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A. Introduction
1. The petitioner challenges the constitutionality, legality and validity of the procedures undertaken in submitting and processing of a motion dated 17th March, 2025 seeking to remove her from the office of the Speaker of the 1st respondent.
2. She approached this Court alleging actual or threatened violations of her rights, and obtained conservatory orders on the 27th March 2025 staying further processing and consideration of the motion of her removal, by the 1st respondent, until this petition is determined.
B. The petition
3. The petitioner moved this Court by way of a petition dated 26th March 2025 seeking to stop her removal from the office of the Speaker of the 1st respondent. The petition is anchored on grounds in its body and supported by an affidavit sworn by the petitioner on even date.
4. It is the petitioner’s case that the 4th respondent submitted a motion before the 1st respondent for her removal from the office of the Speaker of the 1st respondent, a position she has held since 20th September 2022. She depones that the motion has been unlawfully, unprocedurally, irregularly and maliciously drafted, processed and submitted by the respondents and if it is tabled, debated and voted on by the members of the 1st respondent as is, she will be grossly prejudiced.
5. It is the petitioner’s case that the motion was irregularly submitted and received by an employee of the 1st respondent with no authority or mandate to act for or in the capacity of the 3rd respondent, who is by law authorized to receive such a motion before submitting it to the Speaker or Deputy Speaker to determine if the motion is admissible in line with the 1st respondent’s Standing Order 44(3).
6. She avers that the 3rd respondent did not authenticate the names, National Identity Card numbers and signatures in the list annexed to the motion, despite some members denouncing the signatures appended in support of the motion by affirming that they did not sign in support of the motion.
7. It is her case that the 4th respondent, the mover of the motion, did so in his capacity as the Leader of Majority Party and not as a member of the 1st respondent contrary to the legal provisions on the roles of Members of County Assembly as representative of their respective wards and the 1st respondent’s Standing Orders and this grossly violates the principle of separation of powers between the two arms of the County Government of Machakos.
8. She depones that the 2nd respondent who is slated to preside over the debate and voting of the impugned motion in his capacity of the Deputy Speaker of the 1st respondent in line with Standing Order 58(3), is openly biased against her, is greatly conflicted and will not accord her a fair hearing and her right to fair administrative action will be grossly violated and prejudiced.
9. The petition is supported by the 1st and 2nd interested parties and opposed by the respondents.
C. 1st & 3rd respondents’ response
10. The 1st and 3rd respondents oppose this petition through their replying affidavit dated 3rd June 2025. The affidavit is sworn by the 3rd respondent in his capacity as the Clerk to the 1st respondent.
11. It is deponed that this petition is premised on the petitioner’s fears and apprehension of a process that has not yet crystallized, is premature and therefore offends the doctrine of ripeness. That this Court lacks jurisdiction to entertain this matter at this stage because the petition raises procedural issues that are best left for resolution by the 1st respondent and this Court should exercise restraint in line with the doctrines of institutional comity and separation of powers.
12. In addition, it is deponed that no member of the 1st respondent has made any complaint on improper procurement or forgery of their signatures. It is further averred that the 3rd respondent has no power or authority to carry out verification of signatures as alleged by the petitioner. Further that the petitioner will be accorded a chance to respond to the motion and raise any procedural issues, have an advocate of her choice and will therefore be afforded a fair hearing.
13. It is the 1st and 3rd respondents’ case that the office of the Leader of the Majority Party is an office within the 1st respondent and is held by a member of the 1st respondent and therefore the allegations of violation of the doctrine of separation of powers are untrue.
14. It is deponed that the motion was procedurally submitted to the 3rd respondent and the petitioner admitted to being served by the 3rd respondent so no prejudice was occasioned to her.
D. 2nd respondent’s response
15. The 2nd respondent swore an affidavit dated 29th May 2025 in opposition and in response to the petition. He depones that he is a Member of the County Assembly and Deputy Speaker of the said assembly.
16. It is his case that the Deputy Speaker is a member of the County Assembly who enjoys the right and privilege to sign a notice of intention to move a motion for the removal of the Speaker, like all other members pursuant to section 11(3)(b) of the County Governments Act and Standing Order 58(2) and holding the position of Deputy Speaker does not extinguish this right.
17. It is deponed that if called upon to preside over the removal of the petitioner pursuant to Standing order 58 (3), he shall do so guided by the Constitution, the County Government Act and other legislation which he swore fidelity to.
18. It is his case that in the event the process of considering a resolution to remove the Speaker is tainted with irregularities, this Court retains jurisdiction to interrogate the process after its conclusion and give an appropriate remedy.
E. 4th respondent’s response
19. The 4th respondent’s replying affidavit in response and opposition to the petition is dated 29th May 2025. It is deponed that this petition does not meet the threshold as enunciated in the case of Anarita Karimi Njeru v Republic (No. 1) (1978) KLR 154 (and as emphasized in Mumo Matemu v Trusted Society for Human Rights Alliance & Others (2013) eKLR) because it does not raise or state with any reasonable degree of precision the specific provisions of the Constitution of Kenya, 2010 which are alleged to be violated or threatened, neither does it provide sufficient details of the manner of alleged violations or threatened violations.
20. It is the 4th respondent’s case that a court process can only be invoked after the County Assembly has performed its function in line with the doctrine of separation of powers.
21. It is deponed that the substantive and procedural laws of removal of the Speaker have been strictly adhered to.
22. It is thus the 4th respondent’s case that the orders sought in the petition are merely an attempt by the petitioner to delay the processing of the motion and that the petition lacks merit.
F. Written submissions
23. This petition was canvassed through written submission. The petitioner’s written submissions are dated 12th June 2025, the 1st and 3rd respondents’ written submissions in opposition are dated 2nd June 2025, the 2nd and 4th respondents’ written submissions are dated 18th June 2025, the 1st interested party’s submissions in support of the petition are dated 1st April 2025 and the 2nd interested party’s written submission in support of the petition are dated 18th June 2025.
