'Introduction
1. The Petition before this Court is dated 13th June, 2023. It is supported by the affidavit of the 1st Petitioner, Guyo Ali Guracha sworn on even date.
2. At the very outset we need to state that the facts of the petitioners’ case were set out in our ruling dated 4 April 2024 on a preliminary objection filed against the petition by the 1st and 2nd respondents. We reproduce those facts in this judgment, in the same terms as set out in our said ruling.
3. The petitioners describe themselves in the petition as “citizens of Kenya and registered voters” and that they are “members and/or supporters of Jubilee Party and the Azimio la Umoja Kenya One coalition”.
The Petitioners’ case:
4. It is the petitioners’ case that, Kenya, being a sovereign and a multi party democratic State founded on particular national values and principles of governance, election of an official to a public office establishes a sacred socio political contract that binds the elected official to serve the electors during a fixed term of office. To be precise, under Article 1 of the Constitution, the elected official serves in his office and exercises power as a delegate of his electors. If he is sponsored into office by a political party or coalition of parties, he is constitutionally obligated to remain a member of that party or the coalition of parties throughout his term of office. Further, he is constitutionally obligated to observe, promote and uphold the party''s agenda, objectives, mission and vision during his term in office.
5. The petitioners aver that in light of the foregoing understanding, the 1st and 2nd respondents were respectively candidates for the County Governor and Deputy Governor of Isiolo County during the General Elections held on 9 August, 2022. They contested for these seats as members of Jubilee Party of Kenya. The objectives of this political party are set out in Article 4 of its Constitution as follows:
“1) To be a national party that promotes the unity of all the people of the Republic of Kenya.
2) To form national and county governments that will at all times act in the best interests of the people of Kenya at national and co11nhJ levels.
3) To support, promote and facilitate devolution as a system of governance in Kenya.
4) To promote vigilance in safeguarding the national interests of Kenya.
5) To serve as a vigorous and conscious political vanguard for eradicating tribal, racial and social bigotry, economic discrimination, and exploitation and elimination of all forms of oppression.
6) To implement political, economic, social and cultural policies, including Vision 2030 and future national visions and strategies for a modern, prosperous Kenya which will raise the standards of living for all Kenyans.
7) To promote a national value system and national social transformation policies that will build a cohesive, stable and productive society.
8) To conserve and protect the natural resources, environment and wildlife of Kenya for the benefit of present and future generations.
9) To strive for East and Central African unity and also African unity and integration in even; sphere of economic, social and political life based on economic prosperity, social justice, human dignity, and the sovereignty of all African states.
10) To encourage and subscribe to the need for the creation of space for groups and individuals in the enjoyment of their human rights, freedoms and liberties.
11) To establish partnerships and I or associations with local, foreign and international organisations whose objectives are similar to those of Jubilee Party.”
6. Vide a Gazette Notice no. 7995, dated 1 July 2022, the 5th respondent published the names of the candidates for the County Governor seat for Isiolo County. Following the elections held on 9 August, 2022, the County Returning Officer, Isiolo County announced that the 1st and 2nd respondents had respectively been elected as the Governor and Deputy Governor of Isiolo County. These election results were subsequently published in Kenya gazette notice no. 9948 dated 23 August, 2022.
7. The Petitioners aver that the Jubilee Party which nominated the 1st respondent to contest for the gubernatorial seat of Isiolo County is one of the corporate members of the Azimio la Umoja One Kenya Coalition under whose banner and manifesto all the Jubilee Party candidates campaigned. It is under the same platform that the 1st and 2nd respondents campaigned and were elected.
8. It is their case that according to Articles 1, 38, 92, 103 of the Constitution, the election of the 1st and 2nd respondents as respectively the Governor and Deputy Governor of Isiolo County established a socio-political contract between themselves and the people of Isiolo County. Consequently, their election to these offices was on the understanding that:
“a) The 1st and 2nd respondents would serve for five years as Governor and Deputy Governor of Isiolo County elected on the ticket of Jubilee Party and advance its policies, visions and interests.
b) In discharging their respective functions and powers as the Governor and Deputy Governor of Isiolo County, the 1st and 2nd respondents would implement the policies and priorities of manifesto of the Azimio la Umoja One Kenya Coalition.
c) As a member of the Council of Governors representing Isiolo County, the 1st respondent would promote the values, objectives, interest and policies of Jubilee Party and Azimio Coalition.”
9. Accordingly, the election of the 1st and 2nd respondents as Governor and Deputy Governor of Isiolo County enjoined them to subscribe to Jubilee Party and Azimio Coalition and, in the same breath, prohibited them from supporting any other political party or political coalition including the United Democratic Alliance and the Kenya Kwanza Coalition during their five years’ tenure as the Governor and Deputy Governor of Isiolo County.
10. That notwithstanding, the petitioners contend that on 2 June, 2023, the 1st and 2nd respondents defected from Jubilee Party and joined the United Democratic Alliance, the 3rd respondent in these proceedings. The defection, according to the petitioners, is a violation of the law on grounds that:
“i. It constitutes a breach of public trust and the socio-political contract between the 1st and 2nd respondents, on the one hand, and their electors, residents of Isiolo County and Jubilee Party members, on the other hand, to serve and exercise power as delegates elected to uphold observe and promote the governance agenda objectives, mission and vision of the Jubilee Party and Azirnio Coalition.
ii. The principles and sanctity of multi-party democracy enjoins all state organs and officials to desist from compromising, undermining or usurping the electoral positions garnered by political parties during elections.
iii. The defection of the 1st and 2nd respondents constitute a blatant breach of the national values and principles of governance set out in Article 10 of the Constitution particularly the rule of law, democracy and participation of the people, inclusiveness, good governance, integrity, transparency and accountability.”
