Constitutional Advice: KNCHR and Kenya Court Limits
A constitutional commission may face an important national problem and still choose the wrong judicial route for solving it. Kenya National Commission on Human Rights v Attorney General demonstrates that point. The Supreme Court did not doubt that leadership and integrity questions mattered. It did not deny that KNCHR was a constitutional commission with standing. It declined the reference because substantially related questions were already being litigated in the High Court.
That distinction is the central practical lesson. Advisory
jurisdiction is not a general power allowing the Supreme Court to answer every
difficult constitutional question on request. Article 163(6) creates a defined
and discretionary jurisdiction. The identity of the requester, the connection
with county government, the existence of parallel proceedings and the proper
role of lower courts all matter before the Supreme Court reaches the substance.
What
KNCHR asked the Supreme Court to decide
Kenya National Commission on Human Rights v Attorney General;
Independent Electoral and Boundaries Commission & 16 others, Advisory
Opinion Reference 1 of 2017 [2020] KESC 54 (KLR), arose from uncertainty about
Chapter Six of the Constitution and the integrity threshold for candidates
seeking elective or appointive office.
KNCHR asked a series of questions about whether Chapter Six creates
an objective fit-and-proper test, how criminal proceedings and audit findings
should affect eligibility, and what institutions such as the IEBC should do
when confronted with integrity concerns.
At the same time, constitutional petitions concerning candidate
clearance, vetting criteria and institutional responsibilities were already
pending in the High Court. The Supreme Court therefore faced a preliminary
question before any answer on integrity: should an advisory opinion be used to
address matters that a constitutionally competent first-instance court was
already deciding?
Standing
was not the problem
The Supreme Court accepted that KNCHR was entitled to approach it as
a State organ. Article 59 establishes the constitutional human-rights
commission framework, while the Kenya National Commission on Human Rights Act
confirms KNCHR's status and statutory mandate.
This is consistent with the international understanding of national
human rights institutions. The United Nations Paris Principles treat such
institutions as bodies that should possess a broad legal mandate, independence
and powers to promote and protect human rights. Those standards help explain
why a commission such as KNCHR may seek authoritative constitutional guidance
in an appropriate case.
But eligibility to request an opinion does not compel the Supreme
Court to give one. Standing answers whether the applicant can knock on the
advisory door. The Court must still decide whether Article 163(6) covers the
subject and whether exercising the jurisdiction is institutionally proper.
Why
the majority declined the reference
The majority found substantial overlap between the advisory
questions and the pending High Court petitions. Answering the reference would
have required the Supreme Court to interpret the same Chapter Six provisions,
institutional mandates and candidate-clearance questions that the High Court
was already considering.
Article 165 gives the High Court original jurisdiction over
constitutional interpretation and enforcement. The Supreme Court considered
that an advisory opinion in those circumstances could pre-empt the High Court,
bypass the ordinary appellate sequence and decide difficult questions without
the same factual record that adversarial litigation could develop.
The majority also rejected the idea that Article 163(6) creates a
free-standing jurisdiction to harmonise conflicting judicial decisions. Where
inconsistent precedents create a question of general public importance, the
Constitution provides appellate routes through which a concrete dispute can
eventually reach the Supreme Court. Advisory jurisdiction is not a substitute
appeal.
The
dissent shows that restraint is contextual
Justices Isaac Lenaola and Mohammed Ibrahim took a different view.
They accepted the importance of avoiding interference with pending cases but
considered that not every question in KNCHR's reference necessarily overlapped
with the High Court litigation. In their view, distinct questions of national
importance could have been separated and answered without deciding the matters
already before the High Court.
The dissent is useful because it prevents the majority rule from
becoming mechanical. Pending litigation is a powerful reason for restraint, but
advisory jurisdiction remains discretionary and context-sensitive. The real
question is whether the requested opinion would pre-empt a live dispute,
undermine another court's constitutional role or serve a genuinely prospective
institutional need that ordinary litigation cannot address in time.
The majority's disposition remains binding, but the competing
reasoning helps explain why later advisory cases examine urgency, public
importance and institutional consequences rather than relying on a simple
automatic bar.
