Kimanthi v Attorney General & another (Constitutional Petition 2 of 2024) [2025] KEHC 11098 (KLR) (22 July 2025) (Judgment)
Neutral citation:
[2025] KEHC 11098 (KLR)
Republic of Kenya
Constitutional Petition 2 of 2024
RC Rutto, J
July 22, 2025
Between
Innocent Musumbi Kimanthi
Petitioner
and
Attorney General
1st Respondent
National Assembly of Kenya
2nd Respondent
Judgment
The Petition
1.The petitioner described himself as a Kenyan citizen who brings this petition in the interest of the public by dint of Articles 22 and 258 ofthe Constitution. The 1st respondent is a State Office established pursuant to Article 156 ofthe Constitution of Kenya. It is the principal legal advisor of the National Government. The 2nd respondent is a legislative body established under Article 94 ofthe Constitution. Its primary responsibility is to enact legislation with the force of law in Kenya.
2.By a petition dated 6th February 2024, supported by his affidavit sworn on 2nd February 2024, the petitioner stated that on 25th January 2013, the 2nd respondent enacted the Statutory Instruments Act whose objective is to provide for the making, scrutiny, publication and operation of statutory instruments. The Act further defines statutory instruments.
3.The petitioner continued that since operationalization of the statute on 25th January 2013, most statutory instruments were set to expire on 25th January 2023. That however, on 29th November 2023, the 1st respondent, by dint of section 21 (2) of the Act, extended the validity period by one year, that would lapse on 25th January 2024. He continued that vide Gazette Supplement No. 94 of 2022, under the Statutory Instruments (Exemptions from Expiry) Regulations 2022, the 1st respondent gazetted a total of 400 statutory instruments that were due for expiration on 25th January 2023, for extension of their validity period by an extra one year.
4.Thereafter, that the 2nd respondent, through section 89 of the Finance Act 2023, repealed section 21 of the Statutory Instruments Act. In effect, the 10-year validity period was quashed. The petitioner contended that the said Finance Act was challenged before the High Court in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner General, Kenya Revenue Authority & 3 others (Interested Parties) [2023] KEHC 25874 (KLR). In its judgment dated 28th November 2023, the High Court found that section 89 was unconstitutional. The declaration of its unconstitutionality was however suspended up to 10th January 2024. Come 26th January 2024, the Court of Appeal declined to extend the suspension.
5.In light of the Court of Appeal decision, the petitioner avowed that section 21 was in essence effective. As a consequence, its validity meant that over 1000 statutory instruments contained in 400 Acts of Parliament had expired. Unless an urgent intervention was made, the petitioner stated that extreme hardship was likely to occur to the general public for their inability to access various services absent Regulations that operationalize critical legislations.
6.Premised on the foregoing averments, the petitioner relied on the following provisions ofthe Constitution: Articles 2, 2(4), 10, 20, 22, 38, 40, 42, 48, 53, 55, 94 (5) & (6) and 258 as well as sections 13, 14 and 21 of the Statutory Instruments Act. He lamented that the provisions of section 14 of the Statutory Instruments Act gave powers to exempt instruments from scrutiny. In essence, that excluded certain instruments from checks in terms of whether they align withthe Constitution and human rights and fundamental freedoms as set out in section 13, a protection afforded to the public.
7.The petitioner continued that by exempting scrutiny, the 2nd respondent’s obligations were shrunk in terms of discharging its duties in Article 94 (6) ofthe Constitution. As a result, the principles of good governance as enshrined in Article 10 ofthe Constitution were violated. He decried that section 21 was too wide in scope for failing to monitor the age of various statutory instruments. It was therefore unconstitutional for offending Article 94 ofthe Constitution. This is because the sudden and unstructured expiry of critical statutory instruments had the potential effect of occasioning unprecedented difficulties and harm to the public in terms of access to public goods and services.
8.The petitioner asserted that the following statutory instruments had expired: the Elections Act (The Registration of Voters) Regulations 2012, the Elections Act (General) Regulations 2012, the Trade Marks Rules, the Environment (Impact Assessment and Audit) Regulations 2003, the National Environment Tribunal Procedure Rules 2003, the Environmental (Prevention of Pollution in Coastal Zone and other Segments of the Environment) Regulations 2003, the Environmental Management (Lake Naivasha Management Plan) Order 2004 and the Environmental Management and Co-ordination (Water Quality) Regulations 2006.
