Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR concerning counties is therefore one that fits the definition of Article 110 of the Constitution and also has an impact on the conduct of county governments. 690. To justify its assertion that the impugned amendments concerned counties, the 5th Interested Party submits that the main stated benefit of NIIMS is to ease delivery of services to the people. It observes that similarly, some of the purposes of devolution and the creation of county governments according to Article 174 of the Constitution are the promotion of social and economic development and the provision of proximate, easily accessible services throughout Kenya; and facilitation of the decentralisation of State organs, their functions and services, from the capital of Kenya. It therefore asserts that if NIIMS is meant to be a tool to provide easier access to services and the purpose of devolution is to do the same thing, then the Senate ought to have been consulted in the enactment of a legislation that encroaches on their function. 691. It is therefore the 5th Interested Party’s firm position that the failure by the National Assembly to involve the Senate in the legislative process in a Bill that concerned the county government makes the resulting legislation null and void. The decision in the Institute of Social Accountability Case is cited in support of the assertion that failure to involve the Senate in the enactment of an Act concerning county governments renders such an Act unconstitutional. 692. The 6th Interested Party did not make any submission on the issue of the non-involvement of the Senate in the legislation of the impugned amendments. 693. The Respondents vehemently oppose the position taken by the Petitioners and the Interested Parties who support them on the role of the Senate with respect to the impugned amendments. The 1st Respondent submits that Article 109(1) of the Constitution mandates Parliament to legislate through Bills that are eventually assented to by the President. He asserts that Article 109(3) of the Constitution provides that a Bill not concerning county governments is considered only in the National Assembly and Article 109(1) defines ‘a bill concerning county governments’ to include Bills containing provisions affecting the functions and powers of county governments as set out in the Fourth Schedule, Bills relating to election of members of county assembly or county executive and Bills affecting finances of county governments. 694. Applying the cited law to the facts of this case, the 1st Respondent submits that national registration and data and statistics are national government functions as they are not enumerated in Part 2 of the Fourth Schedule which sets out the functions of county governments. 695. The 2nd and 3rd Respondents agree with the position taken by the 1st Respondent, contending that the Bill did not warrant consideration by the Senate. In their view, the fact that a proposed amendment may tacitly confer incidental benefits to county governments does not make such a Bill a Bill “concerning county governments.” They rely on the Court of Appeal definition of a “bill concerning county governments” in the case of National Assembly of Kenya & Another v Institute for Social Accountability & 6 Others [2017] eKLR. In their view, the registration of persons is a function that falls within the category of national statistics and data on population which is a function reserved for the national government pursuant to section 11 of the Fourth Schedule of the Constitution. 696. We have considered the respective submissions of the parties on the question whether the Senate had a role in the enactment of the impugned amendments. We note that the parties are agreed that the impugned amendments were originated and passed by the National Assembly without reference to the Senate. The only question therefore is whether the impugned amendments concerned county governments and could only pass with the approval of the Senate. 697. The Supreme Court extensively dealt with this issue in The Speaker of the Senate and Another and the http://www.kenyalaw.org - Page 111/174