A Introduction
1. The Petitioner, Hon. David Ondimu Kombo, served as the Speaker of the County Assembly of Kisii for the better part of the last election cycle, i.e. 2017-2022. In his Amended Petition dated 19.2.24, he challenges the process by which the Respondents removed him from office, focusing particularly on the 2nd Respondent’s communication dated 26th May 2021 announcing his removal.
2. The Petition is anchored on the Constitution, the County Governments Act, 2012, the Fair Administrative Action Act and the Standing Orders of the County Assembly of Kisii. The Petitioner contends that the Respondents acted unlawfully, ultra vires, procedurally unfairly and in breach of Articles 10, 28, 47 and 50 of the Constitution.
3. The Respondents oppose the Petition. They argue that the Petition is res judicata by virtue of the judgment by Radido J. in Kisumu ELRC Petition No. E001 of 2020, Hon. David Ondimu Kombo v County Assembly of Kisii & Others. They also say the Court should respect the separation of powers, that the Petitioner received due process, and that the County Assembly lawfully completed the removal process after the ELRC judgment.
4. The Petition was canvassed by written submissions. I have considered the pleadings, affidavits, annexures, submissions and authorities cited by the parties.
B. Reliefs Sought
5. The Petitioner asks for several remedies: a declaration that the process and decision to remove him from office violated the Constitution; a declaration that the Respondents wrongly claimed the statutory threshold for removal was met before the votes were fully counted; an order to cancel the 2nd Respondent’s communication dated 26th May 2021; a declaration that his rights and freedoms were violated; general, exemplary and punitive damages; an injunction to stop de-gazettement or enforcement of the decision; costs and any other suitable relief.
C. Factual Background
6. The material facts are largely discernible from the pleadings and the annexures to the petition.
7. On or about 18th November 2020, a Member of the County Assembly of Kisii issued a notice of intention to move a Motion for the removal of the Petitioner from the office of Speaker. The Motion set out the grounds upon which the removal was sought.
8. On or about 20th November 2020, the office of the Clerk notified the Petitioner of the Motion under Section 11 of the County Governments Act and the applicable Standing Orders of the County Assembly of Kisii. The Petitioner thereafter filed a response to the Motion on or about 23rd November 2020.
9. When the County Assembly became seized of the Motion, the Petitioner, being the subject of the proceedings, stepped aside to allow a temporary or acting Speaker to preside over the removal proceedings. The 2nd Respondent, Hon. Samuel Ang’asa Onukoh, was appointed to preside over the proceedings.
10. The proceedings continued up to the voting and counting stage. Before the results could be counted and announced, the process was interrupted. The acting Speaker adjourned the Assembly before making a formal declaration.
11. The Petitioner thereafter maintained that the Motion had failed. The Respondents disputed that position and maintained that the counting had not been concluded and that no valid declaration could be made until the process was completed.
12. The dispute resulted in Kisumu ELRC Petition No. E001 of 2020, which the petitioner filed against the respondents herein. In the judgment delivered on 28th April 2021, Hon. Justice Radido J. dismissed the Petition. The Court made several findings material to the instant Petition. It was held that the Petitioner had been notified of the Motion, had filed a response and had been given an opportunity to defend himself; that the voting and counting process had not been concluded; that the Petitioner’s declaration that the Motion had failed was premature, unlawful and of no legal consequence; and that time under Section 11(8) of the County Governments Act started running when the County Assembly became seized of the Motion on 24th November 2020 and the fourteen-day period lapsed on or about 7th December 2020.
13. The Respondents argued that the previous conservatory orders had expired upon the delivery of the said judgment and the County Assembly rightly concluded the impeachment process. The Petitioner, however, argues that by 26th May 2021, the legal time limit had already expired, and so the Respondents could not lawfully continue or complete the process without starting a new removal process under Section 11 of the County Governments Act.
14. This Petition challenges the alleged resumption and completion of the same removal process which was followed by the communication dated 26th May 2021.
D. The Parties’ Cases
15. The Petitioner argues that the removal process did not follow Section 11 of the County Governments Act, the Standing Orders, or the Constitution. He says the initial vote counting was never completed, that there was no valid resolution with the required support, and that the 2nd Respondent’s communication dated 26th May 2021 could not replace a lawful Assembly resolution.
16. The Petitioner also claims that the fourteen-day period set by Section 11(8) of the County Governments Act ended around 7th December 2020. He believes the Respondents had no authority to purport to continue or finish the process on 26th May 2021 without starting a new process.
17. The Respondents argue that the Petition misuses the court process and is res judicata. They say the ELRC judgment already decided the issues herein, to wit:
a. that the Petitioner had a chance to be heard;
b. that the process was interrupted because of the Petitioner’s own actions; and
c. that after the ELRC judgment, the Assembly was allowed to use its Standing Orders to complete the process.
18. The Respondents also argue that the Court should not review the merits of the impeachment or removal process. They rely on the doctrine of separation of powers, arguing that removing a Speaker falls within the County Assembly’s mandate and that the Court’s powers are limited to checking the legality and constitutionality of the process.
