Introduction
1. The Petitioners filed the instant suit dated 5/2/2024 against the Respondents, who comprise a Constitutional Commission, a statutory body and the legislative arms of Government alleging that they failed to undertake public participation during the enactment of Section 45 of the Elections Act No. 24 of 2011. The Petition is supported by the affidavit of Eugene Andabwa sworn on 6 th February, 2024.
2. The Petitioners thus seek that the said legal provision should be declared unconstitutional.
Petitioners’ Case
3. The Petitioners averred that the Kenya Law Reform Commission was ignorant, negligent and overlooked in the process that led to the enactment of Section 45 of the Elections Act No. 24 of 2011.
4. The Petitioners contended that the National Assembly, the Senate and the Independent Electoral and Boundaries Commission failed to abide by the principle of public participation during the enactment of Section 45 of the Elections Act No. 24 of 2011.
5. They allege that the enactment of the impugned legal provision was hurried, done without any regard to its impact or quality because the sole intent behind it was to shield elected political leaders from accountability by excessively limiting the constitutional right of the citizens to recall them hence is unconstitutional null and void.
RESPONDENTS’ CASE
1 st Respondent’s Preliminary Objection
6. The 1 st Respondent opposed the instant suit by filing Grounds of Opposition and a Notice of Preliminary Objection, both dated 15 th April, 2024 through the firm of Dr. Mutubwa Law Advocates.
7. The grounds listed in the Preliminary Objection include:
I) The Petition is inadmissible, incompetent and incurably defective for want of form.
II) The petition has not met the threshold of specificity and particularity as laid out in the Supreme Court case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR and the Court of Appeal case of Anarita Karimi Njeru v Attorney General [1979] KLR 154 .
III) In furtherance of the above, the petition is defective for want of form as it does not state in specific terms, which Article(s) of the Constitution the said Section 45 of the Elections Act, 2011 have been allegedly violated by the 1st Respondent.
IV) While the petition seeks to have Section 45 of the Elections Act, 2011 declared unconstitutional for want of public participation in the enactment of the same, the functions of the 1st Respondent as provided for under Article 88 (4) of the Constitution of Kenya, 2010 and Section 4 of the Independent Electoral and Boundaries Commission Act, No. 9 of 2011; do not include the enactment of statutes nor the conduct of public participation in the legislative process.
V) Public participation in the legislative process is provided for under Article 118 of the Constitution of Kenya, 2010. Section 2 (1) (b) of Schedule 6 of the Constitution of Kenya, 2010 suspended the application of chapter 8 of the Constitution, including the aforementioned Article 118, until the final announcement of all the results of the first elections for Parliament under the Constitution which was held in March, 2013. The Elections Act, 2011 was enacted during the suspension period.
VI) The Petition is bad in law, misconceived and discloses no reasonable cause of action as against the 1 st Respondent thus rendering it fatally and incurably defective.
8. The 1 st Respondent’s Grounds of Opposition, the following grounds were as follows:
I) The petition is defective for want of form as it does not state with particularity the provisions of the Constitution of Kenya, 2010 alleged to have been violated by the Respondents herein. On this ground alone, the petition ought to be dismissed.
II) Furthermore, it is apparent that the petition is misconceived and portrays a misapprehension of the law surrounding the enactment of statutes.
III) The 1 st Respondent has neither Constitutional nor statutory mandate in enactment of statutory laws. The role of the 1 st Respondent is limited to managing elections and conducting referenda
VII) The organs responsible for making and amending laws in Kenya are the 2 nd and 3 rd Respondent as provided for under Article 94 (1) and (5) of the Constitution of Kenya, 2010.
VIII) In furtherance of the above, any questions regarding the legitimacy or otherwise of the process leading to the Elections Act; and any or all the sections therein ought to be directed to the 2 nd and 3 rd Respondents.
IX) The petitioners have not demonstrated the role of the 1 st Respondent in passing the impugned the Elections Act, 2011, much less the section whose constitutionality they challenge. Nevertheless, section 2 (1) (b) of Schedule 6 of the Constitution of Kenya, 2010 suspended the application of chapter 8 of the Constitution, including Article 118 until the final announcement of all the results of the first elections for Parliament under the Constitution which was held in March, 2013. The Elections Act, 2011 was enacted in 2011, that is during the suspension period. The allegation that the enactment of the Elections Act, 2011 ought to have unconstitutional while the entire Act was enacted at the same time and in the same process.
X) In addition, this court ought to take judicial notice of the HCCHRPETMISC/E004/2024 wherein the petitioners herein seek a recall of all Members of Parliament. It is clear that the petitioners herein only seek the orders in the present petition so as to validate their petition in the aforementioned suit. This is a demonstration of abuse of the court process.
XI) Without prejudice to the Court's original jurisdiction, the petitioners have demonstrated no positive steps taken towards petitioning the parliament to amend the section they complain of as per the dictates of Article 119 of the Constitution of Kenya, 2010.
XII) Recall of elected leaders is not the only way through which leaders are held accountable. If anything, right of recall can only be pursued as a matter of last resort. Any attempt to seek recall as the point of first call is outrightly malicious and turns such conduct from a legitimate pursuit of accountability to a political witch-hunt.
2 nd Respondent Preliminary Objection
9. The 2 nd Respondent (National Assembly) filed a Notice of Preliminary Objection to the Petition 5 th February 2024 through Advocate Ruth Nyaberi premised on the following grounds:
(i) THAT the present case brought before this Honourable Court bears significant resemblance to a previous matter adjudicated upon by the same court, thereby invoking the doctrine of res judicata. 1 2.
