NAIROBI, Kenya, Nov 19 – The Court of Appeal has overturned the declaration by the High Court which found 23 laws to be unconstitutional because they were passed by the National Assembly without the input of the Senate.In a verdict delivered on Friday by a three-judge bench comprising Justices Jessie Lessit, Pauline Nyamweya and Agnes Murgor, the court held that concurrence between the two House Speakers is only required on County Bills.
“In view of all that we have said above, the logical inference is that, and with respect, this is where the High Court went wrong, the express application of Article 110 (3) of the Constitution to bills concerning counties and the exclusion of the same provision from application to bills concerning the national government rendered Article 110 (3) of the Constitution applicable only to bills concerning counties, and that it is to these bills alone that the concurrence process would be subjected,” the judgement read in part.
The Court of Appeal said the High Court failed to discern the different nature of bills defined by the Constitution and thus the House acted within its mandate in passing the laws without the concurrence of the Senate.
“The Appellants contended that that the bill did not contain any provisions affecting the functions of county governments as spelt out in Part 2 of the Fourth Schedule or pursuant to Article 109 (3) of the Constitution, with the result that it was not mandatory for it be considered by the Senate; that consequently, it was rightly considered and passed by the National Assembly,” the three justices ruled.
The appellate court however upheld certain declarations by the lower court including one that ruled that any Bill or legislation that provides for powers of Parliamentary Service Commission(PSC) must be considered by both the National Assembly and the Senate.
Some of the laws the senators want to be declared null and void are the Appropriations Act 2019, the Public Trustee (Amendment) Act, 2018, Building Surveyors Act (2018), Finance Act (2018), Capital Markets (Amendment) Act, 2018 and Supplementary Appropriations Act (2018).
The High Court had in a ruling it delivered in October 2020 said the Senate’s role in legislation is not optional and that it was illegal for the National Assembly to ‘ignore’ the Senate.The National Assembly appealed ruling citing High Court’s failure to consider the architectural design of the bicameral parliamentary system under the Constitution.Some of the key legislation that were challenged include: the Computer Misuse and Cybercrime Act, Health laws (Amendment) Act, the Equalization Fund Appropriations Act,2018, the Finance Act, 2018, the Appropriations Act and the Appropriations Act, 2019.