11. The Petitioners further contend that in defecting to the 3rd respondent, the 1st and 2nd respondents have violated Chapter Six of the Constitution on Leadership and Integrity in the following ways:
i. They have violated the public trust as elected officials by undermining the essence and sanctifying of multi-party democracy in Isiolo County.
ii. The defection constitutes a gross demonstration of disrespect for the people particularly the members and/or supporters of Jubilee and Azimio Coalition who voted them into office.
iii. The said defection has undermined public confidence in the integrity of the office of Governor and Deputy Governor of Isiolo County.
iv. The said defection constitutes a conflict of interest between the individual right of the 1st and 2nd respondents to change their political allegiance and their public duty to observe the socio-political contract to serve and exercise power as elected delegates of the people sponsored into office by Jubilee Party and members and supporters of Azimio Coalition.
12. And by inducing, soliciting, aiding and abetting the defection of the 1st and 2nd respondents to the 3rd respondent, the latter has violated Articles 1, 3, 4, 10, 38, 73 and 91 of the Constitution in the following ways: -
“i. The habit of poaching elected leaders to join the ruling Party amounts to blatant violation of the people''s sovereignly in the multi-party democratic State established by Kenya''s 2010 Constitution.
ii. The 3rd respondent and its leaders have contravened their individual and collective obligation to respect, uphold collective obligation to respect, uphold and defend Kenya''s 2010 Constitution.
iii. The 3rd respondent''s policy and schemes to "poach" elected leaders, coax, coerce and brainwash them to undermine their political parties amount to subversion of multi-party democracy in Kenya in violation of Article 4 of the Constitution.
iv. The 3rd respondent and its leaders have violated the national values and principles of governance set out in Article 10(2) of the Constitution by undermining the people''s sovereignty to be served by elected officials who are not its members and subverted multi-party democracy through systematic weakening of Jubilee Party and other political parties.”
v. The 3rd respondent and its leaders have violated the political rights of voters in Isiolo County to be served on the basis of the mandate vested on the 1st and 2nd respondents during the General Election held on 9 August, 2022.
vi. The 3rd respondent and its leaders have violated the public trust vested in them to exercise their power consistent with the sacred purposes and objects of the Constitution to uphold and respect the people''s sovereignty and to protect the viability and existence of multi-party democracy in Kenya.
vii. The 3rd respondents and its leaders have violated and basic requirement, for political parties set out in Article 91 of the Constitution, particularly: -
a) to promote and uphold national unity;
b) to respect the right of all persons to participate in the political process, including minorities and marginalized groups;
c) to promote the objects and principles of Kenya''s 2010 Constitution and the rule of law.”
13. As far as the petitioners’ grievances against the Registrar of Political Parties are concerned, the petitioners contend that by dint of Sections 9, 14, 21 and 34 of the Political Parties Act, 2011 as read with Articles 3, 90 and 91 of the Constitution, the Registrar of Political Parties is enjoined to ensure: -
“i. The constitutions of all political parties require them to, inter-alia, uphold the Rule of Law, and recognize the validity of the multi-party constitutional democracy established pursuant to Article 4(1) of Kenya''s 2010 Constitution.
ii. No person shall enjoy the rights privileges and opportunities of membership in two or move political parties.
iii. Elected persons, like the 1st and 2nd respondents, who resign from their sponsoring political parties, cease to hold the positions to which they were elected.
iv. Commencement of the process for registration of the 3rd respondent (UDA) for its willful and unapologetic violation of the provisions of Article 91 of the Constitution.
v. Notification to the 5th respondent - the IEBC - about the resignation of the 1st and 2nd Respondents from Jubilee Party.
14. However, contrary to what the petitioners believe are the Registrar of Political Parties’ obligations, the petitioners contend that the Registrar of Political Parties has aided and abetted the violation of Articles 1, 4, 38 and 108 of the Constitution and the subversion of multiparty democracy in Kenya on grounds that:
“i. Despite the provisions of Articles 3(1) and 10(1) of the Constitution, the Registrar of Political Parties has failed to uphold the will of the people of Kenya expressed during the General Election held on 9 August, 2022.
ii. The Registrar of Political Parties failure to enforce the Political Parties Act has emboldened the 3rd respondent to engage in unprecedented and systematic subversion of multi-party democracy in Kenya over the last eight months, prior to the filing of the instant petition.
iii. In failing to ensure that the 3rd respondent adheres to the Code of Conduct for Political Parties set out in the First Schedule of the Political Parties Act, 2011, the Registrar of Political Parties has encouraged, aided and abetted the violation of the petitioners’ political rights and those of other Jubilee Party members guaranteed by Article 38 of the Constitution.
iv. In order to promote, aid and abet her conspiracy with the 3rd respondent to subvert multi-party democracy and to displace Kenya''s constitutional state, the 4th respondent has provided immunity from legal consequences to the 1st and 2nd respondents and other elected leaders of Jubilee Party who have resigned from their party but continue to hang onto their political seats sponsored by Jubilee Party during the General Election held on 9th August, 2022.”
15. The Petitioners further state that within the meaning of Article 103 of the Constitution as read together with Section 14 of the Political Parties Act, in defecting to the UDA Party, the 1st and 2nd respondents have ceased to be members of the Jubilee Party and, consequently, they are deemed to have resigned from their positions as Governor and Deputy Governor of Isiolo County.
16. As a result of her actions and omission, the Registrar of Political Parties is unfit to continue holding the position of Registrar of Political Parties on account of her willful violation of Articles 1, 3, 4, 10, 73 and 75 of the Constitution.
17. In view of the foregoing, the petitioners have petitioned this Honourable Court for the following prayers:
“a) A declaration be issued to declare that the 1st and 2nd Respondents resigned from their positions as governor and deputy governor of Isiolo County upon defecting from Jubilee Party to the United Democratic Alliance Party on 2nd June, 2023.
b) A declaration be issued to declare that in defecting from Jubilee Party to United Democratic Alliance the 1st and 2nd Respondents breached and served their socio political contract with the electors of Isiolo and members of the Jubilee party to continue serving as Governor and Deputy Governor of Isiolo County.
c) A declaration be issued to declare that within the meaning of Articles 1, 38 and 81 of the Constitution all elected officials are delegates and trustees of their electors in discharging their functions and duties in their respective positions during their terms of office.
d) An order of permanent injunction be issued to restrain the 1st and 2nd Respondents from discharging any function or duty as Governor and Deputy Governor of Isiolo County.