(ii) THAT the present Petition challenges the constitutionality of section 45 of the Elections Act No. 24 of 2011. The constitutionality of the entire section 45 of the Elections Act was previously contested in the Kisumu High Court Constitutional Petition No. 209 of 2016, Katiba Institute & another v Attorney General & another [2017] eKLR (the Katiba case). The court addressed the question of constitutionality of section 45 in its entirety.
(iii) THAT the issue raised in this Petition was raised and determined in the Katiba case which was also filed in the public interest. The judgement of the Court in the Katiba case is a judgement in rem, it binds all persons including the Petitioners in this matter. This Petition is hence res judicata. The Petitioners are barred under the doctrine of res judicata from instituting proceedings touching on the same issue of constitutionality of section 45 of the Elections Act.
(iv) THAT the principle of res judicata dictates that once a matter has been conclusively adjudicated by a competent court, it cannot be re-litigated. In view of the Judgment of the High Court at Kisumu in Constitutional Petition No. E209 of 2016; Katiba Institute and Another v the Attorney General and Another, this Petition is res judicata.
3 rd Respondent Preliminary Objection
10. The 3 rd Respondent (the Senate) also filed a Notice of Preliminary Objection dated 24 th March, 2025 based on the following grounds:
i. THAT the Petition herein is inadmissible, incompetent and incurably defective for want of form.
ii. THAT the Petition herein is res judicata pursuant to Section 7 of the Civil Procedure Act and ought to be struck out in the first instance. THAT the Petition herein challenges the constitutionality of Section 45 of the Elections Act No. 24 of 2011 which was previously contested in Kisumu High Court Constitutional Petition No. 209 of 2016; Katiba Institute & another v Attorney General & another [2017| KLR where the High Court in the matter addressed the question of constitutionality of Section 45 of the Elections Act in its entirety and declared the said section, among others as unconstitutional.
iii. THAT the impugned section 45 of the Elections Act, 2011 having been declared unconstitutional, null and void, the Petitioners are barred under the doctrine of res judicata from instituting proceedings touching on the same issue of constitutionality of Section 45 of the Elections Act which has been determined in finality in another court of competent jurisdiction.
iv. THAT the Petition herein is thus an abuse of the court process and ought to be dismissed.
1 st Respondent’s Submissions
11. The 1 st Respondent identified and submitted only on one issue, that is:
whether the 1st Respondent' Preliminary Objections dated 15 th April, 2024 is merited .
12. The 1 st Respondent assailed the Petition on two major grounds:
i) That what the Petitioners allege against the 1 st Respondent is outside the 1 st Respondent’s constitutional mandate and;
ii) the Petition does not meet the standard required for pleading a Constitutional petition .
13. The 1 st Respondent restated the provisions of Article 88 (4) of the Constitution which provides for its mandate and argued that the role of the 1 st Respondent does not include to law-making and thus had no role in the enactment of the Elections Act, 2011 as the making and amendment of laws is an exclusive preserve of the 2 nd and 3 rd Respondents in accordance with Article 94 (1) of the Constitution.
14. In that regard, the 1 st Respondent contended that if public participation was needed in order to pass Section 45 of the Elections Act-2011, that was a responsibility that fell on the 2 nd and 3 rd Respondents and not the 1st Respondent. Relying on the authority of Republic v Independent Electoral and Boundaries Commission & another, Kimathi (Exparte) (Miscellaneous Juridical Review E001 of 2022) [2022] КЕНС 11550 (KLR) (5 August 2022) (Ruling) the 1 st Respondent argued that as an independent commission, it is charged with the sole responsibility of conducting elections in Kenya as required under Article 88 of the Constitution and in accordance with the principles in Article 81 and 86 of the Constitution contending that Petitioner's suggestion implies that the 1 st Respondent should usurp the role of the 2 nd and 3 rd Respondents which is untenable as it expressly violates the constitutional principle of separation of powers. To buttress this position, the 1 st Respondents relied on the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR the Court observed as follows:
"... We start by observing that this court respects the principle of separation of powers that is clearly spelt out in our Constitution as a Constitutional Commission has no role in legislation…”
15. In the light of the above submission, the 1 st Respondent argued that it has wrongly been joined in this suit.
16. Nonetheless, the 1 st Respondent contended that public participation in the legislative process is provided for in Chapter 8 of the Constitution – in particular, Article 118 of the constitution. The 1 st Respondent then drew the attention of this Court to Section 2 (1) (b) of Schedule 6 of the Constitution where the application of Chapter 8 of the Constitution, which includes Article 118 was suspended until the final announcement of all the results of the first general elections for Parliament under the Constitution. These elections were held in March, 2013. The Elections Act, 2011 having been enacted during the period suspension, the 1 st Respondent thus argued the application of principle of public participation was not a condition precedent given this particular constitutional clause was under suspension.
17. The 1 st Respondent further contended that the Petition does not meet the threshold required for pleading constitutional petitions as did not disclose Articles of the Constitution that were contravened by the said Section 45 of the Elections Act,2011 thereby violating the test of specificity and particularity as held in the locus classicus case of Anarita Karimi Njeru-v-Republic (1979) eKLR . The 1st Respondent pointed out that the Petitioners did not even disclose a single Article of the Constitution that Section 45 of the Election Act, 2011 violates or the manner in which the impugned section was violated or the effect of violation. The 1 st Respondent argued that in determining the constitutionality or otherwise of the impugned section, the court will be constrained as it has to evaluate Section 45 of the Election Act,2011 vis-à-vis the specific Article of the Constitution said to have been violated yet none has been cited by the Petitioners despite alleging contravention with the Constitution.
