Introduction
1. The Petitioner, filed the Petition dated 7 th August, 2025 duly supported by his own signed and sworn affidavit, but undated.
2. The core of this Petition arises from the Petitioner’s discovery that the 1 st Respondent, who was then the Senator of Murang’a County, misrepresented to the 2 nd Respondent (the Senate) that the Petitioner and seven other staff members working under the 1 st Respondent were either involved in or were affected by the tragic air clash by the Boeing 737 Ethiopian Airlines Flight 302.
3. As a result, the Petitioner’s name and the said staff members names were unlawfully included in the Petition submitted to the 2 nd Respondent for inclusion in the compensation list of the victims or affected. The Petitioner states that efforts to obtain an explanation from the 1 st Respondent or obtain further information from him or the 2 nd Respondent regarding the unlawful use of his name have been frustrated despite writing a formal complaint to the 2 nd Respondent and the Commission on Administrative Justice. Worse still, the 1 st Respondent has resorted to threats and harassment using the police to intimidate the Petitioner from seeking transparency and accountability for falsely using his name in a fraudulent manner.
4. As a result, the Petitioner alleges that his fundamental rights and freedoms under Articles 28, 33, 35, 47 and 50 of the Constitution have been violated and thus seek reliefs as follows:
a) A Declaration that the inclusion of the Petitioner's name in Senate Petition that was presented to the Senate on the 19th day of June 2019 Without his consent, knowledge, or participation was unlawful and unconstitutional, and a violation of his rights under Articles 28, 33, 35, 47, and 50 of the Constitution.
b) A Declaration that the 1" Respondent's conduct, both in admitting to advising the petitioners and later denying personal knowledge, constitutes a breach of the principles of integrity, transparency, and accountability under Article 10 and Article 73 of the Constitution.
c) A Declaration that the failure by the 1st Respondent to provide information sought by the Petitioner under Article 35(1)(a), and to respond to his formal access to information request regarding Senate Petition that was presented to the Senate on the 19th day of June 2019, constitutes a violation of the Petitioner's constitutional right to access information.
d) A Declaration that the failure by the 1st Respondent to publicize and disseminate information under Article 35(3), in response to the Petitioner's request dated 5th February, 2025, is a violation of Article 10 of the Constitution, specifically the values of the rule of law, participation of the people, human rights, good governance, transparency, and accountability.
e) A declaration be and is here made that fraudulent acts by members of the parliament are not covered by Article 117 of the constitution of Kenya.
f) An Order compelling the 1st and 2nd Respondents, at their own cost, to forthwith provide the Petitioner with all information requested in his letter dated February 5th, 2025, including but not limited to:
i. Official list of petitioners named in Senate Petition that was presented to the senate on the 19 June 2019;
ii. Any documentation submitted in support of the said petition; iii. Full record of the Committee's deliberations on the petition.
g) An Order directing the 1st Respondent to expunge the Petitioner's name from all public records, reports, and references related to Senate Petition that was presented to the Senate on the 19th day of June 2019.
h) An Order directing the 1" Respondent to issue a formal, written public apology to the Petitioner and to make an official correction of the record on the floor of the Senate or in a public forum of equivalent standing.
i) General damages for violation of constitutional rights, reputational harm, and emotional distress caused to the Petitioner by the actions and omissions of the Respondents.
h) Costs of this Petition be awarded to the Petitioner.
i) Any other relief or orders that this Honourable Court may deem fit and just to grant in the circumstances.
5. In response, the 1 st Respondent filed a Notice of Preliminary Objection dated 26 th August 2025 seeking the striking out of the Petition and Notice of Motion dated 7 th August 2025 on the following grounds:
a) The Petition and Notice of Motion of Motion, both dated 7th August 2025, offends Article 117 of the Constitution and the sections 2,9,11 and 12 of Parliamentary Powers and Privileges Act, No. 29 of 2017, which provides for powers, privileges and immunities of Parliament.
b) The 1st Respondent was at all material times immune from being subjected to legal proceedings under section 12 of the Parliamentary Powers and Privileges Act, No. 29 of 2017 for acts done in his official capacity as Member of Parliament.
c) The Petition and Notice of Motion both dated 7th August 2025 are premature and hence non-justiciable for violating the doctrine of ripeness.
d) The petition and the motion violate the doctrine of specificity and is full of generalities thus failing to meet the threshold for enforcement of fundamental human rights. This offends the holdings in the cases of; Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR &_communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)
6. In opposition to the notice of Preliminary objection, the Petitioner filed grounds of opposition dated 16 th February 2026. While the approach deviates from the conventional practice where written submissions would ordinarily suffice, it is not necessarily fatal to the Petitioner’s case. It merely reflects abundance of caution on their part. In a nutshell, the Petitioner reaction to the the Preliminary objection was/is that it does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 as it raises factual issues requiring evidentiary interrogation.