e) A declaration be issued to declare that the United Democratic Alliance - the 3rd Respondent herein- violated Articles 1 and 4 of the Constitution in soliciting for, in aiding and abetting the defection of the 1st and 2nd Respondents from Jubilee Party of Kenya and Azimio la Umoja One Kenya Coalition to the United Democratic Alliance.
f) A declaration be issued to declare that the Registrar of Political Parties - the 4th Respondent herein - has violated Article 3, 38 and 180 of the Constitution in condoning, aiding, abetting and accepting the registration of the 1st and 2nd Respondents as members of the United Democratic alliance before they have
resigned from their positions as Governor and Deputy Governor of Isiolo County.
g) A declaration be issued to declare that by dint of Articles 1, 4 and 38 of the Constitution an elected official sponsored by a political party cannot join another political party until he or she has resigned from his or her elective position.
h) A declaration be issued to declare that the 1st and 2nd Respondents cannot lawfully resign from Jubilee Party to join the United Democratic Alliance unless and until they have resigned from their positions as governor and deputy governor of Isiolo County.
i) An order of mandamus to compel the 4th Respondent to notify the 5th Respondent about the resignation of the 1st and 2nd Respondent as members of the Jubilee Party.”
j) An order of mandamus to compel the Independent Electoral and Boundaries Commission - the 5th Respondent herein to degazette the 1st and 2nd Respondent as the governors and deputy governor of Isiolo County.
k) A declaration be issued to declare that the incumbent Registrar of Political Parties, Madam Anne Nderitu has violated Articles 1, 3, 4, 10, 38, 73 and 75 of the Constitution which renders her unfit to continue serving as the registrar of Political Parties.
l) A declaration be issued to declare that the 3rd Respondent has violated Articles, 1, 3, 4, 38 and 91 of the Constitution.
m) An order of mandamus to compel the 4th Respondent to commence an inquiry into the deregistration of the 3rd Respondent on account of its willful violation of Article of Article 91 of the Constitution.
n) An order of compensation of the Petitioners for violation of their constitutional rights within the meaning of Articles 10, 27, 38 and 50 of the Constitution.
o) Costs of this Petition be borne by the Respondents
1st and 2nd Respondents’ Case
18. The 1st and 2nd Respondents filed a replying affidavit sworn by the 1st Respondent on 19th June 2023. The 1st Respondent states that he is the Governor of Isiolo County with the 2nd Respondent as his Deputy Governor, having been duly elected by the people of Isiolo County under the 1st and 2nd Interested Parties’ ticket.
19. Opposing the Petitioners’ main averments, the 1st Respondent contends that Articles 38 and 91 of the Constitution do not provide for any political office and, in particular, those provisions do not provide that the governor and deputy governor should be tied to any political party membership.
20. Further, he asserts that the provisions of Article 181 and 182 of the Constitution as read with Section 33 of the County Governments Act on removal of a governor from office, do not state political affiliation as a ground for removal. Be that as it may, he contends that in the context of this case, the conditions of the office of Governor being vacant have not been met. He adds that it is misleading for the Petitioners to imply that resignation from a sponsoring political party automatically leads to a vacancy in the office of a Governor.
21. Further still, the 1st Respondent emphasizes that Articles 38 and 39 of the Constitution do not confer to the 1st Interested Party the power to take away their freedom to make political choices. He reiterates that the people of Isiolo have the political and democratic right to vote for candidates of their choice to fill the two positions.
22. The 1st Respondent also takes the position that no law obligates him and the 2nd Respondent to govern Isiolo County on the 1st and 2nd Interested Parties ideals, agenda, vision, manifesto and aspirations of their members and supporters. Instead, the 1st Respondent avers that he is bound by Articles 174, 175 and 179 of the Constitution to exercise the delegated executive county authority while adhering to the principles and objects of devolution.
23. The 1st Respondent in addition asserts that the provisions of Article 103 of the Constitution on vacation of office of Member of Parliament does not in their case.
24. Further, the 1st Respondent avers that the Petitioners have failed to establish any violation or breach of constitutional provisions particularly, Articles 38, 91 and 103 of the Constitution and the Bill of Rights and thus failed to meet the threshold set in Anarita Karimi Njeru (1979)1KLR 154.
25. The 1st Respondent claims that the Petition is based on unsubstantiated and hypothetical questions hence should be dismissed.
26. The 1st and 2nd respondents have also questioned the jurisdiction of this Honourable Court arguing that the jurisdiction to determine this dispute is vested in the Political Parties Dispute Tribunal under Section 40 of the Political Parties Act.
27. For these reasons, these Respondents argue that the Petition is frivolous, vexatious and scandalous.
28. The third respondent did not file any response to the petition or submissions.
4th Respondent’s case
29. The 4th Respondent filed a Replying affidavit. The replying affidavit was sworn on 30 June 2023 by Joy Onyango who has introduced herself as the compliance officer in the office of the 4th respondent. According to the 4th respondent, she only executes those functions conferred upon her by the Constitution and the Political Parties Act, 2011, and cannot be compelled to assume powers not vested in her.
30. She further stated that the Political Parties Act, 2011 establishes a clear framework governing the rights of political parties and party members, including the right of parties to recruit members, the right of members to join or exit parties, and the corresponding right of parties to sever their relationship with members.
31. The 4th Respondent maintains that these rights are to be exercised by the parties and members themselves, and that her mandate does not extend to interfering with or pre-empting such internal processes.
32. She averred that the cessation of membership in a political party is a structured and sequential process governed by the party’s internal rules. The 4th Respondent’s mandate is confined to the updating of the party membership register upon the completion of all requisite internal processes of the political party and the formal communication of the resultant decision to the 4th Respondent.
33. The 4th respondent acknowledged that according to the records she holds, the 1st and 2nd Respondents remain duly registered members of the Jubilee Party. Neither notices of resignation from the said party have been lodged with the 4th Respondent, nor has the 1st Interested Party submitted any decision indicating that it has terminated its relationship with the two Respondents. In the absence of such formal notification, the 4th Respondent asserts that the legal threshold for resignation or defection, as contemplated under the Political Parties Act, 2011, has not been met.
