REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
PETITION NO. E005 OF 2025
IN THE MATTER OF ALLEGED VIOLATION OF VALUES AND PRINCIPLES OF GOVERNANCE ENSHRINED IN THE CONSTITUTION AND THE LAW
AND
IN THE MATTER OF ARTICLES 1,2,3(1),,10,19,20,22,27, 165(3)(b),174 ,258 (1), OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF RULES 4,10,11,13 AND 20 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM) OF THE INDIVIDUAL, HIGH COURT PRACTICE AND PROCEDURAL RULES, 2013
AND
IN THE MATTER OF SECTIONS 8, AND 14 OF THE COUNTY GOVERNMENT ACT, ACT NO. 17 OF 2012 LAWS OF KENYA
AND
IN THE MATTER OF THE COUNTY ASSEMBLY OF BUNGOMA STANDING ORDER S NO. 174(1), 176(4), 209(3), 210(1), (2) (4) AND 5, 216 (1), (2) & (3)
BETWEEN
HON. ANTHONY LUSENAKA……………………….1 ST PETITIONER
JACKSON WAMBULWA………………………………2 ND PETITIONER
VERSUS
THE COUNTY ASSEMBLY OF BUNGOMA……..1 ST RESPONDENT
THROUGH THE SPEAKER OF THE COUNTY ASSEMBLY
CLERK OF THE COUNTY ASSEMBLY OF
BUNGOMA………………………………………....…2 ND RESPONDENT
JUDGMENT
The 1 st Petitioner is a Member of the County Assembly for Bukembe, a leader of the Minority coalition of Parties of the County Assembly of Bungoma and a member of the Public Accounts and Investment Committee, a select committee of the County Assembly of Bungoma. The 2 nd Petitioner is a member of the County Assembly of Bungoma for Timaeti Ward and the Chairman of the Budget and Appropriations Committee, a select committee of the County Assembly of Bungoma.
The 1 st Respondent is the County Assembly of Bungoma County, established under Article 177 of the Constitution of Kenya 2010. The 2 nd Respondent is the Clerk of the County Assembly of Bungoma, appointed pursuant to the provisions of Section 13 of the County Government Act 2012. He is also the Chief Executive Officer of the Assembly. He is in charge of the nomination of the Select Committee pursuant to Bungoma County Standing Orders Number 180 and 181(2).
The background of this petition is as follows: on 17th April 2025, during the session, the Speaker of the County Assembly declared that the terms of office/service of the Public Accounts and Investments Committee and the Budget and Appropriations Committees of the County Assembly of Bungoma had lapsed, stating that they had served three calendar years, namely, the years 2022, 2023, and 2024. Subsequent to the above directions, the Committee on Selection presented the list of names of members to the Public Accounts and Investments Committee and Budget and Appropriation to the House on 23rd April 2025 for the reconstitution of the committees, but the names were rejected by the Members of the County Assembly who were present on that day. The Speaker of the day then proceeded to appoint the Liaison Committee as a caretaker committee for the Budget and Appropriations, Public Accounts, and Investment Committees, pending the reconstitution of the said committees. The petitioners are aggrieved by the respondents' decision and have, therefore, brought this petition before the court for determination.
THE PETITIONERS’ CASE
The Petitioners state in their petition that the Speaker of the County Assembly dissolved the Public Accounts and Investment Committee and the Budget and Appropriations Committee before completing three calendar years of service, in accordance with Standing Orders numbers 209(3) and 210(3), respectively. The subsequent nomination of members to these committees by the Selection Committee, together with the tabling of the report to the County Assembly, its debate, and eventual rejection, were not carried out in accordance with the Standing Orders. The Deputy Speaker's ruling that the Liaison Committee would serve as the caretaker committee for the two select committees does not conform to the Standing Orders or the law. The Liaison Committee is now an illegally appointed caretaker of the Public Accounts and Investment Committees, as well as the Budget and Appropriations Committee. It is scheduled to deliberate on the budget for the fiscal year 2025/2026 once the Assembly goes on recess on 1 May 2025, and will present its report to the County Assembly on 2 June 2025 when the Assembly resumes sittings for adoption. The Petitioners who are members and the chairpersons of the Public Accounts and Investment Committee and the Budget and Appropriations Committee, respectively, are those nominated and approved by the County to serve in these committees for a term of three years from the date of their appointment. They are aggrieved by the respondents' decisions to dissolve the committees before their terms expire and to appoint an illegitimate, unlawful, and unconstitutional caretaker committee to perform the functions of these committees. Consequently, this petition challenges the legality and constitutionality of these decisions and seeks legal interpretation on the following issues.
The computation of the calendar year of a select committee of the County Assembly and whether the speaker,
Whether the Speaker of the County Assembly can dissolve the select committees out of his motion before the lapse of the time of service specified in the Standing Orders
Whether the selection Committee can nominate members to serve on a select committee and table it to the house for approval on the advice of the Speaker of the County Assembly and or the clerk of the assembly before the expiry of the three-year term of the select committee as provided in the Standing Orders.
whether the County Assembly can reject the report of the Selection committee based on a selection criterion that is not in the Standing Orders
Whether the Speaker of the County Assembly has jurisdiction to appoint a caretaker committee of the Public Accounts and Investment Committee and Budget and appropriations Committee and determine their roles and duration of service.
Whether the Liaison Committee can be made a caretaker committee of the Public Accounts and Investments Committee and Budget and Appropriation Committee .
Whether the Deputy Speaker of the County Assembly and Vice Deputy Speaker of the County Assembly can be the chairperson and vice chairperson of the Public Accounts and Investment and Budget and Appropriation Committees, respectively.