G. Petitioner’s submissions
24. The petitioner identifies six issues for determination namely: (i) whether the impugned motion is premised on a suspended section of the law; (ii) whether the 2nd respondent is suited to preside over the debate and voting of the impugned motion based on the bias and confliction he has demonstrated; (iii) whether the process of initiating, filing and submission of the impugned motion violated the petitioner’s rights under the Constitution of Kenya, the County Governments Act, 2020 and the County Assembly of Machakos Standing Orders; (iv) whether this honourable Court has jurisdiction to interfere with the 1st respondent’s internal processes under the circumstances that gave rise to the petition herein; (v) whether the reliefs sought are merited; and (vi), who should bear the costs of this petition.
25. On the first issue, it is submitted that the High Court of Kenya sitting at Nairobi in Petition No E242 of 2020 suspended the amendment introduced by the County Governments (Amendment) Act, 2020 which sought to change the legal threshold for removal of a Speaker of a County Assembly from at least seventy-five percent (75%) to two thirds (2/3) of all members of the County assembly and thus the threshold reverted to 75% of all members of the County Assembly.
26. It is urged that the motion as presented is premised on a suspended provision of the law and entertaining or processing the motion in its current state would be a violation of Article 2(4) of the Constitution and the motion is therefore unlawful, illegal, irregular, null and void ab initio. The petitioner relies on the decisions in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) and Hassan Ali Joho & Hazel Ezabel Nyamoki Ogunde v Suleiman Said Shahbal, Independent Electoral & Boundaries Commission & Mwadime Mwashigadi [2013] KECA 435 (KLR) to buttress their case.
27. On the second issue, the petitioner submits that the 2nd respondent who is scheduled to preside over the debate and voting on the motion, has demonstrated open bias and conflict of interest in that he was the first to sign the list supporting the motion and actively participated in circulating the motion to other members of the 1st respondent to sign and that he actively campaigned in support of the motion in the media and press briefings.
28. It is submitted that the 2nd respondent, who would be presiding over the motion, has a vested interest in the outcome of the proceedings and this cannot be countenanced as it violates the petitioner’s Articles 50 and 47 rights enshrined in the Constitution. The petitioner relies on the decisions in Republic vs Speaker of the Senate & Another Ex Parte Afrison Export Import Ltd & Another [2018] eKLR, Republic v Nairobi City County & another [2019] KEHC 10798 (KLR), and Republic vs. Cabinet Secretary, Ministry of Trade & Industry & 6 others Ex-parte Josphat Kimani Gacugu & 4 others [2020] eKLR to reinforce this assertion.
29. On the third issue, it is the petitioner’s case that the processes undertaken by the respondents so far in the handling of the motion have grossly violated the petitioner’s Articles 35, 47, 50, and 176 rights protected in the Constitution of Kenya, and also violated the County Government Act, 2012 and the County Assembly of Machakos Standing Orders.
30. On the fourth issue, it is submitted that the respondents were reckless in the manner in which they purported to carry out their functions and mandate, and the petitioner has rightfully invoked the powers and jurisdiction of this Court to vindicate her constitutional rights.
31. It is urged that even in light of the doctrine of separation of powers, this Court cannot sit back and watch when there is imminent and/or apparent breach of the Constitution, the County Governments Act and the Standing Orders of the County Assembly of Machakos. The decisions in Jayne Mati & Another vs. Attorney General and Another - Nairobi Petition No. 108 of 2011 eKLR, Huka & 2 others v County Assembly of Isiolo & another; Kenya Kwanza Coalition & 2 others (Interested Parties) [2023] KEHC 18212 (KLR), and Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR) are relied on to buttress this assertion.
32. On the fifth issue, the Court is implored to consider the decision in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) and grant the reliefs sought.
33. On the last issue of who bears the costs, it is submitted that it is a well settled principle in law that unless otherwise stated, the costs follow the event. The decision in Peter Muriuki Ngure vs Equity Bank (K) Ltd [2018] eKLR is relied on to urge that costs of this petition should be borne by the respondents.
H. Respondents’ submissions
1st and 3rd respondents submissions
34. The 1st and 3rd respondents identify three issues for determination by the Court: whether this honourable Court has jurisdiction to determine this petition; whether the petitioner’s rights have been violated as alleged; and whether this honourable Court ought to grant the reliefs sought.
35. On the first issue, it is submitted that the process of removal of a Speaker of County Assembly is a function specifically remitted to the County Assembly by the Constitution in Article 178 (3) and section 11(3) of the County Government Act 2012. The decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR is relied on to buttress this assertion.
36. It is the 1st and 3rd respondents’ case that the Court is divested of jurisdiction to entertain this petition at this stage, by dint of the doctrines of ripeness, judicial restraint, institutional comity and separation of powers, which doctrines underpin the post 2010 constitutional edifice.
37. It is submitted that this Court is bound, under the doctrine of stare decisis, to uphold various decisions by the Supreme Court on judicial intervention in impeachment matters and down its tools to allow the process of consideration of the impugned motion by the 1st respondent to proceed to its logical conclusion before assuming jurisdiction thereon. The decisions in Justus Kariuki Mate & Another v. Martin Nyaga Wambora & Another [2017] eKLR and Gachagua v The Speaker of the National Assembly & 3 others (Petition E550 of 2024) [2024] KEHC 12876 (KLR) (Constitutional and Human Rights) (15 October 2024) (Ruling) are relied on to reinforce this argument.
38. On the second issue, it is urged that the threshold for removal of a Speaker is not in doubt since it is dictated by Statute. It is submitted that the petitioner’s allegations are speculative because the 1st respondent is not yet seized of the impugned motion and has therefore not made any determination or decision on the motion on the basis of the alleged two-thirds threshold. The decision in National Assembly of Kenya v Kina & Another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR), is cited to bolster this argument.
