Introduction
1. The Petitioner is a duly registered trade union under the Labour Relations Act, 2007
2. The 1st Respondent is the County Assembly of West Pokot, a legislative organ of the County Government established under Article 176 of the Constitution of Kenya.
3. The 2nd Respondent is the County Executive Committee Member for Finance and Economic Planning, West Pokot County, an office bearer established under Article 179 of the Constitution of Kenya and appointed pursuant to Section 35 of the County
Governments Act
4. The 3rd Respondent is the Office of the Controller of Budget, West Pokot County, an independent constitutional office established under Article 228 of the Constitution of Kenya and mandated to oversee the implementation of budgets of both the National and County Governments by authorising withdrawals from public funds in accordance with the law
5. The 4th Respondent is the Governor, County Government of West Pokot, an office established under Article 180 of the Constitution of Kenya and serving as the Chief Executive Officer of the County pursuant to Section 30 of the County Governments Act.
The Petition
6. The Petitioner filed the Petition dated 26th January 2026 against the Respondents invoking various Articles of the Constitution, sections of Public Finance Management Act and County Governments Act seeking the following reliefs:
a. A declaration that the Respondents’ actions are brazen, illegal, egregious and a violation to the Petitioner’s constitutional rights.
b. A declaration that the Respondents resolve to merge and wind up of the West Pokot County Assembly Members Mortgage and Car Loan and Mortgage Act, Kenya Gazette Supplement No. 19 West Pokot County Acts No.11 of 2017 into the County Assembly Members and Staff Mortgage and Car Fund on 29th July, 2025 violates the Petitioner Constitutional rights under Articles 10, 40, 47, 175, 185(3), 196(1) & 201 of the Constitution of Kenya 2010.
c. A declaration that that the Respondents have violated the Petitioner' rights guaranteed under section 4 Fair Administrative Actions Act, 2015, and that the resolve to merge and wind up the said funds is unlawful, illegal, unconstitutional and therefore invalid, null and void ab initio for being contrary to Sections 116 (5) & (6) of the Public Finance Management Act and section 199 (3) of the Public Finance Management (County Government) Regulations.
d. A permanent injunction order do issue suspending the implementation, execution and or enforcement of any decision, resolution, circular, directive or administrative action seeking to merge, wind up, dissolve, restructure or otherwise interfere with the West Pokot County Assembly Members Mortgage and Car Loan and Mortgage Act, Kenya Gazette Supplement No. 19 West Pokot County Acts No.11 of 2017.
e. A permanent injunction do issue quashing the County Assembly Members and Staff Mortgage and Car Fund Bill/Act, 2025 for being unlawful, and unconstitutional and therefore invalid, null and void ab initio.
f. An order of prohibition do issue restraining/ stopping the Respondents, their agents, servants and / persons acting under their authority from merging, consolidating, winding up, transferring funds, altering governance structures or otherwise interfering with West Pokot County Assembly Members Mortgage and Car Loan and Mortgage Act, Kenya Gazette Supplement No. 19 West Pokot County Acts No.11 of 2017.Assembly Staff Mortgage and Car Loan Fund.
g. Costs of the Petition.
h. Any other order and or reliefs as the Court may deem fit.
7. The Petition is premised on the contention that the 1st Respondent, through a Hansard Report dated 29th July 2025, resolved to merge and wind up the West Pokot County Assembly Members Mortgage and Car Loan Fund and place it under a unitary management structure. The Hansard read in part:-
"Currently, the fund is managed through two parallel committees—one for Members and another for staff. This fragmentation is unnecessary and inefficient. The purpose of this Bill is to amalgamate the fund so that we have a single committee managing one unified account."
8. The Petitioner contends that in arriving at the impugned decision, the Respondents disregarded the constitutional and statutory legislative process governing the enactment of county legislation. It is alleged that the impugned decision was anchored on a Bill that had not completed the requisite legislative process and was undertaken without public participation, particularly involving members of staff and other beneficiaries directly affected by the proposed merger.
9. According to the Petitioner, the Respondents failed to undertake adequate stakeholder consultations and did not provide any justification for the proposed merger or facilitate meaningful participation by the beneficiaries of the Fund. In this regard, the Petitioner contends that the proposed merger violates Articles 10, 47, 174, 196, 201 and 232 of the Constitution. It is further contended that the Respondents' actions infringe the right to fair administrative action guaranteed under Article 47(1) of the Constitution and contravene sections 116(5) and (6) of the Public Finance Management Act, regulation 199(3) of the Public Finance Management (County Governments) Regulations and sections 104(4) and 115 of the County Governments Act.
10. It is therefore the Petitioner's case that unless this Court intervenes, its constitutional rights will continue to be violated and it, together with the beneficiaries of the Fund, stand to suffer irreparable harm if the proposed merger and winding up of the Fund is implemented.
11. The Petition is supported by the affidavit of Roba S. Duba, the Petitioner's National General Secretary, sworn on 26th January 2026.
12. Contemporaneously with the Petition, the Petitioner filed an application seeking conservatory relief pending the hearing and determination of the Petition. The Court granted conservatory orders preserving the status quo.
13. Although duly served with the Petition, the application and the hearing notice, the Respondents neither entered appearance nor filed any response. Consequently, the Petition proceeded as an undefended cause.
14. The Court directed that the Petition be disposed of by way of written submissions. The Petitioner’s submissions are dated 19th June 2026. The Respondents did not file any submissions.