The petitioners further state that the provisions of Article 10, when read alongside Articles 174 and 201 of the Constitution of Kenya, 2010, have been violated, as the minority party has been denied its right to operate as an oversight body of the assembly, as these constitutional provisions envisage. The actions of the respondents breach Section 8(1) of the County Governments Act, No. 17 of 2012, which requires oversight of the County Assembly to be carried out through the noted Select Committees, usually chaired by the minority party or a coalition of parties. The respondents' actions infringe upon the rights of the minority coalition to participate in activities assigned to the party and their right to represent those who elected them to the county, contrary to Article 38(2) of the Constitution. Such actions deny the minority party their right to participate in committees as law provides. The appointment of the Liaison Committee as the caretaker for the Public Accounts and Investment Committees and the Budget and Appropriation Committee violates Bungoma County Standing Order No. 200(2), limits the scope of select committees to their outlined functions within the County Assembly and the Constitution. The appointment also conflicts with Bungoma County Standing Orders, numbers 176 (4), 209, 210, and 216, enacted under the County Governments Act, No. 17 of 2012, and the Constitution. This appointment effectively bars the minority party from serving as chairperson and vice- chairperson of the Public Accounts and Investment Committee, as the committee will be chaired by the Deputy Speaker, with the vice- chairperson being the first panellist from the speaker' s panel, breaching Standing Order 176 (4). Moreover, appointing the Liaison Committee as the caretaker committee for these bodies creates a membership structure comprising all committee chairpersons, violating Bungoma County Standing Orders 209(4) and 2010(2). Furthermore, this appointment weakens the checks and balances within the County Assembly, as these committees are meant to audit the work of the Liaison Committee, which in turn audits all other committees. Members cannot serve simultaneously on the Public Accounts and Investment Committee and the Budget and Appropriation Committee, as this would involve auditing their own decisions. Lastly, appointing the Liaison Committee as the caretaker committee contradicts the rulings and jurisprudence of the County Assembly of Bungoma regarding the leadership of the Public Accounts and Investment Committees, as well as the court orders concerning this leadership.
The petition is supported by the petitioners' affidavits, in which they reiterate what is deposed in their petition. Additionally, it is averred that the respondents' decision has violated and infringed upon their rights to be members of the committees and has arbitrarily shortened their term of service, thus violating the express provisions of the law. The said decisions deny them the right to act as oversight in the assembly; therefore, the governance of the County Assembly of Bungoma shall be conducted in a manner that is not accountable or transparent, as envisaged by the Constitution of Kenya 2010. All major operational decisions and budgetary allocations of the County Assembly are handled by the Liaison Committee, which comprises the deputy speaker as chairperson, the first panellist of the speaker’s panel as deputy chairperson, and all chairpersons of the other committees, excluding ad hoc committees. If allowed to act as the Liaison Committee and deliberate on the budget for the fiscal year 2025/2026, the entire Budget for the County Assembly would be made illegally by a body lacking the legal mandate, and thus could be rejected by the national government. Consequently, the entire county faces the risk of delay in receiving funding for the fiscal year 2025/2026. The respondents' decisions have been made at a critical time when the budget and appropriations committee is due to deliberate on the County Assembly Budget for the fiscal year 2025/2026, leaving no room for a lacuna.
The Petitioners are therefore seeking the following orders;
A declaration be and is hereby made that the term of service of the Public Accounts and Investments Committee and Budget and Appropriation Committee has not lapsed and will lapse on the 30 th October 2026 and 26 th October 2025 respectively in accordance with Article 259(5) of the Constitution and Bungoma County Standing Order s 209(3) and 210(2).
A declaration that the appointment of the Liaison Committee as the caretaker committee for the Public Accounts and Investment Committee and Budget and Appropriation Committee is null and void ab initio, ultra vires, illegal, unlawful and unconstitutional.
An order that the members of the Public Accounts and Investments Committee and Budget and Appropriation Committee appointed in the first term continue to hold office until the expiry of their three years’ service in office until the expiry of their term on 30 th October 2026 and 26 th October 2025 respectively.
A declaration that the selection committee’s report dated 23 rd 2025 nominating members to the Public Accounts and Investments Committee and tabled before the County Assembly for adoption of new members of the Public Accounts and Investment Committees was void ab initio and ultra vires.
A declaration be and hereby made that the appointment of the Liaison Committee as the caretaker committee of the Public Accounts and Investment Committees and Budget and Appropriations Committee of Bungoma County Assembly was in violation of Articles 10, 27(1), 174, 201,of the Constitution of Kenya, 2010 as read together with Section 8(1)(c), (d) and (e) of the County Governments Act, No 17 of 2012 and Bungoma County Standing Order s No’s 176(4), 209(2), (3) (4), (5) 210(2), 216 (1) (2) (3) (4) and (5) and is to that extent, illegal, unconstitutional, null and void ab initio.
An Order of Certiorari be and is hereby issued by this Honourable Court for purposes of being quashed and quashing the decisions of the 1 st respondent made on 17 th April 2025 dissolving the Public Accounts and Investment Committees and Budget and Appropriations Committee of the Bungoma County Assembly .
An Order of Certiorari be and is hereby issued by this Honourable Court for purposes of being quashed and quashing the decisions of the 1 st respondent in preparing, tabling before the assembly, debating on and rejecting the nominations of the selection committee report the membership of the Bungoma County Public Accounts and Investment Committee and Budget and Appropriation Committee the on 24 th April 2025.
An Order of Certiorari be and is hereby issued by this Honourable Court for purposes of being quashed and quashing the decisions of the 1 st respondent of appointing the Liaison Committee as a caretaker committee Bungoma County Public Accounts and Investment Committee and Budget and Appropriation Committee made on 24 th April 2025.
