Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others (Application 1 (E002) of 2022) [2022] KESC 18 (KLR) (19 May 2022) (Ruling)

Senate of the Republic of Kenya & 3 others v Speaker of the National Assembly of the Republic of Kenya & 10 others (Application 1 (E002) of 2022) [2022] KESC 18 (KLR) (19 May 2022) (Ruling) Neutral citation: [2022] KESC 18 (KLR) Republic of Kenya In the Supreme Court of Kenya Application 1 (E002) of 2022 PM Mwilu, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ May 19, 2022 Between Senate of the Republic of Kenya 1st Applicant Speaker of the Senate 2nd Applicant Senate Minority Leader 3rd Applicant Senate Majority Leader 4th Applicant and Speaker of the National Assembly of the Republic of Kenya 1st Respondent National Assembly 2nd Respondent Council of County Governors 3rd Respondent Attorney General 4th Respondent Kenya Medical Supplies Authority 5th Respondent Institute for Social Accountability 6th Respondent Drugs and Supplies 7th Respondent Katiba Institute 8th Respondent Pharmaceutical Society Of Kenya 9th Respondent Elias Murundu 10th Respondent Commission on Revenue Allocation 11th Respondent (Being an application for stay of execution of the Judgement of the Court of Appeal (Murgor, Nyamweya and Lesiit, JJA) delivered at Nairobi on 19th November 2021, in Civil Appeal No. E084/2021) Supreme Court orders stay of the execution of orders 1, 3 and 9 of the in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others Reported by Kakai Toili **_Civil Practice and Procedure_** _– orders – stay orders - what were the requirements to be met for the Supreme Court to issue stay orders._ Brief facts The applicants filed the instant application seeking stay of execution of orders 1, 3 and 9 of the judgement of the Court of Appeal at Nairobi in Civil Appeal No. E084 of 2021, _National Assembly & others v the Senate of Kenya & others_ pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021, _Senate of Kenya & others v National Assembly & others. _The applicants submitted that unless the orders of stay were granted, the appeal would be rendered nugatory. The applicants argued that they had an arguable appeal to warrant the grant of stay orders. Issues Whether an order of stay of execution of orders of the decision by the Court of Appeal could issue in the circumstances. Held The SC Petition No. 19(E027) of 2021, which was already before the court was arguable and the instant application met the principles set out by the court in _Board of Governors, Moi High School, Kabarak & another v Malcolm Bell_, Petition Nos. 6 & 7 OF 2013; [2013] eKLR and _Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others_, SC Application No. 5 of 2014; [2014] eKLR. _Application allowed._ Orders 1. _Pending hearing and determination of Supreme Court Petition No. 19(E027) of 2021; Senate of Kenya & others v National Assembly & others, an order was issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No. E084/2021; National Assembly another & Senate of Kenya & others._ 2. _Costs of the application to abide the court’s decision in the appeal._ Citations **Cases** 1. Board of Governors, Moi High School, Kabarak & another v Malcolm Bell (Petition Nos 6 & 7 of 2013; Civil Application Nos 12 & 13 of 2012; [2013] eKLR (Consolidated)) — Mentioned 2. Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others (Application No 5 OF 2014;[2014] eKLR) — Mentioned **Statutes** 1. Constitution of Kenya, 2010 — article 109,110(3);114 — Cited 2. Supreme Court Act, 2011 (Act No 7 of 2011) — section 3,21,24 — Cited 3. Supreme Court Rules (2020) — Rule 31, 32 — Cited AdvocatesNone mentioned Ruling [1]Upon perusing the notice of motion dated January 11, 2022 and filed on January 14, 2022, under sections 3, 21 and 24 of the [Supreme Court Act](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/SupremeCourtAct_No7of2011.pdf), and rules 31 and 32 of the [Supreme Court Rules](http://kenyalaw.org/kl/index.php?id=11080), 2020 seeking stay of execution of order nos 1, 3 and 9 of the Judgement of the Court of Appeal at Nairobi in Civil Appeal No E084 of 2021, _the National Assembly & others v Senate of Kenya & others_ pending hearing and determination of Supreme Court Petition No 19(E027) of 2021, _Senate of Kenya & others v National Assembly & others_ and [2]Upon reading the affidavit in support of Hon Senator Kenneth Makelo Lusaka, the Speaker of the Senate, sworn on January 11, 2022; and [3]Upon considering the grounds adduced in support of the application, and the submissions made by the applicants in support of the orders for stay of execution that is, unless the orders of stay are granted, the appeal will be rendered nugatory as the pending Bills will be re-submitted without being subjected to the joint resolution process; if the appeal is successful, the current Parliament, whose term expires on August 9, 2022 will not be able to regularize the impugned laws to conform with [the Constitution](/akn/ke/act/2010/constitution) and remain in force; the cross-appeal which the Court of Appeal remitted to the High Court will proceed to hearing while the petition is yet to be heard and determined by this court; it is in the public interest that the orders of stay be granted to prevent infringement of article 110(3) of [the Constitution](/akn/ke/act/2010/constitution); the applicants have an arguable appeal to warrant the grant of stay orders; the Court of Appeal declined to apply the decision of the Supreme Court setting out the manner in which