Introduction
1. The Petition dated 23 rd March 2023 is supported by the Petitioner’s affidavit in support of similar date. At its core, the Petition contests the proceedings undertaken by the 1 st Respondent which led to the Petitioner’s removal as a Commissioner of the Independent Electoral and Boundaries Commission (IEBC). Accordingly, the Petitioner seeks the following reliefs against the Respondents:
a) An order of certiorari do issue to quash the 1 st Respondent's Report and Recommendations dated 27.02.23 to the President for the removal of the Petitioner as IEBC Commissioner.
b) An order of certiorari do issue to quash the President's adoption of the 1 st Respondent's Report
and Recommendations to remove the Petitioner as IEBC commissioner.
c) An order of certiorari do issue to quash the Gazette Notice No. 2642 removing the Petitioner as IEBC Commissioner.
d) An order of certiorari do issue to quash Gazette Notice No. 2643 declaring vacancy of the Petitioner's position as IEBC Commissioner.
e) Declaratory orders do issue that the 1 st Respondent acted without and/or in excess of jurisdiction.
f) A declaratory order do issue that the four Petitions did not meet the constitutional, statutory, legal and established law requirements to disclose a prima facie Case against the Petitioner.
g) A declaratory order do issue that the evidence placed before the 1 st Respondent didn't meet the evidential threshold of impeachment Proceedings.
h) A declaratory order do issue that the 1 st Respondent material proceedings are null & void for violating the Constitution, Statutes and established Law.
i) A declaratory order do issue that the material allegations and recommendations against the Petitioner are res judicata.
j) A declaratory order do issue that everything that flowed from the impugned four Petitions is null and void ab initio.
k) A declaratory order do issue that the Petitioner has legitimate expectation to be IEBC Commissioner upto and including September 7, 2027.
l) The Court calls for the 1 st Respondent's record of Proceedings to review the evidence before it and the Report and recommendations it made with a view of quashing them.
m) An order for compensation do issue to the Petitioner for violation of her constitutional rights.
n) A declaratory order do issue that the 1 st Respondent’s proceedings were a judicial sham and akin to Nazi Gestapo Police Courts (Sondergericht).
o) Costs be provided for.
Petitioner’s Case
2. By way of background, the Petitioner submitted her application to be appointed as an IEBC Commissioner, following declaration of vacancies vide Gazette Notice No.3522 of 2021.She was after that appointed as a Commissioner.
3. Following the 2022 general elections, the Petitioner through a letter dated 18 th November 2022, four petitions were filed seeking her removal as an IEBC commissioner. Soon thereafter vide Gazette Notice No.14890 dated 2 nd December 2022, the 1 st Respondent was established to hear and determine the petitions seeking her removal.
4. She depones that through her advocate, Donald B. Kipkorir, she raised 4 preliminary objections against the petitions, particularly challenging the jurisdiction of the National Assembly including its Departmental Committee on Justice & Legal Affairs (JLAC). The JLAC begun proceedings over this matter on 24 th November 2022 and forwarded its Report to the National Assembly on 1 st December 2022.This corresponded with the time IEBC was required to start review of the general elections. She depones that the 1 st Respondent was established the following day on 2 nd December 2022.
5. The 1 st Respondent conducted its proceedings on 20 th , 21 st and 22 nd December 2022 and on 23 rd and 24 th January 2023 and 20 th February 2023. The Petitioner filed her supporting documents and witness statements during the proceedings. She avers that the advocates highlighted submissions on 20 th February 2023.
6. The Petitioner avers that before the 1 st Respondent finalized its proceedings, the President vide Gazette Notice No.1901 of 14 th February 2023, declared vacancies in the other seats, save hers.
7. She states that it was reported on 27 th February 2023 that the 1 st Respondent had finalized its Report and handed the same to the President. She notes that the 1 st Respondent forwarded her an incomplete Report which only reached page 44. Furthermore, the Report did not have any annextures or the Hansard Report of 20 th February 2023.She states that the 1 st Respondent in the email correspondence, indicated that all the material had been issued to the President.
8. She depones that vide Gazette Notice No.2642 dated 1 st March 2023, the President revoked her appointment as an IEBC Commissioner and
simultaneously declared vacancy in her office vide Gazette Notice No.2643.
9. She contends that the 1 st Respondent’s proceedings, recommendations and Report are null and void ab initio. This is since the 1 st Respondent proceeded without transmittal documents from the National Assembly via the President. Additionally, that no Report of the National Assembly pursuant JLAC's Recommendations was placed before the 1 st Respondent and that no Articles of Impeachment and or charge was drafted nor read to the Petitioner. She stresses that in the absence of these documents, there was no substratum to the 1 st Respondent's proceedings and equally, no nexus between an alleged National Assembly Report and the 1 st Respondent's establishment.
10. The Petitioner further faults the 1 st Respondent’s proceedings for a number of reasons being:
a) The 1 st Respondent proceeded to review, revise and revive Supreme Court Judgment No. E005 of 2022, Raila Odinga & Others Vs William Ruta & Others in contravention of Articles 140, 162 and 163 of the Constitution and Section 87 of the Elections Act.
b) The 1 st Respondent's Report and Recommendations violate the sacrosanct doctrines of res judicata and stare decisis.
c) The 1 st Respondent relied on evidence that didn't comply with Sections 106B, 107, 108 and 109 of the Evidence Act.
d) The 1 st Respondent relied evidence of witnesses whose evidence didn't establish the fact in issue (factum probandum) nor the evidentiary fact (factum probans).
e) The 1 st Respondent relied on hearing, gossip and bar-talk given by the 11 witnesses.
f) The charge and/or allegation of conspiracy wasn't proven at all.
g) The charges were against Cherera 4 jointly, yet it proceeded against the Petitioner only.
h) The record of the 1 st Respondent demonstrates a Tribunal driven by political bias and malevolence against the Petitioner and stood against the inevitable conclusion of the 1 st Respondent.
i) The 1 st Respondent misapprehended, misunderstood or simply didn't understand or know that impeachment proceedings are criminal in nature and adversarial. The 1 st Respondent took its role as that of an inquisitional nature and in fact equated its jurisdiction to that of removal of judges under Article 168 of the Constitution.
j) The 1 st Respondent lowered the bar on the burden of proof in impeachment proceedings under Article 251 of the Constitution.
k) The Tribunal's key witnesses, Wafula Chebukati and Marjan Hussein Marjan are tainted and biased witnesses with Court's pronouncements against their conduct.
l) The four petitions did not meet the constitutional, statutory and legal threshold as pleaded in the Petition.
m) Denial of my legitimate expectation to judicial process that is fair, impartial and transparent.
n) The 1 st Respondent railroaded the process for a predetermined conclusion.
