—Victoria Miyandazi, Assistant Professor in Public Law at the University of Nottingham (UK)
—Munene Njoroge, Advocate of the High Court of Kenya and a Research Fellow at the Strathmore Centre for Law, Policy and Governance
Classic but Under-Theorised Issue of Constitutional and Legislative Silences
In Parliament of Kenya & another v Okoiti & 2 others [2026] KESC 28 (KLR), the Supreme Court of Kenya confronted a classic but under-theorised public law problem: what should courts do when the Constitution imposes a duty, but is silent on when it must be performed? The case arose from Parliament’s prolonged failure (over 8 years as at the time the case was being filed at the High Court) to enact legislation under Article 169(2) of the Constitution to confer jurisdiction, powers and functions on local tribunals under Article 169(1)(d). The constitutional significance of these provisions is twofold. First, local tribunals envisioned under Article 169(1)(d) are not conceived as free-floating executive bodies; they are part and parcel of the subordinate courts structure. Secondly, Article 169(2) imposes a duty on Parliament to enact the legislation necessary to make that constitutional arrangement operational. The omission mattered because many tribunals continued to operate under executive control even though the 2010 Constitution had re-situated qualifying local tribunals within the architecture of the Judiciary. The Supreme Court affirmed that the duty under Article 169(2) is mandatory, not discretionary, describing it as ‘couched in mandatory terms’ [62]. It further held that Article 169(2) performs a rights-enabling function because it is directly linked to Article 48 of the Constitution on the right of access to justice [63]. In doing so, the Court treated the matter not as a political disagreement about legislative priorities, but as a constitutional controversy about omission, access to justice, and institutional design [47]. This decision comes almost a year after the Chief Justice had urged Parliament to fast-track the Tribunal’s Bill.
This is therefore not merely a case about whether the petitioner could secure a coercive order against Parliament, but also about exposing and constitutionalising a serious gap in Kenya’s post-2010 judicial architecture. To a considerable extent, the merits of the claim were not wholly denied by the implicated state organs. The Judicial Service Commission (JSC) accepted that qualifying local tribunals under Article 169(1)(d) are subordinate courts within the Judiciary and that legislation was needed to facilitate their transition. The Attorney General likewise accepted the need for legislative intervention, even while contesting the precise remedies and timelines. The crux of the case, therefore, lay less in whether there was a constitutional gap, and more in how quickly Parliament had to act, and how far courts could go in compelling it to do so. That is what makes this case such an important decision on constitutional and legislative silences.
Litigation History and Brief Facts of the Case
In 2018, Okiya Omtatah Okoiti had moved to the High Court, challenging Parliament’s prolonged failure to enact the legislation contemplated under Article 169(2) of Kenya’s 2010 Constitution. Katiba Institute supported the petition. At the heart of the High Court Petition, the claim was rooted in a structural problem: although the 2010 Constitution had re-situated qualifying local tribunals within the constitutional architecture of the Judiciary, many tribunal members continued in practice to be appointed and removed by the Executive, sometimes through non-competitive processes. In disputes where the government itself was a party, that arrangement risked executive influence over adjudicative bodies and therefore compromised both fair hearing and the separation of powers. The High Court upheld the petition, declaring that local tribunals under Article 169(1)(d) are subordinate courts, and issued a structural interdict compelling Parliament to move the legislative process forward and report progress to the Chief Justice. The Court of Appeal upheld the High Court’s findings in their entirety. Parliament and the Attorney General then appealed to the Supreme Court.
The Constitutional Provision at Issue
Article 169 of the Constitution provides that:
(1) The subordinate courts are– (a) the Magistrates courts; (b) the Kadhis’ courts; (c) the Courts Martial; and (d) any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162(2).
(2) Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).
The Court clarified that not every body labelled a tribunal qualifies. Local tribunals under Article 169(1)(d) are statutory bodies that exercise judicial, quasi-judicial, or adjudicative power; are subordinate to the superior courts; resolve disputes through a structured process culminating in binding determinations; and are not merely advisory, regulatory or administrative bodies. Bodies of the latter kind fall outside Article 169(1)(d). That clarification matters because the High Court had listed a wide range of bodies, however, the Supreme Court later observed that not every listed institution had been examined individually. Among the strongest examples from the High Court’s list are the Business Premises Tribunal, the Capital Markets Tribunal, the Co-operative Tribunal, the Insurance Appeals Tribunal, the State Corporations Appeals Tribunal, and the Value Added Tax Appeals Tribunal, all of which most clearly bear the hallmarks of adjudicative bodies. By contrast, bodies such as the Advisory Board of Review under the Prisons Act (Cap 90), the Water Resources Management Authority, and the Kenya Bureau of Standards were specifically disputed as not necessarily judicial or quasi-judicial in nature [27].
Civilian Oversight, Democracy and the Point of Litigation
At one level, the case is about tribunals. At another, it is about civilian oversight in protecting democracy. Where adjudicative bodies remain subject to executive appointment and removal, especially in disputes involving the government, the risk is not only institutional untidiness but constitutional distortion. As Khaitan argues, some constitutional norms are ‘non-self-enforcing’: powerful actors may have both the will and the capacity to frustrate them.[1] In those circumstances, the traditional separation of powers may not by itself be enough to secure constitutional commitments. Dixon and Tushnet similarly caution that even well-intentioned governments may be constrained by institutional blind spots and ‘burdens of inertia’.[2] Legislative silence, then, may reflect not only open refusal but also a dangerous politics of postponement.