9.In addition, the Environmental Management and Co-ordination (Waste Management) Regulations 2006, the Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006, the Environmental Management and Co-ordination (Controlled Substances) Regulations 2007, the Environmental Management and Co-ordination (Wetlands, Riverbanks, Lakeshores and Seashore Management) Regulations 2009, the Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations 2009, the Environmental Management and Co-ordination (Public Complaints Committee) Regulations 2012 and the Environmental Management and Co-ordination (Air Quality) Regulations 2014.
10.The petitioner asserted that by dint of expiry of the above statutory instruments, there was a breach of Articles 38, 40, 42 and 70 ofthe Constitution respectively. Explaining a breach of Article 43 for instance, the petitioner advanced that the Kenyatta National Hospital Board and the Moi Teaching and Referral Hospital Board’s Orders expired on 25th January 2024. In effect, the absence of Boards of Directors gave rise to paralysis in the management of the two biggest hospitals in Kenya; threatening the right of access to health services.
11.On violation of Articles 53 and 55 ofthe Constitution, the petitioner explained that the Youth Enterprise Development Fund Board’s Order had seemingly expired on 25th January 2024. Without it, management of the fund was likely to be in disarray as the youth will be unable to access credit to enhance their economic activities thereby hamstringing their economic wellbeing. Similarly, the expiry of the Kenya Institute of Education Council Order meant that the absence of the body was a violation of the rights of education to children.
12.Turning to Article 48, the petitioner observed that certain provisions of the Civil Procedure Rules, the Probate and Administration Rules and the Oaths and Statutory Declaration Rules had expired bringing to the fore a lacunae in terms of the public’s access to justice.
13.In view of the above, the petitioner sought the following reliefs:
The Response
14.From the record, the 2nd respondent is the only party that filed a response. It relied on the affidavit of Samuel Njoroge, the Clerk of the National Assembly, sworn on 8th February 2024. The affidavit echoed the 2nd respondent’s mandate as set out in Articles 94 (5) & (6) ofthe Constitution. It was deponed that in line with its mandate, the 2nd respondent passed the Statutory Instruments Act 2013 whose role is set out in section 10 and Part IV. The Act also defines a statutory instrument at section 2.
15.That under section 21 of the Act, statutory instruments expire on the tenth-year post enactment. It continued that owing to the copious number of statutory instruments that were set to expire in 2023, the 2nd respondent deployed the following mitigating measures: first, 29th November 2022, the 2nd respondent approved the 1st respondent’s extension of the operation of 400 statutes set to expire after ten years.
16.The 2nd respondent then sought to amend that section by including section 89 of the Finance Act 2023. However, the judgment of the court in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner General, Kenya Revenue Authority & 3 others (Supra) held that the amendment to section 21 of the Statutory Instruments Act was unconstitutional for being outside the parameters of a money bill under Article 114 (3) ofthe Constitution. This unconstitutionality finding was however suspended for 45 days pending an appeal to the Court of Appeal. The 2nd respondent filed an application for stay of execution of the judgment that was dismissed by the Court of Appeal on 26th January 2024.
17.The deponent stated that in light of that jurisprudence, section 21 of the Statutory Instruments Act was in full operation. Consequently, all statutory instruments set to expire on 24th January 2024 had lapsed. On 26th January 2024, the 1st respondent submitted to the 2nd respondent, through the leader of the Majority Party, a letter seeking to amend inter alia, section 21 of the Statutory Instruments Act.
18.That on 1st February 2024, the 2nd respondent published the Bill in the Kenya Gazette, seeking to cure the effects of section 21 of the Act. In it, clause 7, thereof, sought to delete the provisions of section 21 of the said Act. The 2nd respondent decried that following the effect of section 21 of the Act, confusion has been created with the subsistence of a gap in various statutes requiring subsidiary legislation for their implementation.
19.In view of the above, the 2nd respondent submitted that it was in the interest of the public for the orders to be granted to facilitate deliberation and probable enactment of legislation under review by the 2nd respondent. It also emphasized that if the orders sought are granted, the same will pave way for the 2nd respondent to fulfill its legislative mandate to repeal that section. It thus prayed that the petition be allowed.