The costs of this Petition be borne by the Respondents.
The petition was opposed. The Respondents filed a replying affidavit sworn by Emmanuel Mukhebi Situma, the Speaker of the County Assembly of Bungoma. He avers as follows: the petition is misconceived, frivolous, vexatious, and generally an abuse of the court's process. Pursuant to the provisions of Standing Order 209(2) of the County Assembly of Bungoma, the term of the Public Accounts and Investments Committee is set for three calendar years. Under Standing Order 210(5) of the County Assembly of Bungoma, the Budget and Appropriations Committee is constituted to serve for a term of three calendar years. The County Assembly approved the membership of both committees on 26th October 2022. The term "calendar year," as defined in Black's Law Dictionary, refers to the period of 12 calendar months beginning on 1st January and ending in December. The computation of the term of a Committee appointed for three Calendar years is not calculated from the date of approval by the County Assembly, but rather based on the number of one-year periods between January 1st and December 31st. The calculation began with the year 2022, as the committees were constituted in October 2022, which is considered the first Calendar year. As the Speaker of the County Assembly, he made the relevant communication to the House, determining that the terms of the Committees had expired in December 2024. Subsequently, the Committee of Selection is mandated under the Standing Orders to reconstitute the Committees as appropriate, promptly to avoid any leadership or procedural vacuum. The Committee of Selection comprises 11 members, including the 1st petitioner as the Vice-chair of the Committee. In discharging its mandate, the Committee of Selection presented a list of names of members of the Public Accounts and Investments Committee and the Budget and Appropriations Committee, respectively, to the County Assembly via a report dated 23rd April 2025. Upon moving the report for adoption, the 1st petitioner was the seconder of the motion, stating that the Committee had met and, as required by the Standing Orders, had brought forward names of members for the two Committees, and that the same was subjected to a vote by members, resulting in the report being rejected by a majority. It was further deposed that the lapse of the Committees’ terms, and the efforts to reconstitute them, do not constitute or imply an extension of the Committees’ terms. Any subsequent meetings, actions undertaken, or decisions made by the two Committees would therefore be deemed procedurally irregular and without approval by the County Assembly, as pursuant to Standing Order No. 177(3) a Member shall not be a Member of a Committee of the County Assembly unless the County Assembly approves the nomination of such a Member into the Committee.
It was further deposed that, having rejected the report by the majority of House Members and with the terms of the two Committees having lapsed, the Speaker of the day, on 23rd April 2025, directed that the functions of the Committees be carried out by the Liaison Committee, based on customary practices and precedents for similar circumstances. Pursuant to Standing Order 232 (1), the County Executive Committee Member for Finance and Economic Planning and the Clerk of the County Assembly are required to submit budget estimates and related documents for the County Government and County Assembly by 30th April each year, with these estimates deemed committed to the relevant Committee under Standing Order 232 (3) (a). In compliance with Standing Order 232 (1), the County Executive Committee Member for Finance and Economic Planning appeared before the Bungoma County Assembly to present the budget estimates for the 2025-2026 financial year. After the presentation, the Speaker issued directives on budget management, assigning it to the Liaison Committee. It was explained that the National Assembly, faced with a similar situation in 2016, saw then-Speaker Hon. Justin Muturi issuing comparable instructions. Additionally, on 18th February 2025, the National Assembly encountered a similar scenario, prompting Speaker Hon. Moses Wetangula to issue a similar ruling. In circumstances where explicit provisions are lacking, the County Assembly relies on precedents, customs, and parliamentary usage. After reviewing similar cases in the National Assembly, it was deemed prudent and appropriate to direct the Liaison Committee to assume the responsibilities of the Committees. Consequently, the decision by the Speaker was neither unlawful nor beyond authority, as there was a proper basis for the action. The established procedures were followed appropriately, considering the timeline of the budget process. The direction was also intended to prevent a legislative impasse and to ensure that the County Assembly functions lawfully and efficiently in executing its mandate, serving the best interests of Bungoma County’s residents. The Liaison Committee comprises Chairs of Committees, including those of Sectoral Committees, who are well acquainted with the budget estimates submitted by each relevant County department. As per Standing Order 216 (2), the Liaison Committee is fully entrusted with the authority to handle the matter in the absence of the substantive Committee on Budget and Appropriations as;
(a) guide and co-ordinate the operations, policies and mandates of all Committees as per the Constitution of Kenya, other Relevant Statutes and these Standing Order s;
(b) deliberate on and apportion the annual operating budget among the Committees depending on their Work Plans and Committee Budget ceilings;
(c) consider and schedule the programmes of all Committees businesses;
(d) ensure that Committees submit reports as required by these Standing Orders;
(e) determine, whenever necessary, the Committee or committees to deliberate on any matter;
(f) give such advice relating to the work and mandate of Select Committees as it may consider necessary .
It was further deposed that in October 2023, there was a change in the leadership of the Committee of Public Accounts and Investments from the independent group to the Minority Coalition, rather than a reconstitution of the committee. The orders sought aim to halt the budget-making process in the County and initiate a flurry of litigation that is likely to cripple financing of County operations in the new financial year, thus resulting in serious economic implications. There is a risk of disrupting medical services, early childhood education, water, roads, agriculture, trade, climate change, among other devolved functions essential to the residents of Bungoma County and the nation as a whole. It is imperative that the legislative functions of the County Assembly are carried out without interference from litigation, as this is likely to substantially prejudice the County's operations. The risk of losing public amenities far outweighs the rights of committee members executing a particular mandate, which could be fulfilled by others as well. The Liaison Committee duly met on 6th May 2025 and approved the programme for processing the annual budget estimates for the financial year 2025/2026, which they will present via a report that should be approved before the closure of the financial year on 30th June 2025.