18. To buttress this point, the 1 st Respondent relied on the case of Isaac Robert Murambi-v-Attorney General & 3 others eKLR where it was held that
"… the onus of proving that a law is unconstitutional lies with the person saying so. The duty of the court then is to juxtapose the statute or its impugned provisions with the provisions of the Constitution as was held in U.S-v-Butlers 2997 U.S (1936) where the court stated that; 'When an act of congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former...'
19. In light of the above omissions, the 1 st Respondent maintained that the Petition has not satisfied the tests of specificity and particularity required in pleading a Constitutional Petition hence should be dismissed.
2 nd Respondent’s submissions
20. The 2 nd Respondent through Advocate Ruth Nyaberi filed written submissions dated 20 th February, 2025. The submissions were in support of its Preliminary Objection dated 12/4/2024.
21. Counsel argued that the constitutionality of Section 45 of the Election Act No. 24 of 2011 is res judicata as the same question featured and was conclusively determined in the Kisumu High Court Constitutional Petition No. 209 of 2016, Katiba Institute & another v Attorney General & another [2017] eKLR (“the Katiba case”) .
22. Counsel cited Section 7 of the Civil Procedure Act, CAP 21 and relied on various judicial precedents in which the principle has been expounded and applied. The judicial precedents cited in support of her arguments included the Court of Appeal case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR where the Court held:
“…The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
23. Further the case of Pop In (Kenya) Limited & 3 Others v Habib Bank AG Zurich [Civil Appeal No. 80 of 1988], where the Court of Appeal stated:
"Even if new parties or new issues are added to a suit, if the matter in dispute was directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, and has been heard and finally decided by a court of competent jurisdiction, it is res judicata.”
24. Reference was also made to the Court of Appeal case of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR where the Court observed as follows:
“...the general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”
25. The 2 nd Respondent contended that in the Katiba case, three key reliefs had been sought by the Petitioner, namely; one, a declaration that sections 45, 46, 47 and 48 of the Election Act 2011; and sections 27, 28 and 29 of the County Governments Act 2012 are unconstitutional ; two , a declaration under Article 261(6)(a) of the Constitution that Parliament failed to pass the legislation contemplated by Article 104(2) and the Fifth Schedule of the Constitution ; thirdly, an order to compel Parliament to pass the legislation within ninety days of the delivery of the judgment .
26. In the ensuing decision, Counsel submitted that the Court declared Sections 45(2)(3)(6), 46(1)(b)(ii)(c), and 48 of the Elections Act, as well as Sections 27(2)(3)(6) and 28(1)(b)(ii)(c) of the County Governments Act, unconstitutional for being vague, superfluous, or falling short of Article 104 of the Constitution ; Sections 45(1)(b)(ii) and 45(6) of the Elections Act, and Sections 27(6) and 28(1)(b)(ii) of the County Governments Act, were found to be discriminatory; It declined to compel Parliament to enact new legislation within ninety days, holding that its role was limited to determining constitutionality, petition was thus partially allowed, with each party bearing its own costs since the case was filed in the public interest.
27. Accordingly, the 2 nd Respondent submitted that the issue of the constitutionality of Section 45 of the Elections Act, No. 24 of 2011 was fully addressed by the Kisumu High Court- in the Katiba case and the same cannot be re-litigated in the present matter.
28. Counsel thus urged the Court to strike out the Petition.
3 rd Respondent’s Submissions
29. The 3 rd Respondent filed submissions dated 11/4/2025 through its Advocate Edward Libendi in support of its Preliminary Objection dated 24th March, 2025; the 1st Respondent's Preliminary Objection dated 15th April, 2024 and, the 2nd Respondent's Preliminary Objection dated 12th April, 2024.
30. Counsel submitted only one issue, namely- Whether the 3rd Respondent's Preliminary Objection dated 24th March, 2025 is merited on grounds that the Petition is Res Judicata .
31. Counsel argued that the constitutionality of Section 45 of the Elections Act, No. 24 of 2011 was contested issue in Kisumu High Court Constitutional Petition No. 209 of 2016; Katiba Institute & another v Attorney General & another [2017] KLR where a 3- Judge Bench of the High Court after considered the question and declared the said section as unconstitutional.
32. Counsel thus submitted that the issue is res-judicata and relied on the holding of the High Court in Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR in support of his position. In the said case, the Court held:
"A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions...Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court ."
33. Further reliance was placed on the Supreme Court case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR where the Court expressed itself as follows on res-judicata:
"52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. 54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively ."
34. Other cases relied upon by the 3 rd Respondent were William Kabogo Gitau v Ferdinand Ndung’u Waititu [2016] eKLR Onguto, Aggrey Chiteri v Republic |2016] eKLR and Edward Okongo Oyugi & 2 others v Attorney General [2016] eKLR, and the Court of Appeal decision in John Florence Maritime Services Limited & another A Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR where it was held that that res judicata applied in constitutional matters as is a doctrine of general application.
