' 1. By way of a Petition dated 24th March 2025, the Petitioner seeks the following orders;
a) A declaration be and is hereby issued that the declaration of Honourable Lawi Kibire, member of the county assembly for Metkei ward as the winner in the election held on 11th February, 2025 for the position of the Speaker of the County Assembly of Elgeyo Marakwet County was illegal, unconstitutional null and void.
b) A declaration be and is hereby issued that Honourable Lawi Kibire, member of the county assembly for Metkei ward was not qualified to contest in the election held on 11th February, 2025 for the position of the Speaker of the County Assembly of Elgeyo Marakwet County.
c) A declaration be and is hereby issued that pursuant to Standing Order 11 of the County Assembly, Elgeyo Marakwet County Standing Orders, Honourable Michael Chemwok being the one candidate who has been duly nominated for election as Speaker at the expiry of the nomination period, be declared forthwith to have been elected Speaker without any ballot or vote being required.
d) An order of Judicial Review does issue pursuant to Article 23 of the Constitution of Kenya, quashing the notices issued by the Respondent declaring Honourable Lawi Kibire, member of the county assembly for Metkei ward as qualified to contest in the election held on 11th February, 2025 for the position of the Speaker of the County Assembly of Elgeyo Marakwet County for being illegal, unconstitutional, and ultra vires.
e) An order of Judicial Review does issue pursuant to Article 23 of the Constitution of Kenya, quashing proceedings presided over by Honourable Lawi Kibire, member of the county assembly for Metkei ward as the Speaker of the County Assembly of Elgeyo Marakwet County for being illegally and unconstitutionally in office and have acted ultra vires.
f) An order of Judicial Review does issue pursuant to Article 23 of the Constitution of Kenya, prohibiting and/or restraining the Honourable Lawi Kibire, member of the county assembly for Metkei ward from acting as the Speaker of the County Assembly of Elgeyo Marakwet County.
g) The costs of this Petition be provided for.
h) This Honourable Court be pleased to grant any other or further reliefs that it may consider just or necessary.
2. The Petition is expressed to be brought under Article 22 & 258 of the Constitution of Kenya. The Petitioners laid out the Constitutional Foundations of the Petition, urging that it is founded on Articles 1,2,3, 10, 10(7), 19, 20, 21, 22, 23, , 24, 178, 258, and 259 of the Constitution of Kenya. Additionally, that the Petition is founded on the County Governments Act, Election Act, The Fair Administrative Actions Act, and The County Assembly. Elgeyo Marakwet County Standing Orders.
3. The Petitioners filed verifying affidavits confirming the correctness of the averments in the Petition. The 1st Petitioner swore his affidavit on behalf of the other petitioners.
4. The Petitioner laid out the facts underlying the Petition as follows. On 30th January, 2025, Honourable Philemon Kiplagat Sabulei, the Speaker of the County Assembly, Elgeyo Marakwet County resigned and the County Assembly declared a vacancy, annexing a copy if the registration notice and a copy of the declaration of vacancy as KC1 and 2. He stated that on 4th February, 2025, the Independent and Boundaries Commission (1EBC) cleared Honourable Lawi Kibire, the Member of County Assembly for Metkei Ward and Michael Kipkorir Chemwok, an Advocate of the High Court to contest for the office of the Speaker of the County Assembly, annexing and marking copies of the respective clearances as KC3 and 4. The announcement of candidates cleared was made at the floor of the house of the County Assembly, Elgeyo Marakwet County before proceeding to hold elections wherein Honourable Lawi Kibire was declared the winner.
5. On 20th February, 2025, with instructions from the Petitioners, the firm of Chemwok and Company Advocates served a letter to the County Assembly of Elgeyo Marakwet requesting for information under Article 35 of the Constitution of Kenya and Access to information Act 2016, particularly:
a) Hansard Report on Resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire.
b) Hansard Report of the House for 11th February, 2025.
c) Letter recalling the House after recess.
d) Payment payroll for the month of December 2024 and January, 2025 for the members of the Elgeyo/Marakwet County Assembly.
e) Sessional paper communication to the house upon resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire.
f) Gazette notice on resignation of the Member of County Assembly for Metkei Ward. Lawi Kibire.
g) Declaration of vacancy for the seat of the Member of County Assembly for Metkei Ward, upon resignation of Lawi Kibire,
h) List of candidates who contested for the seat of the Speaker of the Elgeyo/Marakwet County Assembly and their qualifications submitted upon declaration of a vacancy in the office of Speaker of the Elgeyo/Marakwet County Assembly on 30th January, 2025.
6. He annexed a copy of the instruction note marked as KC5.
7. The Petitioners stated that the request for information under the said Article 35 of the Constitution of Kenya and Access to information Act 2016 was never responded to and no explanation of specific exemption or exclusion under the law was availed to the requester to justify denial of the said information.
8. In the Petition, the Petitioners laid down the Constitutional and Statutory Violations, together with the Standing Order violations that they levelled against the Respondents and Interested Party. They cited Article 2(2) and 178(1) of the Constitution alongside Section 7 and 9A of the County Governments Act. Further, they cited Section 21(1) of the Election Act which requires that the speaker of a County Assembly be elected in accordance with the Standing Orders of the County Assembly, from among persons who are qualified to be elected as members of a County Assembly but are not such members and Section 22(1) of the Election Act which requires that nomination of a candidate for an election under the Act only if that person is qualified to be elected to that office under the Constitution and the Act.
9. They cited Section 26(1) of the Election Act and Standing Order No. 4(2) which requires that if the office of the speaker falls vacant at any time before the expiry of the term of County Assembly, no business shall be transacted by the County Assembly until the election of a new Speaker. Additionally, they stated that Standing Order No. 5(3) requires that the nomination papers of a candidate shall be accompanied by the names and signatures of at least two Members who support the candidate and a declaration by them that the candidate is qualified to be elected as a Member of County Assembly under Article 193 of the Constitution and is willing to serve as Speaker of the County Assembly.