34. It is the 4th Respondent’s position that allegations of defection raised by the Petitioners are unsubstantiated and remain unparticularized, contrary to the statutory requirements. The Petitioners have not identified with precision any constitutional or statutory provision allegedly violated by the office-holder of the 4th Respondent. As such, the claim of constitutional breach is said to lack evidentiary and legal foundation.
35. The 4th Respondent asserts that it has at all times acted within the confines of the law, and that the Petition is premised on generalized allegations incapable of sustaining the reliefs sought.
5th Respondent’s case
36. The 5th Respondent, through the replying affidavit of Chrispine Owiye, Director of Legal and Public Affairs of the Independent Electoral & Boundaries Commission, sworn on 21st August 2023, contends that the Petition and the accompanying application are unfounded, devoid of any constitutional or statutory basis, and improperly drag the IEBC into a dispute that lies wholly outside its mandate.
37. It is deposed that the IEBC’s constitutional and statutory functions are confined to conducting or supervising elections and referenda, delimiting electoral units, registering voters, regulating party nomination processes, settling pre-election disputes, and performing related functions as set out under Articles 82, 84, 88, 89, and 90 of the Constitution as well as Sections 4 and 34 of the IEBC Act and the Elections Act.
38. The 5th Respondent maintains that these provisions do not impose upon the IEBC any obligation to monitor the political affiliations of elected office holders or to track resignations or defections from political parties, which is the domain of the Registrar of Political Parties under the Political Parties Act. It is averred that no notification has been received from the Registrar of Political Parties or any competent authority indicating that the 1st and 2nd Respondents have resigned from their sponsoring political party or vacated office, and that neither the Constitution nor the relevant statutes prescribe any mechanism requiring the Registrar to notify the IEBC of such matters.
39. The 5th Respondent further asserts that the Constitution provides an exhaustive framework for vacancies in the offices of Governor and Deputy Governor under Articles 181 and 182 and Sections 32C and 33 of the County Governments Act, and that the resignation from a political party is not among the grounds that can trigger a vacancy. It is its position that the only election it may be required to conduct in relation to county executive offices is that contemplated under Article 182(5) of the Constitution, and that the Petitioners’ attempt to invoke the IEBC’s involvement outside these circumstances is legally untenable.
40. The 5th Respondent contends that the Petitioners have not demonstrated any violation or abdication of duty by the IEBC, nor have they sought any substantive or interim relief against it, rendering the Commission an unnecessary party to the proceedings.
41. The 6th respondent did not file any response or submissions.
42. The 1st interested party did not file any response and submissions to the Petition.
2nd Interested Party’s Case
43. The 2nd Interested Party filed grounds dated 10th November 2023 in support of the Petition.
44. The 2nd Interested Party has urged that the Constitution of Kenya, 2010 as read with various International law instruments underscore democracy as a constitutional value embodied in the right to vote and free and fair elections.
45. That the Constitution of Kenya, 2010 grants every Kenyan citizen the fundamental right to vote and take part in elections by choosing their preferred chosen candidate and representative.
46. It is the 2nd Interested Party’s case that by exercising the right to vote under Article 38 of the Constitution of Kenya, 2010, the citizens delegate their powers to their chosen representatives who in turn exercise this power pursuant to Article 1 of the Constitution of Kenya, 2010, as delegated to them by the people.
47. The 2nd Interested Party states that pursuant to Article 1 (3) of the Constitution of Kenya, 2010, the sovereign power under the Constitution is delegated to Parliament and the legislative assemblies, which is composed of persons nominated and elected as such, through elections and direct involvement of the citizens.
48. Further, the Independent Electoral and Boundaries Commission duly gazetted and supervised elections in August 2022 wherein various persons who had been nominated under their respective political parties were elected.
49. That the 2nd Interested Party herein, as a registered coalition political party duly garnered a majority of seats at the National Assembly as its members won a majority of seats through the affiliate political parties under the Azimio umbrella.
50. According to the 2nd Interested Party by Gazette Notices Nos. 10505 dated 5th September 2022, 10537 dated 7th September 2022 and 10710 dated 9th September 2022, the Independent Electoral and Boundaries Commission published the names of the duly elected and nominated members of the National Assembly.
51. The 2nd Interested Party has urged that it is apparent that the Kenyan voters intended and preferred their candidates as reflected in the vote outcome. The persons nominated under their respective political parties were elected on their respective parties’ tickets.
52. It is also the 2nd Interested Party’s case that political parties and the electorate have a legitimate expectation that their members and chosen representatives shall align to their principles, manifesto and party rules and Constitution at all material times.
53. The 2nd Interested Party argues that candidates are nominated by political parties before elections, sign and are bound by electoral and party codes of conduct, and may only shift to another party upon resignation, which triggers loss of membership and requires seeking a fresh mandate through an election. It also contends that the 1st and 2nd Respondents were elected on the ticket of their sponsoring party but later defected and promoted another party, thereby violating Articles 1, 3, 4, 10, 38, 73, 75, and 103 of the Constitution of Kenya, 2010 as read with Section 14 of the Political Parties Act.
54. As a result, the 1st and 2nd Respondents are holding the offices of Governor and Deputy Governor, infringing the 2nd Interested Party’s and the public’s rights to free and fair elections, and depriving legitimate party members of the opportunity to contest under the Jubilee/Azimio Coalition. The 2nd Interested Party, therefore, urges the Court to intervene to remedy the alleged illegality.
Petitioners
55. The Petitioners filed written submissions dated 11th September 2024. They submit that following the collapse of communism, Kenya repealed Section 2A to restore multi-partyism after mass protests that cost lives and property, but the restrictive constitutional framework prompted further agitation for a new Constitution.
56. The Petitioners rely on the case of Mbae v. Speaker, County Assembly of Nakuru & another: others (Interested Parties) Constitutional Petition E004 of 2022 [2022] KEHC 3313 (KLR) where the court is said to have discussed the implication and effect of defecting from a political party. The court is said to have at paragraph 135 to 136 of its judgment observed that the framers of the Constitution anticipated the political challenges caused by party defections and addressed them by setting out a clear, la
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1. The Petition before this Court is dated 13th June, 2023. It is supported by the affidavit of the 1st Petitioner, Guyo Ali Guracha sworn on even date.
