- The court has referred the matter to the High Court to consider and make a determination of that cross-appeal by National assembly.
- Last year, a three-judge bench ruled that the Speaker of the National Assembly must involve his Senate counterpart.
Image: FILE
It is reprieve for the National Assembly as the Court of Appeal has reinstated 23 laws that had been nullified by the High Court last year.
Justices Agnes Murgor,Pauline Nyamweya and Jessie Lessit ruled that the lower court misdirected itself when it declared the cross-petition by Parliament a response instead of a petition.
"As a result of the misdirection, [the] Senate, who were petitioners in the High Court, were not given an opportunity to file a response to National Assembly," the court said.
The court has referred the matter to the High Court to consider and make a determination of that cross-appeal by National assembly.
"Having found that the High Court did not consider the cross petition, we find that no determination was made on the issues raised therein. Consequently, we find that we have no jurisdiction to consider them," the court ruled.
The court set aside the declaration by the High Court that nullified 23 laws passed by the National Assembly without input of the Senate.
Of the 23 laws affected, one is the National (Amendment) Health Laws, which among other things, gave Kenya Medical Supplies Authority exclusive power to supply medicine and medical equipment to the counties.
Also affected is the Computer Cyber Crime Act, which restrained internet users.
The law came up with penalties for posting any information which has capacity of causing apprehension or fear of violence. It sought to tame fake news, among many other things.
It further seeks to prohibit use of electronic mediums to promote terrorism, extreme religious or cult activities. Also bars sharing phonographic material through the Internet.
However, the court also upheld certain declarations that were made by the High Court, including one that ruled that any bill or legislation that provides for powers of PSC, must be considered by the Senate as.
This is because it directly affects the Senate's ability to undertake its constitutional mandate, including its ability to consider bills that affect counties.
"We hereby remit the National Assembly cross-petition filed in Nairobi High Court constitutional petition no 284 of 2019 back to the High Court for consideration and determination of the cross petition," the judge said.
In their cross-petition, National Assembly wanted the court to rule that the requirement contained in Article 110(3) of the Constitution of Kenya comes into play when there is a question of doubt as to whether the bill concerns counties.
They also wanted the court to rule on the issue that money bills shall only originate in the National Assembly under Article 109 and 114 of the Constitution.
They also wanted the court to declare that the Senate had irregularly, unlawfully and unconstitutionally established offices of the leader of minority and majority contrary to the Article 108 of the Constitution.
The other issue they wanted the court to rule on is that Article 132(2) of the Constitution generally gives the National Assembly the exclusive mandate of approving persons nominated by the president of Kenya as state or public officers.
Last year, a three-judge bench ruled that the speaker of the National Assembly must involve his Senate counterpart.
“The impugned acts are in contravention of Article 96, 109, 110, 111, 112 and 113 of the Constitution and are therefore unconstitutional, null and void,” the judges ruled.
Justices Jairus Ngaah, Antony Ndungu and Teresiah Matheka unanimously ruled that one speaker cannot unilaterally make a decision to whether a bill does or does not concern counties.
The court further held that it is mandatory and a constitutional precedent for any bill that is published by either House to be subjected to a concurrence process to determine, in terms of Article 110 (3), whether the bill is special or an ordinary bill.
The court further adds "that such a determination is more dependent on a question arising to whether the bill in one that concerns counties."
In their case, the Senate argued that Speaker Justin Muturi did not seek the concurrence of the Speaker Kenneth Lusaka as to whether the impugned Acts then bills concerned with counties or not.
The senators accused Muturi and the MPs of overlooking and undermining them when it came to matters legislation.
(edited by Amol Awuor)