It was further deposed that the petitioners have not clearly specified the prejudice they will suffer if the orders are not granted. Conversely, there is a significant risk of economic turmoil in Bungoma County should the orders be granted. The petitioners should have sought alternative forums to address the alleged grievances, and the court should dismiss the petition for breaching the doctrine of constitutional avoidance. The petition fails to articulate, with reasonable precision, the constitutional provisions infringed and the manner in which they are claimed to have been violated, thereby contravening the principles outlined in Anarita Karimi Njeru vs R (1976-1980) KLR 1272.
PETITIONERS SUBMISSIONS
The petition was canvassed through written submissions. The petitioners have raised the following issues for determination;
1 . Whether this court has jurisdiction to hear this case
2. Whether the term of office of the select committees on Public Accounts and Investments and Budget and Appropriation lapsed on 31st December 2024 or whether the term of the said committees are to lapse on 30th October 2026 and 26th October 2025 respectively.
3. Whether appointing the Liaison Committee as the caretaker committee for Public Accounts and investments and Budget and Appropriations committees is a violation of the constitution, the County governments Act and the Standing Order s of the County Assembly of Bungoma.
4. Whether the decision of the national assembly is binding on the County Assembly .
5. Whether the petitioners can be granted the orders sought.
12 . On the first issue, whether this court has the jurisdiction to hear this case , it is submitted that the petition is brought under Articles 1,2,3(1),10,19,20,22,27,165(3) 20, 22(1), Article 22(2), and Article 165(3)(b), 174,258(1) of the Constitution of Kenya which grants this Honourable Court the power and jurisdiction to determine the question as to whether anything said to be done under the authority of the Constitution or any law is consistent with, or in contravention of, the Constitution. Article 174(1) of the Constitution provides that one of the objects of the devolved government is to enhance checks and balances and the separation of powers. Article 185(3) of the Constitution further provides that a County Assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs. The appointment of the Liaison Committee as a caretaker committee for Public Accounts and Investments, as well as Budget and Appropriations, was conducted in contravention of the constitutional principles of oversight, transparency, and accountability, giving this court the jurisdiction to hear and determine this petition. In Council of County Governors v Lake Basin Development Authority & 6 others [2017] eKLR, when dealing with a question on the jurisdiction of the High court, the court, while citing several authorities from the Supreme Court of South Africa stated:-
“ On principle, it seems to me that, in general, a Court is bound to entertain proceedings that fall within its jurisdiction. Put differently, a court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case.
27. The South African Constitutional Court held in the matter between Vuyile Jackson Gcaba vs Minister for Safety and Security First & Others [32] had this to say :-
"Jurisdiction is determined on the basis of the pleadings, [33] … and not the substantive merits of the case… In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor…
High Court would lack jurisdiction…"
That in determining what is a constitutional issue, the court went further to state that:-
30. The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others [35] in which Justice O’Regan recalling the Constitutional Court’s observations in S vs. Boesak [36] notes that:-
“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ........the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State...................., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,.............., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.” [37]
31. Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. [38] At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights, values, principles and purposes. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organise an analysis of the nature of constitutional matters arising from the cases before the Court.
32. This Petition challenges constitutionality of provisions of several statutes on grounds that they offend the constitution. The provisions vest powers and functions to statutory bodies established under the various statutes which functions are said to be devolved functions under the Constitution. Determining this question will no doubt require the interpretation of the Constitution, its principles, purposes and values. I have no doubt in my mind that is a constitutional issue so far at it touches on the constitutionality of the challenged provisions.
13 . It is further submitted that the ratio decidendi of the above dictum applies to this case. This petition challenges the constitutionality and legality of appointing the Liaison Committee as a caretaker committee for the Budget and Appropriations Committee and the Public Accounts and Investments Committee. It also disputes the respondent's interpretation of the calculation of time in terms of the “calendar year,” which the petitioners argue violates Article 259(5)(c) of the Constitution. The petition is constitutional, and this court has jurisdiction to hear this case. The relevant sections of the Constitution have been cited, including instances of their alleged violation; thus, the petition meets the threshold set out in law for the filing of constitutional petitions.
It is argued that the respondents' assertion that the petitioners ought to have exhausted dispute resolution mechanisms in the assembly does not oust this court's jurisdiction. Citing the provisions of Article 165 (3) (d) of the Constitution, the petitioners argue that the County Assembly is a State Organ and is the subject of the jurisdiction of the High Court under Article 165 (3) (d)(i) and (iii). It is submitted that when the speaker of the day appointed the Liaison Committee as the caretaker committee and then commissioned the committee to discuss the budget for 2025/2026 fiscal year, without any further deliberation or consultations with the assembly, the doctrine of separation of powers does not preclude this court from setting aside the ruling and or decision of the speaker if such decision violates the Constitution or the Standing Order s of the County Assembly. It is argued that this court has the jurisdiction to interfere with parliamentary proceedings and decisions, reliance was made in the decision in the case of Omweno & 3 Others vs Governor , County Government of Kakamega & 4 Others; Wanyama & another ( Interested Parties) ( Petition E008 of 2023) [2024] KLR.