11. The Petitioner as well argues that the Petitions against her stem from declaration of the Presidential results on 15 th August 2022. She notes that the entire allegation which is flawed, is premised on the Cherera 4 tampering with the election results and disowning the result. She emphasizes that at all material times neither her nor the other Commissioners had the results yet. She informs that Article 138 of the Constitution provides a clear procedure on a presidential election.
12. In a nutshell the mandatory procedure involves, filling of Form 34A in the prescribed Form at the polling station and transmitting the same to the Constituency, filling of Form 34B in the prescribed Form at the Constituency level, and electronically transmitting Forms 34A and 34B to the National Tallying Centre. Further, physical delivery of Forms 34A and J4B to the National Tallying Centre, then tallying Form 34C and verifying Form 34C against the Original Form 34A's and complete Form 34C and Print a hard copy of Form 34C. Following this, all the presidential agents are invited to sign the Form 34C before the same is published on the IEBC portal. This copy is then presented to the presidential agents after which the presidential results are declared. Thereafter the Chief Justice is notified of the result and the President elect issued with Form 34D.
13. In light of the foregoing averments, the Petitioner contends that the 1 st Respondent’s proceedings violated established case law, judicial norms and traditions and established international customary law on impeachment Proceedings, as such not sustainable. For this reason, the Petitioner is convinced that the 1 st Respondent’s proceedings is in breach of Articles 2 (1) & (4), 10,20, 22 (1), 23, 25 (c), 32, 33, 47 (1) & (2), 50 (1), (2), (b) ( c) (i), (j),(o), (q) and (4), 75, 138, 140 (2),160, 165, 232,248, 249 251 (1) (a ), (b) and (d), (2) and (3) and 252 (1) (a ) and (b) of the Constitution, Sections 4 (3) (a) (b), (c), (d), (e), (f) (g) and (5), 5(1)(b), (2)(b) and (c ) and 7 (2)(a (ii) (iv), (e ), (b) and (k) of the Fair Administrative Action Act, Sections 8, 91 26 and 30 of the IEBC Act as read with Schedule 2: Regulations 4, 6, 7 and 10 of the IEBC Regulations, Sections 39, 87 (1) and (2) of the Elections Act, Sections 7, 8, 9, 10, n, 16 and 43 (1) (a) (b) and (c) Leadership And Integrity Act, Sections 29 (1) (a), (2) and (3) of the Commission On Administrative Justice Act, Sections 1068, 107, 108, 109 and 110 of the Evidence Act and National Assembly Standing Orders- No. 219, 220, 223 (e), (f) (g) and (h), 227, 230 (1) (a), (h), and (4).
Respondents’ Case
14. In opposition to the Petitioner’s case, the Respondents’ filed grounds of opposition dated 26 th April 2023 on the premise that:
i. Vide a special Gazette Notice No. 14890 of 2 nd December, 2022, the 1 st Respondent was validly established pursuant to the provisions of Article 251(4) of the Constitution with a mandate to inquire into the petition by Parliament for removal of the Petitioner as a Commissioner of the IEBC.
ii. The 1 st Respondent legitimately fulfilled its mandate as stated in Gazette Notice No. 14890 of 2 nd December, 2022 which was validly stated as:
iii. The mandate of the Tribunal shall be to consider the petition for the removal of (1) Juliana Whonge Cherera, (2) Francis Mathenge Wanderi, (3) Irene Cherop Masit and (4)
Justus Abonyo Nyang'aya from office as members of Independent Electoral and Boundaries Commission (IEBC) and to inquire into the allegations therein.
iv. In the discharge of its functions, the Tribunal shall-
a. Prepare and submit a report and its recommendations thereon expeditiously; and
b. Exercise all the powers conferred upon it by law for the proper execution of its mandate.
v. The 1 st Respondent, in exercise of its mandate pursuant to Article 251 of the Constitution published the Tribunal (Practice and Procedure) Rules, 2022 vide Gazette Notice No. 15196 of 5 th December 2022, in the Kenya Gazette Vol. CXXIV-No. 264 to govern the conduct of its proceedings.
vi. There has never been a challenge before any court of competent jurisdiction as to the legal validity of the Gazette Notice No. 15196 of 5 th December 2022 or the Tribunal (Practice and Procedure) Rules, 2022 hence the same remain sound, valid and effective.
vii. Whereas the rule of evidence which encompasses the rules and legal principles that govern the proof of facts in a legal proceeding, the quantum, quality, and type of proof needed to prevail in litigation is paramount, Rule 14 of the Tribunal (Practice and Procedure) Rules, 2022 stipulated that the 1 st Respondent in its proceedings would not be bound by the strict rules of evidence and its proceedings would be guided by the rules of natural justice.
viii. Pursuant to the mandate established vide Gazette Notice No. 14890 of 2 nd December, 2022, the Tribunal was clothed with investigative powers, thus the 1 st Respondent became a quasi-judicial body vested with inquisitorial powers.
ix. The matter before the 1 st Respondent was sui generis. The standard of proof applicable in the proceedings of the Tribunal was neither that applicable in criminal law (beyond reasonable doubt) nor that applicable in civil cases, (on a balance of probability). Thus, a strict application of standard rules of procedure or evidence could have negated the fundamental policy-object.
x. In the words of sitting Lord Reid in Ridge vs. Baldwin (1968) All ER 66 , "A man is entitled to have chapter and verse quoted against him and a full opportunity to rebut the allegation." The totality of the Petitioner's annexes marked ICM-4 pg. 63, ICM-11 pg. 468 and ICM-16 pg. 2634 is an indisputable fact that the petitioner was made aware of the allegations against her and was accorded an opportunity to defend herself against those allegations in a full and fair public hearing but chose not to.
xi. Failure by the Petitioner to rebut the allegations levelled against her before the 1 st Respondent against left the case against her uncontroverted and unchallenged.