2. At the very outset we need to state that the facts of the petitioners’ case were set out in our ruling dated 4 April 2024 on a preliminary objection filed against the petition by the 1st and 2nd respondents. We reproduce those facts in this judgment, in the same terms as set out in our said ruling.
3. The petitioners describe themselves in the petition as “citizens of Kenya and registered voters” and that they are “members and/or supporters of Jubilee Party and the Azimio la Umoja Kenya One coalition”.
The Petitioners’ case:
4. It is the petitioners’ case that, Kenya, being a sovereign and a multi party democratic State founded on particular national values and principles of governance, election of an official to a public office establishes a sacred socio political contract that binds the elected official to serve the electors during a fixed term of office. To be precise, under Article 1 of the Constitution, the elected official serves in his office and exercises power as a delegate of his electors. If he is sponsored into office by a political party or coalition of parties, he is constitutionally obligated to remain a member of that party or the coalition of parties throughout his term of office. Further, he is constitutionally obligated to observe, promote and uphold the party''s agenda, objectives, mission and vision during his term in office.
5. The petitioners aver that in light of the foregoing understanding, the 1st and 2nd respondents were respectively candidates for the County Governor and Deputy Governor of Isiolo County during the General Elections held on 9 August, 2022. They contested for these seats as members of Jubilee Party of Kenya. The objectives of this political party are set out in Article 4 of its Constitution as follows:
“1) To be a national party that promotes the unity of all the people of the Republic of Kenya.
2) To form national and county governments that will at all times act in the best interests of the people of Kenya at national and co11nhJ levels.
3) To support, promote and facilitate devolution as a system of governance in Kenya.
4) To promote vigilance in safeguarding the national interests of Kenya.
5) To serve as a vigorous and conscious political vanguard for eradicating tribal, racial and social bigotry, economic discrimination, and exploitation and elimination of all forms of oppression.
6) To implement political, economic, social and cultural policies, including Vision 2030 and future national visions and strategies for a modern, prosperous Kenya which will raise the standards of living for all Kenyans.
7) To promote a national value system and national social transformation policies that will build a cohesive, stable and productive society.
8) To conserve and protect the natural resources, environment and wildlife of Kenya for the benefit of present and future generations.
9) To strive for East and Central African unity and also African unity and integration in even; sphere of economic, social and political life based on economic prosperity, social justice, human dignity, and the sovereignty of all African states.
10) To encourage and subscribe to the need for the creation of space for groups and individuals in the enjoyment of their human rights, freedoms and liberties.
11) To establish partnerships and I or associations with local, foreign and international organisations whose objectives are similar to those of Jubilee Party.”
6. Vide a Gazette Notice no. 7995, dated 1 July 2022, the 5th respondent published the names of the candidates for the County Governor seat for Isiolo County. Following the elections held on 9 August, 2022, the County Returning Officer, Isiolo County announced that the 1st and 2nd respondents had respectively been elected as the Governor and Deputy Governor of Isiolo County. These election results were subsequently published in Kenya gazette notice no. 9948 dated 23 August, 2022.
7. The Petitioners aver that the Jubilee Party which nominated the 1st respondent to contest for the gubernatorial seat of Isiolo County is one of the corporate members of the Azimio la Umoja One Kenya Coalition under whose banner and manifesto all the Jubilee Party candidates campaigned. It is under the same platform that the 1st and 2nd respondents campaigned and were elected.
8. It is their case that according to Articles 1, 38, 92, 103 of the Constitution, the election of the 1st and 2nd respondents as respectively the Governor and Deputy Governor of Isiolo County established a socio-political contract between themselves and the people of Isiolo County. Consequently, their election to these offices was on the understanding that:
“a) The 1st and 2nd respondents would serve for five years as Governor and Deputy Governor of Isiolo County elected on the ticket of Jubilee Party and advance its policies, visions and interests.
b) In discharging their respective functions and powers as the Governor and Deputy Governor of Isiolo County, the 1st and 2nd respondents would implement the policies and priorities of manifesto of the Azimio la Umoja One Kenya Coalition.
c) As a member of the Council of Governors representing Isiolo County, the 1st respondent would promote the values, objectives, interest and policies of Jubilee Party and Azimio Coalition.”
9. Accordingly, the election of the 1st and 2nd respondents as Governor and Deputy Governor of Isiolo County enjoined them to subscribe to Jubilee Party and Azimio Coalition and, in the same breath, prohibited them from supporting any other political party or political coalition including the United Democratic Alliance and the Kenya Kwanza Coalition during their five years’ tenure as the Governor and Deputy Governor of Isiolo County.
10. That notwithstanding, the petitioners contend that on 2 June, 2023, the 1st and 2nd respondents defected from Jubilee Party and joined the United Democratic Alliance, the 3rd respondent in these proceedings. The defection, according to the petitioners, is a violation of the law on grounds that:
“i. It constitutes a breach of public trust and the socio-political contract between the 1st and 2nd respondents, on the one hand, and their electors, residents of Isiolo County and Jubilee Party members, on the other hand, to serve and exercise power as delegates elected to uphold observe and promote the governance agenda objectives, mission and vision of the Jubilee Party and Azirnio Coalition.
ii. The principles and sanctity of multi-party democracy enjoins all state organs and officials to desist from compromising, undermining or usurping the electoral positions garnered by political parties during elections.
iii. The defection of the 1st and 2nd respondents constitute a blatant breach of the national values and principles of governance set out in Article 10 of the Constitution particularly the rule of law, democracy and participation of the people, inclusiveness, good governance, integrity, transparency and accountability.”