39. It is submitted that there is no statutory or constitutional basis for the proposition that the 3rd respondent is mandated to provide standard forms for purposes of signing in support of a notice of motion for impeachment. It is contended that the law and standing orders only require the appending of signatures in support of a motion for impeachment by one third of the total membership of the 1st respondent.
40. It is urged that contrary to the petitioner’s assertion that members were disowning their signatures, the letters annexed by the petitioner in support of this allegation indicate that the authors were either cancelling or withdrawing their signatures and not disowning the signatures. It is contended that there is no procedure known as cancellation or withdrawal of signatures subsequent to signing in support of a motion for impeachment to the 3rd respondent.
41. It is posited that there is a presumption of validity of due execution of the signatures unless rebutted by cogent evidence of fraud or forgery, which evidence has not been provided by the petitioner.
42. It is submitted that the petitioner’s allegations of being served with a semi-illegible, indecipherable and unauthenticated copy of the Notice of Intention to Move a Motion for her removal are untrue as evidenced by the Notice of Motion she has annexed to the petition which she acknowledges as the copy she was served with and which is evidently clear and legible.
43. It is submitted that on the question of alleged bias on the part of the 2nd respondent, the petitioner’s fears and apprehension of bias and conflict of interest are unfounded in the face of the clear provisions of Section 9(4) of the County Government’s Act.
44. It is urged that the office of the Leader of the Majority party is an office within the 1st respondent and is held by a member of the 1st respondent. It is contended that any interpretation to the effect that the Leader of the Majority Party is a member of the executive arm of the County Government is founded on an erroneous understanding of the structure of the devolved government as set out under the Constitution.
45. It is submitted that the petitioner has failed to demonstrate any prejudice occasioned by the circumstances surrounding the submission of the motion to the 3rd respondent and the subsequent service of the motion upon her. The dictum in Kamau & Another v. Korir (Civil Appeal E021 of 2022) [2022] KEHC 15786 (KLR) is relied on to argue this point.
46. It is the 1st and 3rd respondents’ case that the petitioner has not demonstrated any breach of her rights or any violation of the Constitution and law or any infringement that has occasioned her any prejudice and therefore this petition is without merit.
47. It is submitted that it is settled law that complaints regarding alleged procedural infractions such as those raised by the petitioner, are best left to the legislative arm seized of the process to resolve at first instance. In this regard, the Court is urged to uphold the dicta in Mike Sonko Mbuvi Gideon Kioko v Clerk, Nairobi City County Assembly & Others (2021), Speaker of the Senate & Another v Attorney General & 4 Others[2013] and Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR.
48. On the last issue, it is submitted that absent any cogent evidence demonstrating any substantial prejudice occasioned by the alleged violations of the petitioner’s rights, the proper course of action is for the Court to reject the invitation to grant the reliefs sought by the petitioner and dismiss the petition. It is submitted that the petitioner should prosecute her case before her peers and subsequently approach this honourable Court only upon conclusion of the legislative process.
49. It is urged that this Court should be slow to issue reliefs in the form of the orders sought by the petitioner whose effect would be to emasculate the 1st respondent from performing its legitimate functions of oversight and accountability.
2nd and 4th respondents’ submissions
50. The 2nd and 4th respondents consider that two issues lie for this Court’s determination, namely:; whether the ‘dispute’ is ripe for the Honourable Court’s intervention, and whether the petition discloses violation or threatened violation of rights.
51. On the first issue, it is submitted that the circumstances of the case are such that the Court cannot grant the orders sought in the Petition as the ‘dispute’ (if at all) is premature. The decisions in Justus Kariuki Mate & another v Martin Nyaga Wambora & another, Petition 32 of 2014 (Judgment 15 December 2017), [2017] KESC 1 (KLR), Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others, ELRC at Nairobi Constitutional Petition 35 of 2020 (Ruling 16 December 2020), [2020] KEELRC 113 (KLR) and James Wahome Ndegwa v Zachary Mwangi Njeru & 5 others; Nyandarua County Assembly (Interested Party), High Court of Kenya at Nakuru JR Application 17 of 2020 (Ruling 08 January 2021), [2021] KEHC 9734 (KLR)] are relied on to buttress this submission.
52. On the second issue, it is contended that the petition does not disclose any violation or threatened violation of the petitioner’s rights, a fundamental requirement of a constitutional petition as enunciated in the case of Anarita Karimi Njeru v Republic (No. 1) (1978) KLR 154 and as emphasised in Mumo matemu v Trusted Society for Human Rights Alliance & Others (2013) eKLR) .
53. It is contended that one cannot seek court intervention based on speculation about a process that is yet to fully unfold. It is submitted that should the impeachment process, once it is allowed to fully unfold, not adhere to these guarantees, the Court will have the opportunity to interrogate its compliance with substantive and procedural legal requirements.
54. It is submitted that the allegations on bias and bad faith are merely speculative and are to be determined by the petitioner’s peers at the Assembly when considering the motion, and subsequently by the Honourable Court if the petitioner is dissatisfied with the outcome. The decision in Anne Mumbi Waiguru v County Assembly of Kirinyaga, Petition 123 of 2020 (Ruling 07 April 2020), [2020] KEHC 9498 (KLR) is cited to reinforce this argument.
55. It is urged that if the orders sought are granted, they will not serve to facilitate ordered functioning within the County Government, rather, they will frustrate such orderly functioning, accountability, accessible service delivery and checks and balances.
56. It is submitted that the petitioner does not stand to suffer serious and irredeemable harm and prejudice should the orders not be granted because the impeachment of a County Assembly Speaker is a lawful constitutional function of the County Assembly. It is argued that a holder of such office cannot claim to be harmed or prejudiced by the Assembly performing its lawful mandate. It is also contended that there is no property in the public political office of the Speaker over which the petitioner can be said to have a right. The Supreme Court decision in County Assemblies Forum v Hon. Attorney-General and others, Petition 22 of 2017 (Judgment 28 October 2022), KESC 66 (KLR) is relied on for this assertion.