xii. The proceedings against the Petitioner and the decision of the 1 st Respondent recommending the removal of the Petitioner as a Commissioner of the IEBC evince principles of the rule of law, equality before the law, accountability to the law, fairness in application of the law, and procedural and legal transparency. The proceedings and the decision thereto were undertaken within the defined constitutional framework and cannot therefore be challenged on the basis of non-conformity with statutory law or the standing orders of the National Assembly.
xiii. The national values and principles of governance as declared at Article 10 to include the rule of law, democracy, equality, human rights, good governance, transparency, integrity, accountability are binding on all State officers whenever they are making or implementing public decisions, the petitioner included.
xiv. The petition runs contra to the provisions of Article 10 on national values and principles of governance, and Article 73 on the guiding principles on leadership and integrity which include inter alia, objectivity and impartiality in decision making and ensuring that decisions are not influenced by among others, corrupt practices and improper motives.
xv. There cannot be legitimate expectation against clear provisions of the law. Article 251 of the Constitution and section 17A of the IEBC Act, 2011 clearly provide for the procedure for removal of a member of the IEBC such as the Petitioner.
xvi. The Petition is at best based on the Petitioner's personal inclinations and observations which do not form an actual controversy warranting intervention by this Court in the form of prayers sought in both the Application and Petition.
xvii. Both the Application and Petition are misconceived and unmerited, the Petitioner having failed to demonstrate the unconstitutionality of the proceedings, the illegality of the report of the 1 st Respondent recommending her removal as a Commissioner of the IEBC and/or the alleged infringement of her fundamental rights and freedoms.
Petitioner’s Submissions
15. KTK Advocates for the Petitioner filed submissions dated 17 th September 2024.
16. Restating the background and facts of this case, Counsel submitted that the entire impeachment process commencing from the National
Assembly to the Petitioner’s removal, was unlawful and irregular in violation of the Constitution and her constitutional rights.
17. To support this submission, Counsel pointed out that the four petitions did not have any supporting evidence or exhibits as required under Sections 107, 108, 109 and 110 of the Evidence Act. Counsel added that the petitions did not meet the requirements of Article 50 (2) (b) of the Constitution as read with Section 4 (3) (a) and (g) of The Fair Administrative Action Act. Counsel asserted that the petitions likewise regurgitated issues that had already been dealt with by the Supreme Court in Presidential Election Petition No. E005 of 2022 , hence issues res judicata and stare decisis. Counsel added that the 1 st Respondent even went ahead to review the Supreme Court findings, in violation of Article 140 of the Constitution and Section 87 of the Elections Act.
18. Furthermore, Counsel submitted that the four petitions did not establish any constitutional, statutory or legal basis for the reliefs they sought and thus the 2 nd Respondent lacked jurisdiction and acted in excess of it in contravention of Section 7 (2) (u) of The Fair Administrative Action Act. The petitions were also faulted for failing to comply with the requirements of Standing Orders No.223 and 230 of the National Assembly Standing Orders.
19. Counsel also underscored that the 1 st Respondent proceeded without transmittal documents from the National Assembly in contravention of Article 251 (3) of The Constitution and also without the Articles of Impeachment in violation of Articles 47(2) and 50(2)(b) of the Constitution.
20. Counsel further faulted the 1 st Respondent for relying on TV evidence which was not produced in accordance with Section 106B, 107,108,109 and 110 of the Evidence Act. Similarly, Counsel noted that the 1 st Respondent’s Report relied on evidence that was not tendered during the proceedings in blatant breach of Articles 50(1) (j) and (k) of the Constitution. Reliance was placed in Garissa HC Criminal Case No. 3 of 2023, Republic -VsIbrahim Bille Jelle [Unreported] where it was held that:
“It is thus not enough merely to be trained by the American Embassy to be qualified to produce in evidence information or data from a mobile phone or electronic information or data. There is also need for strict compliance with the above provisions of the Evidence Act. Failure to comply with the legal requirements will mean that the electronic information or data will not be admissible as evidence and will thus be of no evidential value ...
No Certificate was produced in Court to support the production of the electronic data herein from the Nokia mobile phone. In effect therefore the electronic data relied upon from the mobile telephone is not evidence which can be relied upon to connect the accused to the offence charged ...
Having re-evaluated the evidence on record and considering the law, I am of the view that the Prosecution has not made out a prima facie Case which would require this Court to put the accussed person on his defence.”
21. Similar reliance was placed on Kisumu Civil Appeal No.17and 18 of 2015: County Assembly of Kisumu & others vs Kisumu County Assembly Service Board and others [Unreported] .
22. In like manner, Counsel submitted that the Petitioner was charged with conspiracy in that she allegedly conspired with the Cherera 4 to supplant the will of the people. Counsel reiterated that the Supreme Court had already determined this matter. Nevertheless, Counsel argued that the allegation of conspiracy was not proved. Reliance was placed in Nairobi Criminal Appeal No.4 and 132, Ian Gakoi Maina and 3 others v Republic [Unreported] where the Court of Appeal held that:
“For the 1 st Count to succeed it must be proven by the prosecution that there was the element of an agreement a meeting of minds of the accused persons and the intention to defraud.
These basic elements have not been established ...
It was the duty of the Prosecution to proof the role of each of the accused persons and their capacities in their respective offices in the Commission of the offence. This line of evidence is lacking for all the accused so as to establish a nexus lading to conspiracy ... "
23. Further reliance was placed on Kisumu Criminal Appeal No.12 of 2016, Republic v Anne Atieno Adul and others [Unreported] .
24. Counsel further argued that evidence of the 11 witnesses did not prove the complaints against the Petitioner beyond reasonable doubt. Similarly, it was noted that the 1 st Respondent heavily relied on the evidence of Wafula Chebukati and Marjan Hussein Marjan yet the Courts have cast doubt on their integrity to the law. Counsel postulated that the entire proceedings were commenced with a pre-determined outcome against the Petitioner and thus she had no chance of an independent and impartial Tribunal as guaranteed by the Constitution, in line with her legitimate expectation.
25. Reliance was placed in Republic vs National Cohesion and Integration Commission, Nairobi HC JR. Application No. E057 of 2022 where it was emphasized that:
“The right to be heard is cardinal and cannot be derogated. This Court appreciates the crucial and sensitive role that the Respondent undertakes in promotion of National Cohesion in an environment of pronounced diversity. The statutory power donated to it, musty be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and our laws. However well meaning, the Respondent cannot get away with unilateral decisions that affect the citizenly without regard to their Constitutional and legal rights topmost of which is the right to be heard. This was emphasized in the Case of Leiyagu -V- IEBC & 2 Others where the Court stated;
The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law".
