Kenya Statutory Instruments Amendment Bill 2024: Enhancing Regulatory Enforcement

• The Kenya Statutory Instruments (Amendment) Bill 2024 seeks to compel public institutions to enact required regulations.
• Advocate Ekaterina Handa submitted a memorandum supporting the Bill, citing the Judicial Service Commission's failure to gazette complaint regulations.
• The Bill proposes specific deadlines for regulation-making, allows public petitions to Parliament for non-compliance, and makes deliberate inaction an offense.
• The Judicial Service Commission has not implemented a Supreme Court directive from February 2022 to formulate complaint rules, nearly five years later.
• The proposed legislation aims to enhance regulatory enforcement and parliamentary oversight, ensuring fair administrative action and natural justice.

The proposed Kenya Statutory Instruments Amendment Bill 2024 is therefore presented as a fundamental safeguard against such subversion.

A new legislative proposal, the Kenya Statutory Instruments (Amendment) Bill 2024, seeks to empower citizens and Parliament to address persistent regulatory gaps caused by public institutions. The Bill, which has already received approval from the Senate, is currently undergoing a public participation phase before the National Assembly. Its primary objective is to tackle administrative inertia and delays by government agencies that fail to formulate essential regulations necessary for the implementation of laws passed by Parliament.

Advocate Ekaterina Handa recently submitted a memorandum to the Clerk of the National Assembly, dated September 3, 2026, advocating for the Bill's enactment. Her submission came in response to a public invitation for views on the proposed amendments. Ms. Handa argues that the Bill would introduce crucial mechanisms to ensure that statutory obligations are met. Specifically, the proposed amendments would impose clear deadlines for responsible authorities to complete the regulation-making process.

Crucially, the Bill would establish a new avenue for public accountability: members of the public would gain the right to petition Parliament if an agency responsible for creating regulations fails, neglects, or refuses to do so within the stipulated timeframe. Furthermore, the legislation proposes to criminalize the deliberate failure by a responsible authority to fulfill its statutory duty to enact regulations, marking a significant step towards strengthening regulatory enforcement and parliamentary oversight.

Ms. Handa's memorandum highlights the Judicial Service Commission (JSC) as a prime example of prolonged administrative failure, underscoring the necessity of the Kenya Statutory Instruments Amendment Bill 2024. She points out that the JSC has not formulated or gazetted regulations governing complaints against judges and judicial officers, despite being legally mandated to do so under Section 47 of the Judicial Service Act. This regulatory gap has led to significant uncertainty regarding the proper processing of complaints against members of the Judiciary, forcing reliance on ill-defined or inconsistently applied procedures.

The advocate referenced the High Court's decision in Lubengu v Judicial Service Commission & another; Ojiambo t/a Acorn Law Advocates LLP (Interested Party), where a three-judge bench examined the implications of this absence of formal rules. The court found that the JSC's reliance on case-by-case procedures, due to the lack of gazetted regulations, raised serious concerns about fairness and certainty for judges facing disciplinary action. This situation, Ms. Handa argued, could undermine fundamental constitutional guarantees of fair administrative action and natural justice.

Further illustrating the problem of JSC complaints regulations delay, Ms. Handa cited a Supreme Court directive from Shollei v Judicial Service Commission & another. This ruling, delivered on February 17, 2022, explicitly required the JSC to formulate and gazette rules for complaints against judges and judicial officers within 90 days. Despite this clear and binding order, nearly five years later, the directive remains unimplemented, demonstrating a persistent regulatory failure that the proposed Bill aims to rectify.

The absence of clear, pre-ordained rules, as highlighted by Ms. Handa, leaves judicial officers vulnerable to disciplinary processes based on standards devised retrospectively or tailored to specific cases. This scenario not only compromises the integrity of the disciplinary process but also undermines the legislative will and Parliament's intent by administrative inaction. The proposed Kenya Statutory Instruments Amendment Bill 2024 is therefore presented as a fundamental safeguard against such subversion.

The current regulatory vacuum negatively impacts both the public seeking to lodge complaints against judicial officers and the judges who are subjected to disciplinary proceedings. For complainants, the lack of clearly published procedures creates barriers to accessing justice, while for judges, it erodes the principles of natural justice and fair administrative action. The Bill, by introducing deadlines, public petitioning, and penalties for deliberate inaction, aims to strengthen Parliamentary oversight regulatory failure and ensure greater accountability from public bodies. This legislative effort represents a crucial step towards ensuring that laws are not only passed but are also effectively implemented through timely and transparent regulatory frameworks, benefiting all stakeholders in the justice system.

This proposed Bill, if enacted, will create new legal avenues for citizens and Parliament to compel public institutions to enact required regulations, and could introduce penalties for deliberate regulatory inaction. Lawyers should monitor its progress as it may provide new tools for challenging regulatory gaps and create increased compliance obligations for public bodies responsible for gazetting rules.

Source: Reporting based on legal news from Kenya.