7. Parties relied on their written submissions.
The 1 st Respondent’s Submissions.
8. The 1 st respondent identified two issues for determination, namely, one, the Petition offends Article 117 of the Constitution and Parliamentary Powers and Privileges Act and two, the Petition is non justiciable for violating the doctrine of ripeness.
9. The 1 st respondent cited Article 117 of the Constitution and submitted that it givea Members of Parliament freedom of speech and debate in Parliament while Section 12 of the Parliamentary Powers and Privileges Act provides for immunity from legal proceedings for words spoken before or written in a report to Parliament or a Committee or by reason of any matter or thing brought by him or her by a report, petition, bill, resolution, motion or other document written to Parliament. He also relies on the case of Republic vs Ethics and Anti-Corruption Commission ex parte Nairobi City County Assembly & 13 Others [2019] eKLR arguing that it extended the parliamentary privileges to include “ the statements by members of the legislature in the course of its proceedings and the right to remove, suspend or even expel a member for disorderly conduct’’.
10. The 1 st respondent submitted that it is not in dispute that he was a Senator of Muranga County from 2017 to 2022 and has been sued in his official capacity, hence Section 12 of the Parliamentary Powers and Privileges Act applies to him. Further, he argues that it is not in dispute that the gist of the Petition relates to statements he made in the course of proceedings before a committee of the 2 nd respondent. Specifically in paragraph 14 and 16 of the Petition, the Petitioner admits that the statement is contained in the official Hansard of the 2 nd respondent. In paragraph 15, the Petitioner admits that the statements were made during or in the course of the deliberations within the confines of official proceedings of the 2 nd respondent on 16 th July 2019.
11. The 1 st respondent argued that the instant Court held that Members of the 2 nd Respondent enjoy parliamentary immunity and hence cannot be sued in their individual capacities on account of their membership and utterances while in the process of conducting official parliamentary business. To buttress that point, the 1 st respondent relied to the case of Chamao & 2 Others vs Ichung’wah & 13 Others; Independent Electoral and Boundaries Commission & 2 Others (Interested Parties) [2024] KEHC 157727 (KLR) where the court reaffirmed the freedom of Members of Parliament under the auspices of Article 117 of the Constitution as follows: -
It is not disputed that the 7 th and 9 th respondents were at the time of filing this Petition serving in Parliament as members of joint committee of both Houses of Parliament. The work they were doing in that Committee belonged to Parliament hence official duties of Parliament and not private or personal duties. Under section 12 of the Parliamentary Powers and Privileges Act, a Member of Parliament cannot be sued for performing duties of the House in Committee as the committee’s function constitutes parliamentary business. Moreover, parliament cannot be stopped from establishing a committee to carry out tasks that are relevant to its mandate… I uphold the 7 th and 9 th respondents’ preliminary objection. It is my finding that the 7 th and 9 th respondents enjoy parliamentary immunity and cannot therefore be sued in their individual capacities on account of their membership in a parliamentary committee. I allow the preliminary objection that not only removes the two from this petition but also any other member of parliament or senator sued in this petition in his/her individual capacity.
12. On the second issue, the 1 st Respondent contends that the Petitioner confirms that on 8 th November 2024, he wrote to the Clerk of the Senate making various requests as evidenced in exhibit ‘DMK. ’ The request was considered in the letter dated 12 th November 2024 in which the 2 nd Respondent indicated that it was in liaising with the Ministry of Foreign Affairs the process of verification of the next of kin for death certificates that were yet to be released was concluded judiciously, hence the 1 st Respondent submitted the verification of next of kin was ongoing.
