Skip the Attorney General, Stall Your Reference: Unpacking The Speaker of Meru County Assembly v IEBC
MLR Issue 013 — A Practitioner Commentary
There is a moment in The Merchant of Venice that every Kenyan advocate ought to sit with at least once, including those of us who, like this author, spent high school on Ibsen’s An Enemy of the People instead and only met Shylock later. Shylock has his bond, drafted in his own favour, and he reads it as literally and as generously to himself as the words will allow. He wants the pound of flesh the document promises him, nothing less. Portia does not dispute that the bond exists or that its terms are real. She simply reads it exactly as narrowly as it was written, no wider, and the same document Shylock thought would deliver him everything delivers him nothing at all. The lesson has outlived the play. An instrument built for one purpose, however carefully worded, punishes the party who tries to make it carry more weight than it was drafted to hold.
Counsel for the Speaker of the Meru County Assembly ran the same play in reverse, and lost for the same reason. The ruling is Speaker of the County Assembly of Meru v Independent Electoral & Boundaries Commission & another (Reference E001 of 2026) [2026] KESC 57, handed down on 17th July 2026. He filed an Article 163(6) reference asking the Supreme Court to settle a question that has been quietly distorting Chapter Six enforcement for years: whether suspension pending appeal of a removal from public office, impeachment included, lets the removed person contest an election while that removal is still being fought over in court. He did not seek the Attorney General’s advice first. He told the Court, on the record, that he had decided not to, deliberately, and that the exception created in Attorney General v Karua [2024] KESC 21 meant he did not have to [2].
He lost the bet. The five-judge bench, Mwilu DCJ, Wanjala, Lenaola, Ouko and Warsame SCJJ, parked the entire reference, interveners and all, and sent him back to the Attorney General to seek that advice before the reference could proceed.
Image by Mohamed Hassan from PixabayThe ruling
The reasoning is short, and that is exactly what makes it useful. The Court reaches back to two lines of its own authority. The first is Rule 53(c) of the Supreme Court Rules, 2020, which lets the Court reject a reference outright where the question could have been resolved by the AG’s advice, and that advice was never sought. The second is the “due process” aspect the Court has infused into that rule since In the Matter of Speaker, County Assembly of Siaya County (Reference 4 of 2017) [2020] KESC 40 and carried forward through County Government of Nairobi v Attorney General [2023] KESC 65, that although seeking the AG’s opinion is not, strictly, a matter of law, an applicant “like other government institutions and agents” should adopt the practice of going to the AG first.
I surmise that every carve-out invites its own erosion. Write an exception narrow enough to fit one applicant, in one set of circumstances, and it is only a matter of time before someone else holds it up to the light and finds the outline generous enough for their case too. Kenyan courts then spend nearly as much energy reclaiming the shape of their own exceptions as they spent drafting them in the first place, and the reclaiming rarely comes for free. Someone pays for having tested the boundary, usually in time, sometimes in costs, and occasionally, like here in Meru, in a reference parked at the door while the applicant is sent off to do the one thing the exception was never meant to excuse him from.
Counsel for the Speaker of the Meru County Assembly found that out the hard way on his new road to Sheria House.
Revisiting my own read of Karua
Counsel’s argument turned entirely on Attorney General v Karua [2024] KESC 21, and it is worth going back to what I argued about that case when it came down. My note for the Oxford Human Rights Hub, “Blazing The Trail: Kenya’s Supreme Court Rejects the Regional Court’s Merit Review of its Judgments,” written with Brooksharon Mwango and published on OxHRH on 25th June 2024, was about the headline question in that reference: whether the East African Court of Justice could sit in appellate or merit review judgment over this Court’s interpretation of Kenyan constitutional law, arising out of Hon. Martha Karua’s Kirinyaga gubernatorial petition. My argument was that the Court got the hierarchy right by deploying a harmonisation approach instead of treating international and domestic law as outrightly competing for supremacy. Articles 2(5) and 2(6) domesticate international law and treaty obligations, but Articles 2(1) and 2(4) still make the Constitution supreme, so a regional tribunal’s treaty jurisdiction cannot be read to override the apex national court on national constitutional questions. I called that finding laudable, and I still think it was correctly decided.
What I did not dwell on then, because it was not the interesting part of the case, was the AG advice housekeeping the Court did on its way to jurisdiction. Before it could even reach the EACJ question, it first had to establish that it could hear the reference despite the AG never seeking his own advice on it [9]. It excused him for the obvious reason: he was the applicant, acting under Article 156(4)(a) and (b), and it would have been “absurd to require the office of the AG to seek a legal opinion from itself.” That finding was never meant to do more than clear a threshold objection in a case about something else entirely, a narrow, almost mechanical exception built for exactly one kind of applicant.
Two years on, that housekeeping paragraph has grown teeth it was never built to carry. Counsel in Meru tried to stretch a self-referential exception created for the Attorney General into a general licence for any applicant to bypass Rule 53(c), and the bench shuts that down without much ceremony, calling Karua “distinguishable” and reliance on it “obviously misguided.” Fair enough on the facts; that reading of Karua was always going to lose. But the Court also brushes past the one substantive point counsel raised that deserved more than a sentence: that in a devolved system, routing a county organ’s constitutional question through the national Attorney General “might not be the best route to take.” The ruling’s answer, that devolution “does not preclude” the AG from advising on matters of public interest, is true as far as it goes, but it does not engage with why a county Speaker should have to ask the national government’s chief legal adviser to weigh in on county-level electoral eligibility before the apex court will even hear him. That doctrinal tension is left standing, unresolved.
Conclusion
Similar to Shylock’s lesson in The Merchant of Venice, the rule to extract from Meru is narrower than counsel’s submissions projected it to be, and advocates should master it precisely. Karua’s finding that AG referral is “not mandatory as a matter of law” was never a general dispensation; it was jurisdictional housekeeping based on a single fact pattern: an AG applicant under Article 156(4)(a) and (b) who cannot meaningfully seek advice from his own office. Outside that fact pattern, Rule 53(c) continues to operate exactly as the Siaya and Nairobi County line construed it: not as a mandatory precondition capable of grounding a dismissal on the merits, but as a procedural filter the Court will invoke to defer adjudication until the AG has been allowed to advise. The two positions are not in tension once the Karua exception is read for what it truly decided rather than for what it can be made to sound like in isolation.
The operative consequence for practice is that AG referral should be understood as a standing precondition to filing under Article 163(6), not a discretionary courtesy to be weighed against the merits of the substantive question. This remains true irrespective of whether the applicant anticipates that the AG’s advice will be timely, substantive, or favourable; the Rule 53(c) inquiry concerns whether advice was sought, not what it said or how quickly it came. Counsel should accordingly correspond with the AG before filing and ensure that correspondence is capable of being placed on the record, since it is the documented act of seeking advice, not its content, that satisfies the Court. Where an intervener application is contemplated, that risk should also be factored in: the ruling makes clear that intervener applications are parked alongside the primary reference, so a defective referral history stalls every party riding on it, not only the applicant.
Here’s the bottomline: the substantive question, the reach of Chapter Six suspension pending appeal into election eligibility, remains undecided. Whether the AG’s advice resolves the applicant’s position, or the reference returns to the Court for determination on the merits, is worth watching for a future Mwango Law Review Issue.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.