I. 1st interested party’s submissions
57. The 1st interested party’s submissions are premised on two condensed issues for determination: whether the County Assembly or the Mover of the Motion followed the letter or spirit of the law as strictly contemplated in the relevant law; and whether there was Administrative Fairness in calling for the Special Sitting to remove the Speaker of The County Assembly.
58. It is urged that the petitioner has discharged her burden of proof in demonstrating that the Motion to have the Speaker of the County Assembly removed from office was not served by the Clerk of the County Assembly, in writing, to the Speaker contrary to section 11 of the County Governments Act, and Order 58 of the Machakos County Assembly Standing Orders.
59. The 1st interested party rely on the decisions in Republic v Zachary Mwangi Njeru & 6 others Exparte James Wahome Ndegwa; County Assembly of Nyandarua & another (Interested Parties) [2020] eKLR, Justus Kariuki Mate and Another V Martin Nyaga Wambora and another (Civil Appeal No. 24 of 2014), Charles Muturi Macharia & 6 others v Standard-Group & 4 others (SC Petition No 13 (E015) of 2022) Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; and Initiative for Strategic Litigation in Africa (Amicus Curiae), SC Petition No 3 of 2018; [2021] KESC 34 (KLR)to argue for the petitioner’s case.
J. 2nd interested party’s submissions
60. The 2nd interested party frames its submissions around three issues: whether this Honourable Court has jurisdiction to determine the legality and constitutionality of the administrative actions of the County Assembly; whether the respondents’ actions were consistent with the procedure prescribed by law; and whether the respondents’ actions undermine constitutional and legislative safeguards designed to promote women’s rights and participation in politics and governance.
61. On the first issue, it is submitted that the jurisdiction of this Court is not negated simply because the matter arises from the procedures of the County Assembly. It is urged that the Court retains jurisdiction to determine whether the process followed in the motion for removal of the petitioner, conformed to constitutional and statutory standards and whether any of the petitioner’s rights or freedoms guaranteed under the Bill of rights were violated in the process. In this regard, the decisions in David Sifuna v Clerk, County Assembly of Trans Nzoia & another [2014] KEHC 944 (KLR) and Nzioka v County Assembly of Kitui & 3 others (Petition E007 of 2023) [2024] KEHC 911 (KLR) are relied on.
62. It is submitted that as the reliefs sought by the petitioner are limited to declarations of unconstitutionality and illegality, injunctions, and compensation for the procedural and constitutional violations suffered, therefore the petition falls firmly within the constitutional jurisdiction of this Court.
63. It is submitted that Article 23(3) of the Constitution confers the High Court with the power to grant appropriate reliefs for the violation or infringement of a right or fundamental freedom in the Bill of Right.
64. It is contended that this Court has jurisdiction to hear and determine this matter and this will not violate the doctrine of separation of powers.
65. On the second issue, it is submitted that the procedure for the removal of a County Assembly Speaker is outlined in Section 11 of the County Governments Act (No.17 of 2012) and reiterated under Section 58 of the County Assembly of Machakos Standing Orders. It is urged that these provisions are conjunctive and mandatory, meaning that all four requirements must be adhered to in totality and there must be strict compliance with every stage of the procedure. It is contended that partial or selective adherence contravenes due process and renders the process procedurally defective. The decision in Nick Githinji Ndichu v Clerk, Kiambu County Assembly & 3 others [2018] KECA 80 (KLR) is relied on to buttress this assertion.
66. It is submitted that the mandatory procedural requirement to submit the motion to the Clerk was not complied with. It is argued that the motion was not received by the 3rd respondent herein but was instead delivered to a receptionist at the 1st respondent’s office. It is urged that the 4th respondent’s failure to adhere to the process meant that due process was circumvented and the respondents’ actions were inconsistent with the procedure prescribed by law and contrary to Article 47 of the Constitution on the right to fair administrative action.
67. On the 3rd issue, it is submitted that the actions of the respondents must be assessed against the backdrop of Kenya’s legal commitment to empowerment and protection of women in governance, politics and leadership. It is thus submitted that this Court should consider whether the actions taken are consistent with the State’s ongoing commitments to promote women’s participation in politics and governance.
68. The decisions in Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] KEHC 2099 (KLR), In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinion No. 2 of 2012),and Marilyn Muthoni Kamuru & 2 others v Attorney General & another [2016] KEHC 8370 (KLR); alongside the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979, and Maputo Protocol (Protocol to the African Charter on the Rights of Women in Africa) are cited to posit that the respondents'' actions, when viewed against the constitutional framework and international standards, undermine the positive obligation to take active steps to safeguard and promote women’s participation in governance.
K. Analysis and determination
69. After a perusal of the pleadings and written submissions from the rival parties, two issue emerges for determination. Firstly, whether this Court has jurisdiction to entertain this petition; and whether the petitioner is entitled to the reliefs sought.
On jurisdiction
70. The petitioner contends that Article 23(3) and 165(3) of the Constitution of Kenya, 2010 grants this Court the jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights notwithstanding the doctrine of pre-emption. The 2nd interested party also contends that the jurisdiction of this Court is not negated simply because the matter arises from the procedures of the County Assembly. On the other hand, the respondents stand is that this Court is divested of jurisdiction to entertain this petition at this stage, by dint of the doctrines of ripeness, judicial restraint, institutional comity and separation of powers.
71. Jurisdiction is the authority given to a court to hear and determine disputes before it. Jurisdiction of a court may be granted by the Constitution, Statute or both. If a court determines that it has no jurisdiction to hear a matter, the court should not take any further step. It must down its tools. This was enunciated by the Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) and the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR.
72. The jurisdiction of this Court is provided for under Article 165 (3) of the Constitution. It grants the High Court the jurisdiction, amongest others, to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
73. In addition, Article 23(1) provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Further, Article 165(6) grants the High Court supervisory jurisdiction over subordinate courts and “over any person or body exercising judicial or quasi-judicial function”.
