In the Matter of the Independent Electoral and Boundaries Commission
The single most cited authority in the corpus. Cited for the reach of the Court's advisory jurisdiction and for the constitutional timetable that governs a general election.
What this authority establishes
Four propositions are drawn from this authority in the corpus. Each one is pinned to the paragraph it comes from, so you can read the Court's own words before you use it.
Article 163(6) confers a power, not a right in the applicant. The Court may decline a reference, and it will decline one that is hypothetical, premature or already the subject of proceedings between the parties.
A general election must be held within the period the Constitution allows. Neither political agreement nor administrative convenience can extend it, and a court cannot read into the Constitution a power to postpone it.
No article stands alone. A provision that appears to settle a question must be read with the articles that give it context and effect, and the interpretation adopted must be one the text can bear.
Where the question is in substance the very question a court would have to decide between named litigants, the reference is an attempt to obtain an advantage and will be refused.
In the Court's own words
The passage below is the one most often quoted from this authority, and the one to check first when it is cited against you.
“The jurisdiction conferred upon this Court by Article 163(6) is advisory in nature and its exercise is a matter of judicial discretion. It is not a jurisdiction to be invoked by a party to obtain a forensic advantage in a dispute that is already before another court.”In the Matter of the Independent Electoral and Boundaries Commission, ¶8 — raw paragraph 8
The corpus records 62 citations of this authority in pre-2010 judgments, all of them on the old advisory procedure under the Constitution of 1963.
300 citations have been recorded since 2024, the highest of any authority in the corpus. The trend is upward, not settled.
Cases that rely on this authority
Listed newest first, with the treatment each court gave it. Open any row to read the brief and jump to the paragraph where the authority is used.
Cited for the proposition that the Court addresses the question of jurisdiction first, because without it everything done afterwards is in vain.
Adopted the authority's reasoning on the Court's discretion over its own process when it declined to extend time.
Relied on for the constitutional timeline for a general election and for the Court's reading of the Sixth Schedule.
Accepted the authority on advisory jurisdiction but distinguished it on the facts, the dispute before the Court being a live controversy between identified parties.
Applied the authority's standard of review to the process by which a constitutional commission made an appointment.
Considered but not applied: the court read the authority as confined to the Court's jurisdiction to give advisory opinions, and not as a general test for standing.
Citing courts over time
How the authority was received, court by court, since it was delivered.
| Court | 2011 to 2014 | 2015 to 2019 | 2020 to 2023 | 2024 to 2026 | Total |
|---|---|---|---|---|---|
| Supreme Court | 42 | 96 | 118 | 88 | 344 |
| Court of Appeal | 118 | 204 | 186 | 142 | 650 |
| High Court | 24 | 58 | 46 | 62 | 190 |
| Employment and Labour Relations Court | 0 | 4 | 6 | 8 | 18 |
| Environment and Land Court | 0 | 2 | 0 | 0 | 2 |
| All courts | 184 | 364 | 356 | 300 | 1,204 |
The Court of Appeal accounts for more than half of all citations, largely because it applies the authority when it reviews the exercise of discretion by courts below.
Citing this authority
In the Kenya Law format the citation is In the Matter of the Independent Electoral and Boundaries Commission (Advisory Opinion Reference No. 2 of 2011) [2011] KESC 1 (KLR) (2011) (Advisory Opinion). Pinpoint to the paragraph you rely on — most of the citations in the corpus turn on ¶8 or ¶34.
In the Matter of the Independent Electoral and Boundaries Commission (Advisory Opinion Reference No. 2 of 2011) [2011] KESC 1 (KLR) (2011) (Advisory Opinion)
Judgments are cited as published by Kenya Law. Check the citation against the original before filing.