A party seeking to move the Supreme Court for an advisory opinion should first seek the advice of the Attorney-General
By a reference dated July 15, 2021, the County Government of Nairobi (the applicant), sought the court’s advisory opinion under article 163(6) of the Constitution of Kenya, 2010 (the Constitution) on the following four issues:
- Whether the outstanding legal debt during the transition from the National Government to the devolved government as provided under sections 4 and 7 of the Transition to Devolved Government Act should have been absorbed by the National Government and not the County Government.
- Whether the transfer of functions from the County Government to the National Government vide the deed of transfer dated February 25, 2020 in terms of articles 187, 189 of the Constitution and sections 24, 25 and 28 of the Intergovernmental Relations Act should have also included the transfer of liabilities including the Kshs 60 billion owed in legal debt from the County Government to the National Government.
- Whether the county accounting officers should personally be held liable for the failure of the county governments to obey orders requiring payment of any money by way of damages or otherwise, or of any costs in legal debts.
- Whether the arrest warrants issued against county executive officers on account of failure to pay the legal debt owed by the County Government violated their rights under articles 27, 28, 29, and 48 of the Constitution.
The respondent, the Attorney-General raised a preliminary objection on among other grounds that the applicant failed to seek his advice before moving the court for an advisory opinion. It was urged that it was settled that a party who intended to move the court for an advisory opinion must first seek the advice of the Attorney-General. The Attorney-General submitted that despite the reference having been filed in the name of the applicant, which was a county government with the requisite locus standi to seek an advisory opinion, the applicant instructed its advocates to urgently withdraw the advisory opinion. The Attorney-General thus urged the court to decline to issue an advisory opinion on all the questions raised.
- Whether a party who intended to move the Supreme Court for an advisory opinion had to first seek the advice of the Attorney-General.
- Whether the independence of a State organ which sought the advice of the Attorney-General before seeking an advisory opinion from the Supreme Court was compromised.
- Whether a State organ which sought the advice of the Attorney-General before seeking an advisory opinion from the Supreme Court was bound by the advice of the Attorney-General.
Relevant provisions of the law
Supreme Court Rules, 2020
Rule 53 - Determining a reference
- The court may, after giving the parties an opportunity to be heard, reject a reference in whole or in part, if—
(c) the matter in respect of which the reference is made can, in the opinion of the Court, be resolved by the advice of the Attorney-General, and such advice has not been sought;
- An objection that disputed the jurisdiction of a court of law was one raising a pure point of law. The respondent’s preliminary objection fell within those demarcations and warranted the court’s determination at that stage.
- Seeking the advice of the Attorney-General, or being required to do so by a rule of procedure, did not compromise the independence of a State organ in any way, nor did it vest a veto power in that office. While the applicant after obtaining advice from the office of the Attorney-General was not necessarily bound by the same, for the purpose of the court, the fact that such advice was sought in the first place, would demonstrate the applicant’s commitment, as well as fidelity to due process.
- There was no reason to derogate from the court’s rules and set procedure, as well as settled legal standards. As a matter of good practice and anchored on rule 53 of the Supreme Court Rules, the opinion of the Attorney-General should be sought. In line with rule 53(1)(c), the court may, after allowing the parties a chance to be heard, reject a reference in whole or in part, if the matter in respect of which the reference was made, could be resolved by the advice of the Attorney General if such advice had not been sought.
- The applicant had not sought the legal advice of the Attorney General. The applicant’s advocate on record was on various occasions, when the matter came up for compliance mentions, before the Deputy Registrar of the court, directed to seek the Attorney General’s advice. Similarly, when the matter first came up for hearing on November 25, 2021, the court took the liberty to grant an adjournment to allow the applicant to seek such advice. The court took judicial notice that regrettably, the reasons for non-compliance with those directions had not been provided. In addition, and curiously, neither a representative of the applicant nor its counsel appeared at the hearing of the reference leading to the judgment.
- Article 156(1)(c) of the Constitution provided that, the Attorney-General was the principal adviser of the Government. The issues raised in the advisory opinion revolved around the day-to-day operations of the two levels of Government and their departments. Moreover, how would the court issue an advisory on transfer of debts without any evidence of how they were arrived at? Those were matters for resolution, initially, through the advice of the Attorney-General and the determination of debts by competent courts, respectively.