Current
law now gives the advisory process more detail
The Supreme Court Act has been amended since the 2020 ruling.
Section 13 now expressly regulates advisory opinions and states, among other
matters, that the request must clearly identify the questions, that the opinion
sought should not be adversarial, abstract or hypothetical, and that the Court
may decline to assume jurisdiction and give reasons. The Act also provides that
an advisory opinion has the same binding effect as any other decision of the
Court.
The Supreme Court Rules 2020, as subsequently amended, provide the
procedural framework for references. Rule 50 requires a reference to be brought
by the national government, a State organ or a county government and to specify
the questions on which advice is sought.
These provisions make the institutional lesson in KNCHR even more
practical. A reference should be framed as prospective constitutional guidance,
not as disguised litigation or an attempt to obtain an apex-court answer
outside the ordinary appellate process.
Later
Supreme Court decisions refine the same framework
The Supreme Court continued developing advisory jurisdiction after
KNCHR. In Attorney General v Karua [2024] KESC 21 (KLR), the Court restated the
importance of the constitutional thresholds and the institutional purpose of
advisory opinions. In Independent Electoral and Boundaries Commission v
Attorney General [2025] KESC 57 (KLR), the Court again examined who could
properly move the Court, the effect of related litigation and the
public-interest circumstances surrounding an advisory request.
The 2025 IEBC decision shows that later cases do not treat KNCHR as
an absolute formula. Exceptional public importance and urgency can affect the
exercise of discretion. Even then, the Court remains careful about whether the
reference is properly framed and whether another judicial process can answer
the same question without institutional conflict.
For practitioners, this means the modern test is cumulative and
contextual. Eligibility, county-government connection, the character of the
question, pending proceedings and practical need for prospective guidance all
have to be considered together.
A
practical checklist without turning it into a list
Before filing an advisory reference, counsel should first identify
why the requester qualifies under Article 163(6) and explain the genuine
connection with county government. The reference should then disclose any
pending or threatened proceedings concerning the same subject. If litigation
exists, the applicant should explain why an advisory opinion would not pre-empt
that process or why exceptional circumstances make immediate prospective
guidance necessary.
The questions should be narrow enough to be answered as legal
guidance rather than requests to determine disputed facts or review earlier
judgments. The applicant should also consider whether the Attorney General's
advice, an internal statutory process or ordinary constitutional litigation can
resolve the problem.
Where the issue is already before the High Court, developing a full
evidentiary record and preserving the ordinary appellate route will often be
the constitutionally safer course. An apex court is not made less authoritative
by allowing another court to perform the first-instance role assigned to it.
Why
KNCHR matters
The case is easy to misuse because its subject matter involved
leadership and integrity, yet the Supreme Court did not decide the substantive
Chapter Six questions placed before it. Its principal precedent value lies in
forum, jurisdiction and institutional responsibility.
For constitutional commissions, KNCHR confirms the ability to seek
advisory guidance in a proper case while warning that importance alone does not
make Article 163(6) available. For litigants, it protects ordinary
constitutional proceedings from being overtaken by an abstract reference. For
courts, it preserves the hierarchy through which factual disputes and legal
questions normally mature before reaching the apex level.
The broader lesson is that constitutional enforcement is not only
about obtaining the correct substantive answer. It is also about obtaining that
answer through the institution and procedure the Constitution has chosen.
Source note
This article is based on Kenya National Commission on Human Rights v Attorney General; IEBC & 16 others [2020] KESC 54 (KLR), Articles 59, 163 and 165 of the Constitution of Kenya 2010, the current Kenya National Commission on Human Rights Act, section 13 of the Supreme Court Act, the Supreme Court Rules 2020 as amended, Attorney General v Karua [2024] KESC 21 (KLR), Independent Electoral and Boundaries Commission v Attorney General [2025] KESC 57 (KLR), and the United Nations Paris Principles as contextual guidance on national human rights institutions.
Suggested citation:
Ronald Serwanga, “Constitutional Advice: KNCHR and
Kenya Court Limits” East Africa Legal Insight (8 September 2026).