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|Case Number:||Constitutional Application 2 of 2011|
|Parties:||In the Matter of Interim Independent Electoral Commission|
|Date Delivered:||15 Nov 2011|
|Court:||Supreme Court of Kenya|
|Judge(s):||Philip Kiptoo Tunoi, Jackton Boma Ojwang, Willy Munywoki Mutunga|
|Citation:||In the Matter of Interim Independent Electoral Commission  eKLR|
Kanuni ongozi katika kutoa maoni ya Ushauri
Maoni ya Ushauri katika uchaguzi mkuu ujao yamekataliwa; sababu kuwekwa wazi, katika Uamuzi pindi arifa itakapotoka.
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE SUPREME COURT OF KENYA
(Coram: W.M. MUTUNGA, CJ; NANCY BARAZA, DCJ; TUNOI, IBRAHIM, OJWANG, WANJALA & NDUNG’U, SCJJ)
CONSTITUTIONAL APPLICATION NO. 2 OF 2011
IN THE MATTER OF ADVISORY OPINIONS OF THE COURT UNDER ARTICLE 163(3) OF THE CONSTITUTION
IN THE MATTER OF SECTION 21(2) OF THE SIXTH SCHEDULE OF THE CONSTITUTION
IN THE MATTER OF THE INTERIM INDEPENDENT ELECTORAL COMMISSION AS THE APPLICANT
The implementation process of the Constitution of Kenya, 2010 has given rise to several motions in Court, beginning with a Petition in the High Court, of 19th April, 2011, by which the petitioners sought a declaration that the next general election for President, National Assembly, Senate, County Assemblies and County Governors “shall be held at the same time, on the second Tuesday of August, 2012” [Constitutional Petition No. 65 of 2011]; followed by an application, the Notice of Motion of 28th April, 2011 in the Supreme Court [Constitutional Application No. 2 of 2011] seeking the Supreme Court’s Advisory Opinion interpreting Articles 101(1), 136(2)(a), 177(1)(a) and 180(1) of the Constitution, and Clause 9(1) of the Sixth Schedule to the Constitution, and further seeking a determination of the election date.
What has come up for consideration today is a Preliminary Objection to the application. We have no doubt that the subject-matter of the application is an important and urgent one, and, to set the stage for further progress in that regard, we will today determine the Preliminary Objection, while reserving our reasons to a later date, upon notice.
Upon reading the application and attendant affidavits, as well as the written submissions, and upon hearing the oral submissions by learned counsel, we have focused our attention firstly, on the nature of the jurisdiction of the High Court in determining a justiciable matter when seen in parallel with the invocation of the Supreme Court’s Advisory Opinion jurisdiction; secondly, on the situations in which the Constitution authorizes the giving of an Advisory Opinion; and thirdly, on the practical considerations that should guide the Court’s decision to render an Advisory Opinion.
We will be guided by certain principles which have clearly emerged from the submissions: the High Court is, by Article 165(3)(d) of the Constitution, entrusted with the original jurisdiction to hear and determine any question entailing the interpretation of the Constitution; it is the obligation of the Supreme Court, as the ultimate interpreter of the Constitution, to protect and reinforce the conferment of first-instance jurisdiction upon the High Court; the Supreme Court has provided in its Rules that those organs entitled to seek an Advisory Opinion, are to exhaust their internal recourses before seeking an Opinion; subject to those principles, the Supreme Court will exercise its discretion appropriately, on a case-to-case basis, in accepting requests for an Advisory Opinion.
We hereby Order and direct as follows:
(4)High Court Petition Nos. 123 of 2011, 65 of 2011 and 185 of 2011 shall be listed for mention and directions before the Head of the High Court’s Constitutional and Human Rights Division on 18th November, 2011.
DATED and DELIVERED at NAIROBI this 15th day of November, 2011.