11. The Petitioners further contend that in defecting to the 3rd respondent, the 1st and 2nd respondents have violated Chapter Six of the Constitution on Leadership and Integrity in the following ways:
i. They have violated the public trust as elected officials by undermining the essence and sanctifying of multi-party democracy in Isiolo County.
ii. The defection constitutes a gross demonstration of disrespect for the people particularly the members and/or supporters of Jubilee and Azimio Coalition who voted them into office.
iii. The said defection has undermined public confidence in the integrity of the office of Governor and Deputy Governor of Isiolo County.
iv. The said defection constitutes a conflict of interest between the individual right of the 1st and 2nd respondents to change their political allegiance and their public duty to observe the socio-political contract to serve and exercise power as elected delegates of the people sponsored into office by Jubilee Party and members and supporters of Azimio Coalition.
12. And by inducing, soliciting, aiding and abetting the defection of the 1st and 2nd respondents to the 3rd respondent, the latter has violated Articles 1, 3, 4, 10, 38, 73 and 91 of the Constitution in the following ways: -
“i. The habit of poaching elected leaders to join the ruling Party amounts to blatant violation of the people''s sovereignly in the multi-party democratic State established by Kenya''s 2010 Constitution.
ii. The 3rd respondent and its leaders have contravened their individual and collective obligation to respect, uphold collective obligation to respect, uphold and defend Kenya''s 2010 Constitution.
iii. The 3rd respondent''s policy and schemes to "poach" elected leaders, coax, coerce and brainwash them to undermine their political parties amount to subversion of multi-party democracy in Kenya in violation of Article 4 of the Constitution.
iv. The 3rd respondent and its leaders have violated the national values and principles of governance set out in Article 10(2) of the Constitution by undermining the people''s sovereignty to be served by elected officials who are not its members and subverted multi-party democracy through systematic weakening of Jubilee Party and other political parties.”
v. The 3rd respondent and its leaders have violated the political rights of voters in Isiolo County to be served on the basis of the mandate vested on the 1st and 2nd respondents during the General Election held on 9 August, 2022.
vi. The 3rd respondent and its leaders have violated the public trust vested in them to exercise their power consistent with the sacred purposes and objects of the Constitution to uphold and respect the people''s sovereignty and to protect the viability and existence of multi-party democracy in Kenya.
vii. The 3rd respondents and its leaders have violated and basic requirement, for political parties set out in Article 91 of the Constitution, particularly: -
a) to promote and uphold national unity;
b) to respect the right of all persons to participate in the political process, including minorities and marginalized groups;
c) to promote the objects and principles of Kenya''s 2010 Constitution and the rule of law.”
13. As far as the petitioners’ grievances against the Registrar of Political Parties are concerned, the petitioners contend that by dint of Sections 9, 14, 21 and 34 of the Political Parties Act, 2011 as read with Articles 3, 90 and 91 of the Constitution, the Registrar of Political Parties is enjoined to ensure: -
“i. The constitutions of all political parties require them to, inter-alia, uphold the Rule of Law, and recognize the validity of the multi-party constitutional democracy established pursuant to Article 4(1) of Kenya''s 2010 Constitution.
ii. No person shall enjoy the rights privileges and opportunities of membership in two or move political parties.
iii. Elected persons, like the 1st and 2nd respondents, who resign from their sponsoring political parties, cease to hold the positions to which they were elected.
iv. Commencement of the process for registration of the 3rd respondent (UDA) for its willful and unapologetic violation of the provisions of Article 91 of the Constitution.
v. Notification to the 5th respondent - the IEBC - about the resignation of the 1st and 2nd Respondents from Jubilee Party.
14. However, contrary to what the petitioners believe are the Registrar of Political Parties’ obligations, the petitioners contend that the Registrar of Political Parties has aided and abetted the violation of Articles 1, 4, 38 and 108 of the Constitution and the subversion of multiparty democracy in Kenya on grounds that:
“i. Despite the provisions of Articles 3(1) and 10(1) of the Constitution, the Registrar of Political Parties has failed to uphold the will of the people of Kenya expressed during the General Election held on 9 August, 2022.
ii. The Registrar of Political Parties failure to enforce the Political Parties Act has emboldened the 3rd respondent to engage in unprecedented and systematic subversion of multi-party democracy in Kenya over the last eight months, prior to the filing of the instant petition.
iii. In failing to ensure that the 3rd respondent adheres to the Code of Conduct for Political Parties set out in the First Schedule of the Political Parties Act, 2011, the Registrar of Political Parties has encouraged, aided and abetted the violation of the petitioners’ political rights and those of other Jubilee Party members guaranteed by Article 38 of the Constitution.
iv. In order to promote, aid and abet her conspiracy with the 3rd respondent to subvert multi-party democracy and to displace Kenya''s constitutional state, the 4th respondent has provided immunity from legal consequences to the 1st and 2nd respondents and other elected leaders of Jubilee Party who have resigned from their party but continue to hang onto their political seats sponsored by Jubilee Party during the General Election held on 9th August, 2022.”
15. The Petitioners further state that within the meaning of Article 103 of the Constitution as read together with Section 14 of the Political Parties Act, in defecting to the UDA Party, the 1st and 2nd respondents have ceased to be members of the Jubilee Party and, consequently, they are deemed to have resigned from their positions as Governor and Deputy Governor of Isiolo County.
16. As a result of her actions and omission, the Registrar of Political Parties is unfit to continue holding the position of Registrar of Political Parties on account of her willful violation of Articles 1, 3, 4, 10, 73 and 75 of the Constitution.
17. In view of the foregoing, the petitioners have petitioned this Honourable Court for the following prayers:
“a) A declaration be issued to declare that the 1st and 2nd Respondents resigned from their positions as governor and deputy governor of Isiolo County upon defecting from Jubilee Party to the United Democratic Alliance Party on 2nd June, 2023.
b) A declaration be issued to declare that in defecting from Jubilee Party to United Democratic Alliance the 1st and 2nd Respondents breached and served their socio political contract with the electors of Isiolo and members of the Jubilee party to continue serving as Governor and Deputy Governor of Isiolo County.
c) A declaration be issued to declare that within the meaning of Articles 1, 38 and 81 of the Constitution all elected officials are delegates and trustees of their electors in discharging their functions and duties in their respective positions during their terms of office.
d) An order of permanent injunction be issued to restrain the 1st and 2nd Respondents from discharging any function or duty as Governor and Deputy Governor of Isiolo County.