10. The Petitioners reproduced the requirements of Standing Order No, 5(4), (5), (6) and 11, urging that Honourable Lawi Kibire’s clearance to contest for the position of speaker of the County Assembly of Elgeyo Marakwet held on 11th February, 2025 and his declaration as the winner in that election constituted a violation of the Constitution, cited statutes and the County Assembly of Elgeyo Marakwet Standing Orders.
11. On the violation to the right to information and fair administrative action, the Petitioners cited Articles 35(c) 47(1) and (2) of the Constitution. Additionally, they reproduced the provisions of Sections 4(1), (2), (3) (c), (4), 5(4) of the Fair Administrative Action Act and stated that the failure by the County Assembly of Elgeyo Marakwet to avail the information requested to the firm of Chemwok and Company Advocates constituted a violation of the right to information under Article 35 of the Constitution of Kenya, the Fair Administrative Action Act and the Access to information Act, 2016.
12. On violation of the right to equality before the law, the Petitioners cited Articles 27(1) and (2) of the Constitution, urging that the favoritism accorded to Honourable Lawi Kibire because of his position as the Member of County Assembly for Metkei ward by being cleared to contest for the position of speaker of the County Assembly of Elgeyo Marakwet held on 11th February, 2025 and his declaration as the winner in that election constituted a violation of the right to equality before the law.
Respondents’ Replying Affidavit
13. The respondent filed an affidavit on 14th April 2025, deponed by Jane K Mutai, the Clerk to Elgeyo Marakwet County Assembly. She stated that the entire petition is misconceived, based on inaccurate facts and completely ill advised. Further, that the only issue that seems to be coming out of the entire Petition is that the Petitioners seem to be contesting whether the interested party herein Hon. Lawi Kibire was validly elected as the Speaker of the Assembly. She stated that the interested party was validly elected and so declared as the Speaker of the Assembly on 11th February 2025.
14. She urged that following the resignation of Hon, Philemon Sabulei from the office of the speaker of the assembly, in accordance with the provisions of Section 21 (5)(b) of the Elections Act, she issued a gazette notice declaring the vacancy and inviting qualified persons to apply for the position. Seven candidates applied for the position but only five qualified to contest including Mr. Michael Chemwok and Hon. Lawi Kibire. The interested party, while presenting his nomination papers submitted a letter of resignation from the office of member of County Assembly representing Metkei ward together with clearance from the Independent Electoral and Boundaries Commission (1EBC). She annexed and marked as JM 1, a copy of the resignation letter.
15. The deponent averred that Article 194 (l) (d) of the Constitution provides that the office of member of the County Assembly becomes vacant if a member resigns in writing addressed to the speaker of the assembly and as such, the Interested Party ceased being a member of county assembly from the date of his resignation. She stated that before the day of the election three of the candidates withdrew their candidature leaving only two candidates and the elections were conducted on 11th February 2025. At the end of the ballot Michael Chemwok got 1 vote and Hon. Lawi Kibire got 28 votes, she annexed and marked as JM 2 proceedings of the assembly on the said date. The interested party was declared as the duly elected speaker and he immediately took oath of office.
16. The deponent stated that it is clear beyond any iota of doubt that Hon. Lawi Kibire was qualified to contest for the position of the speaker as he was competent to be elected as a member of the county assembly but he was no longer a member as he had presented his resignation to the speaker vacating the office of the member of county assembly for Metkei ward before his nomination. Additionally, that writs have already been transmitted to the IEBC declaring vacancy of the member of county assembly of Metkei ward. She annexed and marked as JM 3 copies of the writs already received by the IEBC. She stated that this Petition does not stand on any ground and the farfetched prayers sought should be dismissed with costs.
17. On the issue of information sought from the respondent, she urged that the petitioners were informed that all the information they were seeking are in the assembly’s website and can be accessed anytime.
Interested Party’s Replying Affidavit
18. The interested party filed a replying affidavit dated 14th April 2025. He stated that he was elected as a member of county assembly of Metkei ward in Elgeyo/Marakwet County in the August 2022 general elections, annexing and marking as LB 1, a copy the gazette notice to that effect. Further, that on 24th January 2025, pursuant to the provisions of Article 194 (l) (d) of Constitution of Kenya 2010 he vacated the office of the member of county assembly with effect from 30th January 2025. He annexed and marked as LB2 a copy of his resignation letter. Additionally, that upon the position of the Speaker of the county assembly of Elgeyo Marakwet being declared vacant, he submitted his nomination papers together with clearance by the Independent Electoral and Boundaries Commission to contest for the position of the speaker on 6th February 2025. He annexed a copy of clearance certificate.
19. The deponent averred that on 11th February 2025 he garnered 28 votes in the election upon which he was declared the winner the second nearest candidate one, Mr. Michael Chemwok having received one vote. He immediately took oath of office to the office of the speaker and was handed over the tools of the office by the outgoing speaker. He reiterated that his nomination and subsequent election for the aforesaid position was valid. He opposed the Petition vehemently.
20. Further, the immediate former Speaker of the County Assembly one Philemon K. Sabulei also filed an Affidavit dated 14th April 2025 wherein he deposed that on 24th January , pursuant to the provisions of Article 194(1)(d) of the Constitution, he received a resignation letter from Hon Lawi Kibire vacating Office of the Member of County Assembly for Metkei Ward with effect from 30th January 2025 which resignation he accepted and as such the said Lawi Kibire ceased being a Member of County Assembly for Metkei Ward.
Response to Petition
21. The respondents filed a Response to the Petition on 14th April 2025. The Response was a reproduction of the contents of the Replying Affidavit and the Respondents sought to have the Petition dismissed with costs.
Petitioners’ Further Affidavit
22. The Petitioners filed a Further Affidavit sworn by Philemon Kibiwott Cheserek filed on 22nd April 2025. He deposed that what has been raised in the Affidavit is an issue of Jurisdiction and proceeded to summarize the complaint of the petitioners, basically reiterating the contents of the Replying Affidavit and the petition on the sequence of events from the alleged resignation of the speaker on 24th January 2025, pointing out that on 31st January 2025 while the County Assembly was on official recess, the Clerk of the Assembly the 1st Respondent issued a Gazette notice No. 1113 date of even reference declaring the position of the Speaker vacant. Further, that the Assembly resumed sittings on 11th February 2025 and without adequate notice to the Public or members of the Assembly conducted an Election of the new Speaker on the same day.
