Senate now takes supremacy battle to corridors of justice

Senate lawyers from left Rose Nyamunga, Mutula Kilonzo and Boniface Kabaka consult in court after they filed a petition challenging more than 20 laws enacted without their input at Milimani High Court, Nairobi on Thursday on July 18, 2019. [Boniface Okendo/Standard]

Senators yesterday escalated their supremacy battle with the National Assembly to the Milimani Law Courts.

Led by Senate Speaker Kenneth Lusaka, the Senators marched to the courts to present a petition that could see several laws passed by National Assembly declared unconstitutional.

They declared that they will not relent until 24 bills passed by the House without their input are declared null, void and unconstitutional.

Legal team

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The senators opted for an in-house legal team comprising of Kithure Kindiki, James Orengo, Mutula Kilonzo, Okongo Omogeni, Kipchumba Murkomen and Moses Wetangula to lead their arguments before Justice Weldon Korir.

“The National Assembly acted beyond the legal limit when it assumed the powers to publish the bills, considered and debated them and proceeded to obtain presidential assent without seeking concurrence of the Senate Speaker,” said Kithure.

Justice Korir agreed with the lawyers that the matter was extremely urgent. He directed that the matter be placed before Chief Justice David Maraga to constitute a bench of not less than three judges to determine the issues raised by the senators.

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The senators blamed their fellow MPs for the current stalemate on division of revenue between the National and County Governments arguing that MPs hurriedly published and passed Appropriation Act 2019 without consultation.

In the Finance Act, the senators submitted that the provision on housing development was unconstitutional as it gave the national government exclusive authority to implement housing needs when this should be a preserve of county governments.

They also want the Kenya Coast Guard and Service Act declared unconstitutional arguing that it concerned issues dealing with county governments.

On the Tax Laws passed by MPs, the senators contest that it was wrong to enhance the tax on home ownership and provide incentives to first time home owners without seeking Senate's views.

“What we are asking the court is to declare that a Speaker of a House of Parliament must first seek the concurrence of a Speaker of the other House as to whether the bill is one that concerns counties before it can be passed into law,” said Orengo.

The senators accused MPs of passing the Health Laws Act to regulate health policies before consulting Senate, despite health being a devolved function.

“What they have been doing are piecemeal legislation which have huge effects of managing counties without the benefit of scrutiny from senators,” said Kindiki.

The senators also argued that the National Government Constituencies Development Fund was illegally set up describing it as a third tier of governance to receive and manage national revenue.

They want a declaration that all the 24 bills passed by the National Assembly without their input be suspended and published afresh.

Justice Korir directed the matter be mentioned on July 29 for further directions.

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SenatorsNational AssemblyMilimani Law CourtsKenneth LusakaLaws