Bicameral Lawmaking: Senate and Devolution in Kenya

A Bill can pass through the National Assembly, receive presidential assent and still face a constitutional challenge because the wrong House of Parliament was excluded. Speaker of the Senate v Attorney-General explains why legislative procedure in Kenya is not merely parliamentary housekeeping. In a devolved Constitution, procedure determines whether county interests receive the institutional voice the Constitution promised them.

The case began with the Division of Revenue Bill 2013, but its practical question travels much further. Before a Bill moves through Parliament, who decides whether it concerns county governments? When must the Senate participate? What happens if the two Houses disagree? And how should the 2013 advisory opinion now be read after the Supreme Court’s major 2025 judgment on bicameral legislation?

The conflict over the Division of Revenue Bill

The dispute arose when the National Assembly passed the Division of Revenue Bill 2013. The Bill divided nationally raised revenue between the national and county levels of government. The Speaker of the National Assembly initially referred the Bill to the Senate. The Senate considered it and proposed amendments.

The Speaker of the National Assembly later changed position, treated the referral as mistaken, and the National Assembly proceeded without completing the two-House process. The Bill was sent to the President and became law.

The Senate and its Speaker sought an advisory opinion. In Speaker of the Senate & another v Attorney-General & another [2013] KESC 7 (KLR), the Supreme Court held that the Division of Revenue Bill was a Bill concerning county governments and that the Senate had a constitutional role in its passage.

Why Article 110(3) is the starting point

Article 110(3) provides that, before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly resolve any question whether the Bill concerns counties and, if so, whether it is a special or ordinary Bill.

The constitutional design is important because neither House is allowed to determine the other’s relevance simply by asserting a label. A Bill called “finance,” “national policy” or “administration” may still contain provisions that affect county functions, powers or finances. Classification must therefore follow constitutional substance.

The 2013 advisory opinion treated the concurrence process as part of the protection of devolution. The Senate represents counties and protects their interests under Article 96. If legislation materially affecting county government could be classified solely by the National Assembly, that representative function could be defeated before the Senate even had an opportunity to act.

The Senate does not participate in every Bill

The strength of the 2013 decision lies partly in what it does not say. Bicameralism does not mean that every Bill must pass through both Houses. The Constitution itself differentiates legislative functions.

A claimant challenging legislation must therefore do more than state that the Senate was excluded. The pleadings should identify the provisions of the Bill and explain how they affect county functions, county powers, county institutions or county finances. A remote political or economic effect on counties is not necessarily enough.

This distinction prevents the phrase “Bill concerning county government” from becoming limitless. It also respects the National Assembly’s constitutional responsibilities while protecting the Senate where county interests are genuinely engaged.

What happens after the Senate considers a Bill

Where the Senate has a constitutional role, its participation cannot be reduced to receiving information after the National Assembly has completed the real work. Articles 112 and 113 provide structured procedures where the Houses disagree.

If the Senate amends an ordinary Bill concerning counties, the National Assembly considers those amendments. If agreement cannot be reached through the constitutional voting rules, a mediation committee becomes part of the process. Mediation is therefore not political courtesy. It is one of the mechanisms by which bicameral disagreement is converted into constitutionally authorised law-making.

That procedural sequence matters in litigation because a court can reconstruct it from parliamentary records. Speakers’ messages, versions of Bills, committee reports, votes, amendments and mediation records may become evidence of whether the Constitution was followed.

The 2025 Supreme Court judgment refines the modern position

The institutional conflict did not end in 2013. Further disputes arose over numerous statutes passed by the National Assembly without Senate participation. The controversy eventually reached the Supreme Court in Senate & 3 others v Speaker of the National Assembly & 10 others [2025] KESC 11 (KLR), decided on 21 March 2025.

The Court examined the scope and process of concurrence under Article 110(3) and the Senate’s role in relation to different Bills, including money legislation. It upheld the constitutionality of a number of statutes that did not require Senate participation and invalidated others where the required bicameral involvement had been omitted.