26. Comparable reliance was placed in Speaker of the National Assembly v Public Protector and others, CCT 257/21[Unreported] .
27. Counsel in the same way challenged the 1 st Respondent’s proceedings as argued that crucial witnesses were not summoned. Particularly those who were alleged to have issued them the instructions to subvert the will of the people. To buttress this point reliance was placed in Nakuru Criminal Appeal No. 34 of 2006, Donald Majiwa Achilwa & Others -Vs- Republic [Unreported] , where the Court of Appeal held that:
"The law as it presently stands, is that the Prosecution is obliged to call all Witnesses who are necessary to establish the truth in a Case even though some of those Witnesses' evidence may be adverse to the Prosecution Case. However, the Prosecution is not bound to call a plurality of Witnesses to establish a fact. Where, however, the evidence adduced barely establishes the Prosecution Case, and the Prosecution withholds a Witness, the Court, in an appropriate Case, is entitled to infer that had the Witness been called his evidence would have tended to be adverse to the Prosecution Case".
28. Comparable reliance was placed in Chuka HC Criminal Appeal No.13 of 2020, Peter Nyamu Mutithi v Republic [Unreported] .
29. Counsel reasoned that impeachment proceedings are adversarial in nature and thus a party cannot initiate its pleadings from one forum to another. In this case, Counsel stated that what was before the National Assembly is different from what was before the 1 st Respondent. Further that the pleadings relied on by the National Assembly were charges which were not supported by any evidence. To buttress this point reliance was placed in Malawi Railways Limited -VsPTK Nyasulu, MSCA Civil Appl. No. 13 of 1992, [Unreported] where it was held that:
“In the adversarial system of litigation therefore, it is the Parties themselves who set the agenda for the trial by their Pleadings and neither Party can complain if the agenda is strictly adhered to. In such an agenda, there no room for an item called "Any Other Business" in the sense that points other than those specified may be raised without notice".
30. Counsel additionally challenged the allegation of gross misconduct on the Petitioner’s part. Counsel contended that in addition to lack of evidence to prove this claim, calling of a press conference cannot amount to gross misconduct. Reliance was placed on Petition No. 4 of 2020, Hon. Justice Martin Mati Muya -Vs- The Tribunal, [Unreported] where gross misconduct was defined as follows:
“Clearly, all the words used to describe "gross" express some extreme negative conduct; a degrees of misconduct of such a serious, outrageous and flagrant nature that would warrant removal of a judge from office, those that would render an individual Judge unfit or incapable of performing that duties of his or her office. That is how serious it ought to be ...
Equally, we do not think that the conduct of the Petitioner was persistent, or that, considered alone, it was capable of destroying the confidence in the Judge's ability to properly perform his judicial function. There was no discernible pattern of dereliction, but a single act of transgression; a five month's delay. He readily admitted the delay, gave an explanation and expressed remorse.”
31. In sum, Counsel submitted that the 1 st Respondent did not discharge the burden in the impeachment proceedings being that they are quasi-criminal in nature. Reliance was placed in Woolmington-Vs-The Director of Public Prosecutions [1935] AC 462 where it was observed that:
"If at any period of a trial it was permissible for the Judge to rule that the Prosecution has established its Case and that the onus was shifted on the Prisoner to prove that he was not guilty and that unless he discharged that onus the Prosecution was entitled to succeed, it would be enabling the Judge in such a Case to say that the jury must in law find the prisoner guilty and so make the Judge decide the Case and not the jury, which is not the common law. It would be an entirely different Case from those exceptional instances of special verdicts where a Judge asks the jury to find certain facts and directs them on such facts the Prosecution is entitled to succeed....
Throughout the web of English Criminal Law one golden thread is always to be seen, that is the duty of the Prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the Case, there is a reasonable doubt, created by the evidence given by either the Prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the Prosecution has not made out the Case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial. the principle that the Prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
32. Reliance was placed on Nairobi HC Petition No. 174 of 2016, Robert Alai -Vs-The Hon. Attorney General & Others, [Unreported) .
Respondents’ Submissions
33. Senior State Counsel, Christopher Marwa filed submissions dated 21 st August 2025 and highlighted the issues for discussion as : whether the Muchelule Tribunal was legally constituted and acted within its mandate, whether the evidence before the Muchelule Tribunal meet the evidential threshold of impeachment proceedings, whether the Petitioner’s constitutional rights were violated and whether the actions of the Tribunal infringed on the Petitioner’s legitimate expectation .
34. On the first issue, Counsel submitted that the 1 st Respondent’s composition is provided under Article 251 of the Constitution and that it acted within its mandate as provided under the Special Gazette Notice No. 14890 of 2 nd December 2022. To discharge its mandate the 1 st Respondent was empowered to prepare and submit a report and its recommendations and exercise all the powers conferred upon it by law for the proper execution of its mandate. Counsel noted that to do so, the 1 st Respondent established the Tribunal (Practice and Procedure) Rules, 2022 vide Gazette Notice No. 15196 of 5 th December 2022, to govern the conduct of its proceedings. As such, in conducting the proceedings, Counsel submitted that the 1 st Respondent was acting within the confines of its mandate as espoused under Article 251 of the Constitution.
35. Reliance was placed in Okiya Omtatah Okoiti v National Assembly of Kenya & 4 others Interested Party; Edward Ouko 5 others [2019] KEHC 6978 (KLR) where it was observed that:
“The National Assembly is a state organ that exercises constitutional mandate. One of the mandates is to receive and consider petitions for removal of state officers. In the present petition the National Assembly had been moved by way of a petition by the 4th respondent to remove the Auditor General in accordance with Article 251 of the Constitution.
