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Court of Appeal Judges Asike Mkhandia and Mumbi Ngugi recused themselves on Wednesday/CFM

Kenya

Justices Makhandia, Ngugi recuse themselves from bench handling House-Senate dispute

NAIROBI, Kenya Jul 21 – Court of Appeal Judges Asike Makhandia and Mumbi Ngugi have recused themselves from hearing an appeal filed by the National Assembly challenging a High Court ruling which nullified 23 laws passed by the House without referring them to the Senate.

Justice Ngugi communicated the decision on Wednesday morning as she referred the matter back to the Appeal Court President Daniel Musinga for reconstitution of the bench.

Two judges appointed by Justice Musinga will join Lady Justice Agnes Murgor to complete the bench.

“This matter was coming for mention this morning, however for reasons already explained to the parties, Honourable Justice Makhandia recuses himself from hearing the matter. The matter is accordingly taken out of the hearing list for today, It shall be placed for hearing before a different Bench on July 27, 2021. Such Bench shall exclude Honourable Makhandia and Honourable Mumbi Ngugi who have previously engaged with issues raised in this matter at the High Court,” she said.

The National Assembly appealed the ruling delivered by a three-judge bench of the High Court in May stating the court erred, misdirected and misapplied the Constitution through its failure to consider the architecture design of the bicameral parliamentary system under the Constitution.

The Senate had moved to court to contest the National Assembly’s decision to conduct law-making business with the exclusion of senators.

Some of the key legislation annulled by the High Court include: The National (Amendment) Health Laws, the Computer Misuse and Cyber-crime Act, 2018, the Equalization Fund Appropriations Act, 2018, the Finance Act, 2018, and the Appropriations Act 2018, and 2019.

Justices Jairus Ngaah, Anthony Ndung’u and Teresia Matheka while sitting at the High Court (Milimani Law Courts) , found that National Assembly Speaker Justin Muturi had not sought the concurrence of the Senate Speaker Kenneth Lusaka as to whether the disputed Acts touched on county interests during their consideration.

The courts had however suspended the effect of the ruling for a period of 9 months, to allow the National Assembly to comply with the provisions of Article 110 of the Constitution and regularize the impugned Acts.

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The Constitution clearly sets out the mandate of the two Houses of Parliament, with Article 109 of the Constitution mandating the National Assembly to enact bills not concerning County Governments without the participation of the Senate.

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