23. He deponed that the said election resulted in the election of the Interested Party as Speaker of the County Assembly. He stated that Article 178 (1) of the Constitution requires that the Speaker of the County Assembly be elected from persons who are not members of the County Assembly and further, that at the time of his election as Speaker, Hon. Lawi was still a sitting MCA, there being no formal notification from the Electoral and Boundaries Commission (IEBC) of his resignation, and no Gazettement of a vacancy in Metkei Ward.
24. He urged that the 1st Respondent and the former Speaker both claim in their respective affidavits to have received Hon. Lawi’s resignation, yet no evidence has been presented to show that such resignation was processed, accepted or made Public in accordance with the applicable law. Additionally, that the Constitutionality of a resignation effected during recess and/or when the County Assembly is not sitting is an issue that this court has to determine. He stated that resignation is not an event but a process and as such it is fundamental that this court determine the interpretation of the Constitution on resignation of a member of the County Assembly.
25. He further stated that the court has to make a decision as to when the resignation became effective to wit is it at the time of receiving the letter and or when the same is Gazetted and or when it is dated by the drawer to take effect. He posed the question; if the letter is received and not acted upon does it mean that the people of Metkei Ward are not represented even not considering that the advertisement had not been done?
26. The deponent urged that they wished for the court to tell them whether, as at the time of election of the Speaker, the people of Metkei Ward were represented by a member of the County Assembly. Further, they sought an interpretation on the time that the County clerk or the Speaker received the letter as they have not told this court when they received the same. The deponent invited the court to check the stamp and consider who received the said letter. The deponent stated that the respondents intend to derail the cause of Justice by filing an ineligible document and as a consequence this court ought to treat as forfeiture of right to justice and be construed in favour of the Petitioners as they cannot tell if the same was received by the Speaker or the Clerk.
27. The deponent further deponed that much as they are ineligible and owing to the Assembly being on recess it could only be construed as having been received by the office of the Clerk. That no evidence has been tendered by the Speaker to show that the resignation was tendered by Hon. Lawi to the Speaker himself or at all. He pointed out that the respondents opted voluntarily not to participate to defend this Petition despite being served, which service is not disputed. Further, that they opted not to challenge the Petitioners assertion that the Assembly was on recess by not providing evidence that the house was recalled bringing back the Speaker to the office to Act on the resignation.
28. The deponent sought the directions of the court on whether an act done by a Speaker on recess is valid in law. Further, that having no evidence of recalling the Speaker back to the office to attend to this resignation means that the respondents did not object that the County Assembly was on recess as an admission. He urged that there was no public notice that the Assembly that was on recess up to 11th February 2025 when the election was done. He stated that the import of this is that it was an act that was done to sanitize an unconstitutional process allegedly done by the respective offices of the County Clerk and the County Speaker.
29. He urged that the notice of declaration of vacancy on 24/2/2025 literally means the office was still occupied to then by Hon. Lawi thus the need for the court’s interpretation on the same. Urging that recess in particular is indeed being on leave, counsel pointed out that it must be noted that Elgeyo Marakwet County Assembly standing orders do not explicitly detail its procedures during recess. He stated that the only inferred applicable practice is that the County Clerk or designated officers only may handle administrative duties during recess a fact which the respondents have mischievously handled by using an invisible Stamp.
30. He urged that the respondents cannot and should not be allowed by this Honourable court to regularize and sanctify irregularities by purporting to adduce documents procured after the fact and which are evident that this is a clear backdating of the process that had not been done. He stated that this matter is not an election Petition under the Elections Act as the Speaker is not elected through a popular vote and the Elections Act does not provide for a Mechanism to challenge a speaker’s election. Further, that the issues they have raised concern Constitutional violations, not merely the outcome of the vote. He urged the court dismiss the preliminary point of law and determine the Petition.
Respondents Further Replying Affidavit
31. The Respondent filed a Further Replying Affidavit deponed by Jane K Mutia. She deponed that the Further Affidavit is made on the basis of unfamiliarity of how the county assembly operates and is completely misguided and or misadvised on the law on the subject matter. She stated that the term for the county assembly is five years after general election. The county assembly activities are steered by a calendar which is approved by the county assembly at the beginning of every session.
32. Further, that the calendar provides for sitting period and recess period when the assembly is not sitting which basically helps in planning the activities of the assembly. During the recess period the assembly does not have plenary sittings unless a special sitting is convened but the rest of the activities of the assembly including committee meetings and other constitutional mandates of the assembly and that of each member that does not require plenary sittings of the assembly would be up and running.
33. She urged that during the recess period the Speaker and indeed the members of the county assembly are not on leave and the powers of the Speaker in running the business of the assembly is not suspended and the Speaker is fully in charge of all the legal powers bestowed upon in. Additionally, that during the subject period there was a publicized calendar of the assembly which clearly showed that the long recess of the assembly would end on 10th February 2025 which means that the new session would begin on 11th February 2025 and the assembly would be resuming its sittings then. She annexed and marked as JM 1, a copy of the publicized calendar for the third session. She stated that this is backed by the provisions of standing order 28 (1) of the county assembly. The deponent averred that it is therefore not a coincidence that the 11th of February 2025 was gazetted as the date for the election of a new speaker following the resignation of the speaker of the assembly but also made on the basis of the full cognizance of the consequence of the provisions of standing order 4 (2).
34. On the issue of resignation, she cited Article 194 (l) (d) and stated that the interested party demonstrated that he tendered his resignation. She reproduced the sequence of events pertaining to the resignation and clearance of the candidates as per the replying affidavit. As regards the declaration of the vacancy of the office of the speaker and the publication thereof, she stated that the same was proper and the time sufficient as the person whom the petitioners seeks to be declared the elected speaker has not contested that he was in any way impeded by the time given the application as he indeed qualified and participated in the elections albeit getting one vote.