15. In its submissions, the Petitioner identified the issues for determination to be:-
i. Whether the proposed merger and winding up of the Funds are unconstitutional for want of public participation and compliance with the requirements of fair administrative action.
ii. Whether the proposed unitary management structure prejudices oversight and offends the constitutional principle of separation of powers.
iii. Whether the proposed merger and winding up compromise sound financial governance contrary to Articles 10 and 201 of the Constitution.
16. On the first issue, the Petitioner submitted that before a Bill is enacted into law, the following legislative steps must be undertaken:-
a) The Bill is prepared and drafted together with a Memorandum of Objects and Reasons and a Statement of Financial Implications.
b) The proposed Bill is published in both the County Gazette and the Kenya Gazette within fourteen (14) days so as to notify the public.
c) The First Reading is conducted, during which the Clerk reads the title of the Bill. No debate takes place at this stage and the Bill is thereafter committed to the relevant Sectoral Committee.
d) At the Committee Stage, public participation is undertaken. The Committee reviews the Bill, invites stakeholders to submit their views, conducts public hearings, and prepares a report.
e) During the Second Reading, the Assembly debates the principles and objects of the Bill.
f) At the Committee of the Whole Assembly Stage, the House scrutinizes the Bill clause by clause and considers any proposed amendments.
g) The Third Reading entails the final debate and voting on the Bill.
h) Upon passage, the Speaker forwards the Bill to the Governor for assent. The Governor is required to assent to the Bill within fourteen (14) days or refer it back to the Assembly with recommendations.
i) Once assented to, the Act is published in the Gazette and ordinarily comes into force fourteen (14) days thereafter.
17. According to the Petitioner, the Respondents did not comply with all the requisite legislative stages in their resolve to merge and wind up the West Pokot County Assembly Members Mortgage and Car Loan Fund and place it under a unitary management structure .The Petitioner submitted that before the process of winding up the funds can be introduced through a Bill, the County Executive Committee Member responsible for Finance must first obtain the approval of the County Assembly as required under section 116(5) of the Public Finance Management Act.
18. Relying on section 116 of the Public Finance Management Act and Regulation 199 of the Public Finance Management (County Governments) Regulations, the Petitioner submitted that the winding up of a County Public Fund must strictly comply with the procedure prescribed by law.
19. The Petitioner further submitted that section 30 of the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 empowers the Management Committee to make regulations for the proper carrying out of the purposes and provisions of the Act, subject to the approval of the County Assembly. It was submitted that a merger or winding up constitutes a fundamental alteration of the Act and therefore requires either formal amendments to the Act or the enactment of a new Bill, both of which necessitate public participation.
20. It is the Petitioner’s submission that the Respondents ignored the principle of public participation which is both a constitutional principle governing the administration of County Public Funds and a mandatory stage in the legislative process . Relying on Article 10(2) of the Constitution, the Petitioner submitted that public participation is integral to the promotion of the national values and principles of governance. The Petitioner therefore contended that the County Assembly is not exempt from the constitutional obligation to facilitate public participation before implementing any policy or legislative proposal and that as a constitutional body, it is bound by the Constitution and the rule of law and must uphold the principles of transparency, accountability and public participation before undertaking any legislative action.
21. The Petitioner further relied on Article 196 of the Constitution which requires County Assemblies to facilitate public participation and involvement in the legislative and other business of the Assembly and its Committees and also, Article 201 of the Constitution, which requires openness and public participation in matters relating to public finance. It is the Petitioner’s case that despite being fully aware of these constitutional obligations, the County Assembly failed to comply with them, thereby rendering the proposed merger and winding up of the Funds procedurally defective.
22. In addition, the Petitioner contended that there was inadequate stakeholder consultation, particularly with the Union representing the affected employees. According to the Petitioner, the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 defines "staff" as employees serving on permanent and pensionable terms. The Petitioner argued that since the Union represents those employees, any decision to wind up a Fund that directly affects their terms and conditions of service and employment benefits required their meaningful participation. According to the Petitioner, the failure to undertake public participation constituted a sufficient basis upon which the impugned legislative and administrative actions could be declared unconstitutional. In support of this position, reliance was placed on Edible Oil Products Limited & 10 Others v National Assembly & 3 Others (Constitutional Petition E498 of 2021) [2022] KEHC 17097 (KLR), in which the Court adopted the six principles on public participation articulated in Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others Machakos Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 [2015] eKLR to include:-
a) it is incumbent upon the relevant public body to design a programme of public participation that accords with the nature of the subject matter
b) public participation must be flexible and innovative, depending on the nature of the issue under consideration, and no single model is prescribed, the only applicable test being one of effectiveness
c) the process must include access to and dissemination of, relevant information to enable meaningful participation
d) while public participation does not require that every individual be heard, the programme must demonstrate intentional inclusivity and diversity, particularly by ensuring that those most affected by the proposed action are deliberately involved
e) although public participation does not guarantee that every view will prevail, the decision-maker is under a duty to consider, in good faith, all views received and must not merely engage in a cosmetic or token exercise
f) public participation is intended to enrich, rather than usurp, the technical and democratic functions of public office holders.
23. The Petitioner thus submitted that public participation is rendered ineffective and unlawful where there are deliberate attempts to exclude bona fide stakeholders from the decision-making process. According to the Petitioner, no public participation whatsoever was undertaken in relation to the proposed merger and winding up of the Funds. The Petitioner further relied on Kiambu County Government & 3 Others v Robert N. Gakuru & Others (Civil Appeal No. 200 of 2014) [2017] KECA 459 (KLR), in which the Court of Appeal observed that merely permitting public participation in the legislative process is insufficient and rather, public bodies are under an obligation to actively facilitate meaningful participation by providing adequate notice, disseminating relevant information, creating awareness and establishing conditions that enable the public to effectively participate in the legislative process.