4 th Respondent’s submissions
35. The 4 th Respondent filed submissions dated 16 th May, 2025 in support of its Preliminary Objection dated 15th May 2025 through the Deputy Chief State Counsel, Stephen Terrrell. The 4 th Respondent isolated and submitted on the following two issues:
i. Whether this Petition is res judicata
ii. Whether the Petition meets the threshold of a constitutional Petition .
36. On the first issue, Counsel underscored the Supreme Court decision of the Communications Commission of Kenya & 5 others - v- Royal Media Services Limited & 5 others [2014] eKLR where the Court stated:
“The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings…”
37. Regarding conditions that must be met before res judicata is invoked, Counsel relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) where the Supreme Court guided as follows:
“For res judicata to be invoked in a civil matter the following elements had to be demonstrated:
a. there was a former judgment or order which was final;
b. the judgment or order was on merit;
c. the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d. there had to be between the first and the second action identical parties, subject matter and cause of action.”
38. The 4 th Respondent placed further reliance on Section 7 of the Civil Procedure Act Cap. 21.
39. Other cases relied upon included William Kabogo Gitau v Ferdinant Ndung’u Waititu [2016] eKLR and Aggrey Chiteri v Republic [2016] eKLR as well as Edward Okongo Oyugi & 2 others v Attorney General [2016] eKLR , the Court held that the doctrine of res judicata applied with even force to constitutional litigation though it was important that caution is exercised lest a person whose rights were being violated a fresh was unjustly locked out from the wheels and seat of justice.’’
40. The 4 th Respondent submitted that the present Petition seeks a declaration that Section 45 of the Elections Act No. 24 of 2011 is unconstitutional yet that issue was addressed by the Court in Katiba Institute & another v Attorney General & another [2017] KEHC 4648 (KLR), where the Court, pronounced itself as follows:
a. A declaration is hereby issued declaring sections 45(2)(3)and (6), 46(1)(b)(ii) and (c) and 48 of the Elections Act and sections 27(2)(3) and (6) and 28(1)(b)(ii) and (c) of the County Governments Act are meaningless and superfluous; or, that they fall far short of the constitutional imperative in Article 104 of the Constitution and to that extent are unconstitutional;
b. A declaration is hereby issued declaring sections 45(1)(b)(ii) and 45(6) of the Elections Act and sections 27(6) and 28(1)(b)(ii) of the County Government Act discriminatory and therefore unconstitutional.
41. The 4 th Respondent submitted this decision was not been subjected to an appeal or review and because it is a decision of the High Court on an identical subject matter, this Petition is barred by the principle of res judicata and this Court is now functus officio on that issue having already pronounced itself on the same issue.
42. On whether the Petition meets the threshold of a constitutional Petition, the 4 th Respondent argued that it does not meet the test laid down in Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 as emphasized in the case of Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR .
43. Counsel submitted that the Petitioners do not even mention any Articles of the Constitution violated by the Respondents or and have not given particulars of contravention that they complain of. Further reliance was placed on rely on the case of Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] eKLR . Also cited in support of this contention was the case of MATIBA v ATTORNEY GENERAL High Court Misc. Appl 666 of 1990 where the Court held as follows:
“An applicant in an application under Section 84(1) of the constitution is obliged to state his complaint the provision of the Constitution he considers has been infringed in relation to him and the manner in which he believes they have been infringed. Those allegations are the ones which if pleaded with particularity invoke the jurisdiction of this court under the section. It is not enough to allege infringement without particularizing the details and the manner of infringement .”
Petitioners written submissions to the Respondents’ Preliminary objection s
44. The Petitioners in their written submissions dated 21/4/2024 and 22/4/2024 commenced by clarifying that the instant Petition is about the lack of Public Participation in the process that led to the enactment of Section 45 of Elections Act No. 24 of 2011 on the Right of Recall Parliamentarians.
45. The Petitioners, relying on the Supreme Court decision of the Speaker of National Assembly -vs-Attorney General and 3 Others (2013) eKLR argued that Parliament must operate under the Constitution as it is the supreme law of the land and therefore where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure and if Parliament violates the procedural requirements of the supreme law, it is for the courts of law to assert the authority and supremacy of the Constitution.
46. The Petitioners argued that the 1 st Respondent is a key stakeholder in the electoral process, a mandate that is directly given by the Constitution and the failure to acknowledge this fact in its Preliminary Objections and absolving itself of any responsibility in the legitimacy of the process leading to the enactment of the Elections Act raises material questions about the 1 st Respondent’s involvement by the 2 nd & 3 rd Respondents on the constitutional requirement for Public Participation in the legislative process.
47. The Petitioners argued that the Preliminary Objections are not founded on good faith or in law. The Petitioners referred this Court to an annexure from the Final Report of the Constitution of Kenya Review Commission 2005 (page 166-168) and argued that the Right of Recall and Public Participation have always been a demand and a requirement by the People of Kenya which no Institution should be blind to, selectively apply, set aside, exercise chicanery or choose to ignore.
48. The Petitioners argued that 1 st Respondent admission that the Elections Act 2011 was enacted during the suspension period with reference to Schedule 6 of the Constitution of Kenya 2010 confirms the genuineness of the grievance upon which this Petition is founded.
49. The Petitioners cited the Constitutional Petition no. 16 of 2018 in which the High Court reaffirmed the decision in Kenya Human Rights Commission vs. Attorney General &Another [2018] eKLR holding that:
“Once a petitioner attacks the legislative process on grounds that the law-making process did not meet the constitutional standard of public participation, the respondent is under a legal obligation to demonstrate that the legisla
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1. The Petitioners filed the instant suit dated 5/2/2024 against the Respondents, who comprise a Constitutional Commission, a statutory body and the legislative arms of Government alleging that they failed to undertake public participation during the enactment of Section 45 of the Elections Act No. 24 of 2011. The Petition is supported by the affidavit of Eugene Andabwa sworn on 6 th February, 2024.