Petitioners’ Submissions
35. The Petitioners submitted that the resignation procedure of Honourable Lawi Kibire was indeed irregular. Counsel urged that the resignation was dated 24th January 2025 to take effect on 30th January 2025. However, the Assembly was not in session and there is uncertainty as to who received the resignation; the Speaker or the clerk as both claim to have received the same in their respective Replying Affidavits. Counsel submitted that Article 75(1)(b) requires that resignation from public office be clear, formal and procedurally compliant. Further the Hansard has no record of the resignation having been tabled, debated, or adopted by the Assembly.
36. Counsel cited the case of Speaker of the Senate & Anor. vs 4 others [2013] eKLR and urged that in the present case, the confusion over whether the speaker or the clerk received the resignation and the lack of clarity in the receiving stamp, further invalidates any claim of proper procedure. Moreover, in the absence of the speaker (who was on leave) only the Deputy Speaker or the Assembly itself, not the clerk, had capacity to process such an essential Constitutional Act. Counsel maintained that all that was done was a nullity ab initio, as it was irregular and unconstitutional. He additionally cited the case of Martin Nyaga Wambora & 3 others vs Speaker of the County Assembly of Embu & 6 others [2014] eKLR in this regard.
37. Counsel submitted that the Clerk, acting without proper authorization is akin to exceeding the lawful scope of power, thus making such action unlawful. Further, that in case of the key holding thereto was that public officers are bound by the principle of legality, and must act within the four corners of their legal mandate. He urged that the application of this principle is that the Clerk as a public officer, must act only within the confines of their statutory and procedural mandate. Receiving a speaker’s resignation and triggering an election are not within that mandate unless directed by proper authority which is not the case hereto as both the Speaker and member of County Assembly resigned on the same day.
38. Counsel urged that in the Speaker of the Senate & Anor. vs Attorney General & 4 other [2013] eKLR, the key holding thereto was that the Supreme Court underscored the Constitutional separation of roles between officers and Arm of Government. It held that decisions must be made by the proper organ and in accordance with formal procedure. He further stated that only the Speaker or Deputy Speaker in their absence may direct Assembly business.
39. That the Clerk cannot usurp this function such as to order for the Gazettement and vacancy of the speaker’s office. Counsel posited that the County Government’s Act 2012, Section 12 (7) clearly outlines the clerk’s role as secretarial and procedural not executive. The section does not vest any authority in the clerk to receive resignations or call elections unilaterally. He additionally cited the case of Kariuki vs Attorney General [2013] eKLR where the court held that an office bearer cannot vacate office unless resignation is formally received, acknowledged and procedural obligations fulfilled. He stated that without the Hansard entry or formal acknowledgement by the Assembly, the resignation process received was incomplete as of 30th January 2025, procedural irregularities that go to the root of legality invalidate subsequent decisions or elections.
40. Counsel submitted that the Deputy Speaker or presiding member can trigger an election process. Upon resumption of the Assembly and once the speaker’s resignation is officially tabled and acknowledged, the Deputy Speaker who assumes the role of presiding officer under Article 178 (2) (b) of the Constitution is vested with authority to: -
a) Declare a vacancy
b) Direct the clerk to issue a notice of election and
c) Provide over the process of electing a new speaker.
41. The purported election, done outside proper session without formal notice, lacked legal grounding. Further, that the notice requested was at least three (3) days from the 11th February 2025 immediately upon resumption of the Assembly but not the same day. He cited the case of Moses Nyandusi Osoro vs National Police Service Commission & Attorney General (Pet E004 OF 2021) [2022] KEELRC 184 (KLR) (28th April 2022).
42. Counsel urged that on the access to information, the Constitution of Kenya, Article 35 guarantees every citizen the right to access information held by the state. Additionally, the Access to information Act, section 4 provides that every citizen has a right to access information held by the state subject to exemptions under section 6 of the same act. Section 5 of the Act imposes upon public entities a duty to facilitate access to information held by them. It is required that they do so expeditiously and at reasonable cost. The Act emphasizes that the entities exercise transparency as well as accountability. Furthermore, that the Act, under section 28, outlines that failure to comply with the provisions above is an offence and attracts a fine not exceeding fifty thousand shillings or an imprisonment for a term not exceeding three months, or both.
43. Counsel cited the case of Legal Advice Centre t/a Kituo Cha Sheria & 33 others v Cabinet Secretary, Ministry of Education &7 others (Petition No. 104 of 2019) and the case of Khalifa & another v Principal Secretary, Ministry of Transport & 4 others (Constitutional Petition E032 of 2019) on access to information. Counsel reiterated that the firm of Chemwok & Co. Advocates on behalf of the Petitioners wrote a letter dated that day requesting various information as stated in the supporting affidavit.
44. He stated that the County Assembly failed to provide; the Letter recalling the House after recess, the Payment payroll for the month of December 2024 and January, 2025 for the members of the Elgeyo/Marakwet County Assembly, the Sessional paper communication to the house upon resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire, the Gazette notice on resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire and the List of candidates who contested for the seat of the Speaker of the Elgeyo/Marakwet County Assembly and their qualifications submitted upon declaration of a vacancy in the office Speaker of the Elgeyo/Marakwet County Assembly on 30th January, 2025. In doing so, the Assembly violated the right to access information as provided for in the Constitution of Kenya under article 35 and the Access to Information Act, 2016 section 4. He placed reliance on R -vs~ Kenya Pipeline Co. Ltd & Anor. [2017] eKLR and Kenya National Commission on Human Rights an=vs= The Attorney General & 4 others [2016] eKLR.
45. Counsel cited the case of Mwangi wa Iria vs The Speaker Murang’a County Assembly and 3 Others (2014) eKLR and urged that this dispute is properly challenged via a Constitutional Petition.