On the question of whether the term of office of the select committees on Public Accounts and Investments and Budget and Appropriation lapsed on 31st December 2024 or whether the term of the said committees is to lapse on 30th October 2026 and 26th October 2025 respectively, it is submitted that Standing Orders numbers 209(2) and 210(5) provide that the term of the Public Accounts and Investments Committee and the Budget and Appropriations Committee shall be three calendar years, after which another committee is appointed with the approval of the Assembly to serve for the remainder of the term of the Assembl
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IN THE HIGH COURT OF KENYA AT BUNGOMA
PETITION NO. E005 OF 2025
IN THE MATTER OF ALLEGED VIOLATION OF VALUES AND PRINCIPLES OF GOVERNANCE ENSHRINED IN THE CONSTITUTION AND THE LAW
AND
IN THE MATTER OF ARTICLES 1,2,3(1),,10,19,20,22,27, 165(3)(b),174 ,258 (1), OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF RULES 4,10,11,13 AND 20 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM) OF THE INDIVIDUAL, HIGH COURT PRACTICE AND PROCEDURAL RULES, 2013
AND
IN THE MATTER OF SECTIONS 8, AND 14 OF THE COUNTY GOVERNMENT ACT, ACT NO. 17 OF 2012 LAWS OF KENYA
AND
IN THE MATTER OF THE COUNTY ASSEMBLY OF BUNGOMA STANDING ORDER S NO. 174(1), 176(4), 209(3), 210(1), (2) (4) AND 5, 216 (1), (2) & (3)
BETWEEN
HON. ANTHONY LUSENAKA……………………….1 ST PETITIONER
JACKSON WAMBULWA………………………………2 ND PETITIONER
VERSUS
THE COUNTY ASSEMBLY OF BUNGOMA……..1 ST RESPONDENT
THROUGH THE SPEAKER OF THE COUNTY ASSEMBLY
CLERK OF THE COUNTY ASSEMBLY OF
BUNGOMA………………………………………....…2 ND RESPONDENT
JUDGMENT
The 1 st Petitioner is a Member of the County Assembly for Bukembe, a leader of the Minority coalition of Parties of the County Assembly of Bungoma and a member of the Public Accounts and Investment Committee, a select committee of the County Assembly of Bungoma. The 2 nd Petitioner is a member of the County Assembly of Bungoma for Timaeti Ward and the Chairman of the Budget and Appropriations Committee, a select committee of the County Assembly of Bungoma.
The 1 st Respondent is the County Assembly of Bungoma County, established under Article 177 of the Constitution of Kenya 2010. The 2 nd Respondent is the Clerk of the County Assembly of Bungoma, appointed pursuant to the provisions of Section 13 of the County Government Act 2012. He is also the Chief Executive Officer of the Assembly. He is in charge of the nomination of the Select Committee pursuant to Bungoma County Standing Orders Number 180 and 181(2).
The background of this petition is as follows: on 17th April 2025, during the session, the Speaker of the County Assembly declared that the terms of office/service of the Public Accounts and Investments Committee and the Budget and Appropriations Committees of the County Assembly of Bungoma had lapsed, stating that they had served three calendar years, namely, the years 2022, 2023, and 2024. Subsequent to the above directions, the Committee on Selection presented the list of names of members to the Public Accounts and Investments Committee and Budget and Appropriation to the House on 23rd April 2025 for the reconstitution of the committees, but the names were rejected by the Members of the County Assembly who were present on that day. The Speaker of the day then proceeded to appoint the Liaison Committee as a caretaker committee for the Budget and Appropriations, Public Accounts, and Investment Committees, pending the reconstitution of the said committees. The petitioners are aggrieved by the respondents' decision and have, therefore, brought this petition before the court for determination.
THE PETITIONERS’ CASE
The Petitioners state in their petition that the Speaker of the County Assembly dissolved the Public Accounts and Investment Committee and the Budget and Appropriations Committee before completing three calendar years of service, in accordance with Standing Orders numbers 209(3) and 210(3), respectively. The subsequent nomination of members to these committees by the Selection Committee, together with the tabling of the report to the County Assembly, its debate, and eventual rejection, were not carried out in accordance with the Standing Orders. The Deputy Speaker's ruling that the Liaison Committee would serve as the caretaker committee for the two select committees does not conform to the Standing Orders or the law. The Liaison Committee is now an illegally appointed caretaker of the Public Accounts and Investment Committees, as well as the Budget and Appropriations Committee. It is scheduled to deliberate on the budget for the fiscal year 2025/2026 once the Assembly goes on recess on 1 May 2025, and will present its report to the County Assembly on 2 June 2025 when the Assembly resumes sittings for adoption. The Petitioners who are members and the chairpersons of the Public Accounts and Investment Committee and the Budget and Appropriations Committee, respectively, are those nominated and approved by the County to serve in these committees for a term of three years from the date of their appointment. They are aggrieved by the respondents' decisions to dissolve the committees before their terms expire and to appoint an illegitimate, unlawful, and unconstitutional caretaker committee to perform the functions of these committees. Consequently, this petition challenges the legality and constitutionality of these decisions and seeks legal interpretation on the following issues.
The computation of the calendar year of a select committee of the County Assembly and whether the speaker,
Whether the Speaker of the County Assembly can dissolve the select committees out of his motion before the lapse of the time of service specified in the Standing Orders
Whether the selection Committee can nominate members to serve on a select committee and table it to the house for approval on the advice of the Speaker of the County Assembly and or the clerk of the assembly before the expiry of the three-year term of the select committee as provided in the Standing Orders.
whether the County Assembly can reject the report of the Selection committee based on a selection criterion that is not in the Standing Orders
Whether the Speaker of the County Assembly has jurisdiction to appoint a caretaker committee of the Public Accounts and Investment Committee and Budget and appropriations Committee and determine their roles and duration of service.
Whether the Liaison Committee can be made a caretaker committee of the Public Accounts and Investments Committee and Budget and Appropriation Committee .
Whether the Deputy Speaker of the County Assembly and Vice Deputy Speaker of the County Assembly can be the chairperson and vice chairperson of the Public Accounts and Investment and Budget and Appropriation Committees, respectively.