20.A further affidavit by James Ngigi Githumbi, sworn on 24th January 2024 was filed. Supporting the petition, he described himself as the advocate for the petitioner. It regurgitated that section 89 of the Finance Act 2023 repealed section 21 of the Statutory Instruments Act to remove the 10-year validity cap. That however, pursuant to the decision in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner General, Kenya Revenue Authority & 3 others (supra), section 89 was declared unconstitutional on grounds that the Finance Act, being a money bill, was incapable of amending the provisions of the Statutory Instruments Act.
The submissions
21.The petition was heard by way of written submissions. However, only the petitioner filed his written submissions which are dated 24th April 2025. He framed four issues for determination as follows: whether the respondents actions of failing to Monitor and Forestall the unstructured expiration of Statutory Instruments is a violation of Article 94(5), 94(6) and 156 ofthe Constitution of Kenya; whether Section 21 of the Statutory Instruments Act is unconstitutional to the extent that it creates an unstructured expiry period for Statutory Instruments under the Act; whether Section 21 of the Statutory Instrument Act is unconstitutional to the extent that it lacks clarity; and who should bear costs of this petition.
22.On the first issue, the petitioner submitted that Articles 94(5) and (6) ofthe Constitution gave the 2nd respondent authority to delegate its powers in line withthe Constitution. In the spirit of avoiding abuse of that delegated power, the 2nd respondent enacted the provisions of the Statutory Instruments Act. Emphasizing on the cruciality of delegated legislation, the petitioner submitted that delegation ought to be met with proper implementation of statute. If such a legislation is allowed to expire, it means that its implementation will be greatly hampered to the detriment of the public.
23.In the present case, the petitioner observed that from the respondents’ responses, no further action had been taken to avert the explosive effects of section 21 of the Statutory Instruments Act after 29th November 2023. Bearing the responsibility, the 2nd respondent was accountable for failing to advise the various delegatees on impending expiration of the various statutory instruments with a requirement that they submit the statutory instruments to Parliament for consideration. As a result of the above failure, the petitioner and members of public, he submitted, were threatened with violations of several constitutional rights as set out in the petition.
24.The petitioner submitted that the failure of the respondents to monitor legislation exposed the public to threat of violation of rights and freedoms and also violation ofthe Constitution. It therefore urged this Court to find that the failure by the respondents to monitor the impending expiration was a violation of the Articles 95(4) and 95(6) ofthe Constitution of Kenya.
25.On the second issue, the petitioner took keen on the provisions of sections 13 and 14 of the Statutory Instruments Act to submit that once a statutory instrument is exempt by virtue of section 14 above, in essence, it was exempted from scrutiny in terms of ascertaining whether it violated any of the parameters set out therein. He argued that the danger with that provision was to sanction statutes that had the retrospectivity effect, violatedthe Constitution, contained matters that could only be dealt with by Parliament or infringed on the fundamental rights and freedoms of all and sundry. In effect, this was a violation of Article 10 ofthe Constitution.
26.The petitioner continued that the effect of section 14 shrunk the parliamentary responsibility of ensuring that all legal instruments are properly securitized. Furthermore, he interpreted that it served the purpose of reducing accountability on passing of legislation. The petitioner thus prayed that the provisions of sections 13 and 14 be declared unconstitutional and the purposed power to exempt be declared null and void.
27.On the third issue, the petitioner submitted that section 21 of the impugned Act was vague as it failed to create a structure intended to monitor the age of the statutory instruments to ensure that the process of renewal of the instrument is clear. In addition, it failed to provide for protection of accrued rights where a statutory instrument expires without a replacement instrument. Absent that, he submitted that statutory instruments would become prone to expiration without notice to great inconvenience to the public and other stakeholders.
28.The petitioner also submitted that the Statutory Instrument Act failed to spell out the effect of an amendment of a statutory instrument during its lifetime. It explained that an amendment to a statute may not operate retrospectively. For example, an instrument that is 8 years old and amended extensively on the 8th year would still suffer the expiry date noting the commencement date.
29.Lastly, the petitioner justified that since he had expended his resources and time to litigate, as admitted by the respondents, the petitioner was entitled to costs of this petition.
Analysis and determination
30.I have keenly considered the petition, the affidavit in support alongside the annexures thereto as well as the affidavit in response. I have also given due consideration of the petitioner’s written submissions. The crux of this petition revolves around the constitutionality of sections 14 and 21 of the Statutory Instruments Act which the petitioner wants declared unconstitutional.