Respondents’ Submissions
46. Learned counsel for the respondent submitted that the petition is based on a misunderstanding of the law. Further, he pointed out that the issue of resignation is a new matter as the main contention in the petition as that the current speaker did not resign and therefore was not qualified to contest for the election. Counsel submitted that parties are bound by their pl
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a) A declaration be and is hereby issued that the declaration of Honourable Lawi Kibire, member of the county assembly for Metkei ward as the winner in the election held on 11th February, 2025 for the position of the Speaker of the County Assembly of Elgeyo Marakwet County was illegal, unconstitutional null and void.
b) A declaration be and is hereby issued that Honourable Lawi Kibire, member of the county assembly for Metkei ward was not qualified to contest in the election held on 11th February, 2025 for the position of the Speaker of the County Assembly of Elgeyo Marakwet County.
c) A declaration be and is hereby issued that pursuant to Standing Order 11 of the County Assembly, Elgeyo Marakwet County Standing Orders, Honourable Michael Chemwok being the one candidate who has been duly nominated for election as Speaker at the expiry of the nomination period, be declared forthwith to have been elected Speaker without any ballot or vote being required.
d) An order of Judicial Review does issue pursuant to Article 23 of the Constitution of Kenya, quashing the notices issued by the Respondent declaring Honourable Lawi Kibire, member of the county assembly for Metkei ward as qualified to contest in the election held on 11th February, 2025 for the position of the Speaker of the County Assembly of Elgeyo Marakwet County for being illegal, unconstitutional, and ultra vires.
e) An order of Judicial Review does issue pursuant to Article 23 of the Constitution of Kenya, quashing proceedings presided over by Honourable Lawi Kibire, member of the county assembly for Metkei ward as the Speaker of the County Assembly of Elgeyo Marakwet County for being illegally and unconstitutionally in office and have acted ultra vires.
f) An order of Judicial Review does issue pursuant to Article 23 of the Constitution of Kenya, prohibiting and/or restraining the Honourable Lawi Kibire, member of the county assembly for Metkei ward from acting as the Speaker of the County Assembly of Elgeyo Marakwet County.
g) The costs of this Petition be provided for.
h) This Honourable Court be pleased to grant any other or further reliefs that it may consider just or necessary.
2. The Petition is expressed to be brought under Article 22 & 258 of the Constitution of Kenya. The Petitioners laid out the Constitutional Foundations of the Petition, urging that it is founded on Articles 1,2,3, 10, 10(7), 19, 20, 21, 22, 23, , 24, 178, 258, and 259 of the Constitution of Kenya. Additionally, that the Petition is founded on the County Governments Act, Election Act, The Fair Administrative Actions Act, and The County Assembly. Elgeyo Marakwet County Standing Orders.
3. The Petitioners filed verifying affidavits confirming the correctness of the averments in the Petition. The 1st Petitioner swore his affidavit on behalf of the other petitioners.
4. The Petitioner laid out the facts underlying the Petition as follows. On 30th January, 2025, Honourable Philemon Kiplagat Sabulei, the Speaker of the County Assembly, Elgeyo Marakwet County resigned and the County Assembly declared a vacancy, annexing a copy if the registration notice and a copy of the declaration of vacancy as KC1 and 2. He stated that on 4th February, 2025, the Independent and Boundaries Commission (1EBC) cleared Honourable Lawi Kibire, the Member of County Assembly for Metkei Ward and Michael Kipkorir Chemwok, an Advocate of the High Court to contest for the office of the Speaker of the County Assembly, annexing and marking copies of the respective clearances as KC3 and 4. The announcement of candidates cleared was made at the floor of the house of the County Assembly, Elgeyo Marakwet County before proceeding to hold elections wherein Honourable Lawi Kibire was declared the winner.
5. On 20th February, 2025, with instructions from the Petitioners, the firm of Chemwok and Company Advocates served a letter to the County Assembly of Elgeyo Marakwet requesting for information under Article 35 of the Constitution of Kenya and Access to information Act 2016, particularly:
a) Hansard Report on Resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire.
b) Hansard Report of the House for 11th February, 2025.
c) Letter recalling the House after recess.
d) Payment payroll for the month of December 2024 and January, 2025 for the members of the Elgeyo/Marakwet County Assembly.
e) Sessional paper communication to the house upon resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire.
f) Gazette notice on resignation of the Member of County Assembly for Metkei Ward. Lawi Kibire.
g) Declaration of vacancy for the seat of the Member of County Assembly for Metkei Ward, upon resignation of Lawi Kibire,
h) List of candidates who contested for the seat of the Speaker of the Elgeyo/Marakwet County Assembly and their qualifications submitted upon declaration of a vacancy in the office of Speaker of the Elgeyo/Marakwet County Assembly on 30th January, 2025.
6. He annexed a copy of the instruction note marked as KC5.
7. The Petitioners stated that the request for information under the said Article 35 of the Constitution of Kenya and Access to information Act 2016 was never responded to and no explanation of specific exemption or exclusion under the law was availed to the requester to justify denial of the said information.
8. In the Petition, the Petitioners laid down the Constitutional and Statutory Violations, together with the Standing Order violations that they levelled against the Respondents and Interested Party. They cited Article 2(2) and 178(1) of the Constitution alongside Section 7 and 9A of the County Governments Act. Further, they cited Section 21(1) of the Election Act which requires that the speaker of a County Assembly be elected in accordance with the Standing Orders of the County Assembly, from among persons who are qualified to be elected as members of a County Assembly but are not such members and Section 22(1) of the Election Act which requires that nomination of a candidate for an election under the Act only if that person is qualified to be elected to that office under the Constitution and the Act.
9. They cited Section 26(1) of the Election Act and Standing Order No. 4(2) which requires that if the office of the speaker falls vacant at any time before the expiry of the term of County Assembly, no business shall be transacted by the County Assembly until the election of a new Speaker. Additionally, they stated that Standing Order No. 5(3) requires that the nomination papers of a candidate shall be accompanied by the names and signatures of at least two Members who support the candidate and a declaration by them that the candidate is qualified to be elected as a Member of County Assembly under Article 193 of the Constitution and is willing to serve as Speaker of the County Assembly.