24. In this regard, the Petitioner submitted that the impugned process was undertaken in violation of both the Constitution and the Public Finance Management framework. It is asserted According to the Petitioner, the 1st and 2nd Respondents deliberately omitted this crucial constitutional requirement and proceeded to pass the impugned legislation on the same day without adhering to the prescribed procedure.
25. With regard to the issue of fair administrative action, the Petitioner submitted that Article 47 of the Constitution and the Fair Administrative Action Act require every administrative action to be lawful, reasonable, procedurally fair and proportionate. The Petitioner contended that the proposed winding up of the Funds directly violated those constitutional and statutory requirements because the beneficiaries of the Funds were neither given prior notice of the intended action, informed of the reasons for the proposed decision, nor afforded an opportunity to present their views before the decision was made.
26. It was further submitted that the 1st and 4th Respondents failed to accord the Petitioner an opportunity to present its views, participate in the decision-making process, vote, or engage in stakeholder consultations before making a decision that adversely affected the rights and interests of the beneficiaries of the Funds.
27. The Petitioner therefore submitted that the impugned decision failed to meet the constitutional threshold of procedural fairness and should be quashed.
28. With regard to the second issue, the Petitioner submitted that the proposed Bill sought to justify the consolidation of the Funds on the grounds that it would promote fairness, enhance planning, facilitate better utilization of limited resources through centralized management, ensure equitable access, recognize the similarity in the objectives of the Funds, minimize the risk of bankruptcy, save time and eliminate unnecessary bureaucracy. However, it was submitted that although legislative bodies enjoy policy discretion, such discretion must be exercised within the confines of the Constitution, particularly Articles 10, 40, 47 and 201.`
29. The Petitioner further submitted that the proposed Bill vests the management of the Consolidated Fund in the same Members of the County Assembly, thereby creating an inherent conflict of interest. According to the Petitioner, the proposed unitary management structure would prejudice both Members and staff by eliminating separate oversight over their respective Funds and concentrating the management of the Funds in a single body.
30. It is further submitted that the consolidation of the two Funds under a unitary management structure undermines the constitutional principle of separation of powers. The Petitioner contended that the two Funds were deliberately established as distinct Funds in order to cater separately for the needs of Members of the County Assembly and those of staff, each with its own management framework. Citing Article 185(3) of the Constitution, the Petitioner submitted that the constitutional design of County Assemblies is oversight-oriented and not executive or managerial in nature.
31. According to the Petitioner, consolidating the Funds serving both Members and staff under a structure controlled by Members of the County Assembly creates a structural imbalance, as the Members would effectively exercise supervisory control over a Fund from which they are direct beneficiaries while simultaneously purporting to oversee financial interests affecting members of staff who are administratively subordinate within the Assembly.
32. Further, the Petitioner submitted that the participation of the Members of the County Assembly in the management of the Funds which they are constitutionally required to oversee creates a conflict of interest that undermines accountability and transparency. According to the Petitioner, the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 deliberately established a distinct management structure for staff, comprising separate Committees responsible for Car Loans and Mortgages in order to safeguard and ensure the proper administration of staff funds.
33. In addition, the Petitioner submitted that the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 specifically defines "staff" as employees serving on permanent and pensionable terms. According to the Petitioner, merging the two Funds ignores the fundamental distinctions between Members of the County Assembly and staff, particularly with regard to the different financial arrangements applicable to each category. It is submitted that whereas members of staff are eligible for mortgage facilities repayable over a period of up to twenty years, Members of the County Assembly are limited by their constitutional five-year term of office. The Petitioner relied on the decision of the Supreme Court in Council of County Governors v Senate & 6 Others (Petitions Nos. 24 & 27 of 2019 (Consolidated)) [2022] KESC 57 (KLR) and Gikonyo & Another v National Assembly of Kenya & 4 Others; Council of Governors & 3 Others (Interested Parties) (Constitutional Petition No. 178 of 2016) [2024] KEHC 10886 (KLR) in support of the proposition that the proposed merger similarly places Members of the County Assembly in a position that is inconsistent with their constitutional oversight mandate.
34. The Petitioner thus submitted that the proposed unitary management structure is unconstitutional as it offends the constitutional principle of separation of powers.
35. Lastly, on the issue whether the proposed merger and winding up compromise sound financial governance contrary to Articles 10 and 201 of the Constitution, the Petitioner submitted that the impugned proposal raises significant constitutional concerns by undermining the principles embodied in those constitutional provisions.
36. Relying on Article 201(d) and (e) of the Constitution, the Petitioner submitted that a governance structure characterized by frequent leadership changes undermines continuity, long-term planning and institutional memory, all of which are essential components of responsible financial management. According to the Petitioner, such structural instability undermines prudence, accountability and transparency as envisaged under Article 201 of the Constitution.
37. The Petitioner contends that the proposed merger and winding up of the Funds would generate uncertainty and confusion regarding the financial governance of the consolidated Fund, particularly because Members of the County Assembly are replaced upon the expiry of their electoral term. According to the Petitioner, this raises the legitimate concern as to who would assume responsibility for managing the consolidated Fund upon the expiry of the Members' term of office. It was further submitted that the proposed structure would undermine accountability by creating uncertainty as to who would ultimately bear responsibility for any adverse consequences arising from the management of the Fund.
38. In the end, the Petitioner urged the court to find that the proposed merger and winding up of the County Assembly Members' and Staff Mortgage and Car Loan Funds was undertaken without meaningful public participation, contrary to Articles 10, 196 and 201 of the Constitution and in violation of the constitutional and statutory principles governing fair administrative action, separation of powers and sound public financial management.