74. I note that the Supreme Co
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A. Introduction
1. The petitioner challenges the constitutionality, legality and validity of the procedures undertaken in submitting and processing of a motion dated 17th March, 2025 seeking to remove her from the office of the Speaker of the 1st respondent.
2. She approached this Court alleging actual or threatened violations of her rights, and obtained conservatory orders on the 27th March 2025 staying further processing and consideration of the motion of her removal, by the 1st respondent, until this petition is determined.
B. The petition
3. The petitioner moved this Court by way of a petition dated 26th March 2025 seeking to stop her removal from the office of the Speaker of the 1st respondent. The petition is anchored on grounds in its body and supported by an affidavit sworn by the petitioner on even date.
4. It is the petitioner’s case that the 4th respondent submitted a motion before the 1st respondent for her removal from the office of the Speaker of the 1st respondent, a position she has held since 20th September 2022. She depones that the motion has been unlawfully, unprocedurally, irregularly and maliciously drafted, processed and submitted by the respondents and if it is tabled, debated and voted on by the members of the 1st respondent as is, she will be grossly prejudiced.
5. It is the petitioner’s case that the motion was irregularly submitted and received by an employee of the 1st respondent with no authority or mandate to act for or in the capacity of the 3rd respondent, who is by law authorized to receive such a motion before submitting it to the Speaker or Deputy Speaker to determine if the motion is admissible in line with the 1st respondent’s Standing Order 44(3).
6. She avers that the 3rd respondent did not authenticate the names, National Identity Card numbers and signatures in the list annexed to the motion, despite some members denouncing the signatures appended in support of the motion by affirming that they did not sign in support of the motion.
7. It is her case that the 4th respondent, the mover of the motion, did so in his capacity as the Leader of Majority Party and not as a member of the 1st respondent contrary to the legal provisions on the roles of Members of County Assembly as representative of their respective wards and the 1st respondent’s Standing Orders and this grossly violates the principle of separation of powers between the two arms of the County Government of Machakos.
8. She depones that the 2nd respondent who is slated to preside over the debate and voting of the impugned motion in his capacity of the Deputy Speaker of the 1st respondent in line with Standing Order 58(3), is openly biased against her, is greatly conflicted and will not accord her a fair hearing and her right to fair administrative action will be grossly violated and prejudiced.
9. The petition is supported by the 1st and 2nd interested parties and opposed by the respondents.
C. 1st & 3rd respondents’ response
10. The 1st and 3rd respondents oppose this petition through their replying affidavit dated 3rd June 2025. The affidavit is sworn by the 3rd respondent in his capacity as the Clerk to the 1st respondent.
11. It is deponed that this petition is premised on the petitioner’s fears and apprehension of a process that has not yet crystallized, is premature and therefore offends the doctrine of ripeness. That this Court lacks jurisdiction to entertain this matter at this stage because the petition raises procedural issues that are best left for resolution by the 1st respondent and this Court should exercise restraint in line with the doctrines of institutional comity and separation of powers.
12. In addition, it is deponed that no member of the 1st respondent has made any complaint on improper procurement or forgery of their signatures. It is further averred that the 3rd respondent has no power or authority to carry out verification of signatures as alleged by the petitioner. Further that the petitioner will be accorded a chance to respond to the motion and raise any procedural issues, have an advocate of her choice and will therefore be afforded a fair hearing.
13. It is the 1st and 3rd respondents’ case that the office of the Leader of the Majority Party is an office within the 1st respondent and is held by a member of the 1st respondent and therefore the allegations of violation of the doctrine of separation of powers are untrue.
14. It is deponed that the motion was procedurally submitted to the 3rd respondent and the petitioner admitted to being served by the 3rd respondent so no prejudice was occasioned to her.
D. 2nd respondent’s response
15. The 2nd respondent swore an affidavit dated 29th May 2025 in opposition and in response to the petition. He depones that he is a Member of the County Assembly and Deputy Speaker of the said assembly.
16. It is his case that the Deputy Speaker is a member of the County Assembly who enjoys the right and privilege to sign a notice of intention to move a motion for the removal of the Speaker, like all other members pursuant to section 11(3)(b) of the County Governments Act and Standing Order 58(2) and holding the position of Deputy Speaker does not extinguish this right.
17. It is deponed that if called upon to preside over the removal of the petitioner pursuant to Standing order 58 (3), he shall do so guided by the Constitution, the County Government Act and other legislation which he swore fidelity to.
18. It is his case that in the event the process of considering a resolution to remove the Speaker is tainted with irregularities, this Court retains jurisdiction to interrogate the process after its conclusion and give an appropriate remedy.
E. 4th respondent’s response
19. The 4th respondent’s replying affidavit in response and opposition to the petition is dated 29th May 2025. It is deponed that this petition does not meet the threshold as enunciated in the case of Anarita Karimi Njeru v Republic (No. 1) (1978) KLR 154 (and as emphasized in Mumo Matemu v Trusted Society for Human Rights Alliance & Others (2013) eKLR) because it does not raise or state with any reasonable degree of precision the specific provisions of the Constitution of Kenya, 2010 which are alleged to be violated or threatened, neither does it provide sufficient details of the manner of alleged violations or threatened violations.
20. It is the 4th respondent’s case that a court process can only be invoked after the County Assembly has performed its function in line with the doctrine of separation of powers.
21. It is deponed that the substantive and procedural laws of removal of the Speaker have been strictly adhered to.
22. It is thus the 4th respondent’s case that the orders sought in the petition are merely an attempt by the petitioner to delay the processing of the motion and that the petition lacks merit.
F. Written submissions
23. This petition was canvassed through written submission. The petitioner’s written submissions are dated 12th June 2025, the 1st and 3rd respondents’ written submissions in opposition are dated 2nd June 2025, the 2nd and 4th respondents’ written submissions are dated 18th June 2025, the 1st interested party’s submissions in support of the petition are dated 1st April 2025 and the 2nd interested party’s written submission in support of the petition are dated 18th June 2025.