E. Issues for Determination
19. I have carefully evaluated the pleadings, affidavits, submissions and legal authorities, and the following issues arise for determination:
a. Whether the Petition is barred by the doctrine of res judicata;
b. Whether this Court has jurisdiction and what the proper scope of judicial intervention is;
c. Whether the Petition meets the constitutional pleading threshold;
d. Whether the removal process complied with Section 11 of the County Governments Act, the Standing Orders and the requirements of fair administrative action;
e. Whether the process could lawfully be resumed and concluded through the communication dated 26th May 2021; and
f. Whether the Petitioner is entitled to the reliefs sought.
F. Applicable Law and Analysis
Whether the Petition is barred by res judicata
20. The Respondents contend that the Petition is res judicata because the Petitioner previously challenged the removal process in Kisumu ELRC Petition No. E001 of 2020 and the Petition was dismissed. The petitioner denied this, arguing that this is a new petition based on the fact that the respondents purportedly proceeded to impeach him based on impeachment proceedings which were time-barred, as time started running on 24.11.20 and ended on 7.12.20.
21. In the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017 [2017] eKLR, the Court of Appeal restated the elements of res judicata, to wit, that for the doctrine to apply, the matter directly and substantially in issue in the subsequent proceedings must have been directly and substantially in issue in the former proceedings; the former proceedings must have involved the same parties or parties litigating under the same title; the issue must have been heard and finally determined; and the former court must have been competent to determine it. The doctrine is founded on the public interest in finality of litigation, but it applies only to issues that were directly and substantially determined in the former proceedings.
22. Applying that principle, it is clear that the ELRC Judgment by Hon. Justice Radido determined whether the Petitioner was notified of the Motion, whether he filed a response, and whether he was accorded an opportunity to defend himself in the initial proceedings. The Judge found that the Petitioner’s declaration that the Motion had failed was premature and of no legal consequence. These issues are not open to re-litigation before this Court. Constructive res judicata does not apply herein as the petitioner herein complains about resumption and conclusion of the proceedings of the assembly post the said judgment and the communication by the 2nd respondent dated 26.5.21 on his impeachment. I find that the instant Petition is not barred by res judicata.
Whether this Court has jurisdiction and the proper scope of judicial intervention
23. The second issue is the extent to which this Court may interrogate proceedings of a County Assembly relating to removal of a Speaker. The petitioner argued that the court had jurisdiction to determine whether the assembly followed due process in his alleged impeachment, while the respondents argued that the doctrine of separation of powers bars the courts from interfering with the assembly’s statutory mandate.
24. In the case of Speaker of the Senate & Another v Attorney General & 4 Others [2013] eKLR, the Supreme Court held that courts have jurisdiction to determine whether a legislative body has complied with constitutionally prescribed processes. The Court, however, cautioned that not every procedural infraction warrants judicial intervention and that the appropriateness of intervention depends on the circumstances of each case.
25. In the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another, Supreme Court Petition No. 32 of 2014 [2017] eKLR, the Supreme Court held that impeachment is a constitutional mandate vested in the relevant legislative organs and that courts should be slow to interfere with parliamentary procedures where those procedures do not breach the Constitution. The same decision recognises that where constitutional requirements are violated, the Court is not powerless.
26. In Mike Mbuvi Sonko v Clerk, County Assembly of Nairobi City & 11 Others, Petition No. 11 (E008) of 2022 [2022] KESC 26 (KLR), the Supreme Court affirmed that removal proceedings are textually committed to the legislative branch, but that legislative organs remain bound by the Constitution, statute and Standing Orders. Courts should not conduct a merit review of impeachment or removal proceedings, but may intervene where the process falls outside the Constitution or the law.
27. The High Court adopted a similar approach in the case of Caroline Munanie Musee v Makueni County Assembly & 2 Others [2014] KEHC 3530 (KLR), where it held that the Court should not enter into the mandate of a County Assembly by stealth, and that its duty is limited to examining whether the procedure adopted complied with the Constitution and the law.
28. Article 165(3)(b) of the Constitution provides that:
Subject to clause (5), the High Court shall have—
(b) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
29. It is clear from the above Article that the High Court is the custodian of human rights. From the cited cases, the Court’s role is not to judge the political merits of the allegations against the Petitioner, but rather to interrogate whether the process complied with the Constitution, Section 11 of the County Governments Act, and the Standing Orders. This Court therefore has the jurisdiction to determine whether, in impeaching the petitioner, the Respondents met the required constitutional and statutory standards.
Whether the Petition meets the constitutional pleading threshold
30. The Respondents also contend that the Petition does not meet the constitutional pleading threshold.
31. In the case of Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance, the court held that a constitutional petitioner must plead with reasonable precision the rights alleged to have been violated, the manner of violation and the reliefs sought.
32. In this case, the Petition points to the impugned communication dated 26th May 2021, claims violations of Articles 47 and 50 of the Constitution, and questions the process under Section 11 of the County Governments Act. The Petition also asks for specific declarations, judicial review and compensation. I am satisfied that the Petition meets the required standard for constitutional pleadings.
Whether the removal process complied with Section 11 of the County Governments Act, the Standing Orders and the requirements of fair administrative action
33. Section 11 of the County Governments Act regulates removal of a Speaker from office. The said Section prescribes the initiation procedure, the threshold, the Speaker’s right to respond, the presiding arrangements and voting.
