When Kenyans voted overwhelmingly for the current Constitution, they embraced more than just a new legal order. They ushered in a bold experiment in decentralised governance that placed the county governments at the heart of service delivery and citizen participation. The success of this experiment was never going to be automatic. It depended on the commitment of all arms of government to protect the delicate balance between the national and county spheres.
Over the past 12 years, one institution has stood out in this duty; the Supreme Court of Kenya. As the apex court, the Supreme Court is the final interpreter of the Constitution. Its pronouncements bind all other courts, public bodies and persons. This binding authority means that its decisions do not just resolve disputes; they set the tone for the overall approach of the Judiciary to devolution. From its first major advisory opinion in 2013 to recent judgments, the court has consistently sent a clear message: That is, devolution is here to stay, and it must be protected.
One of the earliest tests came in an advisory in 2013. The Senate sought clarity on its role in the legislative process, especially concerning Bills affecting county governments. The Supreme Court held that the involvement of the Senate was not optional. By affirming that both Houses of Parliament must participate in laws touching on county functions, the court reinforced the constitutional principle that devolution is a shared responsibility. This decision bound all other courts and institutions to respect the legislative safeguards for counties.
That same year, the court dealt with disputes between the national and county governments over the transfer of functions. It emphasised that functions assigned to counties could only be taken away through the strict constitutional process. This decision preserved the autonomy of county governments from encroachment and created a binding precedent that still shields devolution from executive overreach.
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The court’s defence of devolution was perhaps most visible in cases involving resources. In Council of Governors’ case, the question was whether the Senate could summon governors to answer audit queries. The Supreme Court upheld the oversight role of the Senate but was careful to delineate the limits of that power, ensuring that oversight did not translate into micro-management. In doing so, the court struck a balance between accountability and the operational independence of counties.
Resource allocation was also central in a case filed by The Institute of Social Accountability, where the court frowned upon legislative attempts to bypass county governments in the use of public funds. It held that public finance provisions must be interpreted in a way that strengthens, rather than undermines, county autonomy. This decision underscored the understanding of the court that devolution without resources is a hollow promise.
Intergovernmental disputes have been another arena where the apex court has protected devolution. In several decisions, the Supreme Court has urged the use of alternative dispute resolution mechanisms before rushing to court. This approach encourages cooperative government and reduces costly confrontations. By binding all lower courts to this principle, the Supreme Court promotes a culture of negotiation and mutual respect between the two levels of government.
The significance of these decisions lies not just in their legal reasoning but in the broader message they send. As the highest court, the Supreme Court’s pronouncements create a ripple effect across the Judiciary. High Court and Court of Appeal judges, magistrates, and tribunals take their cue from the apex court’s jurisprudence. By consistently leaning towards an expansive and protective interpretation of devolution, the Supreme Court has set the judicial tone in favour of decentralisation.
Over the past 12 years, the court’s record shows a steady hand. It has nurtured devolution by clarifying roles, protecting functions, securing resources and encouraging intergovernmental cooperation. These are not abstract victories. They have tangible effects on how counties function, how services are delivered, and how citizens experience government in their daily lives. Looking ahead, the Supreme Court’s role will only grow more critical.
As devolution matures, new disputes will arise over emerging functions, shared resources and political competition between the national and county levels. The court will need to remain vigilant, ensuring that the gains of the past decade are not eroded. It will also need to continue fostering a culture of constitutionalism in which political actors view devolution not as a rival to national authority, but as a partner in building a more equitable and responsive state.
Twelve years on, devolution remains a living reality in large part albeit with challenges because the Supreme Court has defended it with clarity, courage and constitutional fidelity. In binding all other courts to its vision, the apex court has done more than resolve cases; it has shaped the very character of governance in Kenya. And in doing so, it has given life to the promise Kenyans made to themselves in 2010, that power would be shared, government would be closer to the people. Guard devolution, keep power with people!
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By Ndong Evance