31.The principles governing the interpretation of statutes were well elucidated by Mativo, J. (as he then was) in the case of Association of Retirement Benefits Schemes v Attorney General & 3 others [2017] KEHC 8534 (KLR) when he stated:
32.The petitioner has urged this Court to find that sections 14 and 21 of the Statutory Instruments Act are unconstitutional. The facts giving rise to this petition are not disputed. On 25th January 2013, the 2nd respondent enacted the Statutory Instruments Act. The said statute was annexed to the petition.
33.The provisions of sections 14 and 21 of the Statutory Instruments Act were indicative that as at 25th January 2023, most statutory instruments were set to expire. On 29th November 2023, the 1st respondent extended the validity period by one year lapsing on 25th January 2024. Vide Gazette Supplement No. 94 of 2022, the 1st respondent gazetted a total of 400 statutory instruments due for expiration on 25th January 2023, for extension of their validity period by an extra one year.
34.Through section 89 of the Finance Act 2023, the 2nd respondent sought to repeal section 21 of the Statutory Instruments Act. The Finance Act 2023 was challenged before the High Court in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner General, Kenya Revenue Authority & 3 others (Interested Parties) [2023] KEHC 25874 (KLR). In its judgment dated 28th November 2023, the High Court found that section 89 was unconstitutional. The declaration of its unconstitutionality was however suspended up to 10th January 2024. Come 26th January 2024, the Court of Appeal declined to extend the suspension.
35.It is also common knowledge that the dispute regarding the amendment of section 21 of the Statutory Instruments Act by section 89 of the Finance Act 2023 was heard by the Supreme Court in Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR). Addressing section 21 of the Statutory Instruments Act, the Apex Court pronounced itself as follows:
36.Section 21 of the Statutory Instruments Act antecedently provided as follows:1.“Subject to subsection (3), a statutory instrument is by virtue of this section revoked on the day which is ten years after the making of the statutory instrument unless- It is sooner repealed or expires; or A regulation is made exempting it from expiry.
37.I had the benefit of looking at the Statutory Instruments Act as at the time I was writing this judgment. As it stands, section 21 reads: “repealed by Act No 4 of 2023, s. 89.” Gathered from the decision of the Supreme Court, as well as the provision having being repealed, I see no reason why I should dissect the same since it is an issue that has been determined by the Supreme Court. I therefore find that the question of constitutionally of section 21 is rendered moot since it has already been repealed and secondly, was exposited sequentially by the High Court, the Court of Appeal and ultimately the Supreme Court.
38.Turning to section 14, the provision states as follows:
39.In order to establish whether the provision is unconstitutional or otherwise, it is important to set out the scope, meaning and purpose of enacting the Statutory Instruments Act generally. That way, one will establish the root of section 14 in answering the question set out by the petitioner. In so doing, I am reminded of the provisions of Article 259 ofthe Constitution requiring the court to interpretthe Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance.
40.In interpreting that section, I am reminded of the general presumption that every statute is constitutional and the burden of proof lies on the propounder alleging the contrary. The assumption at this juncture is that section 14 of the Statutory Instruments Act is constitutional. It is also important to bear in mind that the meaning assigned to legislative texts is to be taken in its plain language in line with the plain meaning rule. Another assumption that I must bear in mind is that every legislation is enacted by design of intentions. Such intentions are knowable by courts when called upon to interpret legislation.
41.The intentions of legislature can be explained in the statute’s preamble and the language of the text. In understanding and interpreting a statute, I am called upon to read the text closing, bearing in mind that the initial understanding of the text may not be the only plausible interpretation of it or even the correct on. The texts must be construed from the lens of what an ordinary or reasonable person would rationalize the text. So much so that if the words are equivocal, the court does not have to inquire further into its meaning and do what is necessary for the ends of justice.
42.At its preamble, the Statutory Instruments Act is an Act of Parliament to provide for the making, scrutiny, publication and operation of statutory instruments. The objective of the Act is set out in section 4 as: to provide a comprehensive regime for the making, scrutiny, publication and operation of statutory instruments by imploring the following techniques:
43.Part IV of the Act gives provisions for parliamentary scrutiny of statutory instruments. It covers the provisions of section 10 through to section 19 of the Statutory Instruments Act. The purpose of the part is set out in section 10 as being to facilitate the scrutiny by Parliament of statutory instruments and to set out the circumstances and manner in which the statutory instruments, or provisions of the statutory instruments, may be disallowed, as well as the consequences of the disallowance.