2. The Petitioners thus seek that the said legal provision should be declared unconstitutional.
Petitioners’ Case
3. The Petitioners averred that the Kenya Law Reform Commission was ignorant, negligent and overlooked in the process that led to the enactment of Section 45 of the Elections Act No. 24 of 2011.
4. The Petitioners contended that the National Assembly, the Senate and the Independent Electoral and Boundaries Commission failed to abide by the principle of public participation during the enactment of Section 45 of the Elections Act No. 24 of 2011.
5. They allege that the enactment of the impugned legal provision was hurried, done without any regard to its impact or quality because the sole intent behind it was to shield elected political leaders from accountability by excessively limiting the constitutional right of the citizens to recall them hence is unconstitutional null and void.
RESPONDENTS’ CASE
1 st Respondent’s Preliminary Objection
6. The 1 st Respondent opposed the instant suit by filing Grounds of Opposition and a Notice of Preliminary Objection, both dated 15 th April, 2024 through the firm of Dr. Mutubwa Law Advocates.
7. The grounds listed in the Preliminary Objection include:
I) The Petition is inadmissible, incompetent and incurably defective for want of form.
II) The petition has not met the threshold of specificity and particularity as laid out in the Supreme Court case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR and the Court of Appeal case of Anarita Karimi Njeru v Attorney General [1979] KLR 154 .
III) In furtherance of the above, the petition is defective for want of form as it does not state in specific terms, which Article(s) of the Constitution the said Section 45 of the Elections Act, 2011 have been allegedly violated by the 1st Respondent.
IV) While the petition seeks to have Section 45 of the Elections Act, 2011 declared unconstitutional for want of public participation in the enactment of the same, the functions of the 1st Respondent as provided for under Article 88 (4) of the Constitution of Kenya, 2010 and Section 4 of the Independent Electoral and Boundaries Commission Act, No. 9 of 2011; do not include the enactment of statutes nor the conduct of public participation in the legislative process.
V) Public participation in the legislative process is provided for under Article 118 of the Constitution of Kenya, 2010. Section 2 (1) (b) of Schedule 6 of the Constitution of Kenya, 2010 suspended the application of chapter 8 of the Constitution, including the aforementioned Article 118, until the final announcement of all the results of the first elections for Parliament under the Constitution which was held in March, 2013. The Elections Act, 2011 was enacted during the suspension period.
VI) The Petition is bad in law, misconceived and discloses no reasonable cause of action as against the 1 st Respondent thus rendering it fatally and incurably defective.
8. The 1 st Respondent’s Grounds of Opposition, the following grounds were as follows:
I) The petition is defective for want of form as it does not state with particularity the provisions of the Constitution of Kenya, 2010 alleged to have been violated by the Respondents herein. On this ground alone, the petition ought to be dismissed.
II) Furthermore, it is apparent that the petition is misconceived and portrays a misapprehension of the law surrounding the enactment of statutes.
III) The 1 st Respondent has neither Constitutional nor statutory mandate in enactment of statutory laws. The role of the 1 st Respondent is limited to managing elections and conducting referenda
VII) The organs responsible for making and amending laws in Kenya are the 2 nd and 3 rd Respondent as provided for under Article 94 (1) and (5) of the Constitution of Kenya, 2010.
VIII) In furtherance of the above, any questions regarding the legitimacy or otherwise of the process leading to the Elections Act; and any or all the sections therein ought to be directed to the 2 nd and 3 rd Respondents.
IX) The petitioners have not demonstrated the role of the 1 st Respondent in passing the impugned the Elections Act, 2011, much less the section whose constitutionality they challenge. Nevertheless, section 2 (1) (b) of Schedule 6 of the Constitution of Kenya, 2010 suspended the application of chapter 8 of the Constitution, including Article 118 until the final announcement of all the results of the first elections for Parliament under the Constitution which was held in March, 2013. The Elections Act, 2011 was enacted in 2011, that is during the suspension period. The allegation that the enactment of the Elections Act, 2011 ought to have unconstitutional while the entire Act was enacted at the same time and in the same process.
X) In addition, this court ought to take judicial notice of the HCCHRPETMISC/E004/2024 wherein the petitioners herein seek a recall of all Members of Parliament. It is clear that the petitioners herein only seek the orders in the present petition so as to validate their petition in the aforementioned suit. This is a demonstration of abuse of the court process.
XI) Without prejudice to the Court's original jurisdiction, the petitioners have demonstrated no positive steps taken towards petitioning the parliament to amend the section they complain of as per the dictates of Article 119 of the Constitution of Kenya, 2010.
XII) Recall of elected leaders is not the only way through which leaders are held accountable. If anything, right of recall can only be pursued as a matter of last resort. Any attempt to seek recall as the point of first call is outrightly malicious and turns such conduct from a legitimate pursuit of accountability to a political witch-hunt.
2 nd Respondent Preliminary Objection
9. The 2 nd Respondent (National Assembly) filed a Notice of Preliminary Objection to the Petition 5 th February 2024 through Advocate Ruth Nyaberi premised on the following grounds:
(i) THAT the present case brought before this Honourable Court bears significant resemblance to a previous matter adjudicated upon by the same court, thereby invoking the doctrine of res judicata. 1 2.