34. In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] eKLR, the Court of Appeal dealt directly with the removal of a County Assembly Speaker. The Court identified the essential statutory conditions for removal, namely: a formal notice to the Clerk stating the grounds and signed by at least one-third of the members; an opportunity for the Speaker to respond; proceedings presided over by a member elected under Section 9(4) of the County Governments Act; and a resolution supported by the requisite statutory threshold. It was held that where those conditions are not met, the removal cannot stand.
35. In Republic v Clerk, County Assembly of Baringo Ex parte William Kamket [2015] KEHC 4629 (KLR), the Court held that removal of a Speaker must comply with fair administrative action and the rules of natural justice. The Court emphasised that the office of Speaker is protected by requirements of notice, disclosure of grounds or reasons, opportunity to respond and a high voting threshold.
36. In Walid Khalid v County Assembly of Mombasa & 2 Others [2018] eKLR, the Court held that the power to remove a public or state officer is inseparable from the duty to follow due process. A lawful power of removal must be exercised lawfully, fairly and in strict conformity with the prescribed procedure.
37. The principle is also consistent with the finding in the case of Sceneries Limited v National Land Commission [2017] eKLR, where the High Court emphasised that where a statute prescribes a procedure, the prescribed procedure must be followed. In Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300, cited with approval in Sceneries Limited, the Court stated that judicial review lies where a decision is tainted by illegality, irrationality or procedural impropriety. Illegality includes acting without jurisdiction, acting ultra vires, or acting contrary to the law, while procedural impropriety includes a breach of natural justice or a failure to observe procedure expressly laid down by statute.
38. In Thirdway Alliance Kenya & Another v Kinyua & 2 Others; Kimani & 15 Others (Interested Parties) [2020] KEHC 7887 (KLR), the Court restated the doctrine of legality: public bodies may only do what the law empowers them to do, and courts enforce the rule of law by ensuring that public bodies act within the four corners of their statutory and constitutional powers.
39. These cases show that Section 11 of the County Governments Act must be followed. The County Assembly could only remove the Petitioner by following the specific procedure, timeline and requirements set by the law.
Whether the process could lawfully be resumed and concluded through the communication dated 26th May 2021
40. The key question is whether, after the ELRC judgment, the Respondents could legally finish the same process using the communication dated 26th May 2021.
41. The findings of Radido J. are material. The ELRC held that voting and counting had not been concluded; that the Petitioner’s declaration that the Motion had failed was premature and unlawful; that time began running on 24th November 2020; and that the fourteen-day statutory period lapsed on or about 7th December 2020.
42. The Respondents say that interim conservatory orders paused the process and that, after the ELRC judgment, the County Assembly could proceed and conclude it. I do not agree. The ELRC found that the legal time limit had already expired around 7th December 2020. A later conservatory order from January 2021 could not restart a process that had already ended, nor could it extend the time set by Parliament in Section 11(8).
43. The ELRC did not issue an order extending the statutory period or authorising the County Assembly to conclude the process outside Section 11. The Court observed that the Assembly could return to its Standing Orders to confirm whether it had reserved residual power to conclude the debate. This cannot be interpreted as authority to override the express statutory timelines.
44. Standing Orders regulate the internal procedure of the Assembly. They cannot enlarge, suspend, revive or override a statutory timeline imposed by Parliament. The rationale behind this is that Standing Orders are subordinate legislation to the Acts of Parliament under which they are made. Standing Order 109, which empowers the Speaker, in the event of grave disorder, to adjourn the Assembly or suspend a sitting, does not confer power to revive a statutory removal process after the period prescribed by statute has lapsed.
45. The Respondents also argue that the disruption of the process was attributable to the Petitioner and that he should not benefit from his own conduct. That point was considered in the earlier ELRC judgment. However, even where a party’s conduct is blameworthy, a public body remains bound by statute. Equity cannot confer jurisdiction where statute has withdrawn it. The County Assembly’s power had to be exercised within the four corners of Section 11.
46. Applying the Pastoli, Sceneries Limited and Thirdway Alliance cases, the purported conclusion of the removal process on 26th May 2021 was tainted by illegality and procedural impropriety. The Assembly acted outside the statutory period and without commencing a fresh process under Section 11 of the County Governments Act. The resulting communication was therefore ultra vires.
47. I also adopt, by analogy, the principle in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR that where the validity of a legal outcome depends on numbers, the numbers must be accurate, verifiable and supported by an official record. In the context of the removal of a Speaker, where validity depends on a statutory voting threshold, the tally must result from a lawful, completed process. A later communication by a presiding officer cannot substitute a valid resolution of the Assembly supported by the requisite statutory majority.
48. The impugned communication dated 26th May 2021 therefore violated Articles 47 and 50 of the Constitution and Section 11 of the County Governments Act. The post-judgment action, which purported to conclude the process after the statutory timeline had lapsed, was arbitrary and unlawful.
G. Remedies
49. Article 23 of the Constitution empowers this Court to grant appropriate relief where a right or fundamental freedom has been violated or threatened. The relief must be effective, just and proportionate.