e) A declaration be issued to declare that the United Democratic Alliance - the 3rd Respondent herein- violated Articles 1 and 4 of the Constitution in soliciting for, in aiding and abetting the defection of the 1st and 2nd Respondents from Jubilee Party of Kenya and Azimio la Umoja One Kenya Coalition to the United Democratic Alliance.
f) A declaration be issued to declare that the Registrar of Political Parties - the 4th Respondent herein - has violated Article 3, 38 and 180 of the Constitution in condoning, aiding, abetting and accepting the registration of the 1st and 2nd Respondents as members of the United Democratic alliance before they have
resigned from their positions as Governor and Deputy Governor of Isiolo County.
g) A declaration be issued to declare that by dint of Articles 1, 4 and 38 of the Constitution an elected official sponsored by a political party cannot join another political party until he or she has resigned from his or her elective position.
h) A declaration be issued to declare that the 1st and 2nd Respondents cannot lawfully resign from Jubilee Party to join the United Democratic Alliance unless and until they have resigned from their positions as governor and deputy governor of Isiolo County.
i) An order of mandamus to compel the 4th Respondent to notify the 5th Respondent about the resignation of the 1st and 2nd Respondent as members of the Jubilee Party.”
j) An order of mandamus to compel the Independent Electoral and Boundaries Commission - the 5th Respondent herein to degazette the 1st and 2nd Respondent as the governors and deputy governor of Isiolo County.
k) A declaration be issued to declare that the incumbent Registrar of Political Parties, Madam Anne Nderitu has violated Articles 1, 3, 4, 10, 38, 73 and 75 of the Constitution which renders her unfit to continue serving as the registrar of Political Parties.
l) A declaration be issued to declare that the 3rd Respondent has violated Articles, 1, 3, 4, 38 and 91 of the Constitution.
m) An order of mandamus to compel the 4th Respondent to commence an inquiry into the deregistration of the 3rd Respondent on account of its willful violation of Article of Article 91 of the Constitution.
n) An order of compensation of the Petitioners for violation of their constitutional rights within the meaning of Articles 10, 27, 38 and 50 of the Constitution.
o) Costs of this Petition be borne by the Respondents
1st and 2nd Respondents’ Case
18. The 1st and 2nd Respondents filed a replying affidavit sworn by the 1st Respondent on 19th June 2023. The 1st Respondent states that he is the Governor of Isiolo County with the 2nd Respondent as his Deputy Governor, having been duly elected by the people of Isiolo County under the 1st and 2nd Interested Parties’ ticket.
19. Opposing the Petitioners’ main averments, the 1st Respondent contends that Articles 38 and 91 of the Constitution do not provide for any political office and, in particular, those provisions do not provide that the governor and deputy governor should be tied to any political party membership.
20. Further, he asserts that the provisions of Article 181 and 182 of the Constitution as read with Section 33 of the County Governments Act on removal of a governor from office, do not state political affiliation as a ground for removal. Be that as it may, he contends that in the context of this case, the conditions of the office of Governor being vacant have not been met. He adds that it is misleading for the Petitioners to imply that resignation from a sponsoring political party automatically leads to a vacancy in the office of a Governor.
21. Further still, the 1st Respondent emphasizes that Articles 38 and 39 of the Constitution do not confer to the 1st Interested Party the power to take away their freedom to make political choices. He reiterates that the people of Isiolo have the political and democratic right to vote for candidates of their choice to fill the two positions.
22. The 1st Respondent also takes the position that no law obligates him and the 2nd Respondent to govern Isiolo County on the 1st and 2nd Interested Parties ideals, agenda, vision, manifesto and aspirations of their members and supporters. Instead, the 1st Respondent avers that he is bound by Articles 174, 175 and 179 of the Constitution to exercise the delegated executive county authority while adhering to the principles and objects of devolution.
23. The 1st Respondent in addition asserts that the provisions of Article 103 of the Constitution on vacation of office of Member of Parliament does not in their case.
24. Further, the 1st Respondent avers that the Petitioners have failed to establish any violation or breach of constitutional provisions particularly, Articles 38, 91 and 103 of the Constitution and the Bill of Rights and thus failed to meet the threshold set in Anarita Karimi Njeru (1979)1KLR 154.
25. The 1st Respondent claims that the Petition is based on unsubstantiated and hypothetical questions hence should be dismissed.
26. The 1st and 2nd respondents have also questioned the jurisdiction of this Honourable Court arguing that the jurisdiction to determine this dispute is vested in the Political Parties Dispute Tribunal under Section 40 of the Political Parties Act.
27. For these reasons, these Respondents argue that the Petition is frivolous, vexatious and scandalous.
28. The third respondent did not file any response to the petition or submissions.
4th Respondent’s case
29. The 4th Respondent filed a Replying affidavit. The replying affidavit was sworn on 30 June 2023 by Joy Onyango who has introduced herself as the compliance officer in the office of the 4th respondent. According to the 4th respondent, she only executes those functions conferred upon her by the Constitution and the Political Parties Act, 2011, and cannot be compelled to assume powers not vested in her.
30. She further stated that the Political Parties Act, 2011 establishes a clear framework governing the rights of political parties and party members, including the right of parties to recruit members, the right of members to join or exit parties, and the corresponding right of parties to sever their relationship with members.
31. The 4th Respondent maintains that these rights are to be exercised by the parties and members themselves, and that her mandate does not extend to interfering with or pre-empting such internal processes.
32. She averred that the cessation of membership in a political party is a structured and sequential process governed by the party’s internal rules. The 4th Respondent’s mandate is confined to the updating of the party membership register upon the completion of all requisite internal processes of the political party and the formal communication of the resultant decision to the 4th Respondent.
33. The 4th respondent acknowledged that according to the records she holds, the 1st and 2nd Respondents remain duly registered members of the Jubilee Party. Neither notices of resignation from the said party have been lodged with the 4th Respondent, nor has the 1st Interested Party submitted any decision indicating that it has terminated its relationship with the two Respondents. In the absence of such formal notification, the 4th Respondent asserts that the legal threshold for resignation or defection, as contemplated under the Political Parties Act, 2011, has not been met.