Determination
39. I have carefully considered the Petition, the supporting affidavit together with the annexures thereto and the written submissions filed by the Petitioner. The issues that fall for the court’s determination are:-
i. Whether the impugned decision and the proposed merger and winding up of the West Pokot County Assembly Members Mortgage and Car Loan Fund violated the constitutional requirement of public participation.
ii. Whether the impugned process violated the Petitioner's right to fair administrative action under Article 47 of the Constitution.
iii. Whether the proposed unitary management structure offends the constitutional principle of separation of powers and the principles governing public finance under Articles 10 and 201 of the Constitution.
iv. Whether the Petitioner is entitled to the reliefs sought.
Whether the impugned decision and the proposed merger and winding up of the West Pokot County Assembly Members Mortgage and Car Loan Fund violated the constitutional requirement of public participation.
40. The Constitution entrenches public participation as one of the national values and principles of governance under Article 10 and requires County Assemblies to facilitate public participation and involvement in their legislative and other business pursuant to Article 196. In matters relating to public finance, Article 201 requires openness, accountability and public participation.
41. Article 10(2)(a) of the Constitution encompasses public participation as a national value and principle of governance. State organs, State officers, public officers and all persons are bound by the Constitution to undertake public participation before making or implementing public policy decisions.
42. The constitutional obligation to facilitate public participation is a substantive constitutional imperative intended to ensure that those likely to be affected by legislative or administrative decisions are afforded a meaningful opportunity to contribute to the decision-making process.
43. In Okiya Omtatah Okoiti v Refugee Affairs Secretariat (RAS) Kenya & 2 others [2020] eKLR, Justice W. Korir explained:
“...Public participation in the decisions of administrators is confirmed as a national value and principle of governance under Article 10 of the Constitution, and therefore everyone would anticipate that all policy decisions and administrative actions would involve their input. By failing to hold any public forum to gauge the concerns and obtain the input of the refugee community, the respondents did infringe the legitimate expectation held by the refugees that the Guidelines governing the election of their leaders would be subjected to public participation.”
44. In the case of Republic v County Government of Kiambu Ex parte Robert Gakuru & another [2016] eKLR the Court held-
“…However, it must be appreciated that the yardstick for public participation is that a reasonable opportunity has been given to the members of the public and all interested parties to know about the issue and to have an adequate say. It cannot be expected of the legislature that a personal hearing will be given to every individual who claims to be affected by the laws or regulations that are being made. What is necessary is that the nature of concerns of different sectors of the parties should be communicated to the law maker and taken in formulating the final regulations. Accordingly, the law is that the forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case...”
45. The Petitioner contends that the decision to merge and wind up the existing Funds was undertaken without involving the beneficiaries of the Funds, members of staff represented by the Petitioner or the wider public. It is further contended that the legislative process contemplated under the Constitution, the County Governments Act and the Public Finance Management Act was not followed.
46. The Hansard extract relied upon by the Petitioner demonstrates that the County Assembly had already resolved to consolidate the two Funds under a unitary management structure. There is, however, no evidence before the Court demonstrating that the affected stakeholders were invited to participate in that process or that any public participation was undertaken before the impugned decision was reached.
47. In the absence of any evidence demonstrating compliance with those constitutional requirements, this Court finds that the impugned process violated Articles 10, 196 and 201 of the Constitution. To that extent, the proposed merger and winding up of the Funds was constitutionally defective.
Whether the impugned process violated the Petitioner's right to fair administrative action under Article 47 of the Constitution.
48. Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. The constitutional guarantee is operationalized through the Fair Administrative Action Act, which obligates public bodies to accord persons likely to be adversely affected by an administrative decision adequate notice, reasons for the proposed action and an opportunity to be heard before the decision is taken.
49. The Respondents' decision to merge and wind up the existing Funds, although undertaken within a legislative framework, equally carried administrative consequences affecting identifiable beneficiaries of the Funds. The implementation of such a decision would inevitably alter the rights, benefits and legitimate expectations of members of staff and Members of the County Assembly who are beneficiaries under the existing statutory regime.
50. Where a public decision directly affects identifiable persons or a defined class of beneficiaries, the Constitution requires that the affected persons participate in the process before adverse decisions are implemented.
51. The uncontroverted evidence before Court demonstrates that the beneficiaries of the Funds were neither notified of the intended action nor afforded an opportunity to present their views before the impugned decision was reached. No evidence was tendered showing that the Petitioner or the affected employees were invited for stakeholder consultations or that their representations, if any, were considered.
52. In those circumstances, the Court finds that the Respondents failed to comply with the procedural safeguards contemplated under Article 47 of the Constitution and section 4 of the Fair Administrative Action Act. The impugned process therefore violated the Petitioner's constitutional right to fair administrative action.
Whether the proposed unitary management structure offends the constitutional principle of separation of powers and the principles governing public finance under Articles 10 and 201 of the Constitution.
53. The Petitioner further contends that placing the management of the consolidated Fund under a single committee controlled by Members of the County Assembly creates an inherent conflict of interest and undermines the constitutional principle of separation of powers.
54. County Assemblies exercise legislative and oversight functions under Article 185 of the Constitution. Article 185(3) provides: -
“(3)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.”
55. A plain reading of the above constitutional provision demonstrates that the Constitution confers upon County Assemblies an oversight mandate, to be exercised in a manner that respects the principle of separation of powers. That oversight function is intended to ensure accountability in the exercise of executive authority and the management of public resources and does not extend to the direct operational management or
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1. The Petitioner is a duly registered trade union under the Labour Relations Act, 2007
2. The 1st Respondent is the County Assembly of West Pokot, a legislative organ of the County Government established under Article 176 of the Constitution of Kenya.