That helps explain what one may hope to get out of litigation in a case like this. The goal was not simply to obtain an immediate courtroom victory. It was also to force acknowledgement of a constitutional omission, locate responsibility, and make clear that the failure to legislate had legal and democratic consequences. In that sense, the case illustrates Botero and Brinks’ broader account of institutional impact. Even where material compliance is incomplete, litigation can produce discursive and legal impacts by reframing a problem in constitutional terms; social and ideational impacts by changing how officials and the public understand the issue; organisational impacts by consolidating alliances between litigants, civil society and oversight bodies; and, eventually, material impacts in the form of legislation, institutional redesign or budgetary change.[3]
Measured in this way, the case achieved a great deal even without preserving the structural interdict initially issued by the High Court and Court of Appeal. It secured authoritative recognition that the omission was justiciable, that Article 169(2) imposed a binding constitutional obligation, and that the continued executive control of qualifying tribunals was constitutionally problematic. It also helped bring into the open the fact that there was, in substance, significant institutional acknowledgement of the gap.
Is Legislative Silence Justiciable?
The Constitution is silent on the exact timeline within which Parliament must enact the Article 169(2) legislation. The Supreme Court, however, refused to read that silence as a licence for indefinite delay. Drawing on Article 259(8), it held that where the Constitution imposes a duty without prescribing a deadline, the duty must be discharged ‘without unreasonable delay’ ([66]). Parliament therefore bore a binding constitutional obligation to act, and the failure to do so for over eight years by the time the High Court petition was filed amounted to unreasonable delay (Paras [62] and [64]).
The Court also made clear that the issue was justiciable even though a Tribunals Bill had at some point been introduced. A pending legislative process does not cure an existing constitutional violation, or shield legislative inaction from judicial scrutiny. Nor was the petitioner required first to resort to Article 119 petitions to Parliament. Once a litigant alleges constitutional violation, especially by omission, the matter falls within the jurisdiction of the High Court [47]. The Court was equally emphatic that separation of powers does not immunise Parliament from review. Parliament’s authority remains constitutionally bounded, and courts retain the duty to determine whether an act or omission is inconsistent with the Constitution [47].
The Court’s reasoning here is especially important because it treats Article 169(2) not as a mere procedural instruction but as a rights-enabling provision. It linked Article 169(2) directly to Article 48 on the right to access justice [63], and drew on Social and Economic Rights Action Center (SERAC) and Another v Nigeria to stress that Article 21(1) of the Constitution imposes positive obligations on the state to take steps, including legislative steps, to fulfil rights [64]. Legislative silence, following this reasoning, is not neutral. It can itself become a constitutional violation.
Judicial Supervision Warrants Appropriateness
While the Supreme Court affirmed the finding of unconstitutional delay, it departed from the High Court and the Court of Appeal on remedy. It set aside the structural interdict. Relying on the logic of Mitu-Bell Welfare Society V Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR) and scholarship on supervisory relief,[4] the Court stressed that structural remedies must remain exceptional, proportionate, realistic and restrained.
Two considerations were central to the judgment. First, the Court found no evidence that Parliament was wilfully unwilling, incapable, or persistently indifferent in the stronger sense necessary to justify judicial supervision of the legislative process. Indeed, by the time of the appeal, a Tribunals Bill had already been introduced. The Court therefore cautioned that ‘judicial intervention in legislative processes is justified only in the clearest of cases’ ([100]). Secondly, the structural interdict had been directed partly at the Attorney General, who has no control over parliamentary scheduling, debate or voting. That made the order misdirected and difficult to justify. In the Court’s view, a declaratory order affirming Parliament’s obligation and requiring compliance within a reasonable time would have been a less intrusive and more proportionate remedy. The structural interdict was accordingly set aside.
Conclusion and Public Law Implications
This decision makes an important contribution to Kenyan public law. It confirms that constitutional obligations do not become non-justiciable merely because the Constitution does not specify a deadline, because legislation is underway, or because Parliament has its own internal procedures. Where legislative silence undermines rights and institutional integrity, courts may intervene ([47], [62]–[64]).
At the same time, the judgment reaffirms restraint. Structural interdicts against the legislature are not impossible, but they require a compelling showing of intransigence, incapacity or sustained inattentiveness, not delay alone. The case therefore reinforces a deeper constitutional point: separation of powers is a doctrine of balance, not immunity. No arm of government is above the Constitution, but judicial guardianship does not entail judicial management of every political process. In the end, the litigation mattered not only because it produced a legal holding, but because it surfaced a democratic defect and forced institutional acknowledgement of it. That too is a meaningful constitutional gain.
Suggested citation: Victoria Miyandazi, Munene Njoroge ‘When Parliament Drags Its Feet, Can the Courts Step In? What are the Limits, if any?’ Int’l J. Const. L. Blog, Apr. 22, 2026 at: http://www.iconnectblog.com/when-parliament-drags-its-feet-can-the-courts-step-in-what-are-the-limits-if-any/
[1] Tarunabh Khaitan, ‘Guarantor Institutions’ (2021) Asian Journal of Comparative Law S40, S40.
[2] Rosalind Dixon and Mark Tushnet, ‘Democratic Constitutions, Poverty, and Economic Inequality: Redress Through the Fourth Branch Institutions’ (2023) Federal Law Journal 285, 288.
[3] Sandra Botero and Daniel Brinks, ‘The Politics of Judicial Impact in Social and Economic Rights Cases’ in Malcolm Langford and Katharine Young (eds), The Oxford Handbook of Economic and Social Rights (Oxford University Press 2022) 3–5.
[4] Kent Roach and Geoff Budlender, ‘Mandatory Relief and Supervisory Jurisdiction: When Is It Appropriate, Just and Equitable?’ (2005) 122 South African Law Journal 325.