34. It is the 4th Respondent’s position that allegations of defection raised by the Petitioners are unsubstantiated and remain unparticularized, contrary to the statutory requirements. The Petitioners have not identified with precision any constitutional or statutory provision allegedly violated by the office-holder of the 4th Respondent. As such, the claim of constitutional breach is said to lack evidentiary and legal foundation.
35. The 4th Respondent asserts that it has at all times acted within the confines of the law, and that the Petition is premised on generalized allegations incapable of sustaining the reliefs sought.
5th Respondent’s case
36. The 5th Respondent, through the replying affidavit of Chrispine Owiye, Director of Legal and Public Affairs of the Independent Electoral & Boundaries Commission, sworn on 21st August 2023, contends that the Petition and the accompanying application are unfounded, devoid of any constitutional or statutory basis, and improperly drag the IEBC into a dispute that lies wholly outside its mandate.
37. It is deposed that the IEBC’s constitutional and statutory functions are confined to conducting or supervising elections and referenda, delimiting electoral units, registering voters, regulating party nomination processes, settling pre-election disputes, and performing related functions as set out under Articles 82, 84, 88, 89, and 90 of the Constitution as well as Sections 4 and 34 of the IEBC Act and the Elections Act.
38. The 5th Respondent maintains that these provisions do not impose upon the IEBC any obligation to monitor the political affiliations of elected office holders or to track resignations or defections from political parties, which is the domain of the Registrar of Political Parties under the Political Parties Act. It is averred that no notification has been received from the Registrar of Political Parties or any competent authority indicating that the 1st and 2nd Respondents have resigned from their sponsoring political party or vacated office, and that neither the Constitution nor the relevant statutes prescribe any mechanism requiring the Registrar to notify the IEBC of such matters.
39. The 5th Respondent further asserts that the Constitution provides an exhaustive framework for vacancies in the offices of Governor and Deputy Governor under Articles 181 and 182 and Sections 32C and 33 of the County Governments Act, and that the resignation from a political party is not among the grounds that can trigger a vacancy. It is its position that the only election it may be required to conduct in relation to county executive offices is that contemplated under Article 182(5) of the Constitution, and that the Petitioners’ attempt to invoke the IEBC’s involvement outside these circumstances is legally untenable.
40. The 5th Respondent contends that the Petitioners have not demonstrated any violation or abdication of duty by the IEBC, nor have they sought any substantive or interim relief against it, rendering the Commission an unnecessary party to the proceedings.
41. The 6th respondent did not file any response or submissions.
42. The 1st interested party did not file any response and submissions to the Petition.
2nd Interested Party’s Case
43. The 2nd Interested Party filed grounds dated 10th November 2023 in support of the Petition.
44. The 2nd Interested Party has urged that the Constitution of Kenya, 2010 as read with various International law instruments underscore democracy as a constitutional value embodied in the right to vote and free and fair elections.
45. That the Constitution of Kenya, 2010 grants every Kenyan citizen the fundamental right to vote and take part in elections by choosing their preferred chosen candidate and representative.
46. It is the 2nd Interested Party’s case that by exercising the right to vote under Article 38 of the Constitution of Kenya, 2010, the citizens delegate their powers to their chosen representatives who in turn exercise this power pursuant to Article 1 of the Constitution of Kenya, 2010, as delegated to them by the people.
47. The 2nd Interested Party states that pursuant to Article 1 (3) of the Constitution of Kenya, 2010, the sovereign power under the Constitution is delegated to Parliament and the legislative assemblies, which is composed of persons nominated and elected as such, through elections and direct involvement of the citizens.
48. Further, the Independent Electoral and Boundaries Commission duly gazetted and supervised elections in August 2022 wherein various persons who had been nominated under their respective political parties were elected.
49. That the 2nd Interested Party herein, as a registered coalition political party duly garnered a majority of seats at the National Assembly as its members won a majority of seats through the affiliate political parties under the Azimio umbrella.
50. According to the 2nd Interested Party by Gazette Notices Nos. 10505 dated 5th September 2022, 10537 dated 7th September 2022 and 10710 dated 9th September 2022, the Independent Electoral and Boundaries Commission published the names of the duly elected and nominated members of the National Assembly.
51. The 2nd Interested Party has urged that it is apparent that the Kenyan voters intended and preferred their candidates as reflected in the vote outcome. The persons nominated under their respective political parties were elected on their respective parties’ tickets.
52. It is also the 2nd Interested Party’s case that political parties and the electorate have a legitimate expectation that their members and chosen representatives shall align to their principles, manifesto and party rules and Constitution at all material times.
53. The 2nd Interested Party argues that candidates are nominated by political parties before elections, sign and are bound by electoral and party codes of conduct, and may only shift to another party upon resignation, which triggers loss of membership and requires seeking a fresh mandate through an election. It also contends that the 1st and 2nd Respondents were elected on the ticket of their sponsoring party but later defected and promoted another party, thereby violating Articles 1, 3, 4, 10, 38, 73, 75, and 103 of the Constitution of Kenya, 2010 as read with Section 14 of the Political Parties Act.
54. As a result, the 1st and 2nd Respondents are holding the offices of Governor and Deputy Governor, infringing the 2nd Interested Party’s and the public’s rights to free and fair elections, and depriving legitimate party members of the opportunity to contest under the Jubilee/Azimio Coalition. The 2nd Interested Party, therefore, urges the Court to intervene to remedy the alleged illegality.
Petitioners
55. The Petitioners filed written submissions dated 11th September 2024. They submit that following the collapse of communism, Kenya repealed Section 2A to restore multi-partyism after mass protests that cost lives and property, but the restrictive constitutional framework prompted further agitation for a new Constitution.
56. The Petitioners rely on the case of Mbae v. Speaker, County Assembly of Nakuru & another: others (Interested Parties) Constitutional Petition E004 of 2022 [2022] KEHC 3313 (KLR) where the court is said to have discussed the implication and effect of defecting from a political party. The court is said to have at paragraph 135 to 136 of its judgment observed that the framers of the Constitution anticipated the political challenges caused by party defections and addressed them by setting out a clear, la
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