3. The 2nd Respondent is the County Executive Committee Member for Finance and Economic Planning, West Pokot County, an office bearer established under Article 179 of the Constitution of Kenya and appointed pursuant to Section 35 of the County
Governments Act
4. The 3rd Respondent is the Office of the Controller of Budget, West Pokot County, an independent constitutional office established under Article 228 of the Constitution of Kenya and mandated to oversee the implementation of budgets of both the National and County Governments by authorising withdrawals from public funds in accordance with the law
5. The 4th Respondent is the Governor, County Government of West Pokot, an office established under Article 180 of the Constitution of Kenya and serving as the Chief Executive Officer of the County pursuant to Section 30 of the County Governments Act.
The Petition
6. The Petitioner filed the Petition dated 26th January 2026 against the Respondents invoking various Articles of the Constitution, sections of Public Finance Management Act and County Governments Act seeking the following reliefs:
a. A declaration that the Respondents’ actions are brazen, illegal, egregious and a violation to the Petitioner’s constitutional rights.
b. A declaration that the Respondents resolve to merge and wind up of the West Pokot County Assembly Members Mortgage and Car Loan and Mortgage Act, Kenya Gazette Supplement No. 19 West Pokot County Acts No.11 of 2017 into the County Assembly Members and Staff Mortgage and Car Fund on 29th July, 2025 violates the Petitioner Constitutional rights under Articles 10, 40, 47, 175, 185(3), 196(1) & 201 of the Constitution of Kenya 2010.
c. A declaration that that the Respondents have violated the Petitioner' rights guaranteed under section 4 Fair Administrative Actions Act, 2015, and that the resolve to merge and wind up the said funds is unlawful, illegal, unconstitutional and therefore invalid, null and void ab initio for being contrary to Sections 116 (5) & (6) of the Public Finance Management Act and section 199 (3) of the Public Finance Management (County Government) Regulations.
d. A permanent injunction order do issue suspending the implementation, execution and or enforcement of any decision, resolution, circular, directive or administrative action seeking to merge, wind up, dissolve, restructure or otherwise interfere with the West Pokot County Assembly Members Mortgage and Car Loan and Mortgage Act, Kenya Gazette Supplement No. 19 West Pokot County Acts No.11 of 2017.
e. A permanent injunction do issue quashing the County Assembly Members and Staff Mortgage and Car Fund Bill/Act, 2025 for being unlawful, and unconstitutional and therefore invalid, null and void ab initio.
f. An order of prohibition do issue restraining/ stopping the Respondents, their agents, servants and / persons acting under their authority from merging, consolidating, winding up, transferring funds, altering governance structures or otherwise interfering with West Pokot County Assembly Members Mortgage and Car Loan and Mortgage Act, Kenya Gazette Supplement No. 19 West Pokot County Acts No.11 of 2017.Assembly Staff Mortgage and Car Loan Fund.
g. Costs of the Petition.
h. Any other order and or reliefs as the Court may deem fit.
7. The Petition is premised on the contention that the 1st Respondent, through a Hansard Report dated 29th July 2025, resolved to merge and wind up the West Pokot County Assembly Members Mortgage and Car Loan Fund and place it under a unitary management structure. The Hansard read in part:-
"Currently, the fund is managed through two parallel committees—one for Members and another for staff. This fragmentation is unnecessary and inefficient. The purpose of this Bill is to amalgamate the fund so that we have a single committee managing one unified account."
8. The Petitioner contends that in arriving at the impugned decision, the Respondents disregarded the constitutional and statutory legislative process governing the enactment of county legislation. It is alleged that the impugned decision was anchored on a Bill that had not completed the requisite legislative process and was undertaken without public participation, particularly involving members of staff and other beneficiaries directly affected by the proposed merger.
9. According to the Petitioner, the Respondents failed to undertake adequate stakeholder consultations and did not provide any justification for the proposed merger or facilitate meaningful participation by the beneficiaries of the Fund. In this regard, the Petitioner contends that the proposed merger violates Articles 10, 47, 174, 196, 201 and 232 of the Constitution. It is further contended that the Respondents' actions infringe the right to fair administrative action guaranteed under Article 47(1) of the Constitution and contravene sections 116(5) and (6) of the Public Finance Management Act, regulation 199(3) of the Public Finance Management (County Governments) Regulations and sections 104(4) and 115 of the County Governments Act.
10. It is therefore the Petitioner's case that unless this Court intervenes, its constitutional rights will continue to be violated and it, together with the beneficiaries of the Fund, stand to suffer irreparable harm if the proposed merger and winding up of the Fund is implemented.
11. The Petition is supported by the affidavit of Roba S. Duba, the Petitioner's National General Secretary, sworn on 26th January 2026.
12. Contemporaneously with the Petition, the Petitioner filed an application seeking conservatory relief pending the hearing and determination of the Petition. The Court granted conservatory orders preserving the status quo.
13. Although duly served with the Petition, the application and the hearing notice, the Respondents neither entered appearance nor filed any response. Consequently, the Petition proceeded as an undefended cause.
14. The Court directed that the Petition be disposed of by way of written submissions. The Petitioner’s submissions are dated 19th June 2026. The Respondents did not file any submissions.
15. In its submissions, the Petitioner identified the issues for determination to be:-
i. Whether the proposed merger and winding up of the Funds are unconstitutional for want of public participation and compliance with the requirements of fair administrative action.
ii. Whether the proposed unitary management structure prejudices oversight and offends the constitutional principle of separation of powers.
iii. Whether the proposed merger and winding up compromise sound financial governance contrary to Articles 10 and 201 of the Constitution.