Article 251(1) provides for circumstances that can lead to removal of a member of a commission or an independent office. They include serious violation of this Constitution or any other law, including a contravention of Chapter Six; (b) gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise; (c) physical or mental incapacity to perform the functions of office; (d) incompetence; or (e) bankruptcy. Sub Article 2 provides that a person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified sub Article 1, may present a petition to the National Assembly setting out the
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1. The Petition dated 23 rd March 2023 is supported by the Petitioner’s affidavit in support of similar date. At its core, the Petition contests the proceedings undertaken by the 1 st Respondent which led to the Petitioner’s removal as a Commissioner of the Independent Electoral and Boundaries Commission (IEBC). Accordingly, the Petitioner seeks the following reliefs against the Respondents:
a) An order of certiorari do issue to quash the 1 st Respondent's Report and Recommendations dated 27.02.23 to the President for the removal of the Petitioner as IEBC Commissioner.
b) An order of certiorari do issue to quash the President's adoption of the 1 st Respondent's Report
and Recommendations to remove the Petitioner as IEBC commissioner.
c) An order of certiorari do issue to quash the Gazette Notice No. 2642 removing the Petitioner as IEBC Commissioner.
d) An order of certiorari do issue to quash Gazette Notice No. 2643 declaring vacancy of the Petitioner's position as IEBC Commissioner.
e) Declaratory orders do issue that the 1 st Respondent acted without and/or in excess of jurisdiction.
f) A declaratory order do issue that the four Petitions did not meet the constitutional, statutory, legal and established law requirements to disclose a prima facie Case against the Petitioner.
g) A declaratory order do issue that the evidence placed before the 1 st Respondent didn't meet the evidential threshold of impeachment Proceedings.
h) A declaratory order do issue that the 1 st Respondent material proceedings are null & void for violating the Constitution, Statutes and established Law.
i) A declaratory order do issue that the material allegations and recommendations against the Petitioner are res judicata.
j) A declaratory order do issue that everything that flowed from the impugned four Petitions is null and void ab initio.
k) A declaratory order do issue that the Petitioner has legitimate expectation to be IEBC Commissioner upto and including September 7, 2027.
l) The Court calls for the 1 st Respondent's record of Proceedings to review the evidence before it and the Report and recommendations it made with a view of quashing them.
m) An order for compensation do issue to the Petitioner for violation of her constitutional rights.
n) A declaratory order do issue that the 1 st Respondent’s proceedings were a judicial sham and akin to Nazi Gestapo Police Courts (Sondergericht).
o) Costs be provided for.
Petitioner’s Case
2. By way of background, the Petitioner submitted her application to be appointed as an IEBC Commissioner, following declaration of vacancies vide Gazette Notice No.3522 of 2021.She was after that appointed as a Commissioner.
3. Following the 2022 general elections, the Petitioner through a letter dated 18 th November 2022, four petitions were filed seeking her removal as an IEBC commissioner. Soon thereafter vide Gazette Notice No.14890 dated 2 nd December 2022, the 1 st Respondent was established to hear and determine the petitions seeking her removal.
4. She depones that through her advocate, Donald B. Kipkorir, she raised 4 preliminary objections against the petitions, particularly challenging the jurisdiction of the National Assembly including its Departmental Committee on Justice & Legal Affairs (JLAC). The JLAC begun proceedings over this matter on 24 th November 2022 and forwarded its Report to the National Assembly on 1 st December 2022.This corresponded with the time IEBC was required to start review of the general elections. She depones that the 1 st Respondent was established the following day on 2 nd December 2022.
5. The 1 st Respondent conducted its proceedings on 20 th , 21 st and 22 nd December 2022 and on 23 rd and 24 th January 2023 and 20 th February 2023. The Petitioner filed her supporting documents and witness statements during the proceedings. She avers that the advocates highlighted submissions on 20 th February 2023.
6. The Petitioner avers that before the 1 st Respondent finalized its proceedings, the President vide Gazette Notice No.1901 of 14 th February 2023, declared vacancies in the other seats, save hers.
7. She states that it was reported on 27 th February 2023 that the 1 st Respondent had finalized its Report and handed the same to the President. She notes that the 1 st Respondent forwarded her an incomplete Report which only reached page 44. Furthermore, the Report did not have any annextures or the Hansard Report of 20 th February 2023.She states that the 1 st Respondent in the email correspondence, indicated that all the material had been issued to the President.
8. She depones that vide Gazette Notice No.2642 dated 1 st March 2023, the President revoked her appointment as an IEBC Commissioner and
simultaneously declared vacancy in her office vide Gazette Notice No.2643.
9. She contends that the 1 st Respondent’s proceedings, recommendations and Report are null and void ab initio. This is since the 1 st Respondent proceeded without transmittal documents from the National Assembly via the President. Additionally, that no Report of the National Assembly pursuant JLAC's Recommendations was placed before the 1 st Respondent and that no Articles of Impeachment and or charge was drafted nor read to the Petitioner. She stresses that in the absence of these documents, there was no substratum to the 1 st Respondent's proceedings and equally, no nexus between an alleged National Assembly Report and the 1 st Respondent's establishment.
10. The Petitioner further faults the 1 st Respondent’s proceedings for a number of reasons being:
a) The 1 st Respondent proceeded to review, revise and revive Supreme Court Judgment No. E005 of 2022, Raila Odinga & Others Vs William Ruta & Others in contravention of Articles 140, 162 and 163 of the Constitution and Section 87 of the Elections Act.
b) The 1 st Respondent's Report and Recommendations violate the sacrosanct doctrines of res judicata and stare decisis.
c) The 1 st Respondent relied on evidence that didn't comply with Sections 106B, 107, 108 and 109 of the Evidence Act.
d) The 1 st Respondent relied evidence of witnesses whose evidence didn't establish the fact in issue (factum probandum) nor the evidentiary fact (factum probans).
e) The 1 st Respondent relied on hearing, gossip and bar-talk given by the 11 witnesses.
f) The charge and/or allegation of conspiracy wasn't proven at all.
g) The charges were against Cherera 4 jointly, yet it proceeded against the Petitioner only.
h) The record of the 1 st Respondent demonstrates a Tribunal driven by political bias and malevolence against the Petitioner and stood against the inevitable conclusion of the 1 st Respondent.
i) The 1 st Respondent misapprehended, misunderstood or simply didn't understand or know that impeachment proceedings are criminal in nature and adversarial. The 1 st Respondent took its role as that of an inquisitional nature and in fact equated its jurisdiction to that of removal of judges under Article 168 of the Constitution.
j) The 1 st Respondent lowered the bar on the burden of proof in impeachment proceedings under Article 251 of the Constitution.
k) The Tribunal's key witnesses, Wafula Chebukati and Marjan Hussein Marjan are tainted and biased witnesses with Court's pronouncements against their conduct.
l) The four petitions did not meet the constitutional, statutory and legal threshold as pleaded in the Petition.
m) Denial of my legitimate expectation to judicial process that is fair, impartial and transparent.
n) The 1 st Respondent railroaded the process for a predetermined conclusion.