(ii) THAT the present Petition challenges the constitutionality of section 45 of the Elections Act No. 24 of 2011. The constitutionality of the entire section 45 of the Elections Act was previously contested in the Kisumu High Court Constitutional Petition No. 209 of 2016, Katiba Institute & another v Attorney General & another [2017] eKLR (the Katiba case). The court addressed the question of constitutionality of section 45 in its entirety.
(iii) THAT the issue raised in this Petition was raised and determined in the Katiba case which was also filed in the public interest. The judgement of the Court in the Katiba case is a judgement in rem, it binds all persons including the Petitioners in this matter. This Petition is hence res judicata. The Petitioners are barred under the doctrine of res judicata from instituting proceedings touching on the same issue of constitutionality of section 45 of the Elections Act.
(iv) THAT the principle of res judicata dictates that once a matter has been conclusively adjudicated by a competent court, it cannot be re-litigated. In view of the Judgment of the High Court at Kisumu in Constitutional Petition No. E209 of 2016; Katiba Institute and Another v the Attorney General and Another, this Petition is res judicata.
3 rd Respondent Preliminary Objection
10. The 3 rd Respondent (the Senate) also filed a Notice of Preliminary Objection dated 24 th March, 2025 based on the following grounds:
i. THAT the Petition herein is inadmissible, incompetent and incurably defective for want of form.
ii. THAT the Petition herein is res judicata pursuant to Section 7 of the Civil Procedure Act and ought to be struck out in the first instance. THAT the Petition herein challenges the constitutionality of Section 45 of the Elections Act No. 24 of 2011 which was previously contested in Kisumu High Court Constitutional Petition No. 209 of 2016; Katiba Institute & another v Attorney General & another [2017| KLR where the High Court in the matter addressed the question of constitutionality of Section 45 of the Elections Act in its entirety and declared the said section, among others as unconstitutional.
iii. THAT the impugned section 45 of the Elections Act, 2011 having been declared unconstitutional, null and void, the Petitioners are barred under the doctrine of res judicata from instituting proceedings touching on the same issue of constitutionality of Section 45 of the Elections Act which has been determined in finality in another court of competent jurisdiction.
iv. THAT the Petition herein is thus an abuse of the court process and ought to be dismissed.
1 st Respondent’s Submissions
11. The 1 st Respondent identified and submitted only on one issue, that is:
whether the 1st Respondent' Preliminary Objections dated 15 th April, 2024 is merited .
12. The 1 st Respondent assailed the Petition on two major grounds:
i) That what the Petitioners allege against the 1 st Respondent is outside the 1 st Respondent’s constitutional mandate and;
ii) the Petition does not meet the standard required for pleading a Constitutional petition .
13. The 1 st Respondent restated the provisions of Article 88 (4) of the Constitution which provides for its mandate and argued that the role of the 1 st Respondent does not include to law-making and thus had no role in the enactment of the Elections Act, 2011 as the making and amendment of laws is an exclusive preserve of the 2 nd and 3 rd Respondents in accordance with Article 94 (1) of the Constitution.
14. In that regard, the 1 st Respondent contended that if public participation was needed in order to pass Section 45 of the Elections Act-2011, that was a responsibility that fell on the 2 nd and 3 rd Respondents and not the 1st Respondent. Relying on the authority of Republic v Independent Electoral and Boundaries Commission & another, Kimathi (Exparte) (Miscellaneous Juridical Review E001 of 2022) [2022] КЕНС 11550 (KLR) (5 August 2022) (Ruling) the 1 st Respondent argued that as an independent commission, it is charged with the sole responsibility of conducting elections in Kenya as required under Article 88 of the Constitution and in accordance with the principles in Article 81 and 86 of the Constitution contending that Petitioner's suggestion implies that the 1 st Respondent should usurp the role of the 2 nd and 3 rd Respondents which is untenable as it expressly violates the constitutional principle of separation of powers. To buttress this position, the 1 st Respondents relied on the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR the Court observed as follows:
"... We start by observing that this court respects the principle of separation of powers that is clearly spelt out in our Constitution as a Constitutional Commission has no role in legislation…”
15. In the light of the above submission, the 1 st Respondent argued that it has wrongly been joined in this suit.
16. Nonetheless, the 1 st Respondent contended that public participation in the legislative process is provided for in Chapter 8 of the Constitution – in particular, Article 118 of the constitution. The 1 st Respondent then drew the attention of this Court to Section 2 (1) (b) of Schedule 6 of the Constitution where the application of Chapter 8 of the Constitution, which includes Article 118 was suspended until the final announcement of all the results of the first general elections for Parliament under the Constitution. These elections were held in March, 2013. The Elections Act, 2011 having been enacted during the period suspension, the 1 st Respondent thus argued the application of principle of public participation was not a condition precedent given this particular constitutional clause was under suspension.
17. The 1 st Respondent further contended that the Petition does not meet the threshold required for pleading constitutional petitions as did not disclose Articles of the Constitution that were contravened by the said Section 45 of the Elections Act,2011 thereby violating the test of specificity and particularity as held in the locus classicus case of Anarita Karimi Njeru-v-Republic (1979) eKLR . The 1st Respondent pointed out that the Petitioners did not even disclose a single Article of the Constitution that Section 45 of the Election Act, 2011 violates or the manner in which the impugned section was violated or the effect of violation. The 1 st Respondent argued that in determining the constitutionality or otherwise of the impugned section, the court will be constrained as it has to evaluate Section 45 of the Election Act,2011 vis-à-vis the specific Article of the Constitution said to have been violated yet none has been cited by the Petitioners despite alleging contravention with the Constitution.
