The National Assembly and the Senate are still in conflict on who between them is the superior House when it comes to making laws in Parliament.
This played out on Thursday before the Supreme Court when the case where 23 laws were annulled by the High Court was mentioned.
The laws are currently in operation after the Court of Appeal reinstated them, which led to the Senate appealing the judgement at the apex court.
Chief Justice Martha Koome, who presided over the matter, adjourned the case that was coming up for hearing due to a fresh notice of motion that was filed by the Parliament.
“This matter has to be adjourned so that we can look at these submissions and give a ruling before we can go into the hearing of the appeal before us,” Koome said.
However, the Senate and other organisation supporting the appeal strongly expressed their displeasure on the notice of cross appeal by National Assembly, saying it was filed very late in the day.
Lawyer Mercy Thanji for the Senate told the Supreme Court that they have waited one year for this matter to be heard and it’s not just the Senate that is affected, but the country.
“Because laws are being passed and members of the public are going back to court to challenge the issue of concurrence,” she said.
Thanji further said that they had hoped that since Houses are resuming for this session, then the apex court would settle this matter once for all so that the legislation is done properly.
“Even if there has been a change of guard, the new leadership has been in office for months now [and] this matter is very important and its good for the court to settle it,” she said.
Lawyer Paul Muite for the National Assembly said the court should take judicial notice of the fact that there was recently a change of guard in the Parliament with a new speaker, clerk and also members.
Lawyer Dudley Ochiel for Katiba Institute said they were disturbed by the turn of events because the Parliament had filed so late and obtained an adjournment.
“My Lady, there are 23 laws at question here. Kenyan citizens are being prosecuted as we speak under some of those laws like the cyber crimes and the National Assembly has a stay order,” Ochiel said.
He said that it was a dilatory tactic because the hearing date for today (Thursday) was issued last year and they filed days before the agreed date.
In their notice of motion, they want the apex court to enlarge and extend the time for filing the notice of cross-appeal against part of the judgement of the court of appeal dated November 19, 2021.
They are aggrieved by a section of the Court of Appeal judgment that they said purports to expand the legislative mandate of the Senate to cover a third category of bills unknown in law.
“Owing to the finding and determination of the Court of Appeal that the enactment of the Parliamentary Service Act was unconstitutional for want of the senate’s consideration despite having made a finding that Article 109-1014 of the constitution was silent on the enactment of the bill of its nature,” reads court papers.
Parliament said it stands to suffer great prejudice if their notice of cross of appeal is not heard on merit as it raises weighty constitutional and legal issues on the legislative mandate of the National Assembly, warranting the exercise of discretion in their favour by allowing the application.
It is their argument that the cross appeal raises weighty constitutional and critical issues on the legislative mandate of Parliament in relation to national institutions as by its determination
“The Court of Appeal appears to require the NA [National Assembly] to consult and seek the concurrence of each independent commission established under the constitution prior to passing any legislation affecting their mandate,” reads court papers.
The Senate has strongly opposed the motion by Parliament, saying that it was filed very late in the day.