G. Petitioner’s submissions
24. The petitioner identifies six issues for determination namely: (i) whether the impugned motion is premised on a suspended section of the law; (ii) whether the 2nd respondent is suited to preside over the debate and voting of the impugned motion based on the bias and confliction he has demonstrated; (iii) whether the process of initiating, filing and submission of the impugned motion violated the petitioner’s rights under the Constitution of Kenya, the County Governments Act, 2020 and the County Assembly of Machakos Standing Orders; (iv) whether this honourable Court has jurisdiction to interfere with the 1st respondent’s internal processes under the circumstances that gave rise to the petition herein; (v) whether the reliefs sought are merited; and (vi), who should bear the costs of this petition.
25. On the first issue, it is submitted that the High Court of Kenya sitting at Nairobi in Petition No E242 of 2020 suspended the amendment introduced by the County Governments (Amendment) Act, 2020 which sought to change the legal threshold for removal of a Speaker of a County Assembly from at least seventy-five percent (75%) to two thirds (2/3) of all members of the County assembly and thus the threshold reverted to 75% of all members of the County Assembly.
26. It is urged that the motion as presented is premised on a suspended provision of the law and entertaining or processing the motion in its current state would be a violation of Article 2(4) of the Constitution and the motion is therefore unlawful, illegal, irregular, null and void ab initio. The petitioner relies on the decisions in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) and Hassan Ali Joho & Hazel Ezabel Nyamoki Ogunde v Suleiman Said Shahbal, Independent Electoral & Boundaries Commission & Mwadime Mwashigadi [2013] KECA 435 (KLR) to buttress their case.
27. On the second issue, the petitioner submits that the 2nd respondent who is scheduled to preside over the debate and voting on the motion, has demonstrated open bias and conflict of interest in that he was the first to sign the list supporting the motion and actively participated in circulating the motion to other members of the 1st respondent to sign and that he actively campaigned in support of the motion in the media and press briefings.
28. It is submitted that the 2nd respondent, who would be presiding over the motion, has a vested interest in the outcome of the proceedings and this cannot be countenanced as it violates the petitioner’s Articles 50 and 47 rights enshrined in the Constitution. The petitioner relies on the decisions in Republic vs Speaker of the Senate & Another Ex Parte Afrison Export Import Ltd & Another [2018] eKLR, Republic v Nairobi City County & another [2019] KEHC 10798 (KLR), and Republic vs. Cabinet Secretary, Ministry of Trade & Industry & 6 others Ex-parte Josphat Kimani Gacugu & 4 others [2020] eKLR to reinforce this assertion.
29. On the third issue, it is the petitioner’s case that the processes undertaken by the respondents so far in the handling of the motion have grossly violated the petitioner’s Articles 35, 47, 50, and 176 rights protected in the Constitution of Kenya, and also violated the County Government Act, 2012 and the County Assembly of Machakos Standing Orders.
30. On the fourth issue, it is submitted that the respondents were reckless in the manner in which they purported to carry out their functions and mandate, and the petitioner has rightfully invoked the powers and jurisdiction of this Court to vindicate her constitutional rights.
31. It is urged that even in light of the doctrine of separation of powers, this Court cannot sit back and watch when there is imminent and/or apparent breach of the Constitution, the County Governments Act and the Standing Orders of the County Assembly of Machakos. The decisions in Jayne Mati & Another vs. Attorney General and Another - Nairobi Petition No. 108 of 2011 eKLR, Huka & 2 others v County Assembly of Isiolo & another; Kenya Kwanza Coalition & 2 others (Interested Parties) [2023] KEHC 18212 (KLR), and Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR) are relied on to buttress this assertion.
32. On the fifth issue, the Court is implored to consider the decision in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) and grant the reliefs sought.
33. On the last issue of who bears the costs, it is submitted that it is a well settled principle in law that unless otherwise stated, the costs follow the event. The decision in Peter Muriuki Ngure vs Equity Bank (K) Ltd [2018] eKLR is relied on to urge that costs of this petition should be borne by the respondents.
H. Respondents’ submissions
1st and 3rd respondents submissions
34. The 1st and 3rd respondents identify three issues for determination by the Court: whether this honourable Court has jurisdiction to determine this petition; whether the petitioner’s rights have been violated as alleged; and whether this honourable Court ought to grant the reliefs sought.
35. On the first issue, it is submitted that the process of removal of a Speaker of County Assembly is a function specifically remitted to the County Assembly by the Constitution in Article 178 (3) and section 11(3) of the County Government Act 2012. The decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR is relied on to buttress this assertion.
36. It is the 1st and 3rd respondents’ case that the Court is divested of jurisdiction to entertain this petition at this stage, by dint of the doctrines of ripeness, judicial restraint, institutional comity and separation of powers, which doctrines underpin the post 2010 constitutional edifice.
37. It is submitted that this Court is bound, under the doctrine of stare decisis, to uphold various decisions by the Supreme Court on judicial intervention in impeachment matters and down its tools to allow the process of consideration of the impugned motion by the 1st respondent to proceed to its logical conclusion before assuming jurisdiction thereon. The decisions in Justus Kariuki Mate & Another v. Martin Nyaga Wambora & Another [2017] eKLR and Gachagua v The Speaker of the National Assembly & 3 others (Petition E550 of 2024) [2024] KEHC 12876 (KLR) (Constitutional and Human Rights) (15 October 2024) (Ruling) are relied on to reinforce this argument.
38. On the second issue, it is urged that the threshold for removal of a Speaker is not in doubt since it is dictated by Statute. It is submitted that the petitioner’s allegations are speculative because the 1st respondent is not yet seized of the impugned motion and has therefore not made any determination or decision on the motion on the basis of the alleged two-thirds threshold. The decision in National Assembly of Kenya v Kina & Another (Civil Appeal 166 of 2019) [2022] KECA 548 (KLR), is cited to bolster this argument.