11. The Petitioner as well argues that the Petitions against her stem from declaration of the Presidential results on 15 th August 2022. She notes that the entire allegation which is flawed, is premised on the Cherera 4 tampering with the election results and disowning the result. She emphasizes that at all material times neither her nor the other Commissioners had the results yet. She informs that Article 138 of the Constitution provides a clear procedure on a presidential election.
12. In a nutshell the mandatory procedure involves, filling of Form 34A in the prescribed Form at the polling station and transmitting the same to the Constituency, filling of Form 34B in the prescribed Form at the Constituency level, and electronically transmitting Forms 34A and 34B to the National Tallying Centre. Further, physical delivery of Forms 34A and J4B to the National Tallying Centre, then tallying Form 34C and verifying Form 34C against the Original Form 34A's and complete Form 34C and Print a hard copy of Form 34C. Following this, all the presidential agents are invited to sign the Form 34C before the same is published on the IEBC portal. This copy is then presented to the presidential agents after which the presidential results are declared. Thereafter the Chief Justice is notified of the result and the President elect issued with Form 34D.
13. In light of the foregoing averments, the Petitioner contends that the 1 st Respondent’s proceedings violated established case law, judicial norms and traditions and established international customary law on impeachment Proceedings, as such not sustainable. For this reason, the Petitioner is convinced that the 1 st Respondent’s proceedings is in breach of Articles 2 (1) & (4), 10,20, 22 (1), 23, 25 (c), 32, 33, 47 (1) & (2), 50 (1), (2), (b) ( c) (i), (j),(o), (q) and (4), 75, 138, 140 (2),160, 165, 232,248, 249 251 (1) (a ), (b) and (d), (2) and (3) and 252 (1) (a ) and (b) of the Constitution, Sections 4 (3) (a) (b), (c), (d), (e), (f) (g) and (5), 5(1)(b), (2)(b) and (c ) and 7 (2)(a (ii) (iv), (e ), (b) and (k) of the Fair Administrative Action Act, Sections 8, 91 26 and 30 of the IEBC Act as read with Schedule 2: Regulations 4, 6, 7 and 10 of the IEBC Regulations, Sections 39, 87 (1) and (2) of the Elections Act, Sections 7, 8, 9, 10, n, 16 and 43 (1) (a) (b) and (c) Leadership And Integrity Act, Sections 29 (1) (a), (2) and (3) of the Commission On Administrative Justice Act, Sections 1068, 107, 108, 109 and 110 of the Evidence Act and National Assembly Standing Orders- No. 219, 220, 223 (e), (f) (g) and (h), 227, 230 (1) (a), (h), and (4).
Respondents’ Case
14. In opposition to the Petitioner’s case, the Respondents’ filed grounds of opposition dated 26 th April 2023 on the premise that:
i. Vide a special Gazette Notice No. 14890 of 2 nd December, 2022, the 1 st Respondent was validly established pursuant to the provisions of Article 251(4) of the Constitution with a mandate to inquire into the petition by Parliament for removal of the Petitioner as a Commissioner of the IEBC.
ii. The 1 st Respondent legitimately fulfilled its mandate as stated in Gazette Notice No. 14890 of 2 nd December, 2022 which was validly stated as:
iii. The mandate of the Tribunal shall be to consider the petition for the removal of (1) Juliana Whonge Cherera, (2) Francis Mathenge Wanderi, (3) Irene Cherop Masit and (4)
Justus Abonyo Nyang'aya from office as members of Independent Electoral and Boundaries Commission (IEBC) and to inquire into the allegations therein.
iv. In the discharge of its functions, the Tribunal shall-
a. Prepare and submit a report and its recommendations thereon expeditiously; and
b. Exercise all the powers conferred upon it by law for the proper execution of its mandate.
v. The 1 st Respondent, in exercise of its mandate pursuant to Article 251 of the Constitution published the Tribunal (Practice and Procedure) Rules, 2022 vide Gazette Notice No. 15196 of 5 th December 2022, in the Kenya Gazette Vol. CXXIV-No. 264 to govern the conduct of its proceedings.
vi. There has never been a challenge before any court of competent jurisdiction as to the legal validity of the Gazette Notice No. 15196 of 5 th December 2022 or the Tribunal (Practice and Procedure) Rules, 2022 hence the same remain sound, valid and effective.
vii. Whereas the rule of evidence which encompasses the rules and legal principles that govern the proof of facts in a legal proceeding, the quantum, quality, and type of proof needed to prevail in litigation is paramount, Rule 14 of the Tribunal (Practice and Procedure) Rules, 2022 stipulated that the 1 st Respondent in its proceedings would not be bound by the strict rules of evidence and its proceedings would be guided by the rules of natural justice.
viii. Pursuant to the mandate established vide Gazette Notice No. 14890 of 2 nd December, 2022, the Tribunal was clothed with investigative powers, thus the 1 st Respondent became a quasi-judicial body vested with inquisitorial powers.
ix. The matter before the 1 st Respondent was sui generis. The standard of proof applicable in the proceedings of the Tribunal was neither that applicable in criminal law (beyond reasonable doubt) nor that applicable in civil cases, (on a balance of probability). Thus, a strict application of standard rules of procedure or evidence could have negated the fundamental policy-object.
x. In the words of sitting Lord Reid in Ridge vs. Baldwin (1968) All ER 66 , "A man is entitled to have chapter and verse quoted against him and a full opportunity to rebut the allegation." The totality of the Petitioner's annexes marked ICM-4 pg. 63, ICM-11 pg. 468 and ICM-16 pg. 2634 is an indisputable fact that the petitioner was made aware of the allegations against her and was accorded an opportunity to defend herself against those allegations in a full and fair public hearing but chose not to.
xi. Failure by the Petitioner to rebut the allegations levelled against her before the 1 st Respondent against left the case against her uncontroverted and unchallenged.
