drugs and medical supplies from KEMSA was a matter that required the participation of the Senate,” said Justice Koome.

The judges also held that the exclusion of the Senate from consideration and enactment of the Equalisation Fund Appropriation Act, No. 3 of 2018, was unconstitutional.

Koome said that Article 202(8) explicitly requires that any legislation under Article 204(7) seeking to extend the fund’s lifespan beyond 20 years must be supported by more than half of all members in the National Assembly and the Senate.

The court further said the Sacco Societies Amendment Act 2018 was invalid but suspended the invalidity for 18 months to allow Parliament to

The judges said Sacco falls within the category of a cooperative society and consequently falls within the functions and powers of counties as signalled in Clause 7(e) of Part 2, Fourth Schedule.