- Primarily, as advice of the Attorney-General was not sought, the court invoked the provisions of rule 53(1)(c) of the Supreme Court Rules and the jurisprudence of the court referred to therein, and declined to exercise its discretionary jurisdiction to give an advisory opinion. In any event, the Attorney General had demonstrated that the applicant, by its letter dated October 4, 2021, copied to the Solicitor General, categorically instructed the applicant’s advocates to instantly withdraw the reference, on grounds that, as drafted, it exceeded its authority and/or instructions.
- The contents of the Attorney-General’s letter dated October 4, 2021 had not been controverted by the applicant in its written submissions. More alarming, its advocate on record failed to appear in court when the matter came up for hearing to explain why they chose the path leading to the judgment. Moreover, the letter was highlighted by the respondent when the reference first came up for hearing on November 25, 2021 and the applicant’s advocate did not dispute its contents, but only sought time to seek further instructions.
- The applicant ought to have initially sought the Attorney-General’s advice and the instant proceedings lacked the applicant’s authority. Consequently, it failed the test as to who could move the court for an advisory opinion and therefore the court declined to exercise its discretion or assume jurisdiction in the matter.
- Aviation & Allied Workers Union Kenya v Kenya Airways Ltd. & 3 others (Application No 50 of 2014;  eKLR) — Explained
- County Government of Busia & Another v Julius Orina Manwari & 12 others (Petition 2 of 2014;  KEHC 4731 (KLR)) — Explained
- Hassan, Ahmed Isaack v Auditor General (Petition 356 of 2014;  KEHC 4712 (KLR)) — Explained
- Independent Elections and Boundaries Commission v Chepngerer and 2 Others (SC Civil Application No 36 of 2014;  eKLR) — Explained
- (Interim) County Secretary, County Government of Kakamega v Republic Ex parte Ali Adam & Another (Civil Appeal 14 of 2015;  KECA 581 (KLR);  1 KLR) — Explained
- In the Matter of Speaker, County Assembly of Siaya County (Reference 4 of 2017;  KESC 40 (KLR)) — Explained
- In the Matter of the Interim Independent Electoral Commission SC (Application No 2 of 2011;  eKLR; 2 KLR 32) — Explained
- In the Matter of the National Gender and Equality Commission (Reference 1 of 2013;  eKLR;  1 KLR) — Explained
- Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (No 1 of 2017  eKLR;  2 KLR) — Explained
- Republic v County Secretary Murang’a County Government Ex-parte Stephen Thiga Thuita (Judicial Review 1 of 2013;  KEHC 5132 (KLR)) — Explained
- Rotich v Republic (Miscellaneous Criminal Application 304 of 2016;  eKLR) — Explained
- President of the Republic of South Africa v. Hugo ( ZACC;1997 (4) SA 1(CC)1997 (6) BCLR 708 (CC) (Hugo]) — Explained
- R v. Oakes ((1986) 26 DLR) — Explained
- Neeru Yadav v State of U.P and Another (Criminal Appeal No 2587 of 2014) — Explained
- Constitution of Kenya, 2010 — article 11(2),27, 28, 29, 48, 176,163(6), 187, 189,190; section 15(2)(b) Sixth Schedule — Interpreted
- County Governments Act (Act No 17 of 2012) — section 121 — Interpreted
- Government Proceedings Act (CAP. 40) — section 21 — Interpreted
- Intergovernmental Relations Act (Act No. 2 of 2012) — section 24,25,26,28,30,34 — Interpreted
- Supreme Court Rules, 2020 (Act No 7 of 2011 Sub Leg) — rule 53(1)(c) — Interpreted
- Transition to Devolved Government Act (Act No 1 of 2012) — section 3(d), 4, 7(2)(a)(d)(e)(f)(g)(h)(ii), 34; Schedule fourth — Interpreted
- Prempeh, HK. (2006), Marbury in Africa:Judicial Review and the Challenge of Constitutionalism in Contemporary Africa (Tulane Law Review, Vol 80 No 4 p 1239)