xii. The proceedings against the Petitioner and the decision of the 1 st Respondent recommending the removal of the Petitioner as a Commissioner of the IEBC evince principles of the rule of law, equality before the law, accountability to the law, fairness in application of the law, and procedural and legal transparency. The proceedings and the decision thereto were undertaken within the defined constitutional framework and cannot therefore be challenged on the basis of non-conformity with statutory law or the standing orders of the National Assembly.
xiii. The national values and principles of governance as declared at Article 10 to include the rule of law, democracy, equality, human rights, good governance, transparency, integrity, accountability are binding on all State officers whenever they are making or implementing public decisions, the petitioner included.
xiv. The petition runs contra to the provisions of Article 10 on national values and principles of governance, and Article 73 on the guiding principles on leadership and integrity which include inter alia, objectivity and impartiality in decision making and ensuring that decisions are not influenced by among others, corrupt practices and improper motives.
xv. There cannot be legitimate expectation against clear provisions of the law. Article 251 of the Constitution and section 17A of the IEBC Act, 2011 clearly provide for the procedure for removal of a member of the IEBC such as the Petitioner.
xvi. The Petition is at best based on the Petitioner's personal inclinations and observations which do not form an actual controversy warranting intervention by this Court in the form of prayers sought in both the Application and Petition.
xvii. Both the Application and Petition are misconceived and unmerited, the Petitioner having failed to demonstrate the unconstitutionality of the proceedings, the illegality of the report of the 1 st Respondent recommending her removal as a Commissioner of the IEBC and/or the alleged infringement of her fundamental rights and freedoms.
Petitioner’s Submissions
15. KTK Advocates for the Petitioner filed submissions dated 17 th September 2024.
16. Restating the background and facts of this case, Counsel submitted that the entire impeachment process commencing from the National
Assembly to the Petitioner’s removal, was unlawful and irregular in violation of the Constitution and her constitutional rights.
17. To support this submission, Counsel pointed out that the four petitions did not have any supporting evidence or exhibits as required under Sections 107, 108, 109 and 110 of the Evidence Act. Counsel added that the petitions did not meet the requirements of Article 50 (2) (b) of the Constitution as read with Section 4 (3) (a) and (g) of The Fair Administrative Action Act. Counsel asserted that the petitions likewise regurgitated issues that had already been dealt with by the Supreme Court in Presidential Election Petition No. E005 of 2022 , hence issues res judicata and stare decisis. Counsel added that the 1 st Respondent even went ahead to review the Supreme Court findings, in violation of Article 140 of the Constitution and Section 87 of the Elections Act.
18. Furthermore, Counsel submitted that the four petitions did not establish any constitutional, statutory or legal basis for the reliefs they sought and thus the 2 nd Respondent lacked jurisdiction and acted in excess of it in contravention of Section 7 (2) (u) of The Fair Administrative Action Act. The petitions were also faulted for failing to comply with the requirements of Standing Orders No.223 and 230 of the National Assembly Standing Orders.
19. Counsel also underscored that the 1 st Respondent proceeded without transmittal documents from the National Assembly in contravention of Article 251 (3) of The Constitution and also without the Articles of Impeachment in violation of Articles 47(2) and 50(2)(b) of the Constitution.
20. Counsel further faulted the 1 st Respondent for relying on TV evidence which was not produced in accordance with Section 106B, 107,108,109 and 110 of the Evidence Act. Similarly, Counsel noted that the 1 st Respondent’s Report relied on evidence that was not tendered during the proceedings in blatant breach of Articles 50(1) (j) and (k) of the Constitution. Reliance was placed in Garissa HC Criminal Case No. 3 of 2023, Republic -VsIbrahim Bille Jelle [Unreported] where it was held that:
“It is thus not enough merely to be trained by the American Embassy to be qualified to produce in evidence information or data from a mobile phone or electronic information or data. There is also need for strict compliance with the above provisions of the Evidence Act. Failure to comply with the legal requirements will mean that the electronic information or data will not be admissible as evidence and will thus be of no evidential value ...
No Certificate was produced in Court to support the production of the electronic data herein from the Nokia mobile phone. In effect therefore the electronic data relied upon from the mobile telephone is not evidence which can be relied upon to connect the accused to the offence charged ...
Having re-evaluated the evidence on record and considering the law, I am of the view that the Prosecution has not made out a prima facie Case which would require this Court to put the accussed person on his defence.”
21. Similar reliance was placed on Kisumu Civil Appeal No.17and 18 of 2015: County Assembly of Kisumu & others vs Kisumu County Assembly Service Board and others [Unreported] .
22. In like manner, Counsel submitted that the Petitioner was charged with conspiracy in that she allegedly conspired with the Cherera 4 to supplant the will of the people. Counsel reiterated that the Supreme Court had already determined this matter. Nevertheless, Counsel argued that the allegation of conspiracy was not proved. Reliance was placed in Nairobi Criminal Appeal No.4 and 132, Ian Gakoi Maina and 3 others v Republic [Unreported] where the Court of Appeal held that:
“For the 1 st Count to succeed it must be proven by the prosecution that there was the element of an agreement a meeting of minds of the accused persons and the intention to defraud.
These basic elements have not been established ...
It was the duty of the Prosecution to proof the role of each of the accused persons and their capacities in their respective offices in the Commission of the offence. This line of evidence is lacking for all the accused so as to establish a nexus lading to conspiracy ... "
23. Further reliance was placed on Kisumu Criminal Appeal No.12 of 2016, Republic v Anne Atieno Adul and others [Unreported] .
24. Counsel further argued that evidence of the 11 witnesses did not prove the complaints against the Petitioner beyond reasonable doubt. Similarly, it was noted that the 1 st Respondent heavily relied on the evidence of Wafula Chebukati and Marjan Hussein Marjan yet the Courts have cast doubt on their integrity to the law. Counsel postulated that the entire proceedings were commenced with a pre-determined outcome against the Petitioner and thus she had no chance of an independent and impartial Tribunal as guaranteed by the Constitution, in line with her legitimate expectation.
25. Reliance was placed in Republic vs National Cohesion and Integration Commission, Nairobi HC JR. Application No. E057 of 2022 where it was emphasized that:
“The right to be heard is cardinal and cannot be derogated. This Court appreciates the crucial and sensitive role that the Respondent undertakes in promotion of National Cohesion in an environment of pronounced diversity. The statutory power donated to it, musty be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and our laws. However well meaning, the Respondent cannot get away with unilateral decisions that affect the citizenly without regard to their Constitutional and legal rights topmost of which is the right to be heard. This was emphasized in the Case of Leiyagu -V- IEBC & 2 Others where the Court stated;
The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law".