The petitioners further state that the provisions of Article 10, when read alongside Articles 174 and 201 of the Constitution of Kenya, 2010, have been violated, as the minority party has been denied its right to operate as an oversight body of the assembly, as these constitutional provisions envisage. The actions of the respondents breach Section 8(1) of the County Governments Act, No. 17 of 2012, which requires oversight of the County Assembly to be carried out through the noted Select Committees, usually chaired by the minority party or a coalition of parties. The respondents' actions infringe upon the rights of the minority coalition to participate in activities assigned to the party and their right to represent those who elected them to the county, contrary to Article 38(2) of the Constitution. Such actions deny the minority party their right to participate in committees as law provides. The appointment of the Liaison Committee as the caretaker for the Public Accounts and Investment Committees and the Budget and Appropriation Committee violates Bungoma County Standing Order No. 200(2), limits the scope of select committees to their outlined functions within the County Assembly and the Constitution. The appointment also conflicts with Bungoma County Standing Orders, numbers 176 (4), 209, 210, and 216, enacted under the County Governments Act, No. 17 of 2012, and the Constitution. This appointment effectively bars the minority party from serving as chairperson and vice- chairperson of the Public Accounts and Investment Committee, as the committee will be chaired by the Deputy Speaker, with the vice- chairperson being the first panellist from the speaker' s panel, breaching Standing Order 176 (4). Moreover, appointing the Liaison Committee as the caretaker committee for these bodies creates a membership structure comprising all committee chairpersons, violating Bungoma County Standing Orders 209(4) and 2010(2). Furthermore, this appointment weakens the checks and balances within the County Assembly, as these committees are meant to audit the work of the Liaison Committee, which in turn audits all other committees. Members cannot serve simultaneously on the Public Accounts and Investment Committee and the Budget and Appropriation Committee, as this would involve auditing their own decisions. Lastly, appointing the Liaison Committee as the caretaker committee contradicts the rulings and jurisprudence of the County Assembly of Bungoma regarding the leadership of the Public Accounts and Investment Committees, as well as the court orders concerning this leadership.
The petition is supported by the petitioners' affidavits, in which they reiterate what is deposed in their petition. Additionally, it is averred that the respondents' decision has violated and infringed upon their rights to be members of the committees and has arbitrarily shortened their term of service, thus violating the express provisions of the law. The said decisions deny them the right to act as oversight in the assembly; therefore, the governance of the County Assembly of Bungoma shall be conducted in a manner that is not accountable or transparent, as envisaged by the Constitution of Kenya 2010. All major operational decisions and budgetary allocations of the County Assembly are handled by the Liaison Committee, which comprises the deputy speaker as chairperson, the first panellist of the speaker’s panel as deputy chairperson, and all chairpersons of the other committees, excluding ad hoc committees. If allowed to act as the Liaison Committee and deliberate on the budget for the fiscal year 2025/2026, the entire Budget for the County Assembly would be made illegally by a body lacking the legal mandate, and thus could be rejected by the national government. Consequently, the entire county faces the risk of delay in receiving funding for the fiscal year 2025/2026. The respondents' decisions have been made at a critical time when the budget and appropriations committee is due to deliberate on the County Assembly Budget for the fiscal year 2025/2026, leaving no room for a lacuna.
The Petitioners are therefore seeking the following orders;
A declaration be and is hereby made that the term of service of the Public Accounts and Investments Committee and Budget and Appropriation Committee has not lapsed and will lapse on the 30 th October 2026 and 26 th October 2025 respectively in accordance with Article 259(5) of the Constitution and Bungoma County Standing Order s 209(3) and 210(2).
A declaration that the appointment of the Liaison Committee as the caretaker committee for the Public Accounts and Investment Committee and Budget and Appropriation Committee is null and void ab initio, ultra vires, illegal, unlawful and unconstitutional.
An order that the members of the Public Accounts and Investments Committee and Budget and Appropriation Committee appointed in the first term continue to hold office until the expiry of their three years’ service in office until the expiry of their term on 30 th October 2026 and 26 th October 2025 respectively.
A declaration that the selection committee’s report dated 23 rd 2025 nominating members to the Public Accounts and Investments Committee and tabled before the County Assembly for adoption of new members of the Public Accounts and Investment Committees was void ab initio and ultra vires.
A declaration be and hereby made that the appointment of the Liaison Committee as the caretaker committee of the Public Accounts and Investment Committees and Budget and Appropriations Committee of Bungoma County Assembly was in violation of Articles 10, 27(1), 174, 201,of the Constitution of Kenya, 2010 as read together with Section 8(1)(c), (d) and (e) of the County Governments Act, No 17 of 2012 and Bungoma County Standing Order s No’s 176(4), 209(2), (3) (4), (5) 210(2), 216 (1) (2) (3) (4) and (5) and is to that extent, illegal, unconstitutional, null and void ab initio.
An Order of Certiorari be and is hereby issued by this Honourable Court for purposes of being quashed and quashing the decisions of the 1 st respondent made on 17 th April 2025 dissolving the Public Accounts and Investment Committees and Budget and Appropriations Committee of the Bungoma County Assembly .
An Order of Certiorari be and is hereby issued by this Honourable Court for purposes of being quashed and quashing the decisions of the 1 st respondent in preparing, tabling before the assembly, debating on and rejecting the nominations of the selection committee report the membership of the Bungoma County Public Accounts and Investment Committee and Budget and Appropriation Committee the on 24 th April 2025.
An Order of Certiorari be and is hereby issued by this Honourable Court for purposes of being quashed and quashing the decisions of the 1 st respondent of appointing the Liaison Committee as a caretaker committee Bungoma County Public Accounts and Investment Committee and Budget and Appropriation Committee made on 24 th April 2025.