50. In Republic v Chief Officer, Roads, Transport and Public Works, County Government of Kilifi & Another Ex parte Mohamud Gulleid t/a Premier Shuttle [2021] eKLR, the Court held that certiorari is available to quash decisions that are ultra vires, arbitrary, oppressive or made outside the law. Where a removal decision is made outside the statutory mandate, certiorari is an appropriate remedy.
51. On constitutional damages, the authorities cited by the parties, including Brian Makori Ombongi v Kenya National Examination Council [2017] KEHC 4808 (KLR) and Mereka v Sikalieh [2025] KEHC 3467 (KLR), support the proposition that damages for constitutional violations are discretionary, compensatory or vindicatory. Such damages may be awarded where a declaration alone is insufficient to vindicate the violated right. The guiding principle is that the remedy must be appropriate, just and proportionate to the violation established.
52. I have already found that the impugned communication dated 26th May 2021 was unlawful, ultra vires and procedurally improper. A declaration and an order of certiorari are therefore merited.
53. The legality of the election or appointment of any subsequent Speaker is not for this court to determine by virtue of Article 162 of the Constitution. The appropriate relief is therefore limited to a declaration, certiorari and vindicatory damages.
54. As regards damages, the violation established is principally a breach of Articles 47 and 50 of the Constitution, arising from an ultra vires process. In Gitobu Imanyara & 2 others v Attorney General, Civil Appeal No. 98 of 2014 [2016] eKLR, the Court of Appeal stated as follows:
“It seems to us that the award of damages for constitutional violations of an individual’s rights by the State or the Government are reliefs under public law remedies within the discretion of a trial court. However, the court’s discretion to award damages in constitutional violation cases is limited by what is ‘appropriate and just’ according to the facts and circumstances of a particular case. As stated above, the primary purpose of a constitutional remedy is not compensatory or punitive, but to vindicate the violated rights and to prevent or deter future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration alone will be appropriate to meet the justice of the case, being itself a powerful statement that can go a long way toward effecting reparation for the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration…”
Similarly, the Constitutional Court of South Africa in Dendy v University of Witwatersrand, Johannesburg & Others [2006] 1 LRC 291 held that:
“The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context, an award of damages was a secondary remedy to be made only in the most appropriate cases.”
The Court further observed that:
“The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringed and to deter future infringement. The test was not whether the plaintiff's hurt would be alleviated, but what appropriate relief was required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought, as far as possible, to be served when considering an appropriate remedy.”
55. I have considered the nature of the violations herein, the fact that the Petitioner was the Honourable Speaker of the Kisii County Assembly, and the harm and prejudice suffered by him. In the circumstances, I find that an award of general damages for constitutional violations in the sum of Kshs. 10,000,000 is adequate, just and proportionate.
56. On exemplary damages, the Court has jurisdiction under Article 23(3) of the Constitution to grant appropriate relief, including compensation, where a violation of the Bill of Rights is established. That jurisdiction is wide enough, in a proper case, to include aggravated or exemplary damages. However, the grant of exemplary damages is not automatic. It is an exceptional and discretionary remedy. The guiding principle is that constitutional remedies are primarily intended to vindicate the violated right and to prevent or deter future infringement, not to punish the respondent. Exemplary damages may therefore issue only where the impugned conduct is shown to have been oppressive, arbitrary, high-handed, malicious or unconstitutional in a manner deserving of punitive rebuke, or where the respondent acted to procure an advantage at the expense of the petitioner. In the absence of such aggravating features, a declaration, appropriate corrective orders and, where justified, general damages will ordinarily be sufficient. In this case, the purported impeachment was challenged for not being conducted within the statutory timelines. I find that the threshold for exemplary damages was not met. The prayer for exemplary damages must thus fail.
H. Disposition
57. In the result, the Petition succeeds to the following extent:
a. A declaration is hereby issued that the Respondents’ purported conclusion of the removal process and the communication dated 26th May 2021 purporting to remove the Petitioner from the office of Speaker of the County Assembly of Kisii were unlawful, ultra vires, procedurally improper and in violation of Article 47 and 50 of the Constitution and Section 11 of the County Governments Act.
b. An order of certiorari is hereby issued bringing into this Court and quashing the 2nd Respondent’s communication dated 26th May 2021 purporting to communicate the removal of the Petitioner from the office of Speaker of the County Assembly of Kisii.
c. The Petitioner is awarded general damages in the sum of Kshs. 10,000,000 for violation of Article 47 and 50 of the Constitution.
d. The prayers for reinstatement, permanent injunction and suspension of de-gazettement are denied.
e. The threshold for exemplary damages was not met.
f. The Petitioner shall have the costs of the Petition against the Respondents.
g. The judgment is entered against the respondents jointly and severally in terms of orders a, b, c and f above.
58. Orders accordingly.
T.A ODERA
JUDGE
16.6.2026
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 16TH DAY OF JUNE 2026 IN THE PRESENCE OF MR MATARA FOR THE PETITIONER, OCHIENG OGINGA FOR THE 1ST, 3RD AND 4TH RESPONDENTS. 2ND RESPONDENT IS ABSENT.