Parliament ought to apply article 110(3) of [the Constitution](/akn/ke/act/2010/constitution) and in the process violated the principle of _stare decisis_ ; and [4]Upon considering Supreme Court Petition No 19 (E027) of 2021; _Senate of Kenya & others v National Assembly & others_, filed by the applicants on December 23, 2021 and dated on even date; and [5]Considering orders Nos 1, 3, and 9 of the Judgment of the Court of Appeal which read _inter alia_ :“1. We set aside orders (i), (ii), (iii), (iv), (v), and (vi) of the judgment by the High Court dated 29th October 2020, delivered in Nairobi HC Petition No 284 of 2019 as consolidated with Nairobi HC Petition No 353 of 2019..............3\. A Declaration be and is hereby issued that the concurrence process in article 110(3) only applies to all Bills concerning counties within the meaning of articles 109 to 114 of [the Constitution](/akn/ke/act/2010/constitution), and as interpreted in this judgment............9\. We hereby remit the appellants’ Cross Petition filed in Nairobi HC Constitutional Petition No 284 of 2019 back to the High Court for consideration and determination of Prayers No 7 to 22 of the Cross Petition.” [6]Upon Considering orders (i) to (vi) both inclusive made by the High Court in Nairobi HC Petition No 284 of 2019 as consolidated with Nairobi HC Petition No 353 of 2019 which read _inter alia_ :“i.A declaration be and is hereby issued that pursuant to article 110(3) of [the Constitution](/akn/ke/act/2010/constitution), a Speaker of a House of Parliament must first seek the concurrence of the Speaker of the other House of Parliament, as to whether a bill is one that concerns counties, and if it is, whether it is a special or an ordinary bill, before the bill can be introduced for consideration in the originating House.ii.A declaration be and is hereby issued that it is mandatory and a condition precedent for any bill that is published by either House to be subjected to a concurrence process to determine in terms of article 110 (3) of [the Constitution](/akn/ke/act/2010/constitution) whether the Bill is special or an ordinary bill and that such determination is not dependent on “a question arising” as to whether the Bill is one that concerns Counties;iii.A declaration be and is hereby issued that the provisions of article 110 (3) of [the Constitution](/akn/ke/act/2010/constitution) are couched in mandatory terms and is a condition precedent before any House of Parliament can consider a bill;iv.A declaration be and is hereby issued that pursuant to article 110(3) of [the Constitution](/akn/ke/act/2010/constitution), one Speaker cannot unilaterally make a decision as to whether the Bill does or does not concern counties or whether a question as to whether the Bill is one that concerns counties does or does not arise;v.An order be and is hereby issued ordering the immediate cessation of consideration of all bills that are pending before either House, and for which joint concurrence by the Speakers of both Houses as to whether the bills concern counties, has not been demonstrated to allow for such Bills to be subjected to the mandatory joint concurrence process contemplated under article 110(3) of [the Constitution](/akn/ke/act/2010/constitution).” [7]Furthernoting that no party has responded or challenged the application before us despite the pre-trial directions before the Deputy Registrar on January 14, 2022 and March 7, 2022; and [8]Considering this court’s finding on its jurisdiction to grant orders of stay of execution of decrees issued by superior courts in the case of [Board of Governors, Moi High School, Kabarak & another v Malcolm Bell, Petition Nos 6 & 7 of 2013;](/akn/ke/judgment/kesc/2013/12) [2013] eKLR([Malcom Bell Case](/akn/ke/judgment/kesc/2013/12)) and noting this court’s guiding principles on grant of stay of execution orders in [Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, ](http://kenyalaw.org/caselaw/cases/view/96314/)SC Application No 5 of 2014; [2014] eKLR [ _Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others,_ ](http://kenyalaw.org/caselaw/cases/view/96314/)SC Application No 5 of 2014 ; [2014] eKLR ( _Gatirau Munya_ Case); and [9]Having considered the prayers sought, we find that SC Petition No 19(E027) of 2021, which is already before us is arguable and that the instant application meets the principles set out by this court in the _Malcom Bell_ Case and _Gatirau Munya_ case. [10]For the reasons aforesaid, we now make the following orders: Orders:a.Pending hearing and determination of Supreme Court Petition No 19(E027) of 2021; _Senate of Kenya & others v National Assembly & others_, an order is issued to stay the execution of order 1, 3 and 9 Court of Appeal at Nairobi in Civil Appeal No E084/2021;_National Assembly another & Senate of Kenya & others_.b.The costs of this application shall abide the court’s decision in the appeal. [11]It is so, ordered. **DATED** **AND** **DELIVERED AT NAIROBI** **THIS** **19th** **DAY** **OF** **May 2022**.**P.M MWILU****VICE CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT****..........................****S.C. WANJALA****JUSTICE OF THE SUPREME COURT****..........................****NJOKI NDUNGU****JUSTICE OF THE SUPREME****..........................****I.LENAOLA****JUSTICE OF THE SUPREME COURT****..........................****W. OUKO****JUSTICE OF THE SUPREME COURT****..........................** I certify that this is a true copy of the original**REGISTRAR****SUPREME COURT OF KENYA**