18. To buttress this point, the 1 st Respondent relied on the case of Isaac Robert Murambi-v-Attorney General & 3 others eKLR where it was held that
"… the onus of proving that a law is unconstitutional lies with the person saying so. The duty of the court then is to juxtapose the statute or its impugned provisions with the provisions of the Constitution as was held in U.S-v-Butlers 2997 U.S (1936) where the court stated that; 'When an act of congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former...'
19. In light of the above omissions, the 1 st Respondent maintained that the Petition has not satisfied the tests of specificity and particularity required in pleading a Constitutional Petition hence should be dismissed.
2 nd Respondent’s submissions
20. The 2 nd Respondent through Advocate Ruth Nyaberi filed written submissions dated 20 th February, 2025. The submissions were in support of its Preliminary Objection dated 12/4/2024.
21. Counsel argued that the constitutionality of Section 45 of the Election Act No. 24 of 2011 is res judicata as the same question featured and was conclusively determined in the Kisumu High Court Constitutional Petition No. 209 of 2016, Katiba Institute & another v Attorney General & another [2017] eKLR (“the Katiba case”) .
22. Counsel cited Section 7 of the Civil Procedure Act, CAP 21 and relied on various judicial precedents in which the principle has been expounded and applied. The judicial precedents cited in support of her arguments included the Court of Appeal case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR where the Court held:
“…The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
23. Further the case of Pop In (Kenya) Limited & 3 Others v Habib Bank AG Zurich [Civil Appeal No. 80 of 1988], where the Court of Appeal stated:
"Even if new parties or new issues are added to a suit, if the matter in dispute was directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, and has been heard and finally decided by a court of competent jurisdiction, it is res judicata.”
24. Reference was also made to the Court of Appeal case of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR where the Court observed as follows:
“...the general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”
25. The 2 nd Respondent contended that in the Katiba case, three key reliefs had been sought by the Petitioner, namely; one, a declaration that sections 45, 46, 47 and 48 of the Election Act 2011; and sections 27, 28 and 29 of the County Governments Act 2012 are unconstitutional ; two , a declaration under Article 261(6)(a) of the Constitution that Parliament failed to pass the legislation contemplated by Article 104(2) and the Fifth Schedule of the Constitution ; thirdly, an order to compel Parliament to pass the legislation within ninety days of the delivery of the judgment .
26. In the ensuing decision, Counsel submitted that the Court declared Sections 45(2)(3)(6), 46(1)(b)(ii)(c), and 48 of the Elections Act, as well as Sections 27(2)(3)(6) and 28(1)(b)(ii)(c) of the County Governments Act, unconstitutional for being vague, superfluous, or falling short of Article 104 of the Constitution ; Sections 45(1)(b)(ii) and 45(6) of the Elections Act, and Sections 27(6) and 28(1)(b)(ii) of the County Governments Act, were found to be discriminatory; It declined to compel Parliament to enact new legislation within ninety days, holding that its role was limited to determining constitutionality, petition was thus partially allowed, with each party bearing its own costs since the case was filed in the public interest.
27. Accordingly, the 2 nd Respondent submitted that the issue of the constitutionality of Section 45 of the Elections Act, No. 24 of 2011 was fully addressed by the Kisumu High Court- in the Katiba case and the same cannot be re-litigated in the present matter.
28. Counsel thus urged the Court to strike out the Petition.
3 rd Respondent’s Submissions
29. The 3 rd Respondent filed submissions dated 11/4/2025 through its Advocate Edward Libendi in support of its Preliminary Objection dated 24th March, 2025; the 1st Respondent's Preliminary Objection dated 15th April, 2024 and, the 2nd Respondent's Preliminary Objection dated 12th April, 2024.
30. Counsel submitted only one issue, namely- Whether the 3rd Respondent's Preliminary Objection dated 24th March, 2025 is merited on grounds that the Petition is Res Judicata .
31. Counsel argued that the constitutionality of Section 45 of the Elections Act, No. 24 of 2011 was contested issue in Kisumu High Court Constitutional Petition No. 209 of 2016; Katiba Institute & another v Attorney General & another [2017] KLR where a 3- Judge Bench of the High Court after considered the question and declared the said section as unconstitutional.
32. Counsel thus submitted that the issue is res-judicata and relied on the holding of the High Court in Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR in support of his position. In the said case, the Court held:
"A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions...Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court ."
33. Further reliance was placed on the Supreme Court case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR where the Court expressed itself as follows on res-judicata:
"52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. 54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively ."
34. Other cases relied upon by the 3 rd Respondent were William Kabogo Gitau v Ferdinand Ndung’u Waititu [2016] eKLR Onguto, Aggrey Chiteri v Republic |2016] eKLR and Edward Okongo Oyugi & 2 others v Attorney General [2016] eKLR, and the Court of Appeal decision in John Florence Maritime Services Limited & another A Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR where it was held that that res judicata applied in constitutional matters as is a doctrine of general application.