16. On the first issue, the Petitioner submitted that before a Bill is enacted into law, the following legislative steps must be undertaken:-
a) The Bill is prepared and drafted together with a Memorandum of Objects and Reasons and a Statement of Financial Implications.
b) The proposed Bill is published in both the County Gazette and the Kenya Gazette within fourteen (14) days so as to notify the public.
c) The First Reading is conducted, during which the Clerk reads the title of the Bill. No debate takes place at this stage and the Bill is thereafter committed to the relevant Sectoral Committee.
d) At the Committee Stage, public participation is undertaken. The Committee reviews the Bill, invites stakeholders to submit their views, conducts public hearings, and prepares a report.
e) During the Second Reading, the Assembly debates the principles and objects of the Bill.
f) At the Committee of the Whole Assembly Stage, the House scrutinizes the Bill clause by clause and considers any proposed amendments.
g) The Third Reading entails the final debate and voting on the Bill.
h) Upon passage, the Speaker forwards the Bill to the Governor for assent. The Governor is required to assent to the Bill within fourteen (14) days or refer it back to the Assembly with recommendations.
i) Once assented to, the Act is published in the Gazette and ordinarily comes into force fourteen (14) days thereafter.
17. According to the Petitioner, the Respondents did not comply with all the requisite legislative stages in their resolve to merge and wind up the West Pokot County Assembly Members Mortgage and Car Loan Fund and place it under a unitary management structure .The Petitioner submitted that before the process of winding up the funds can be introduced through a Bill, the County Executive Committee Member responsible for Finance must first obtain the approval of the County Assembly as required under section 116(5) of the Public Finance Management Act.
18. Relying on section 116 of the Public Finance Management Act and Regulation 199 of the Public Finance Management (County Governments) Regulations, the Petitioner submitted that the winding up of a County Public Fund must strictly comply with the procedure prescribed by law.
19. The Petitioner further submitted that section 30 of the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 empowers the Management Committee to make regulations for the proper carrying out of the purposes and provisions of the Act, subject to the approval of the County Assembly. It was submitted that a merger or winding up constitutes a fundamental alteration of the Act and therefore requires either formal amendments to the Act or the enactment of a new Bill, both of which necessitate public participation.
20. It is the Petitioner’s submission that the Respondents ignored the principle of public participation which is both a constitutional principle governing the administration of County Public Funds and a mandatory stage in the legislative process . Relying on Article 10(2) of the Constitution, the Petitioner submitted that public participation is integral to the promotion of the national values and principles of governance. The Petitioner therefore contended that the County Assembly is not exempt from the constitutional obligation to facilitate public participation before implementing any policy or legislative proposal and that as a constitutional body, it is bound by the Constitution and the rule of law and must uphold the principles of transparency, accountability and public participation before undertaking any legislative action.
21. The Petitioner further relied on Article 196 of the Constitution which requires County Assemblies to facilitate public participation and involvement in the legislative and other business of the Assembly and its Committees and also, Article 201 of the Constitution, which requires openness and public participation in matters relating to public finance. It is the Petitioner’s case that despite being fully aware of these constitutional obligations, the County Assembly failed to comply with them, thereby rendering the proposed merger and winding up of the Funds procedurally defective.
22. In addition, the Petitioner contended that there was inadequate stakeholder consultation, particularly with the Union representing the affected employees. According to the Petitioner, the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 defines "staff" as employees serving on permanent and pensionable terms. The Petitioner argued that since the Union represents those employees, any decision to wind up a Fund that directly affects their terms and conditions of service and employment benefits required their meaningful participation. According to the Petitioner, the failure to undertake public participation constituted a sufficient basis upon which the impugned legislative and administrative actions could be declared unconstitutional. In support of this position, reliance was placed on Edible Oil Products Limited & 10 Others v National Assembly & 3 Others (Constitutional Petition E498 of 2021) [2022] KEHC 17097 (KLR), in which the Court adopted the six principles on public participation articulated in Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others Machakos Constitutional Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 [2015] eKLR to include:-
a) it is incumbent upon the relevant public body to design a programme of public participation that accords with the nature of the subject matter
b) public participation must be flexible and innovative, depending on the nature of the issue under consideration, and no single model is prescribed, the only applicable test being one of effectiveness
c) the process must include access to and dissemination of, relevant information to enable meaningful participation
d) while public participation does not require that every individual be heard, the programme must demonstrate intentional inclusivity and diversity, particularly by ensuring that those most affected by the proposed action are deliberately involved
e) although public participation does not guarantee that every view will prevail, the decision-maker is under a duty to consider, in good faith, all views received and must not merely engage in a cosmetic or token exercise
f) public participation is intended to enrich, rather than usurp, the technical and democratic functions of public office holders.
23. The Petitioner thus submitted that public participation is rendered ineffective and unlawful where there are deliberate attempts to exclude bona fide stakeholders from the decision-making process. According to the Petitioner, no public participation whatsoever was undertaken in relation to the proposed merger and winding up of the Funds. The Petitioner further relied on Kiambu County Government & 3 Others v Robert N. Gakuru & Others (Civil Appeal No. 200 of 2014) [2017] KECA 459 (KLR), in which the Court of Appeal observed that merely permitting public participation in the legislative process is insufficient and rather, public bodies are under an obligation to actively facilitate meaningful participation by providing adequate notice, disseminating relevant information, creating awareness and establishing conditions that enable the public to effectively participate in the legislative process.
