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Advisory Opinion Jurisdiction of the Supreme Court: Re Matter of an Application by Kituo Cha Sheria for an Advisory Opinion under Article 163(6) of the Constitution (Legal Advice Centre T/A Kituo cha Sheria & AG 2024)

Following a preliminary objection by the Respondent regarding the Applicant's locus standi, the Applicant tried to argue that the language used under Article 163 (6), which gives locus standi to national, county, and state organs to obtain advisory opinions from the SCOK, can be broadly interpreted to mean the people by citing the meaning of 'state' and 'county government' by the Blacks Law Dictionary.

The court held that it had pronounced itself on this issue of jurisdiction again in various cases, notably Re Interim Independent Electoral Commission [2011] eKLR where it issued guidelines on how it can exercise the jurisdiction:

  1. The reference must be regarding any matter concerning county governments (to be determined on case by case basis).
  2. The party must be the National Govt, County Govt or State Organ (defined under Art 260 of the Constitution)
  3. Where the reference concerns a matter before a lower court, the SCOK must be hesitant to hear it. However, it can do so if the matter was filed before the lower court after the reference was filed before the SCOK and the SCOK is satisfied that it is a matter of public interest.
  4. Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requires urgent resolution through an Advisory Opinion.
In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through an adversarial Court process.


The court also deliberated on the circumstances upon which a person not referred to under Art 163(6) can be enjoined as a party. Previously, the guidelines required an application to be done by the said person as an interested party or amicus curiae although now, under the new Rules 2020, one can be a party either through a proposal by the person filing the reference or the identification by the court by its own motion where necessary.


The court thus dismissed the matter since the Applicant lacked locus standi.

Key Points

  1. The advisory opinion jurisdiction of the SCOK is very limited and can only be invoked by the National Govt, County Govt or State Organ (defined under Art 260 of the Constitution).
  2. The reference MUST concern county governments.
  3. The matter is before a lower court:
    1. If filed before the lower court after the reference was filed - the SCOK will be hesitant unless it is a matter of public interests.
    2. If was pending before the lower court at the time the reference was filed in the SCOK - Jurisdiction will be exercised if the applicant can demonstrate that the issue is of great public importance and requires urgent resolution through an Advisory Opinion.
  4. The applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through an adversarial Court process.
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