26. Comparable reliance was placed in Speaker of the National Assembly v Public Protector and others, CCT 257/21[Unreported] .
27. Counsel in the same way challenged the 1 st Respondent’s proceedings as argued that crucial witnesses were not summoned. Particularly those who were alleged to have issued them the instructions to subvert the will of the people. To buttress this point reliance was placed in Nakuru Criminal Appeal No. 34 of 2006, Donald Majiwa Achilwa & Others -Vs- Republic [Unreported] , where the Court of Appeal held that:
"The law as it presently stands, is that the Prosecution is obliged to call all Witnesses who are necessary to establish the truth in a Case even though some of those Witnesses' evidence may be adverse to the Prosecution Case. However, the Prosecution is not bound to call a plurality of Witnesses to establish a fact. Where, however, the evidence adduced barely establishes the Prosecution Case, and the Prosecution withholds a Witness, the Court, in an appropriate Case, is entitled to infer that had the Witness been called his evidence would have tended to be adverse to the Prosecution Case".
28. Comparable reliance was placed in Chuka HC Criminal Appeal No.13 of 2020, Peter Nyamu Mutithi v Republic [Unreported] .
29. Counsel reasoned that impeachment proceedings are adversarial in nature and thus a party cannot initiate its pleadings from one forum to another. In this case, Counsel stated that what was before the National Assembly is different from what was before the 1 st Respondent. Further that the pleadings relied on by the National Assembly were charges which were not supported by any evidence. To buttress this point reliance was placed in Malawi Railways Limited -VsPTK Nyasulu, MSCA Civil Appl. No. 13 of 1992, [Unreported] where it was held that:
“In the adversarial system of litigation therefore, it is the Parties themselves who set the agenda for the trial by their Pleadings and neither Party can complain if the agenda is strictly adhered to. In such an agenda, there no room for an item called "Any Other Business" in the sense that points other than those specified may be raised without notice".
30. Counsel additionally challenged the allegation of gross misconduct on the Petitioner’s part. Counsel contended that in addition to lack of evidence to prove this claim, calling of a press conference cannot amount to gross misconduct. Reliance was placed on Petition No. 4 of 2020, Hon. Justice Martin Mati Muya -Vs- The Tribunal, [Unreported] where gross misconduct was defined as follows:
“Clearly, all the words used to describe "gross" express some extreme negative conduct; a degrees of misconduct of such a serious, outrageous and flagrant nature that would warrant removal of a judge from office, those that would render an individual Judge unfit or incapable of performing that duties of his or her office. That is how serious it ought to be ...
Equally, we do not think that the conduct of the Petitioner was persistent, or that, considered alone, it was capable of destroying the confidence in the Judge's ability to properly perform his judicial function. There was no discernible pattern of dereliction, but a single act of transgression; a five month's delay. He readily admitted the delay, gave an explanation and expressed remorse.”
31. In sum, Counsel submitted that the 1 st Respondent did not discharge the burden in the impeachment proceedings being that they are quasi-criminal in nature. Reliance was placed in Woolmington-Vs-The Director of Public Prosecutions [1935] AC 462 where it was observed that:
"If at any period of a trial it was permissible for the Judge to rule that the Prosecution has established its Case and that the onus was shifted on the Prisoner to prove that he was not guilty and that unless he discharged that onus the Prosecution was entitled to succeed, it would be enabling the Judge in such a Case to say that the jury must in law find the prisoner guilty and so make the Judge decide the Case and not the jury, which is not the common law. It would be an entirely different Case from those exceptional instances of special verdicts where a Judge asks the jury to find certain facts and directs them on such facts the Prosecution is entitled to succeed....
Throughout the web of English Criminal Law one golden thread is always to be seen, that is the duty of the Prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the Case, there is a reasonable doubt, created by the evidence given by either the Prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the Prosecution has not made out the Case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial. the principle that the Prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
32. Reliance was placed on Nairobi HC Petition No. 174 of 2016, Robert Alai -Vs-The Hon. Attorney General & Others, [Unreported) .
Respondents’ Submissions
33. Senior State Counsel, Christopher Marwa filed submissions dated 21 st August 2025 and highlighted the issues for discussion as : whether the Muchelule Tribunal was legally constituted and acted within its mandate, whether the evidence before the Muchelule Tribunal meet the evidential threshold of impeachment proceedings, whether the Petitioner’s constitutional rights were violated and whether the actions of the Tribunal infringed on the Petitioner’s legitimate expectation .
34. On the first issue, Counsel submitted that the 1 st Respondent’s composition is provided under Article 251 of the Constitution and that it acted within its mandate as provided under the Special Gazette Notice No. 14890 of 2 nd December 2022. To discharge its mandate the 1 st Respondent was empowered to prepare and submit a report and its recommendations and exercise all the powers conferred upon it by law for the proper execution of its mandate. Counsel noted that to do so, the 1 st Respondent established the Tribunal (Practice and Procedure) Rules, 2022 vide Gazette Notice No. 15196 of 5 th December 2022, to govern the conduct of its proceedings. As such, in conducting the proceedings, Counsel submitted that the 1 st Respondent was acting within the confines of its mandate as espoused under Article 251 of the Constitution.
35. Reliance was placed in Okiya Omtatah Okoiti v National Assembly of Kenya & 4 others Interested Party; Edward Ouko 5 others [2019] KEHC 6978 (KLR) where it was observed that:
“The National Assembly is a state organ that exercises constitutional mandate. One of the mandates is to receive and consider petitions for removal of state officers. In the present petition the National Assembly had been moved by way of a petition by the 4th respondent to remove the Auditor General in accordance with Article 251 of the Constitution.
Article 251(1) provides for circumstances that can lead to removal of a member of a commission or an independent office. They include serious violation of this Constitution or any other law, including a contravention of Chapter Six; (b) gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise; (c) physical or mental incapacity to perform the functions of office; (d) incompetence; or (e) bankruptcy. Sub Article 2 provides that a person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified sub Article 1, may present a petition to the National Assembly setting out the
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