13. The 1 st Respondent pointed in the instant submitted that the in the present Petition, the Petitioner is seeking an immediate finding from the Court as to the actual number and extent of victims of crash, and whether the 1 st Respondent made a fraudulent statement regarding the extent of the victims. The 1 st Respondent contended that the Petition is premature and not ripe for determination because the Petitioner had already made a formal request to the Clerk concerning the victims of the clash. The 2 nd Respondent subsequently took up the matter and issued appropriate directions, which are still in process of being implemented and are yet to be completed.
14. The 1 st Respondent submitted that the process of verification of the next of kin is incomplete as per the recommendations of the committee of the 2 nd respondent hence this Court’s intervention is being sought too early instead of giving time for the process to be completed. To buttress that point, the 1 st respondent relied on the case of Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR where Onguto J. stated: -
Effectively, the justiciability dogma prohibits the court from entertaining the hypothetical or academic interest cases… The Court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before court must be ripe, through a factual matrix for determination.
15. The 1 st respondent contends that the Petitioner has already petitioned the legally assigned body to deal with the complaint herein, namely, the 2 nd respondent through lodging of a complaint under Section 35 of the Parliamentary Powers and Privileges Act. The complaint has been admitted and is awaiting final resolution through the said mechanisms.
16. The 1 st respondent argued that were this Court to proceed and entertain the instant Petition, it would be interfering with the core mandate of the 2 nd respondent as outlined in Section 35 of the Parliamentary Powers and Privileges Act . Reliance was placed in the case of Awino vs Mugilwa; Ethics & Anti Corruption Commission (Interested Party) [2026] KEHC 978 (KLR) where the court held as follows: -
In my view, the petitioner cannot be allowed to run away from institutions that are constitutionally and legally assigned the specific primary mandate of dealing with the issues raised in the petition. This court must exercise judicial restraint by showing deference to the coordinate branches of government by abstaining from interfering with the core functions that are within the constitutional and statutory mandate of these bodies…
17. Further, the 1 st Respondent argues that the Petitioner seeks to invite this Court to adjudicate over a grievance concerning a statement made by the 1 st respondent in the conduct of official business of Parliament. The 1 st respondent asserted that the court cannot take any evidence to prove fraud or otherwise as the same would usurp the functions of the 2 nd respondent thereby making the Petition herein unripe for judicial determination. Reliance was placed on the case of William Kabogo Gitau vs Ferdinand Ndung’u Waititu [2016] eKLR where the court held as follows:-
I hold the view that the petitioner’s contentions in regard to the commission of the alleged offences must be raised with the relevant authorities and this court cannot at this juncture usurp the powers of such authorities. This court cannot for instance sit to investigate matters of alleged forgeries of academic documents as invited by the petitioner and neither can the court make conclusions pertaining to those allegations in the absence of evidence for instance that the investigating agencies have made investigations and the relevant court has made a finding as to the innocence or otherwise of the respondent on those allegations.
18. The 1 st respondent further argued that the doctrine of ripeness dictates that the Petitioner cannot abandon the process of the resolution through the 2 nd Respondent having commenced it by seek to institute a Petition in the manner he has done so. Reliance was placed in the case of KKB vs SCM & 5 Others (2022) KEHC 289 (KLR) where the court held as follows:-
The doctrine of ripeness and constitutional avoidance gives credence to the concept that the constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with the applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common law remedies are part of the legal system.
The Petitioner’s Submissions.
19. The petitioner identified five issues for determination as follows:
i) whether the Petition offends Article 117 of the Constitution and the Parliamentary Powers and privileges Act,
ii) whether the 1 st respondent enjoys absolute immunity under Section 12;
iii) whether the petition is premature and non justiciable;
iv) whether the petition lacks specificity and
v) whether the preliminary objection meets the mukisa biscuit test.
20. On the first issue, the petitioner argued that the issues raised particularly the applicability of Article 117 of the Constitution and the Parliamentary Powers and Privileges Act require factual interrogation and cannot be determined in limine. He further argued that the protection under article 117 and Section 12 is not absolute as it does not extend to fraudulent conduct, misrepresentation outside the house, administrative violations and constitutional infractions affecting third parties. The Petitioner argued that the Petition does not challenge the internal deliberations of the senate but challenges the unlawful inclusion of his name without consent, failure to respond to a request for information under article 35, contradictory representations made outside Parliamentary privilege and subsequent retaliatory conduct culminating in arrest. Further, citing the Supreme Court decision of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others (no citation given), the Petitioner reiterated the Court’s position that parliamentary privilege cannot be invoked to shield unconstitutional conduct. Further Article 2(4) of the Constitution renders void any act inconsistent with the Constitution, and parliamentary privilege cannot override the bill of rights.