1. The Petitioner, Hon. David Ondimu Kombo, served as the Speaker of the County Assembly of Kisii for the better part of the last election cycle, i.e. 2017-2022. In his Amended Petition dated 19.2.24, he challenges the process by which the Respondents removed him from office, focusing particularly on the 2nd Respondent’s communication dated 26th May 2021 announcing his removal.
2. The Petition is anchored on the Constitution, the County Governments Act, 2012, the Fair Administrative Action Act and the Standing Orders of the County Assembly of Kisii. The Petitioner contends that the Respondents acted unlawfully, ultra vires, procedurally unfairly and in breach of Articles 10, 28, 47 and 50 of the Constitution.
3. The Respondents oppose the Petition. They argue that the Petition is res judicata by virtue of the judgment by Radido J. in Kisumu ELRC Petition No. E001 of 2020, Hon. David Ondimu Kombo v County Assembly of Kisii & Others. They also say the Court should respect the separation of powers, that the Petitioner received due process, and that the County Assembly lawfully completed the removal process after the ELRC judgment.
4. The Petition was canvassed by written submissions. I have considered the pleadings, affidavits, annexures, submissions and authorities cited by the parties.
B. Reliefs Sought
5. The Petitioner asks for several remedies: a declaration that the process and decision to remove him from office violated the Constitution; a declaration that the Respondents wrongly claimed the statutory threshold for removal was met before the votes were fully counted; an order to cancel the 2nd Respondent’s communication dated 26th May 2021; a declaration that his rights and freedoms were violated; general, exemplary and punitive damages; an injunction to stop de-gazettement or enforcement of the decision; costs and any other suitable relief.
C. Factual Background
6. The material facts are largely discernible from the pleadings and the annexures to the petition.
7. On or about 18th November 2020, a Member of the County Assembly of Kisii issued a notice of intention to move a Motion for the removal of the Petitioner from the office of Speaker. The Motion set out the grounds upon which the removal was sought.
8. On or about 20th November 2020, the office of the Clerk notified the Petitioner of the Motion under Section 11 of the County Governments Act and the applicable Standing Orders of the County Assembly of Kisii. The Petitioner thereafter filed a response to the Motion on or about 23rd November 2020.
9. When the County Assembly became seized of the Motion, the Petitioner, being the subject of the proceedings, stepped aside to allow a temporary or acting Speaker to preside over the removal proceedings. The 2nd Respondent, Hon. Samuel Ang’asa Onukoh, was appointed to preside over the proceedings.
10. The proceedings continued up to the voting and counting stage. Before the results could be counted and announced, the process was interrupted. The acting Speaker adjourned the Assembly before making a formal declaration.
11. The Petitioner thereafter maintained that the Motion had failed. The Respondents disputed that position and maintained that the counting had not been concluded and that no valid declaration could be made until the process was completed.
12. The dispute resulted in Kisumu ELRC Petition No. E001 of 2020, which the petitioner filed against the respondents herein. In the judgment delivered on 28th April 2021, Hon. Justice Radido J. dismissed the Petition. The Court made several findings material to the instant Petition. It was held that the Petitioner had been notified of the Motion, had filed a response and had been given an opportunity to defend himself; that the voting and counting process had not been concluded; that the Petitioner’s declaration that the Motion had failed was premature, unlawful and of no legal consequence; and that time under Section 11(8) of the County Governments Act started running when the County Assembly became seized of the Motion on 24th November 2020 and the fourteen-day period lapsed on or about 7th December 2020.
13. The Respondents argued that the previous conservatory orders had expired upon the delivery of the said judgment and the County Assembly rightly concluded the impeachment process. The Petitioner, however, argues that by 26th May 2021, the legal time limit had already expired, and so the Respondents could not lawfully continue or complete the process without starting a new removal process under Section 11 of the County Governments Act.
14. This Petition challenges the alleged resumption and completion of the same removal process which was followed by the communication dated 26th May 2021.
D. The Parties’ Cases
15. The Petitioner argues that the removal process did not follow Section 11 of the County Governments Act, the Standing Orders, or the Constitution. He says the initial vote counting was never completed, that there was no valid resolution with the required support, and that the 2nd Respondent’s communication dated 26th May 2021 could not replace a lawful Assembly resolution.
16. The Petitioner also claims that the fourteen-day period set by Section 11(8) of the County Governments Act ended around 7th December 2020. He believes the Respondents had no authority to purport to continue or finish the process on 26th May 2021 without starting a new process.
17. The Respondents argue that the Petition misuses the court process and is res judicata. They say the ELRC judgment already decided the issues herein, to wit:
a. that the Petitioner had a chance to be heard;
b. that the process was interrupted because of the Petitioner’s own actions; and
c. that after the ELRC judgment, the Assembly was allowed to use its Standing Orders to complete the process.
18. The Respondents also argue that the Court should not review the merits of the impeachment or removal process. They rely on the doctrine of separation of powers, arguing that removing a Speaker falls within the County Assembly’s mandate and that the Court’s powers are limited to checking the legality and constitutionality of the process.