39. It is submitted that there is no statutory or constitutional basis for the proposition that the 3rd respondent is mandated to provide standard forms for purposes of signing in support of a notice of motion for impeachment. It is contended that the law and standing orders only require the appending of signatures in support of a motion for impeachment by one third of the total membership of the 1st respondent.
40. It is urged that contrary to the petitioner’s assertion that members were disowning their signatures, the letters annexed by the petitioner in support of this allegation indicate that the authors were either cancelling or withdrawing their signatures and not disowning the signatures. It is contended that there is no procedure known as cancellation or withdrawal of signatures subsequent to signing in support of a motion for impeachment to the 3rd respondent.
41. It is posited that there is a presumption of validity of due execution of the signatures unless rebutted by cogent evidence of fraud or forgery, which evidence has not been provided by the petitioner.
42. It is submitted that the petitioner’s allegations of being served with a semi-illegible, indecipherable and unauthenticated copy of the Notice of Intention to Move a Motion for her removal are untrue as evidenced by the Notice of Motion she has annexed to the petition which she acknowledges as the copy she was served with and which is evidently clear and legible.
43. It is submitted that on the question of alleged bias on the part of the 2nd respondent, the petitioner’s fears and apprehension of bias and conflict of interest are unfounded in the face of the clear provisions of Section 9(4) of the County Government’s Act.
44. It is urged that the office of the Leader of the Majority party is an office within the 1st respondent and is held by a member of the 1st respondent. It is contended that any interpretation to the effect that the Leader of the Majority Party is a member of the executive arm of the County Government is founded on an erroneous understanding of the structure of the devolved government as set out under the Constitution.
45. It is submitted that the petitioner has failed to demonstrate any prejudice occasioned by the circumstances surrounding the submission of the motion to the 3rd respondent and the subsequent service of the motion upon her. The dictum in Kamau & Another v. Korir (Civil Appeal E021 of 2022) [2022] KEHC 15786 (KLR) is relied on to argue this point.
46. It is the 1st and 3rd respondents’ case that the petitioner has not demonstrated any breach of her rights or any violation of the Constitution and law or any infringement that has occasioned her any prejudice and therefore this petition is without merit.
47. It is submitted that it is settled law that complaints regarding alleged procedural infractions such as those raised by the petitioner, are best left to the legislative arm seized of the process to resolve at first instance. In this regard, the Court is urged to uphold the dicta in Mike Sonko Mbuvi Gideon Kioko v Clerk, Nairobi City County Assembly & Others (2021), Speaker of the Senate & Another v Attorney General & 4 Others[2013] and Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR.
48. On the last issue, it is submitted that absent any cogent evidence demonstrating any substantial prejudice occasioned by the alleged violations of the petitioner’s rights, the proper course of action is for the Court to reject the invitation to grant the reliefs sought by the petitioner and dismiss the petition. It is submitted that the petitioner should prosecute her case before her peers and subsequently approach this honourable Court only upon conclusion of the legislative process.
49. It is urged that this Court should be slow to issue reliefs in the form of the orders sought by the petitioner whose effect would be to emasculate the 1st respondent from performing its legitimate functions of oversight and accountability.
2nd and 4th respondents’ submissions
50. The 2nd and 4th respondents consider that two issues lie for this Court’s determination, namely:; whether the ‘dispute’ is ripe for the Honourable Court’s intervention, and whether the petition discloses violation or threatened violation of rights.
51. On the first issue, it is submitted that the circumstances of the case are such that the Court cannot grant the orders sought in the Petition as the ‘dispute’ (if at all) is premature. The decisions in Justus Kariuki Mate & another v Martin Nyaga Wambora & another, Petition 32 of 2014 (Judgment 15 December 2017), [2017] KESC 1 (KLR), Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others, ELRC at Nairobi Constitutional Petition 35 of 2020 (Ruling 16 December 2020), [2020] KEELRC 113 (KLR) and James Wahome Ndegwa v Zachary Mwangi Njeru & 5 others; Nyandarua County Assembly (Interested Party), High Court of Kenya at Nakuru JR Application 17 of 2020 (Ruling 08 January 2021), [2021] KEHC 9734 (KLR)] are relied on to buttress this submission.
52. On the second issue, it is contended that the petition does not disclose any violation or threatened violation of the petitioner’s rights, a fundamental requirement of a constitutional petition as enunciated in the case of Anarita Karimi Njeru v Republic (No. 1) (1978) KLR 154 and as emphasised in Mumo matemu v Trusted Society for Human Rights Alliance & Others (2013) eKLR) .
53. It is contended that one cannot seek court intervention based on speculation about a process that is yet to fully unfold. It is submitted that should the impeachment process, once it is allowed to fully unfold, not adhere to these guarantees, the Court will have the opportunity to interrogate its compliance with substantive and procedural legal requirements.
54. It is submitted that the allegations on bias and bad faith are merely speculative and are to be determined by the petitioner’s peers at the Assembly when considering the motion, and subsequently by the Honourable Court if the petitioner is dissatisfied with the outcome. The decision in Anne Mumbi Waiguru v County Assembly of Kirinyaga, Petition 123 of 2020 (Ruling 07 April 2020), [2020] KEHC 9498 (KLR) is cited to reinforce this argument.
55. It is urged that if the orders sought are granted, they will not serve to facilitate ordered functioning within the County Government, rather, they will frustrate such orderly functioning, accountability, accessible service delivery and checks and balances.
56. It is submitted that the petitioner does not stand to suffer serious and irredeemable harm and prejudice should the orders not be granted because the impeachment of a County Assembly Speaker is a lawful constitutional function of the County Assembly. It is argued that a holder of such office cannot claim to be harmed or prejudiced by the Assembly performing its lawful mandate. It is also contended that there is no property in the public political office of the Speaker over which the petitioner can be said to have a right. The Supreme Court decision in County Assemblies Forum v Hon. Attorney-General and others, Petition 22 of 2017 (Judgment 28 October 2022), KESC 66 (KLR) is relied on for this assertion.