10. The Petitioners reproduced the requirements of Standing Order No, 5(4), (5), (6) and 11, urging that Honourable Lawi Kibire’s clearance to contest for the position of speaker of the County Assembly of Elgeyo Marakwet held on 11th February, 2025 and his declaration as the winner in that election constituted a violation of the Constitution, cited statutes and the County Assembly of Elgeyo Marakwet Standing Orders.
11. On the violation to the right to information and fair administrative action, the Petitioners cited Articles 35(c) 47(1) and (2) of the Constitution. Additionally, they reproduced the provisions of Sections 4(1), (2), (3) (c), (4), 5(4) of the Fair Administrative Action Act and stated that the failure by the County Assembly of Elgeyo Marakwet to avail the information requested to the firm of Chemwok and Company Advocates constituted a violation of the right to information under Article 35 of the Constitution of Kenya, the Fair Administrative Action Act and the Access to information Act, 2016.
12. On violation of the right to equality before the law, the Petitioners cited Articles 27(1) and (2) of the Constitution, urging that the favoritism accorded to Honourable Lawi Kibire because of his position as the Member of County Assembly for Metkei ward by being cleared to contest for the position of speaker of the County Assembly of Elgeyo Marakwet held on 11th February, 2025 and his declaration as the winner in that election constituted a violation of the right to equality before the law.
Respondents’ Replying Affidavit
13. The respondent filed an affidavit on 14th April 2025, deponed by Jane K Mutai, the Clerk to Elgeyo Marakwet County Assembly. She stated that the entire petition is misconceived, based on inaccurate facts and completely ill advised. Further, that the only issue that seems to be coming out of the entire Petition is that the Petitioners seem to be contesting whether the interested party herein Hon. Lawi Kibire was validly elected as the Speaker of the Assembly. She stated that the interested party was validly elected and so declared as the Speaker of the Assembly on 11th February 2025.
14. She urged that following the resignation of Hon, Philemon Sabulei from the office of the speaker of the assembly, in accordance with the provisions of Section 21 (5)(b) of the Elections Act, she issued a gazette notice declaring the vacancy and inviting qualified persons to apply for the position. Seven candidates applied for the position but only five qualified to contest including Mr. Michael Chemwok and Hon. Lawi Kibire. The interested party, while presenting his nomination papers submitted a letter of resignation from the office of member of County Assembly representing Metkei ward together with clearance from the Independent Electoral and Boundaries Commission (1EBC). She annexed and marked as JM 1, a copy of the resignation letter.
15. The deponent averred that Article 194 (l) (d) of the Constitution provides that the office of member of the County Assembly becomes vacant if a member resigns in writing addressed to the speaker of the assembly and as such, the Interested Party ceased being a member of county assembly from the date of his resignation. She stated that before the day of the election three of the candidates withdrew their candidature leaving only two candidates and the elections were conducted on 11th February 2025. At the end of the ballot Michael Chemwok got 1 vote and Hon. Lawi Kibire got 28 votes, she annexed and marked as JM 2 proceedings of the assembly on the said date. The interested party was declared as the duly elected speaker and he immediately took oath of office.
16. The deponent stated that it is clear beyond any iota of doubt that Hon. Lawi Kibire was qualified to contest for the position of the speaker as he was competent to be elected as a member of the county assembly but he was no longer a member as he had presented his resignation to the speaker vacating the office of the member of county assembly for Metkei ward before his nomination. Additionally, that writs have already been transmitted to the IEBC declaring vacancy of the member of county assembly of Metkei ward. She annexed and marked as JM 3 copies of the writs already received by the IEBC. She stated that this Petition does not stand on any ground and the farfetched prayers sought should be dismissed with costs.
17. On the issue of information sought from the respondent, she urged that the petitioners were informed that all the information they were seeking are in the assembly’s website and can be accessed anytime.
Interested Party’s Replying Affidavit
18. The interested party filed a replying affidavit dated 14th April 2025. He stated that he was elected as a member of county assembly of Metkei ward in Elgeyo/Marakwet County in the August 2022 general elections, annexing and marking as LB 1, a copy the gazette notice to that effect. Further, that on 24th January 2025, pursuant to the provisions of Article 194 (l) (d) of Constitution of Kenya 2010 he vacated the office of the member of county assembly with effect from 30th January 2025. He annexed and marked as LB2 a copy of his resignation letter. Additionally, that upon the position of the Speaker of the county assembly of Elgeyo Marakwet being declared vacant, he submitted his nomination papers together with clearance by the Independent Electoral and Boundaries Commission to contest for the position of the speaker on 6th February 2025. He annexed a copy of clearance certificate.
19. The deponent averred that on 11th February 2025 he garnered 28 votes in the election upon which he was declared the winner the second nearest candidate one, Mr. Michael Chemwok having received one vote. He immediately took oath of office to the office of the speaker and was handed over the tools of the office by the outgoing speaker. He reiterated that his nomination and subsequent election for the aforesaid position was valid. He opposed the Petition vehemently.
20. Further, the immediate former Speaker of the County Assembly one Philemon K. Sabulei also filed an Affidavit dated 14th April 2025 wherein he deposed that on 24th January , pursuant to the provisions of Article 194(1)(d) of the Constitution, he received a resignation letter from Hon Lawi Kibire vacating Office of the Member of County Assembly for Metkei Ward with effect from 30th January 2025 which resignation he accepted and as such the said Lawi Kibire ceased being a Member of County Assembly for Metkei Ward.
Response to Petition
21. The respondents filed a Response to the Petition on 14th April 2025. The Response was a reproduction of the contents of the Replying Affidavit and the Respondents sought to have the Petition dismissed with costs.
Petitioners’ Further Affidavit
22. The Petitioners filed a Further Affidavit sworn by Philemon Kibiwott Cheserek filed on 22nd April 2025. He deposed that what has been raised in the Affidavit is an issue of Jurisdiction and proceeded to summarize the complaint of the petitioners, basically reiterating the contents of the Replying Affidavit and the petition on the sequence of events from the alleged resignation of the speaker on 24th January 2025, pointing out that on 31st January 2025 while the County Assembly was on official recess, the Clerk of the Assembly the 1st Respondent issued a Gazette notice No. 1113 date of even reference declaring the position of the Speaker vacant. Further, that the Assembly resumed sittings on 11th February 2025 and without adequate notice to the Public or members of the Assembly conducted an Election of the new Speaker on the same day.