The costs of this Petition be borne by the Respondents.
The petition was opposed. The Respondents filed a replying affidavit sworn by Emmanuel Mukhebi Situma, the Speaker of the County Assembly of Bungoma. He avers as follows: the petition is misconceived, frivolous, vexatious, and generally an abuse of the court's process. Pursuant to the provisions of Standing Order 209(2) of the County Assembly of Bungoma, the term of the Public Accounts and Investments Committee is set for three calendar years. Under Standing Order 210(5) of the County Assembly of Bungoma, the Budget and Appropriations Committee is constituted to serve for a term of three calendar years. The County Assembly approved the membership of both committees on 26th October 2022. The term "calendar year," as defined in Black's Law Dictionary, refers to the period of 12 calendar months beginning on 1st January and ending in December. The computation of the term of a Committee appointed for three Calendar years is not calculated from the date of approval by the County Assembly, but rather based on the number of one-year periods between January 1st and December 31st. The calculation began with the year 2022, as the committees were constituted in October 2022, which is considered the first Calendar year. As the Speaker of the County Assembly, he made the relevant communication to the House, determining that the terms of the Committees had expired in December 2024. Subsequently, the Committee of Selection is mandated under the Standing Orders to reconstitute the Committees as appropriate, promptly to avoid any leadership or procedural vacuum. The Committee of Selection comprises 11 members, including the 1st petitioner as the Vice-chair of the Committee. In discharging its mandate, the Committee of Selection presented a list of names of members of the Public Accounts and Investments Committee and the Budget and Appropriations Committee, respectively, to the County Assembly via a report dated 23rd April 2025. Upon moving the report for adoption, the 1st petitioner was the seconder of the motion, stating that the Committee had met and, as required by the Standing Orders, had brought forward names of members for the two Committees, and that the same was subjected to a vote by members, resulting in the report being rejected by a majority. It was further deposed that the lapse of the Committees’ terms, and the efforts to reconstitute them, do not constitute or imply an extension of the Committees’ terms. Any subsequent meetings, actions undertaken, or decisions made by the two Committees would therefore be deemed procedurally irregular and without approval by the County Assembly, as pursuant to Standing Order No. 177(3) a Member shall not be a Member of a Committee of the County Assembly unless the County Assembly approves the nomination of such a Member into the Committee.
It was further deposed that, having rejected the report by the majority of House Members and with the terms of the two Committees having lapsed, the Speaker of the day, on 23rd April 2025, directed that the functions of the Committees be carried out by the Liaison Committee, based on customary practices and precedents for similar circumstances. Pursuant to Standing Order 232 (1), the County Executive Committee Member for Finance and Economic Planning and the Clerk of the County Assembly are required to submit budget estimates and related documents for the County Government and County Assembly by 30th April each year, with these estimates deemed committed to the relevant Committee under Standing Order 232 (3) (a). In compliance with Standing Order 232 (1), the County Executive Committee Member for Finance and Economic Planning appeared before the Bungoma County Assembly to present the budget estimates for the 2025-2026 financial year. After the presentation, the Speaker issued directives on budget management, assigning it to the Liaison Committee. It was explained that the National Assembly, faced with a similar situation in 2016, saw then-Speaker Hon. Justin Muturi issuing comparable instructions. Additionally, on 18th February 2025, the National Assembly encountered a similar scenario, prompting Speaker Hon. Moses Wetangula to issue a similar ruling. In circumstances where explicit provisions are lacking, the County Assembly relies on precedents, customs, and parliamentary usage. After reviewing similar cases in the National Assembly, it was deemed prudent and appropriate to direct the Liaison Committee to assume the responsibilities of the Committees. Consequently, the decision by the Speaker was neither unlawful nor beyond authority, as there was a proper basis for the action. The established procedures were followed appropriately, considering the timeline of the budget process. The direction was also intended to prevent a legislative impasse and to ensure that the County Assembly functions lawfully and efficiently in executing its mandate, serving the best interests of Bungoma County’s residents. The Liaison Committee comprises Chairs of Committees, including those of Sectoral Committees, who are well acquainted with the budget estimates submitted by each relevant County department. As per Standing Order 216 (2), the Liaison Committee is fully entrusted with the authority to handle the matter in the absence of the substantive Committee on Budget and Appropriations as;
(a) guide and co-ordinate the operations, policies and mandates of all Committees as per the Constitution of Kenya, other Relevant Statutes and these Standing Order s;
(b) deliberate on and apportion the annual operating budget among the Committees depending on their Work Plans and Committee Budget ceilings;
(c) consider and schedule the programmes of all Committees businesses;
(d) ensure that Committees submit reports as required by these Standing Orders;
(e) determine, whenever necessary, the Committee or committees to deliberate on any matter;
(f) give such advice relating to the work and mandate of Select Committees as it may consider necessary .
It was further deposed that in October 2023, there was a change in the leadership of the Committee of Public Accounts and Investments from the independent group to the Minority Coalition, rather than a reconstitution of the committee. The orders sought aim to halt the budget-making process in the County and initiate a flurry of litigation that is likely to cripple financing of County operations in the new financial year, thus resulting in serious economic implications. There is a risk of disrupting medical services, early childhood education, water, roads, agriculture, trade, climate change, among other devolved functions essential to the residents of Bungoma County and the nation as a whole. It is imperative that the legislative functions of the County Assembly are carried out without interference from litigation, as this is likely to substantially prejudice the County's operations. The risk of losing public amenities far outweighs the rights of committee members executing a particular mandate, which could be fulfilled by others as well. The Liaison Committee duly met on 6th May 2025 and approved the programme for processing the annual budget estimates for the financial year 2025/2026, which they will present via a report that should be approved before the closure of the financial year on 30th June 2025.