24. In this regard, the Petitioner submitted that the impugned process was undertaken in violation of both the Constitution and the Public Finance Management framework. It is asserted According to the Petitioner, the 1st and 2nd Respondents deliberately omitted this crucial constitutional requirement and proceeded to pass the impugned legislation on the same day without adhering to the prescribed procedure.
25. With regard to the issue of fair administrative action, the Petitioner submitted that Article 47 of the Constitution and the Fair Administrative Action Act require every administrative action to be lawful, reasonable, procedurally fair and proportionate. The Petitioner contended that the proposed winding up of the Funds directly violated those constitutional and statutory requirements because the beneficiaries of the Funds were neither given prior notice of the intended action, informed of the reasons for the proposed decision, nor afforded an opportunity to present their views before the decision was made.
26. It was further submitted that the 1st and 4th Respondents failed to accord the Petitioner an opportunity to present its views, participate in the decision-making process, vote, or engage in stakeholder consultations before making a decision that adversely affected the rights and interests of the beneficiaries of the Funds.
27. The Petitioner therefore submitted that the impugned decision failed to meet the constitutional threshold of procedural fairness and should be quashed.
28. With regard to the second issue, the Petitioner submitted that the proposed Bill sought to justify the consolidation of the Funds on the grounds that it would promote fairness, enhance planning, facilitate better utilization of limited resources through centralized management, ensure equitable access, recognize the similarity in the objectives of the Funds, minimize the risk of bankruptcy, save time and eliminate unnecessary bureaucracy. However, it was submitted that although legislative bodies enjoy policy discretion, such discretion must be exercised within the confines of the Constitution, particularly Articles 10, 40, 47 and 201.`
29. The Petitioner further submitted that the proposed Bill vests the management of the Consolidated Fund in the same Members of the County Assembly, thereby creating an inherent conflict of interest. According to the Petitioner, the proposed unitary management structure would prejudice both Members and staff by eliminating separate oversight over their respective Funds and concentrating the management of the Funds in a single body.
30. It is further submitted that the consolidation of the two Funds under a unitary management structure undermines the constitutional principle of separation of powers. The Petitioner contended that the two Funds were deliberately established as distinct Funds in order to cater separately for the needs of Members of the County Assembly and those of staff, each with its own management framework. Citing Article 185(3) of the Constitution, the Petitioner submitted that the constitutional design of County Assemblies is oversight-oriented and not executive or managerial in nature.
31. According to the Petitioner, consolidating the Funds serving both Members and staff under a structure controlled by Members of the County Assembly creates a structural imbalance, as the Members would effectively exercise supervisory control over a Fund from which they are direct beneficiaries while simultaneously purporting to oversee financial interests affecting members of staff who are administratively subordinate within the Assembly.
32. Further, the Petitioner submitted that the participation of the Members of the County Assembly in the management of the Funds which they are constitutionally required to oversee creates a conflict of interest that undermines accountability and transparency. According to the Petitioner, the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 deliberately established a distinct management structure for staff, comprising separate Committees responsible for Car Loans and Mortgages in order to safeguard and ensure the proper administration of staff funds.
33. In addition, the Petitioner submitted that the West Pokot County Assembly Staff Car Loan and Mortgage Act, 2017 specifically defines "staff" as employees serving on permanent and pensionable terms. According to the Petitioner, merging the two Funds ignores the fundamental distinctions between Members of the County Assembly and staff, particularly with regard to the different financial arrangements applicable to each category. It is submitted that whereas members of staff are eligible for mortgage facilities repayable over a period of up to twenty years, Members of the County Assembly are limited by their constitutional five-year term of office. The Petitioner relied on the decision of the Supreme Court in Council of County Governors v Senate & 6 Others (Petitions Nos. 24 & 27 of 2019 (Consolidated)) [2022] KESC 57 (KLR) and Gikonyo & Another v National Assembly of Kenya & 4 Others; Council of Governors & 3 Others (Interested Parties) (Constitutional Petition No. 178 of 2016) [2024] KEHC 10886 (KLR) in support of the proposition that the proposed merger similarly places Members of the County Assembly in a position that is inconsistent with their constitutional oversight mandate.
34. The Petitioner thus submitted that the proposed unitary management structure is unconstitutional as it offends the constitutional principle of separation of powers.
35. Lastly, on the issue whether the proposed merger and winding up compromise sound financial governance contrary to Articles 10 and 201 of the Constitution, the Petitioner submitted that the impugned proposal raises significant constitutional concerns by undermining the principles embodied in those constitutional provisions.
36. Relying on Article 201(d) and (e) of the Constitution, the Petitioner submitted that a governance structure characterized by frequent leadership changes undermines continuity, long-term planning and institutional memory, all of which are essential components of responsible financial management. According to the Petitioner, such structural instability undermines prudence, accountability and transparency as envisaged under Article 201 of the Constitution.
37. The Petitioner contends that the proposed merger and winding up of the Funds would generate uncertainty and confusion regarding the financial governance of the consolidated Fund, particularly because Members of the County Assembly are replaced upon the expiry of their electoral term. According to the Petitioner, this raises the legitimate concern as to who would assume responsibility for managing the consolidated Fund upon the expiry of the Members' term of office. It was further submitted that the proposed structure would undermine accountability by creating uncertainty as to who would ultimately bear responsibility for any adverse consequences arising from the management of the Fund.
38. In the end, the Petitioner urged the court to find that the proposed merger and winding up of the County Assembly Members' and Staff Mortgage and Car Loan Funds was undertaken without meaningful public participation, contrary to Articles 10, 196 and 201 of the Constitution and in violation of the constitutional and statutory principles governing fair administrative action, separation of powers and sound public financial management.