4 th Respondent’s submissions
35. The 4 th Respondent filed submissions dated 16 th May, 2025 in support of its Preliminary Objection dated 15th May 2025 through the Deputy Chief State Counsel, Stephen Terrrell. The 4 th Respondent isolated and submitted on the following two issues:
i. Whether this Petition is res judicata
ii. Whether the Petition meets the threshold of a constitutional Petition .
36. On the first issue, Counsel underscored the Supreme Court decision of the Communications Commission of Kenya & 5 others - v- Royal Media Services Limited & 5 others [2014] eKLR where the Court stated:
“The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings…”
37. Regarding conditions that must be met before res judicata is invoked, Counsel relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) where the Supreme Court guided as follows:
“For res judicata to be invoked in a civil matter the following elements had to be demonstrated:
a. there was a former judgment or order which was final;
b. the judgment or order was on merit;
c. the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d. there had to be between the first and the second action identical parties, subject matter and cause of action.”
38. The 4 th Respondent placed further reliance on Section 7 of the Civil Procedure Act Cap. 21.
39. Other cases relied upon included William Kabogo Gitau v Ferdinant Ndung’u Waititu [2016] eKLR and Aggrey Chiteri v Republic [2016] eKLR as well as Edward Okongo Oyugi & 2 others v Attorney General [2016] eKLR , the Court held that the doctrine of res judicata applied with even force to constitutional litigation though it was important that caution is exercised lest a person whose rights were being violated a fresh was unjustly locked out from the wheels and seat of justice.’’
40. The 4 th Respondent submitted that the present Petition seeks a declaration that Section 45 of the Elections Act No. 24 of 2011 is unconstitutional yet that issue was addressed by the Court in Katiba Institute & another v Attorney General & another [2017] KEHC 4648 (KLR), where the Court, pronounced itself as follows:
a. A declaration is hereby issued declaring sections 45(2)(3)and (6), 46(1)(b)(ii) and (c) and 48 of the Elections Act and sections 27(2)(3) and (6) and 28(1)(b)(ii) and (c) of the County Governments Act are meaningless and superfluous; or, that they fall far short of the constitutional imperative in Article 104 of the Constitution and to that extent are unconstitutional;
b. A declaration is hereby issued declaring sections 45(1)(b)(ii) and 45(6) of the Elections Act and sections 27(6) and 28(1)(b)(ii) of the County Government Act discriminatory and therefore unconstitutional.
41. The 4 th Respondent submitted this decision was not been subjected to an appeal or review and because it is a decision of the High Court on an identical subject matter, this Petition is barred by the principle of res judicata and this Court is now functus officio on that issue having already pronounced itself on the same issue.
42. On whether the Petition meets the threshold of a constitutional Petition, the 4 th Respondent argued that it does not meet the test laid down in Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 as emphasized in the case of Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR .
43. Counsel submitted that the Petitioners do not even mention any Articles of the Constitution violated by the Respondents or and have not given particulars of contravention that they complain of. Further reliance was placed on rely on the case of Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] eKLR . Also cited in support of this contention was the case of MATIBA v ATTORNEY GENERAL High Court Misc. Appl 666 of 1990 where the Court held as follows:
“An applicant in an application under Section 84(1) of the constitution is obliged to state his complaint the provision of the Constitution he considers has been infringed in relation to him and the manner in which he believes they have been infringed. Those allegations are the ones which if pleaded with particularity invoke the jurisdiction of this court under the section. It is not enough to allege infringement without particularizing the details and the manner of infringement .”
Petitioners written submissions to the Respondents’ Preliminary objection s
44. The Petitioners in their written submissions dated 21/4/2024 and 22/4/2024 commenced by clarifying that the instant Petition is about the lack of Public Participation in the process that led to the enactment of Section 45 of Elections Act No. 24 of 2011 on the Right of Recall Parliamentarians.
45. The Petitioners, relying on the Supreme Court decision of the Speaker of National Assembly -vs-Attorney General and 3 Others (2013) eKLR argued that Parliament must operate under the Constitution as it is the supreme law of the land and therefore where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure and if Parliament violates the procedural requirements of the supreme law, it is for the courts of law to assert the authority and supremacy of the Constitution.
46. The Petitioners argued that the 1 st Respondent is a key stakeholder in the electoral process, a mandate that is directly given by the Constitution and the failure to acknowledge this fact in its Preliminary Objections and absolving itself of any responsibility in the legitimacy of the process leading to the enactment of the Elections Act raises material questions about the 1 st Respondent’s involvement by the 2 nd & 3 rd Respondents on the constitutional requirement for Public Participation in the legislative process.
47. The Petitioners argued that the Preliminary Objections are not founded on good faith or in law. The Petitioners referred this Court to an annexure from the Final Report of the Constitution of Kenya Review Commission 2005 (page 166-168) and argued that the Right of Recall and Public Participation have always been a demand and a requirement by the People of Kenya which no Institution should be blind to, selectively apply, set aside, exercise chicanery or choose to ignore.
48. The Petitioners argued that 1 st Respondent admission that the Elections Act 2011 was enacted during the suspension period with reference to Schedule 6 of the Constitution of Kenya 2010 confirms the genuineness of the grievance upon which this Petition is founded.
49. The Petitioners cited the Constitutional Petition no. 16 of 2018 in which the High Court reaffirmed the decision in Kenya Human Rights Commission vs. Attorney General &Another [2018] eKLR holding that:
“Once a petitioner attacks the legislative process on grounds that the law-making process did not meet the constitutional standard of public participation, the respondent is under a legal obligation to demonstrate that the legisla
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