NAIROBI, Kenya, Nov 12 – The Supreme Court has upheld the National Assembly’s authority to pass money Bills without Senate participation, clarifying the legislative boundaries between the two Houses of Parliament in a ruling with implications for public finance and county governance.
The decision settles a long-running dispute over the constitutional powers of Parliament, particularly the Senate’s role in legislation affecting county governments and the passage of laws dealing with taxation, appropriations and public expenditure.
In its judgment, the court ruled that the Constitution excludes the Senate from considering and enacting money Bills.
“The Constitution excludes the Senate from the consideration and enactment of money Bills.”
“When a Bill falls within the category of a money Bill, it removes the power of the Senate to introduce and consider such a Bill.”
The judges held that Article 114, read together with Article 96(2) of the Constitution, places money Bills outside the Senate’s legislative mandate.
The ruling effectively validates several financial laws enacted by the National Assembly without Senate participation, including the Finance Act 2018, Tax Laws (Amendment) Act 2018 and various Appropriations Acts.
However, the court maintained that legislation touching on county government functions must undergo the constitutionally prescribed process involving both parliamentary chambers.
It faulted the exclusion of the Senate in the enactment of the Equalization Fund Appropriation Act 2018, the Sacco Societies (Amendment) Act 2018 and amendments to sections 3 and 4 of the Kenya Medical Supplies Authority (KEMSA) Act.
The KEMSA amendments had required county governments to procure medicines and medical supplies exclusively through the state agency, with penalties for non-compliance.
The court found that the changes affected county government functions and therefore required Senate participation, declaring them unconstitutional.
The Sacco Societies (Amendment) Act was also declared unconstitutional, although the court suspended the invalidity order for 18 months to allow for an appropriate legislative response.
The ruling also places fresh obligations on parliamentary leadership to improve coordination during the legislative process.
The Supreme Court said Speakers of both Houses must be informed when Bills are introduced and communicate their positions on whether proposed legislation concerns county governments.
This proactive approach, it said, would ensure transparency and prevent disputes over the constitutional classification of legislation from emerging after enactment.
The dispute originated from Senate and Council of Governors petitions challenging laws passed during the 12th Parliament without Senate involvement.
While the High Court had initially declared 23 statutes unconstitutional, the Court of Appeal subsequently narrowed the list to three.
The Supreme Court has now largely upheld the appellate court’s findings, affirming the constitutionality of several laws, including legislation governing capital markets, insurance, cybercrime and the National Youth Service.
The court did not determine the constitutionality of the Parliamentary Service Act 2019, noting that a separate challenge remains pending before the High Court.