I. 1st interested party’s submissions
57. The 1st interested party’s submissions are premised on two condensed issues for determination: whether the County Assembly or the Mover of the Motion followed the letter or spirit of the law as strictly contemplated in the relevant law; and whether there was Administrative Fairness in calling for the Special Sitting to remove the Speaker of The County Assembly.
58. It is urged that the petitioner has discharged her burden of proof in demonstrating that the Motion to have the Speaker of the County Assembly removed from office was not served by the Clerk of the County Assembly, in writing, to the Speaker contrary to section 11 of the County Governments Act, and Order 58 of the Machakos County Assembly Standing Orders.
59. The 1st interested party rely on the decisions in Republic v Zachary Mwangi Njeru & 6 others Exparte James Wahome Ndegwa; County Assembly of Nyandarua & another (Interested Parties) [2020] eKLR, Justus Kariuki Mate and Another V Martin Nyaga Wambora and another (Civil Appeal No. 24 of 2014), Charles Muturi Macharia & 6 others v Standard-Group & 4 others (SC Petition No 13 (E015) of 2022) Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; and Initiative for Strategic Litigation in Africa (Amicus Curiae), SC Petition No 3 of 2018; [2021] KESC 34 (KLR)to argue for the petitioner’s case.
J. 2nd interested party’s submissions
60. The 2nd interested party frames its submissions around three issues: whether this Honourable Court has jurisdiction to determine the legality and constitutionality of the administrative actions of the County Assembly; whether the respondents’ actions were consistent with the procedure prescribed by law; and whether the respondents’ actions undermine constitutional and legislative safeguards designed to promote women’s rights and participation in politics and governance.
61. On the first issue, it is submitted that the jurisdiction of this Court is not negated simply because the matter arises from the procedures of the County Assembly. It is urged that the Court retains jurisdiction to determine whether the process followed in the motion for removal of the petitioner, conformed to constitutional and statutory standards and whether any of the petitioner’s rights or freedoms guaranteed under the Bill of rights were violated in the process. In this regard, the decisions in David Sifuna v Clerk, County Assembly of Trans Nzoia & another [2014] KEHC 944 (KLR) and Nzioka v County Assembly of Kitui & 3 others (Petition E007 of 2023) [2024] KEHC 911 (KLR) are relied on.
62. It is submitted that as the reliefs sought by the petitioner are limited to declarations of unconstitutionality and illegality, injunctions, and compensation for the procedural and constitutional violations suffered, therefore the petition falls firmly within the constitutional jurisdiction of this Court.
63. It is submitted that Article 23(3) of the Constitution confers the High Court with the power to grant appropriate reliefs for the violation or infringement of a right or fundamental freedom in the Bill of Right.
64. It is contended that this Court has jurisdiction to hear and determine this matter and this will not violate the doctrine of separation of powers.
65. On the second issue, it is submitted that the procedure for the removal of a County Assembly Speaker is outlined in Section 11 of the County Governments Act (No.17 of 2012) and reiterated under Section 58 of the County Assembly of Machakos Standing Orders. It is urged that these provisions are conjunctive and mandatory, meaning that all four requirements must be adhered to in totality and there must be strict compliance with every stage of the procedure. It is contended that partial or selective adherence contravenes due process and renders the process procedurally defective. The decision in Nick Githinji Ndichu v Clerk, Kiambu County Assembly & 3 others [2018] KECA 80 (KLR) is relied on to buttress this assertion.
66. It is submitted that the mandatory procedural requirement to submit the motion to the Clerk was not complied with. It is argued that the motion was not received by the 3rd respondent herein but was instead delivered to a receptionist at the 1st respondent’s office. It is urged that the 4th respondent’s failure to adhere to the process meant that due process was circumvented and the respondents’ actions were inconsistent with the procedure prescribed by law and contrary to Article 47 of the Constitution on the right to fair administrative action.
67. On the 3rd issue, it is submitted that the actions of the respondents must be assessed against the backdrop of Kenya’s legal commitment to empowerment and protection of women in governance, politics and leadership. It is thus submitted that this Court should consider whether the actions taken are consistent with the State’s ongoing commitments to promote women’s participation in politics and governance.
68. The decisions in Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & another [2011] KEHC 2099 (KLR), In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinion No. 2 of 2012),and Marilyn Muthoni Kamuru & 2 others v Attorney General & another [2016] KEHC 8370 (KLR); alongside the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979, and Maputo Protocol (Protocol to the African Charter on the Rights of Women in Africa) are cited to posit that the respondents'' actions, when viewed against the constitutional framework and international standards, undermine the positive obligation to take active steps to safeguard and promote women’s participation in governance.
K. Analysis and determination
69. After a perusal of the pleadings and written submissions from the rival parties, two issue emerges for determination. Firstly, whether this Court has jurisdiction to entertain this petition; and whether the petitioner is entitled to the reliefs sought.
On jurisdiction
70. The petitioner contends that Article 23(3) and 165(3) of the Constitution of Kenya, 2010 grants this Court the jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights notwithstanding the doctrine of pre-emption. The 2nd interested party also contends that the jurisdiction of this Court is not negated simply because the matter arises from the procedures of the County Assembly. On the other hand, the respondents stand is that this Court is divested of jurisdiction to entertain this petition at this stage, by dint of the doctrines of ripeness, judicial restraint, institutional comity and separation of powers.
71. Jurisdiction is the authority given to a court to hear and determine disputes before it. Jurisdiction of a court may be granted by the Constitution, Statute or both. If a court determines that it has no jurisdiction to hear a matter, the court should not take any further step. It must down its tools. This was enunciated by the Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) and the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR.
72. The jurisdiction of this Court is provided for under Article 165 (3) of the Constitution. It grants the High Court the jurisdiction, amongest others, to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
73. In addition, Article 23(1) provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Further, Article 165(6) grants the High Court supervisory jurisdiction over subordinate courts and “over any person or body exercising judicial or quasi-judicial function”.
74. I note that the Supreme Co
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