The result is important for legal writing. The 2013 advisory opinion remains the constitutional starting point, but it should no longer be presented as though every later classification question is already answered. The 2025 judgment demonstrates that the inquiry is statute-specific and provision-specific.

Notification between the Speakers now matters explicitly

The 2025 judgment also placed practical emphasis on communication between the two Speakers. The Court considered the Article 110(3) process in the context of later parliamentary practice and confirmed the need for a constitutionally accountable classification process.

For parliamentary counsel, this suggests that classification should leave a documentary trail. The relevant decision should identify the Bill, the constitutional basis for its classification and whether Senate participation is required. Clear inter-House notification reduces later uncertainty and makes constitutional compliance auditable.

For litigants, absence of such a record may be significant, but it does not automatically prove that the statute is invalid. The court still has to determine whether the Bill was one that constitutionally required the Senate’s involvement.

The courts may review Parliament without taking over Parliament

Speaker of the Senate is also important for separation of powers. The Supreme Court rejected the idea that judicial review of mandatory constitutional legislative procedure improperly intrudes into Parliament.

Courts do not decide which policy Parliament should adopt. They decide whether institutions exercising public power stayed within the Constitution. Where the Constitution prescribes a legislative route, judicial enforcement of that route protects rather than displaces parliamentary democracy.

The same distinction is recognised in later bicameral cases. Parliamentary autonomy is substantial, but it exists inside the Constitution. A House cannot convert an internal procedural choice into authority to ignore an external constitutional requirement.

A regional governance perspective

The African Charter on Democracy, Elections and Governance provides useful context for this constitutional design. It promotes the supremacy of constitutional order, separation of powers, accountable institutions and the strengthening of parliaments. It also recognises decentralisation of power to democratically elected local authorities within national law.

The Charter does not decide whether a particular Kenyan Bill concerns counties. That is a domestic constitutional question governed by Articles 96 and 109 to 115 and by Kenyan case law. Its relevance is contextual: it places bicameral discipline and devolution within a wider African commitment to constitutional government and accountable representative institutions.

How to test a Bill before litigation begins

A practical review should begin with the Bill itself. Identify every provision touching county functions, institutions, finances or powers. Compare those provisions with the Fourth Schedule and relevant constitutional financial provisions. Then examine how Parliament classified the Bill.

Next, reconstruct the legislative path. Was there a joint determination or an identifiable concurrence process under Article 110(3)? Was the Bill transmitted to the Senate where required? If the Senate amended it, did the National Assembly follow Article 112? If disagreement remained, was Article 113 mediation used? Were the final versions passed through the constitutionally correct route?

For public institutions, doing this work before enactment is cheaper than defending an unconstitutional statute later. For challengers, the same method prevents vague litigation and allows a court to see exactly where the alleged constitutional failure occurred.

Why the 2013 advisory opinion still matters

Speaker of the Senate remains foundational because it linked bicameral procedure to the practical survival of devolution. Counties require more than elected governments on paper. Their interests must also be represented when national legislation directly affects the functions and finances through which they operate.

The later 2025 judgment adds discipline to that principle. Senate participation is constitutionally important, but it is not universal. The decisive question is what the particular Bill does and what the Constitution requires for that category of legislation.

For ordinary readers, the lesson is straightforward. A law is not constitutionally valid merely because enough Members of Parliament voted for it. Where the Constitution requires two Houses, joint classification or mediation, following that route is part of making the law itself.

Source note

This article is based on Speaker of the Senate & another v Attorney-General & another [2013] KESC 7 (KLR), Articles 96 and 109 to 115 of the Constitution of Kenya 2010, Senate & 3 others v Speaker of the National Assembly & 10 others [2025] KESC 11 (KLR), the subsequent review ruling in [2025] KESC 49 (KLR), and the African Charter on Democracy, Elections and Governance as regional context on constitutional order, separation of powers, democratic institutions and decentralisation.

Suggested citation: 

Ronald Serwanga, "Bicameral Lawmaking: Senate and Devolution in Kenya" East Africa Legal Insight (10 September 2026).