Determination
39. I have carefully considered the Petition, the supporting affidavit together with the annexures thereto and the written submissions filed by the Petitioner. The issues that fall for the court’s determination are:-
i. Whether the impugned decision and the proposed merger and winding up of the West Pokot County Assembly Members Mortgage and Car Loan Fund violated the constitutional requirement of public participation.
ii. Whether the impugned process violated the Petitioner's right to fair administrative action under Article 47 of the Constitution.
iii. Whether the proposed unitary management structure offends the constitutional principle of separation of powers and the principles governing public finance under Articles 10 and 201 of the Constitution.
iv. Whether the Petitioner is entitled to the reliefs sought.
Whether the impugned decision and the proposed merger and winding up of the West Pokot County Assembly Members Mortgage and Car Loan Fund violated the constitutional requirement of public participation.
40. The Constitution entrenches public participation as one of the national values and principles of governance under Article 10 and requires County Assemblies to facilitate public participation and involvement in their legislative and other business pursuant to Article 196. In matters relating to public finance, Article 201 requires openness, accountability and public participation.
41. Article 10(2)(a) of the Constitution encompasses public participation as a national value and principle of governance. State organs, State officers, public officers and all persons are bound by the Constitution to undertake public participation before making or implementing public policy decisions.
42. The constitutional obligation to facilitate public participation is a substantive constitutional imperative intended to ensure that those likely to be affected by legislative or administrative decisions are afforded a meaningful opportunity to contribute to the decision-making process.
43. In Okiya Omtatah Okoiti v Refugee Affairs Secretariat (RAS) Kenya & 2 others [2020] eKLR, Justice W. Korir explained:
“...Public participation in the decisions of administrators is confirmed as a national value and principle of governance under Article 10 of the Constitution, and therefore everyone would anticipate that all policy decisions and administrative actions would involve their input. By failing to hold any public forum to gauge the concerns and obtain the input of the refugee community, the respondents did infringe the legitimate expectation held by the refugees that the Guidelines governing the election of their leaders would be subjected to public participation.”
44. In the case of Republic v County Government of Kiambu Ex parte Robert Gakuru & another [2016] eKLR the Court held-
“…However, it must be appreciated that the yardstick for public participation is that a reasonable opportunity has been given to the members of the public and all interested parties to know about the issue and to have an adequate say. It cannot be expected of the legislature that a personal hearing will be given to every individual who claims to be affected by the laws or regulations that are being made. What is necessary is that the nature of concerns of different sectors of the parties should be communicated to the law maker and taken in formulating the final regulations. Accordingly, the law is that the forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case...”
45. The Petitioner contends that the decision to merge and wind up the existing Funds was undertaken without involving the beneficiaries of the Funds, members of staff represented by the Petitioner or the wider public. It is further contended that the legislative process contemplated under the Constitution, the County Governments Act and the Public Finance Management Act was not followed.
46. The Hansard extract relied upon by the Petitioner demonstrates that the County Assembly had already resolved to consolidate the two Funds under a unitary management structure. There is, however, no evidence before the Court demonstrating that the affected stakeholders were invited to participate in that process or that any public participation was undertaken before the impugned decision was reached.
47. In the absence of any evidence demonstrating compliance with those constitutional requirements, this Court finds that the impugned process violated Articles 10, 196 and 201 of the Constitution. To that extent, the proposed merger and winding up of the Funds was constitutionally defective.
Whether the impugned process violated the Petitioner's right to fair administrative action under Article 47 of the Constitution.
48. Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. The constitutional guarantee is operationalized through the Fair Administrative Action Act, which obligates public bodies to accord persons likely to be adversely affected by an administrative decision adequate notice, reasons for the proposed action and an opportunity to be heard before the decision is taken.
49. The Respondents' decision to merge and wind up the existing Funds, although undertaken within a legislative framework, equally carried administrative consequences affecting identifiable beneficiaries of the Funds. The implementation of such a decision would inevitably alter the rights, benefits and legitimate expectations of members of staff and Members of the County Assembly who are beneficiaries under the existing statutory regime.
50. Where a public decision directly affects identifiable persons or a defined class of beneficiaries, the Constitution requires that the affected persons participate in the process before adverse decisions are implemented.
51. The uncontroverted evidence before Court demonstrates that the beneficiaries of the Funds were neither notified of the intended action nor afforded an opportunity to present their views before the impugned decision was reached. No evidence was tendered showing that the Petitioner or the affected employees were invited for stakeholder consultations or that their representations, if any, were considered.
52. In those circumstances, the Court finds that the Respondents failed to comply with the procedural safeguards contemplated under Article 47 of the Constitution and section 4 of the Fair Administrative Action Act. The impugned process therefore violated the Petitioner's constitutional right to fair administrative action.
Whether the proposed unitary management structure offends the constitutional principle of separation of powers and the principles governing public finance under Articles 10 and 201 of the Constitution.
53. The Petitioner further contends that placing the management of the consolidated Fund under a single committee controlled by Members of the County Assembly creates an inherent conflict of interest and undermines the constitutional principle of separation of powers.
54. County Assemblies exercise legislative and oversight functions under Article 185 of the Constitution. Article 185(3) provides: -
“(3)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.”
55. A plain reading of the above constitutional provision demonstrates that the Constitution confers upon County Assemblies an oversight mandate, to be exercised in a manner that respects the principle of separation of powers. That oversight function is intended to ensure accountability in the exercise of executive authority and the management of public resources and does not extend to the direct operational management or
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