23. He deponed that the said election resulted in the election of the Interested Party as Speaker of the County Assembly. He stated that Article 178 (1) of the Constitution requires that the Speaker of the County Assembly be elected from persons who are not members of the County Assembly and further, that at the time of his election as Speaker, Hon. Lawi was still a sitting MCA, there being no formal notification from the Electoral and Boundaries Commission (IEBC) of his resignation, and no Gazettement of a vacancy in Metkei Ward.
24. He urged that the 1st Respondent and the former Speaker both claim in their respective affidavits to have received Hon. Lawi’s resignation, yet no evidence has been presented to show that such resignation was processed, accepted or made Public in accordance with the applicable law. Additionally, that the Constitutionality of a resignation effected during recess and/or when the County Assembly is not sitting is an issue that this court has to determine. He stated that resignation is not an event but a process and as such it is fundamental that this court determine the interpretation of the Constitution on resignation of a member of the County Assembly.
25. He further stated that the court has to make a decision as to when the resignation became effective to wit is it at the time of receiving the letter and or when the same is Gazetted and or when it is dated by the drawer to take effect. He posed the question; if the letter is received and not acted upon does it mean that the people of Metkei Ward are not represented even not considering that the advertisement had not been done?
26. The deponent urged that they wished for the court to tell them whether, as at the time of election of the Speaker, the people of Metkei Ward were represented by a member of the County Assembly. Further, they sought an interpretation on the time that the County clerk or the Speaker received the letter as they have not told this court when they received the same. The deponent invited the court to check the stamp and consider who received the said letter. The deponent stated that the respondents intend to derail the cause of Justice by filing an ineligible document and as a consequence this court ought to treat as forfeiture of right to justice and be construed in favour of the Petitioners as they cannot tell if the same was received by the Speaker or the Clerk.
27. The deponent further deponed that much as they are ineligible and owing to the Assembly being on recess it could only be construed as having been received by the office of the Clerk. That no evidence has been tendered by the Speaker to show that the resignation was tendered by Hon. Lawi to the Speaker himself or at all. He pointed out that the respondents opted voluntarily not to participate to defend this Petition despite being served, which service is not disputed. Further, that they opted not to challenge the Petitioners assertion that the Assembly was on recess by not providing evidence that the house was recalled bringing back the Speaker to the office to Act on the resignation.
28. The deponent sought the directions of the court on whether an act done by a Speaker on recess is valid in law. Further, that having no evidence of recalling the Speaker back to the office to attend to this resignation means that the respondents did not object that the County Assembly was on recess as an admission. He urged that there was no public notice that the Assembly that was on recess up to 11th February 2025 when the election was done. He stated that the import of this is that it was an act that was done to sanitize an unconstitutional process allegedly done by the respective offices of the County Clerk and the County Speaker.
29. He urged that the notice of declaration of vacancy on 24/2/2025 literally means the office was still occupied to then by Hon. Lawi thus the need for the court’s interpretation on the same. Urging that recess in particular is indeed being on leave, counsel pointed out that it must be noted that Elgeyo Marakwet County Assembly standing orders do not explicitly detail its procedures during recess. He stated that the only inferred applicable practice is that the County Clerk or designated officers only may handle administrative duties during recess a fact which the respondents have mischievously handled by using an invisible Stamp.
30. He urged that the respondents cannot and should not be allowed by this Honourable court to regularize and sanctify irregularities by purporting to adduce documents procured after the fact and which are evident that this is a clear backdating of the process that had not been done. He stated that this matter is not an election Petition under the Elections Act as the Speaker is not elected through a popular vote and the Elections Act does not provide for a Mechanism to challenge a speaker’s election. Further, that the issues they have raised concern Constitutional violations, not merely the outcome of the vote. He urged the court dismiss the preliminary point of law and determine the Petition.
Respondents Further Replying Affidavit
31. The Respondent filed a Further Replying Affidavit deponed by Jane K Mutia. She deponed that the Further Affidavit is made on the basis of unfamiliarity of how the county assembly operates and is completely misguided and or misadvised on the law on the subject matter. She stated that the term for the county assembly is five years after general election. The county assembly activities are steered by a calendar which is approved by the county assembly at the beginning of every session.
32. Further, that the calendar provides for sitting period and recess period when the assembly is not sitting which basically helps in planning the activities of the assembly. During the recess period the assembly does not have plenary sittings unless a special sitting is convened but the rest of the activities of the assembly including committee meetings and other constitutional mandates of the assembly and that of each member that does not require plenary sittings of the assembly would be up and running.
33. She urged that during the recess period the Speaker and indeed the members of the county assembly are not on leave and the powers of the Speaker in running the business of the assembly is not suspended and the Speaker is fully in charge of all the legal powers bestowed upon in. Additionally, that during the subject period there was a publicized calendar of the assembly which clearly showed that the long recess of the assembly would end on 10th February 2025 which means that the new session would begin on 11th February 2025 and the assembly would be resuming its sittings then. She annexed and marked as JM 1, a copy of the publicized calendar for the third session. She stated that this is backed by the provisions of standing order 28 (1) of the county assembly. The deponent averred that it is therefore not a coincidence that the 11th of February 2025 was gazetted as the date for the election of a new speaker following the resignation of the speaker of the assembly but also made on the basis of the full cognizance of the consequence of the provisions of standing order 4 (2).
34. On the issue of resignation, she cited Article 194 (l) (d) and stated that the interested party demonstrated that he tendered his resignation. She reproduced the sequence of events pertaining to the resignation and clearance of the candidates as per the replying affidavit. As regards the declaration of the vacancy of the office of the speaker and the publication thereof, she stated that the same was proper and the time sufficient as the person whom the petitioners seeks to be declared the elected speaker has not contested that he was in any way impeded by the time given the application as he indeed qualified and participated in the elections albeit getting one vote.
