Judicial Authority and the Mandate to Legislate: Defining the Transition of Kenyan Tribunals

In the Supreme Court of Kenya; Petition No. E016 & E017 of 2025 (Consolidated) 2026 KESC 28 (KLR)

Introduction and Factual Matrix

This landmark consolidated appeal addresses the constitutional status, regulation, and transition of local tribunals under the Constitution of Kenya, 2010. The dispute was ignited by the slow pace of transitioning these bodies from the Executive to the Judiciary, as envisioned by Article 169(1)(d), which classifies tribunals as subordinate courts. The first respondent, Okiya Omtatah Okoiti, challenged the continued control of the Executive over the appointment and removal of tribunal members, arguing that this arrangement compromised judicial independence and the right to a fair hearing under Articles 48 and 50. Central to his grievance was the failure of Parliament to enact the specific legislation required by Article 169(2) to confer jurisdiction and powers upon these tribunals.

The litigation journey began in the High Court, where Mrima J held that the petition was justiciable and that the Executive’s involvement in tribunal appointments violated the principle of separation of powers. The High Court identified specific statutory bodies as local tribunals and issued a structural interdict compelling Parliament and the Attorney General to provide progress reports on the enactment of the Tribunals Bill. On appeal, the Court of Appeal upheld this decision, finding that a delay of over ten years in enacting the required law was manifestly unreasonable. The Parliament and the Attorney General subsequently moved to the Supreme Court, raising fundamental questions regarding justiciability, the interpretation of local tribunals, and the propriety of judicial supervision over the legislative process.

Justiciability and the Judicial Scrutiny of Legislative Omissions

The appellants argued that the matter was not justiciable because it prematurely challenged an ongoing legislative process, thereby infringing upon parliamentary privilege and the doctrine of separation of powers. However, the Supreme Court affirmed that the judiciary is duty-bound to intervene where there is a threatened or actual violation of the Constitution. The Court clarified that Article 2(4) expressly constitutionalises judicial scrutiny of inaction, as it declares any omission in contravention of the Constitution to be invalid.

The Court reasoned that the first respondent was not challenging the substantive content of a pending Bill but rather the failure of state organs to perform a mandatory constitutional duty. Furthermore, the Court rejected the contention that the respondent should have first petitioned Parliament under Article 119, holding that the exhaustion doctrine does not apply in a blanket manner when constitutional violations are alleged. Because the alleged omission implicated the fundamental rights of access to justice and a fair hearing, the dispute was found to be squarely within the High Court’s jurisdiction.

The Mandatory Nature of Article 169(2) and the Standard of Reasonableness

A pivotal issue was whether Article 169(2) imposed a mandatory duty on Parliament to legislate. The Court observed that the provision uses the word shall, signifying a binding obligation rather than mere discretion. This duty is viewed as rights, enabling, as the lack of a clear legislative framework for tribunals undermines the state’s obligation to provide effective mechanisms for the realization of access to justice under Article 48. Consequently, legislative inaction in this context constitutes a breach of the state’s duty to fulfil human rights.

While the Constitution does not prescribe a specific timeline for this enactment in its Fifth Schedule, the Court applied Article 259(8), which requires constitutional obligations to be performed without unreasonable delay. The Court emphasised that the standard of reasonableness is contextual, and a delay of over eight years (at the time the petition was filed) was deemed manifestly unreasonable. This finding forms the ratio decidendi regarding the temporal obligations of Parliament under Article 169: while Parliament has discretion in the content of the laws it crafts, it does not have the discretion to delay indefinitely the enactment of laws essential to the judicial architecture.

Defining the ‘Local Tribunal’ Through Functional Adjudication

The Court sought to clarify which bodies actually constitute local tribunals for the purpose of transitioning to the Judiciary. Endorsing the ejusdem generis rule of interpretation, the Court held that local tribunals must be of the same constitutional genre as the other subordinate courts listed in Article 169(1), such as Magistrates’ courts. For a statutory body to qualify, it must exercise judicial or adjudicative power,meaning it must resolve concrete disputes between opposing parties through a structured, adversarial process culminating in binding determinations.

This functional definition excludes bodies that are purely advisory, regulatory, or administrative in nature. The Supreme Court found that the High Court had erred by listing twenty,four specific bodies as tribunals to be transitioned without a case-by-case analysis of their functions. Moreover, since this specific list was not pleaded by the respondent, the High Court exceeded its jurisdiction by granting un-pleaded reliefs. Consequently, while the general principle of transitioning adjudicative tribunals was upheld, the specific list of bodies was set aside.

Remedial Restraint and the Limits of Structural Interdicts

The final significant issue concerned the structural interdict used by the lower courts to supervise Parliament’s progress on the Tribunals Bill. The Supreme Court acknowledged that while Article 23(3) allows for innovative remedies like structural interdicts, such power must be exercised with institutional comity and restraint. The Court cautioned that judicial overreach into the heartland of Parliament should be avoided, especially where a competent authority is already taking steps to correct a constitutional breach.

The Court noted that a Tribunals Bill was already moving through Parliament during the appeal process. In such circumstances, a declaratory order,affirming the constitutional obligation to legislate,would have been a sufficient and less intrusive remedy than a supervised interdict. The Court also found it improper that the interdict was directed at the Attorney General, who does not control parliamentary scheduling. This reflects a preference for remedial restraint, where the court identifies the breach but allows the respective branch of government the autonomy to rectify it through its own internal procedures.

Final Decision and Orders

The Supreme Court partially allowed the consolidated appeal. It upheld the findings that Parliament bears a mandatory duty to enact legislation for local tribunals within a reasonable time and that the previous delay was unconstitutional. However, the Court set aside the High Court’s specific list of tribunals and vacated the structural interdict requiring progress reports. Each party was ordered to bear its own costs due to the public interest nature of the litigation.