44.Looking at the above, what arises from the provisions of section 14 is to give an exception to the general rule. Generally speaking, all statutory instruments are to undergo scrutiny by Parliament. However, the Committee has discretionary power to exempt certain statutory instruments, or a class of the same, if the Committee is satisfied that the scrutiny is not reasonably practical due to the number of Regulations in that class.
45.According to the petitioner, section 14 gave powers to exempt instruments from scrutiny. In essence, that excluded certain instruments from checks in terms of whether they align withthe Constitution and human rights and fundamental freedoms as set out in section 13. That by exempting scrutiny, the 2nd respondent’s obligations were shrunk in terms of discharging its duties in Article 94 (6) ofthe Constitution. As a result, the principles of good governance as enshrined in Article 10 ofthe Constitution were violated.
46.The petitioner further argued that the danger with that provision was to sanction statutes that had the retrospectivity effect, violatethe Constitution, contain matters that could only be dealt with by Parliament or infringe on the fundamental rights and freedoms of all and sundry. In effect, this was a violation of Article 10 ofthe Constitution. Finally, it served the purpose of reducing accountability on passing of legislation.
47.Article 94 ofthe Constitution establishes the role of parliament. Under sub Article 5, there is established delegated legislation to the extent that only persons or bodies can only make provisions having the force of law in Kenya as long as the authority has been assigned underthe Constitution or an Act of Parliament. It is against this background that the Statutory Instruments Act was enacted with an established Committee to monitor statutory instruments in Kenya.
48.Section 2 sets the meaning of "Committee" as the Committee on Delegated Legislation established under the Standing Orders of the National Assembly or the Senate or any other Committee that may be established by Parliament for the purpose of reviewing and scrutinizing statutory instruments. I therefore find that it was the intention of Parliament that in certain instances, delegated legislation would serve the best purpose and intentions for the sustenance of a democratic country.
49.Section 14 gives the Committee discretion to exempt certain statutory instruments or a class of them. A plain reading of that statement is that the Committee has the option of exempting certain statutory instruments. It is not couched in mandatory terms. In other words, the Committee has been vested with the powers to decide whether or not to exempt certain statutory instruments.
50.Next, it is crucial to demonstrate that the said provision gives certain parameters before the Committee is allowed to exercise this discretion. The Committee must be satisfied that the scrutiny is not reasonably practical due to the number of regulations in that class. The Committee, before making the exemption decision, must firstly be satisfied, mandatorily, that the scrutiny is not reasonably practical. That however does not stop there. In addition to that reasonably practical test, the Committee must also establish this test in the lines of the number of regulations in that class.
51.The above section, in plain language has set a barrage of qualifications before a decision to exempt a statutory instrument from scrutiny is effectuated. The drafters of that piece of legislation did not intend to give a blanket discretionary power, hence setting out in clear and uncertain terms, the expected limitations that align with the provisions of Article 24 ofthe Constitution. I find that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. If a party is dissatisfied with a decision of the Committee, there is recourse before a court of law to intervene and correct the action.
52.I am therefore not satisfied, as advanced by the petitioner that the 2nd respondent’s obligations are shrunk on the strength of this provision and in the process, reduces accountability on passing legislation. There are certain safeguards that must be met before involving a decision under this section. If anything, it enhances the principle of good governance as set out in Article 10 ofthe Constitution in order to avoid spending a considerable amount of time and taxpayer resources where scrutiny is superfluous. Notably, it is worth emphasing that the Committee clothed with the discretion to exempt, is a “Committee on Delegated Legislation established under the Standing Orders of the National Assembly or the Senate or any other Committee that may be established by Parliament for the purpose of reviewing and scrutinizing statutory instruments”. This court need not over-emphasize that National Assembly and the Senate are the two houses of Parliament, which Parliament operates in various ways including through committees. I find that the works of Parliamentary committee are all tailored towards meeting Parliament’s mandate under Article 94 ofthe Constitution.
53.Ultimately, I find that the petition lacks merit and is dismissed. Since this is a public interest litigation, I direct each party to bear its own costs of the petition.
54.It is so ordered.
DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 22ND DAY OF JULY 2025.RHODA RUTTOJUDGEIn the presence of;..........................Petitioner..........................RespondentSelina Court Assistant