The High Court of Kenya on 29^th October 2020 declared 23 Acts of Parliament unconstitutional following a Petition filed by the Senate. The Petition 284 of 2019; The Senate of the Republic of Kenya and others versus the Speaker of the National Assembly and others consolidated with Petition 353 of 2019; Council of County Governors versus National Assembly and the Hon. Attorney General challenged the constitutionality of 23 Acts of Parliament passed by the National Assembly between the years 2017 and 2019.

Article 110 (3) of the Constitution of Kenya 2010 provides that any Bill passed by the National Assembly concerning the powers and functions of county governments must be referred to the Senate for consideration before the President signs the Bill into law. It also provides that the Speaker of the Senate and the National Assembly must jointly resolve whether a Bill concerns county governments before either House deliberates on it.

The Petitioners argued that the impugned Acts had failed to meet the constitutional threshold because some concerned county governments and the National Assembly had passed them without the participation of the Senate. They also argued that the National Assembly passed some of the Acts before the speakers of both Houses jointly resolved whether the Bills concerned county governments. The Court agreed with the Petitioners and held that the Speaker of the Senate must be consulted on whether a Bill concerns county governments before it is introduced into the National Assembly. The Court also agreed that a Bill concerning counties must be considered by the Senate as provided by the Constitution.

The Court therefore declared the following 23 Acts of Parliament unconstitutional and void for being in contravention of Articles 96, 109, 110, 111, 112 and 113 of the Constitution:

1. The Public Trustee (Amendment) Act, No 6 of 2018;
2. The Building Surveyors Act 2018 No 19 of 2018;
3. The Computer Misuse and Cybercrime, Act No 5 of 2018;
4. The Statute Law(Miscellaneous Amendment Act no 11 of 2018;
5. The Kenya Coast Guard Service Act No 11of 2018;
6. The Tax Laws (Amendment) Act, No 9 of 2018
7. The Statute Law(Miscellaneous Amendments Act) No. 18 of 2018;
8. The Supplementary Appropriation Act No 2 of 2018;
9. The Equalization Fund Appropriation Act No 3 of 2018;
10. The Sacco Societies (Amendment) Act No 3 of 2018;
11. The Finance Act No 10 of 2018;
12. The Appropriation Act No 7 of 2018;
13. The Capital Markets (Amendment) Act No 15 of 2018;
14. The National Youth Service Act No 17 of 2018;
15. The Supplementary Appropriations Act No.13 of 2018;
16. The Health Laws (Amendment) Act, No 5 of 2019;
17. The Sports (Amendment Act, No 7 of 2019;
18. The National Government Constituency Development Fund Act,2015;
19. The National Cohesion and Integration (Amendment) Act, 2019;
20. The Statute Law (Miscellaneous Amendment) Act,2019;
21. The Supplementary Appropriation Act, No.9 of 2019;
22. The Appropriations Act, 2019; and
23. The Insurance(Amendment) Act, 2019.

However, the court suspended the orders invalidating the Acts for a period of 9 months to allow the National Assembly to comply with the requirements of the Constitution, failure to which the Acts will stand nullified by 29^th July 2021.

The court decision can be found here.

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