It was further deposed that the petitioners have not clearly specified the prejudice they will suffer if the orders are not granted. Conversely, there is a significant risk of economic turmoil in Bungoma County should the orders be granted. The petitioners should have sought alternative forums to address the alleged grievances, and the court should dismiss the petition for breaching the doctrine of constitutional avoidance. The petition fails to articulate, with reasonable precision, the constitutional provisions infringed and the manner in which they are claimed to have been violated, thereby contravening the principles outlined in Anarita Karimi Njeru vs R (1976-1980) KLR 1272.
PETITIONERS SUBMISSIONS
The petition was canvassed through written submissions. The petitioners have raised the following issues for determination;
1 . Whether this court has jurisdiction to hear this case
2. Whether the term of office of the select committees on Public Accounts and Investments and Budget and Appropriation lapsed on 31st December 2024 or whether the term of the said committees are to lapse on 30th October 2026 and 26th October 2025 respectively.
3. Whether appointing the Liaison Committee as the caretaker committee for Public Accounts and investments and Budget and Appropriations committees is a violation of the constitution, the County governments Act and the Standing Order s of the County Assembly of Bungoma.
4. Whether the decision of the national assembly is binding on the County Assembly .
5. Whether the petitioners can be granted the orders sought.
12 . On the first issue, whether this court has the jurisdiction to hear this case , it is submitted that the petition is brought under Articles 1,2,3(1),10,19,20,22,27,165(3) 20, 22(1), Article 22(2), and Article 165(3)(b), 174,258(1) of the Constitution of Kenya which grants this Honourable Court the power and jurisdiction to determine the question as to whether anything said to be done under the authority of the Constitution or any law is consistent with, or in contravention of, the Constitution. Article 174(1) of the Constitution provides that one of the objects of the devolved government is to enhance checks and balances and the separation of powers. Article 185(3) of the Constitution further provides that a County Assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs. The appointment of the Liaison Committee as a caretaker committee for Public Accounts and Investments, as well as Budget and Appropriations, was conducted in contravention of the constitutional principles of oversight, transparency, and accountability, giving this court the jurisdiction to hear and determine this petition. In Council of County Governors v Lake Basin Development Authority & 6 others [2017] eKLR, when dealing with a question on the jurisdiction of the High court, the court, while citing several authorities from the Supreme Court of South Africa stated:-
“ On principle, it seems to me that, in general, a Court is bound to entertain proceedings that fall within its jurisdiction. Put differently, a court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case.
27. The South African Constitutional Court held in the matter between Vuyile Jackson Gcaba vs Minister for Safety and Security First & Others [32] had this to say :-
"Jurisdiction is determined on the basis of the pleadings, [33] … and not the substantive merits of the case… In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor…
High Court would lack jurisdiction…"
That in determining what is a constitutional issue, the court went further to state that:-
30. The question of what constitutes a constitutional question was ably illuminated in the South African case of Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others [35] in which Justice O’Regan recalling the Constitutional Court’s observations in S vs. Boesak [36] notes that:-
“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ........the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State...................., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,.............., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.” [37]
31. Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation. [38] At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights, values, principles and purposes. Therefore the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organise an analysis of the nature of constitutional matters arising from the cases before the Court.
32. This Petition challenges constitutionality of provisions of several statutes on grounds that they offend the constitution. The provisions vest powers and functions to statutory bodies established under the various statutes which functions are said to be devolved functions under the Constitution. Determining this question will no doubt require the interpretation of the Constitution, its principles, purposes and values. I have no doubt in my mind that is a constitutional issue so far at it touches on the constitutionality of the challenged provisions.
13 . It is further submitted that the ratio decidendi of the above dictum applies to this case. This petition challenges the constitutionality and legality of appointing the Liaison Committee as a caretaker committee for the Budget and Appropriations Committee and the Public Accounts and Investments Committee. It also disputes the respondent's interpretation of the calculation of time in terms of the “calendar year,” which the petitioners argue violates Article 259(5)(c) of the Constitution. The petition is constitutional, and this court has jurisdiction to hear this case. The relevant sections of the Constitution have been cited, including instances of their alleged violation; thus, the petition meets the threshold set out in law for the filing of constitutional petitions.
It is argued that the respondents' assertion that the petitioners ought to have exhausted dispute resolution mechanisms in the assembly does not oust this court's jurisdiction. Citing the provisions of Article 165 (3) (d) of the Constitution, the petitioners argue that the County Assembly is a State Organ and is the subject of the jurisdiction of the High Court under Article 165 (3) (d)(i) and (iii). It is submitted that when the speaker of the day appointed the Liaison Committee as the caretaker committee and then commissioned the committee to discuss the budget for 2025/2026 fiscal year, without any further deliberation or consultations with the assembly, the doctrine of separation of powers does not preclude this court from setting aside the ruling and or decision of the speaker if such decision violates the Constitution or the Standing Order s of the County Assembly. It is argued that this court has the jurisdiction to interfere with parliamentary proceedings and decisions, reliance was made in the decision in the case of Omweno & 3 Others vs Governor , County Government of Kakamega & 4 Others; Wanyama & another ( Interested Parties) ( Petition E008 of 2023) [2024] KLR.
On the question of whether the term of office of the select committees on Public Accounts and Investments and Budget and Appropriation lapsed on 31st December 2024 or whether the term of the said committees is to lapse on 30th October 2026 and 26th October 2025 respectively, it is submitted that Standing Orders numbers 209(2) and 210(5) provide that the term of the Public Accounts and Investments Committee and the Budget and Appropriations Committee shall be three calendar years, after which another committee is appointed with the approval of the Assembly to serve for the remainder of the term of the Assembl
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