E. Issues for Determination
19. I have carefully evaluated the pleadings, affidavits, submissions and legal authorities, and the following issues arise for determination:
a. Whether the Petition is barred by the doctrine of res judicata;
b. Whether this Court has jurisdiction and what the proper scope of judicial intervention is;
c. Whether the Petition meets the constitutional pleading threshold;
d. Whether the removal process complied with Section 11 of the County Governments Act, the Standing Orders and the requirements of fair administrative action;
e. Whether the process could lawfully be resumed and concluded through the communication dated 26th May 2021; and
f. Whether the Petitioner is entitled to the reliefs sought.
F. Applicable Law and Analysis
Whether the Petition is barred by res judicata
20. The Respondents contend that the Petition is res judicata because the Petitioner previously challenged the removal process in Kisumu ELRC Petition No. E001 of 2020 and the Petition was dismissed. The petitioner denied this, arguing that this is a new petition based on the fact that the respondents purportedly proceeded to impeach him based on impeachment proceedings which were time-barred, as time started running on 24.11.20 and ended on 7.12.20.
21. In the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others, Civil Appeal No. 105 of 2017 [2017] eKLR, the Court of Appeal restated the elements of res judicata, to wit, that for the doctrine to apply, the matter directly and substantially in issue in the subsequent proceedings must have been directly and substantially in issue in the former proceedings; the former proceedings must have involved the same parties or parties litigating under the same title; the issue must have been heard and finally determined; and the former court must have been competent to determine it. The doctrine is founded on the public interest in finality of litigation, but it applies only to issues that were directly and substantially determined in the former proceedings.
22. Applying that principle, it is clear that the ELRC Judgment by Hon. Justice Radido determined whether the Petitioner was notified of the Motion, whether he filed a response, and whether he was accorded an opportunity to defend himself in the initial proceedings. The Judge found that the Petitioner’s declaration that the Motion had failed was premature and of no legal consequence. These issues are not open to re-litigation before this Court. Constructive res judicata does not apply herein as the petitioner herein complains about resumption and conclusion of the proceedings of the assembly post the said judgment and the communication by the 2nd respondent dated 26.5.21 on his impeachment. I find that the instant Petition is not barred by res judicata.
Whether this Court has jurisdiction and the proper scope of judicial intervention
23. The second issue is the extent to which this Court may interrogate proceedings of a County Assembly relating to removal of a Speaker. The petitioner argued that the court had jurisdiction to determine whether the assembly followed due process in his alleged impeachment, while the respondents argued that the doctrine of separation of powers bars the courts from interfering with the assembly’s statutory mandate.
24. In the case of Speaker of the Senate & Another v Attorney General & 4 Others [2013] eKLR, the Supreme Court held that courts have jurisdiction to determine whether a legislative body has complied with constitutionally prescribed processes. The Court, however, cautioned that not every procedural infraction warrants judicial intervention and that the appropriateness of intervention depends on the circumstances of each case.
25. In the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another, Supreme Court Petition No. 32 of 2014 [2017] eKLR, the Supreme Court held that impeachment is a constitutional mandate vested in the relevant legislative organs and that courts should be slow to interfere with parliamentary procedures where those procedures do not breach the Constitution. The same decision recognises that where constitutional requirements are violated, the Court is not powerless.
26. In Mike Mbuvi Sonko v Clerk, County Assembly of Nairobi City & 11 Others, Petition No. 11 (E008) of 2022 [2022] KESC 26 (KLR), the Supreme Court affirmed that removal proceedings are textually committed to the legislative branch, but that legislative organs remain bound by the Constitution, statute and Standing Orders. Courts should not conduct a merit review of impeachment or removal proceedings, but may intervene where the process falls outside the Constitution or the law.
27. The High Court adopted a similar approach in the case of Caroline Munanie Musee v Makueni County Assembly & 2 Others [2014] KEHC 3530 (KLR), where it held that the Court should not enter into the mandate of a County Assembly by stealth, and that its duty is limited to examining whether the procedure adopted complied with the Constitution and the law.
28. Article 165(3)(b) of the Constitution provides that:
Subject to clause (5), the High Court shall have—
(b) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
29. It is clear from the above Article that the High Court is the custodian of human rights. From the cited cases, the Court’s role is not to judge the political merits of the allegations against the Petitioner, but rather to interrogate whether the process complied with the Constitution, Section 11 of the County Governments Act, and the Standing Orders. This Court therefore has the jurisdiction to determine whether, in impeaching the petitioner, the Respondents met the required constitutional and statutory standards.
Whether the Petition meets the constitutional pleading threshold
30. The Respondents also contend that the Petition does not meet the constitutional pleading threshold.
31. In the case of Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance, the court held that a constitutional petitioner must plead with reasonable precision the rights alleged to have been violated, the manner of violation and the reliefs sought.
32. In this case, the Petition points to the impugned communication dated 26th May 2021, claims violations of Articles 47 and 50 of the Constitution, and questions the process under Section 11 of the County Governments Act. The Petition also asks for specific declarations, judicial review and compensation. I am satisfied that the Petition meets the required standard for constitutional pleadings.
Whether the removal process complied with Section 11 of the County Governments Act, the Standing Orders and the requirements of fair administrative action
33. Section 11 of the County Governments Act regulates removal of a Speaker from office. The said Section prescribes the initiation procedure, the threshold, the Speaker’s right to respond, the presiding arrangements and voting.
