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Court of appeal saves 20 laws invalidated by High Court

By Kamau Muthoni | November 19th 2021

President Uhuru Kenyatta when he signed into law the Finance Bill 2019 at State House, Nairobi. [File, Standard]

You can now keep your Huduma Namba and access the National Government Constituency Fund (NGCDF).

This lifeline has been given by the Court of Appeal and stems from two pieces of legislation, which are part of the 23 that were invalidated by the High Court.

The reprieve came two days before the lapse of the extension given by the High Court nine months ago.

After the High Court declared 23 laws that included Huduma Namba, Cybercrimes law, and NGCDF, it allowed the two Houses to consult and validate them before July 29, 2021.

After a spirited plea by National Assembly lawyers Paul Muite and Issa Mansur, Court of Appeal judges Agnes Murgor, Jessie Lesiit, and Pauline Nyamweya salvaged 20 laws.

They, however, affirmed that three laws- on equalization fund, Saccos Societies amendment law, and amendments on the Kenya Medical Supplies Authority Act were against the Constitution.

 According to the judges, the three laws also concerned counties and therefore National Assembly ought to have sought consensus from Senate.

Justices Murgor, Lesiit and Nyamweya also agreed with the High court judges Jairus Ngaah, Anthony Ndungú and Teresiah Matheka that National Assembly’s standing orders were unconstitutional as National Assembly members had deleted a clause that mandated them to seek consensus on bills, particularly those touching on counties.

 On the 20 laws, the judges faulted the High Court, saying it speculated on all the bills presented to the National Assembly and not The Senate.

“Given the above, the High Court’s order that all bills passed by the National Assembly and assented into law during the pendency of the proceedings be subjected to proper legislative process afresh was a misdirection.”

“We say this because, courts are not in the business of issuing non-specific, speculative orders, and the order when considered, lacked specificity as to the particular bills referred to or to their nature. As a result, the court’s orders were inconsequential, null and void, and we so find,” the court ruled.

However, the three judges upheld High Court’s verdict that both houses have to have a consensus on Parliamentary Service Commission and the t

The Senate was opposed to the court granting the orders. It argued that even after the lower court asked National Assembly Speaker Justin Muturi and his Senate counterpart Ken Lusaka to consult, the former never made any effort.

The Senate’s lawyer Mutula Kilonzo Jnr argued that the court seems to be giving the National Assembly leeway to continue sidelining the upper House when coming up with laws.

“In February this year, after filing the same issue, this court ruled that the two speakers should consult. I can confirm here the speaker of the National Assembly has made no effort. Status quo means that they will continue violating the Constitution. For the avoidance of doubt, the finance Bills have been overtaken by events and therefore there is no threat,” Mutula argued.

The sibling rivalry between the Senate and National Assembly played out before the Court of Appeal in the two-hour hearing on the validity of 23 laws declared unconstitutional by the High Court.

On one hand, the Senate accused National Assembly of defiance and belittling the authority of courts while the latter claimed that the upper House was seeking to encroach on its legislative role.

The Senate’s other lawyers James Orengo and Okong’o Omogeni argued that National Assembly had been treating the upper House as a bystander. The two asserted that the Constitution envisages the law-making process to involve concurrence by both speakers.

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