Petitioners’ Submissions
35. The Petitioners submitted that the resignation procedure of Honourable Lawi Kibire was indeed irregular. Counsel urged that the resignation was dated 24th January 2025 to take effect on 30th January 2025. However, the Assembly was not in session and there is uncertainty as to who received the resignation; the Speaker or the clerk as both claim to have received the same in their respective Replying Affidavits. Counsel submitted that Article 75(1)(b) requires that resignation from public office be clear, formal and procedurally compliant. Further the Hansard has no record of the resignation having been tabled, debated, or adopted by the Assembly.
36. Counsel cited the case of Speaker of the Senate & Anor. vs 4 others [2013] eKLR and urged that in the present case, the confusion over whether the speaker or the clerk received the resignation and the lack of clarity in the receiving stamp, further invalidates any claim of proper procedure. Moreover, in the absence of the speaker (who was on leave) only the Deputy Speaker or the Assembly itself, not the clerk, had capacity to process such an essential Constitutional Act. Counsel maintained that all that was done was a nullity ab initio, as it was irregular and unconstitutional. He additionally cited the case of Martin Nyaga Wambora & 3 others vs Speaker of the County Assembly of Embu & 6 others [2014] eKLR in this regard.
37. Counsel submitted that the Clerk, acting without proper authorization is akin to exceeding the lawful scope of power, thus making such action unlawful. Further, that in case of the key holding thereto was that public officers are bound by the principle of legality, and must act within the four corners of their legal mandate. He urged that the application of this principle is that the Clerk as a public officer, must act only within the confines of their statutory and procedural mandate. Receiving a speaker’s resignation and triggering an election are not within that mandate unless directed by proper authority which is not the case hereto as both the Speaker and member of County Assembly resigned on the same day.
38. Counsel urged that in the Speaker of the Senate & Anor. vs Attorney General & 4 other [2013] eKLR, the key holding thereto was that the Supreme Court underscored the Constitutional separation of roles between officers and Arm of Government. It held that decisions must be made by the proper organ and in accordance with formal procedure. He further stated that only the Speaker or Deputy Speaker in their absence may direct Assembly business.
39. That the Clerk cannot usurp this function such as to order for the Gazettement and vacancy of the speaker’s office. Counsel posited that the County Government’s Act 2012, Section 12 (7) clearly outlines the clerk’s role as secretarial and procedural not executive. The section does not vest any authority in the clerk to receive resignations or call elections unilaterally. He additionally cited the case of Kariuki vs Attorney General [2013] eKLR where the court held that an office bearer cannot vacate office unless resignation is formally received, acknowledged and procedural obligations fulfilled. He stated that without the Hansard entry or formal acknowledgement by the Assembly, the resignation process received was incomplete as of 30th January 2025, procedural irregularities that go to the root of legality invalidate subsequent decisions or elections.
40. Counsel submitted that the Deputy Speaker or presiding member can trigger an election process. Upon resumption of the Assembly and once the speaker’s resignation is officially tabled and acknowledged, the Deputy Speaker who assumes the role of presiding officer under Article 178 (2) (b) of the Constitution is vested with authority to: -
a) Declare a vacancy
b) Direct the clerk to issue a notice of election and
c) Provide over the process of electing a new speaker.
41. The purported election, done outside proper session without formal notice, lacked legal grounding. Further, that the notice requested was at least three (3) days from the 11th February 2025 immediately upon resumption of the Assembly but not the same day. He cited the case of Moses Nyandusi Osoro vs National Police Service Commission & Attorney General (Pet E004 OF 2021) [2022] KEELRC 184 (KLR) (28th April 2022).
42. Counsel urged that on the access to information, the Constitution of Kenya, Article 35 guarantees every citizen the right to access information held by the state. Additionally, the Access to information Act, section 4 provides that every citizen has a right to access information held by the state subject to exemptions under section 6 of the same act. Section 5 of the Act imposes upon public entities a duty to facilitate access to information held by them. It is required that they do so expeditiously and at reasonable cost. The Act emphasizes that the entities exercise transparency as well as accountability. Furthermore, that the Act, under section 28, outlines that failure to comply with the provisions above is an offence and attracts a fine not exceeding fifty thousand shillings or an imprisonment for a term not exceeding three months, or both.
43. Counsel cited the case of Legal Advice Centre t/a Kituo Cha Sheria & 33 others v Cabinet Secretary, Ministry of Education &7 others (Petition No. 104 of 2019) and the case of Khalifa & another v Principal Secretary, Ministry of Transport & 4 others (Constitutional Petition E032 of 2019) on access to information. Counsel reiterated that the firm of Chemwok & Co. Advocates on behalf of the Petitioners wrote a letter dated that day requesting various information as stated in the supporting affidavit.
44. He stated that the County Assembly failed to provide; the Letter recalling the House after recess, the Payment payroll for the month of December 2024 and January, 2025 for the members of the Elgeyo/Marakwet County Assembly, the Sessional paper communication to the house upon resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire, the Gazette notice on resignation of the Member of County Assembly for Metkei Ward, Lawi Kibire and the List of candidates who contested for the seat of the Speaker of the Elgeyo/Marakwet County Assembly and their qualifications submitted upon declaration of a vacancy in the office Speaker of the Elgeyo/Marakwet County Assembly on 30th January, 2025. In doing so, the Assembly violated the right to access information as provided for in the Constitution of Kenya under article 35 and the Access to Information Act, 2016 section 4. He placed reliance on R -vs~ Kenya Pipeline Co. Ltd & Anor. [2017] eKLR and Kenya National Commission on Human Rights an=vs= The Attorney General & 4 others [2016] eKLR.
45. Counsel cited the case of Mwangi wa Iria vs The Speaker Murang’a County Assembly and 3 Others (2014) eKLR and urged that this dispute is properly challenged via a Constitutional Petition.
Respondents’ Submissions
46. Learned counsel for the respondent submitted that the petition is based on a misunderstanding of the law. Further, he pointed out that the issue of resignation is a new matter as the main contention in the petition as that the current speaker did not resign and therefore was not qualified to contest for the election. Counsel submitted that parties are bound by their pl
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