34. In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] eKLR, the Court of Appeal dealt directly with the removal of a County Assembly Speaker. The Court identified the essential statutory conditions for removal, namely: a formal notice to the Clerk stating the grounds and signed by at least one-third of the members; an opportunity for the Speaker to respond; proceedings presided over by a member elected under Section 9(4) of the County Governments Act; and a resolution supported by the requisite statutory threshold. It was held that where those conditions are not met, the removal cannot stand.
35. In Republic v Clerk, County Assembly of Baringo Ex parte William Kamket [2015] KEHC 4629 (KLR), the Court held that removal of a Speaker must comply with fair administrative action and the rules of natural justice. The Court emphasised that the office of Speaker is protected by requirements of notice, disclosure of grounds or reasons, opportunity to respond and a high voting threshold.
36. In Walid Khalid v County Assembly of Mombasa & 2 Others [2018] eKLR, the Court held that the power to remove a public or state officer is inseparable from the duty to follow due process. A lawful power of removal must be exercised lawfully, fairly and in strict conformity with the prescribed procedure.
37. The principle is also consistent with the finding in the case of Sceneries Limited v National Land Commission [2017] eKLR, where the High Court emphasised that where a statute prescribes a procedure, the prescribed procedure must be followed. In Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300, cited with approval in Sceneries Limited, the Court stated that judicial review lies where a decision is tainted by illegality, irrationality or procedural impropriety. Illegality includes acting without jurisdiction, acting ultra vires, or acting contrary to the law, while procedural impropriety includes a breach of natural justice or a failure to observe procedure expressly laid down by statute.
38. In Thirdway Alliance Kenya & Another v Kinyua & 2 Others; Kimani & 15 Others (Interested Parties) [2020] KEHC 7887 (KLR), the Court restated the doctrine of legality: public bodies may only do what the law empowers them to do, and courts enforce the rule of law by ensuring that public bodies act within the four corners of their statutory and constitutional powers.
39. These cases show that Section 11 of the County Governments Act must be followed. The County Assembly could only remove the Petitioner by following the specific procedure, timeline and requirements set by the law.
Whether the process could lawfully be resumed and concluded through the communication dated 26th May 2021
40. The key question is whether, after the ELRC judgment, the Respondents could legally finish the same process using the communication dated 26th May 2021.
41. The findings of Radido J. are material. The ELRC held that voting and counting had not been concluded; that the Petitioner’s declaration that the Motion had failed was premature and unlawful; that time began running on 24th November 2020; and that the fourteen-day statutory period lapsed on or about 7th December 2020.
42. The Respondents say that interim conservatory orders paused the process and that, after the ELRC judgment, the County Assembly could proceed and conclude it. I do not agree. The ELRC found that the legal time limit had already expired around 7th December 2020. A later conservatory order from January 2021 could not restart a process that had already ended, nor could it extend the time set by Parliament in Section 11(8).
43. The ELRC did not issue an order extending the statutory period or authorising the County Assembly to conclude the process outside Section 11. The Court observed that the Assembly could return to its Standing Orders to confirm whether it had reserved residual power to conclude the debate. This cannot be interpreted as authority to override the express statutory timelines.
44. Standing Orders regulate the internal procedure of the Assembly. They cannot enlarge, suspend, revive or override a statutory timeline imposed by Parliament. The rationale behind this is that Standing Orders are subordinate legislation to the Acts of Parliament under which they are made. Standing Order 109, which empowers the Speaker, in the event of grave disorder, to adjourn the Assembly or suspend a sitting, does not confer power to revive a statutory removal process after the period prescribed by statute has lapsed.
45. The Respondents also argue that the disruption of the process was attributable to the Petitioner and that he should not benefit from his own conduct. That point was considered in the earlier ELRC judgment. However, even where a party’s conduct is blameworthy, a public body remains bound by statute. Equity cannot confer jurisdiction where statute has withdrawn it. The County Assembly’s power had to be exercised within the four corners of Section 11.
46. Applying the Pastoli, Sceneries Limited and Thirdway Alliance cases, the purported conclusion of the removal process on 26th May 2021 was tainted by illegality and procedural impropriety. The Assembly acted outside the statutory period and without commencing a fresh process under Section 11 of the County Governments Act. The resulting communication was therefore ultra vires.
47. I also adopt, by analogy, the principle in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR that where the validity of a legal outcome depends on numbers, the numbers must be accurate, verifiable and supported by an official record. In the context of the removal of a Speaker, where validity depends on a statutory voting threshold, the tally must result from a lawful, completed process. A later communication by a presiding officer cannot substitute a valid resolution of the Assembly supported by the requisite statutory majority.
48. The impugned communication dated 26th May 2021 therefore violated Articles 47 and 50 of the Constitution and Section 11 of the County Governments Act. The post-judgment action, which purported to conclude the process after the statutory timeline had lapsed, was arbitrary and unlawful.
G. Remedies
49. Article 23 of the Constitution empowers this Court to grant appropriate relief where a right or fundamental freedom has been violated or threatened. The relief must be effective, just and proportionate.
50. In Republic v Chief Officer, Roads, Transport and Public Works, County Government of Kilifi & Another Ex parte Mohamud Gulleid t/a Premier Shuttle [2021] eKLR, the Court held that certiorari is available to quash decisions that are ultra vires, arbitrary, oppressive or made outside the law. Where a removal decision is made outside the statutory mandate, certiorari is an appropriate remedy.
51. On constitutional damages, the authorities cited by the parties, including Brian Makori Ombongi v Kenya National Examination Council [2017] KEHC 4808 (KLR) and Mereka v Sikalieh [2025] KEHC 3467 (KLR), support the proposition that damages for constitutional violations are discretionary, compensatory or vindicatory. Such damages may be awarded where a declaration alone is insufficient to vindicate the violated right. The guiding principle is that the remedy must be appropriate, just and proportionate to the violation established.
52. I have already found that the impugned communication dated 26th May 2021 was unlawful, ultra vires and procedurally improper. A declaration and an order of certiorari are therefore merited.
53. The legality of the election or appointment of any subsequent Speaker is not for this court to determine by virtue of Article 162 of the Constitution. The appropriate relief is therefore limited to a declaration, certiorari and vindicatory damages.
54. As regards damages, the violation established is principally a breach of Articles 47 and 50 of the Constitution, arising from an ultra vires process. In Gitobu Imanyara & 2 others v Attorney General, Civil Appeal No. 98 of 2014 [2016] eKLR, the Court of Appeal stated as follows:
“It seems to us that the award of damages for constitutional violations of an individual’s rights by the State or the Government are reliefs under public law remedies within the discretion of a trial court. However, the court’s discretion to award damages in constitutional violation cases is limited by what is ‘appropriate and just’ according to the facts and circumstances of a particular case. As stated above, the primary purpose of a constitutional remedy is not compensatory or punitive, but to vindicate the violated rights and to prevent or deter future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration alone will be appropriate to meet the justice of the case, being itself a powerful statement that can go a long way toward effecting reparation for the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration…”
Similarly, the Constitutional Court of South Africa in Dendy v University of Witwatersrand, Johannesburg & Others [2006] 1 LRC 291 held that:
“The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context, an award of damages was a secondary remedy to be made only in the most appropriate cases.”
The Court further observed that:
“The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringed and to deter future infringement. The test was not whether the plaintiff's hurt would be alleviated, but what appropriate relief was required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought, as far as possible, to be served when considering an appropriate remedy.”
55. I have considered the nature of the violations herein, the fact that the Petitioner was the Honourable Speaker of the Kisii County Assembly, and the harm and prejudice suffered by him. In the circumstances, I find that an award of general damages for constitutional violations in the sum of Kshs. 10,000,000 is adequate, just and proportionate.
56. On exemplary damages, the Court has jurisdiction under Article 23(3) of the Constitution to grant appropriate relief, including compensation, where a violation of the Bill of Rights is established. That jurisdiction is wide enough, in a proper case, to include aggravated or exemplary damages. However, the grant of exemplary damages is not automatic. It is an exceptional and discretionary remedy. The guiding principle is that constitutional remedies are primarily intended to vindicate the violated right and to prevent or deter future infringement, not to punish the respondent. Exemplary damages may therefore issue only where the impugned conduct is shown to have been oppressive, arbitrary, high-handed, malicious or unconstitutional in a manner deserving of punitive rebuke, or where the respondent acted to procure an advantage at the expense of the petitioner. In the absence of such aggravating features, a declaration, appropriate corrective orders and, where justified, general damages will ordinarily be sufficient. In this case, the purported impeachment was challenged for not being conducted within the statutory timelines. I find that the threshold for exemplary damages was not met. The prayer for exemplary damages must thus fail.
H. Disposition
57. In the result, the Petition succeeds to the following extent:
a. A declaration is hereby issued that the Respondents’ purported conclusion of the removal process and the communication dated 26th May 2021 purporting to remove the Petitioner from the office of Speaker of the County Assembly of Kisii were unlawful, ultra vires, procedurally improper and in violation of Article 47 and 50 of the Constitution and Section 11 of the County Governments Act.
b. An order of certiorari is hereby issued bringing into this Court and quashing the 2nd Respondent’s communication dated 26th May 2021 purporting to communicate the removal of the Petitioner from the office of Speaker of the County Assembly of Kisii.
c. The Petitioner is awarded general damages in the sum of Kshs. 10,000,000 for violation of Article 47 and 50 of the Constitution.
d. The prayers for reinstatement, permanent injunction and suspension of de-gazettement are denied.
e. The threshold for exemplary damages was not met.
f. The Petitioner shall have the costs of the Petition against the Respondents.
g. The judgment is entered against the respondents jointly and severally in terms of orders a, b, c and f above.
58. Orders accordingly.
T.A ODERA
JUDGE
16.6.2026
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 16TH DAY OF JUNE 2026 IN THE PRESENCE OF MR MATARA FOR THE PETITIONER, OCHIENG OGINGA FOR THE 1ST, 3RD AND 4TH RESPONDENTS. 2ND RESPONDENT IS ABSENT.