21. On the second issue, the petitioner argued that his grievances go beyond parliamentary speech and concern the use of his identity without authority, failure to respond to a statutory information request, inconsistent written representations to the Commission on Administrative justice and the conduct allegedly leading to his arrest. He cited the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (no citation given) where the court emphasized that constitutional accountability applies to all state officers.
22. Additionally, Article 73 of the Constitution imposes personal responsibility on state officers for integrity in public office thus immunity cannot be used as a cloak for alleged abuse of office. The Petitioner argued that the question whether the 1 st respondent acted within protected legislative space is a substantive issue requiring evidence and cannot be determined summarily at the preliminary stage.
23. On the issue of the doctrine of ripeness, the petitioner argued that the present dispute is neither speculative or premature. The Petitioner argued that he demonstrated that his name was included in a senate petition without his consent, the Hansard records the 1 st respondent claiming personal knowledge of the petitioner, a formal information request was ignored, a complaint was lodged before the commission on administrative justice and an arrest and criminal proceedings followed. The Petitioner argued that a constitutional violation crystalizes the moment a right is infringed, and in the instant case, these were completed events which violated his rights as portrayed in his petition herein.
24. On the fourth issue, the petitioner cites Articles 28, 33, 35, 47, 50, 10 and 73 of the Constitution and particularises their nexus with the Hansard statement. The petition further identifies the date of the senate presentation and refers to written correspondence and CAJ complaints, and also, gives the details of arrest and detention and the reputational harm and the reliefs sought. The Petitioner thus contends that the Petition is not generalized grievance but fact-specific and evidence-based. The Petitioner thus submitted that the preliminary objection does not raise pure points of law but raises factual and evidentiary matters.
25. The 1 st respondent filed Further Submissions dated 9 th March 2026 which reiterate his earlier submissions save to add that the petitioner has not indicated under what qualification he seeks to waive the applicability of Section 12 of the Parliamentary Powers and Privileges Act. Further on the doctrine of ripeness, the 1 st respondent cited the case of Sports and Recreation Commission vs Sagittarius Wrestling Club & Another [2001] (2) ZLR 501 where the court stated: -
Courts will normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition, a breach of the Declaration of Rights.
26. The 1 st respondent argued that the Petitioner has avoided answering to the clear violations of the doctrine of ripeness as he has expressed. The issues are still live before the relevant body and therefore the Court ought to avoid determining the issues raised by the Petitioner.
Analysis and Determination
27. Having considered the pleadings and submissions of the Parties herein, the issue that arises for determination is:
Whether the 1 st Respondent’s Preliminary Objection is merited.
28. For an objection to qualify to be raised as a Preliminary Objection, it must meet the established procedural and substantive threshold for it to be determined by the Court without the necessity of going into the substance or merits of the matter. The threshold of a preliminary objection was articulated in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69 and the principle was subsequently adopted with approval by the Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR where the Court held as follows:
“[31] To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696:
“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit . Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration …a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct . It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion ”.
29. Further, in the case of Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR the Court explained:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
30. The expediency of raising a preliminary objection in the administration of justice elaborated by Supreme Court in the Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) as follows:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…”
31. Having regard to the foregoing authorities, the fundamental characteristics of a Preliminary Objection may be summarized and condensed as follows:
a) a preliminary objection, argued successfully should be capable of disposing of the whole suit.
b) It is argued on the assumption that all the facts pleaded by the other side are correct
c) It cannot be raised if any fact has to be ascertained by evidence
d) It cannot be raised if what is sought is the exercise of judicial discretion.
32. The question thus becomes, does the Preliminary Objection raised against the Petition and the Notice of Motion by the 1 st Respondent herein satisfy the above threshold?
33. The 1 st Respondent submits that the Petition and Notice of Motion dated 7 th August 2025 offends Article 117 of the Constitution and Section 12 of the Parliamentary Powers and Privileges Act which provides for powers, privileges and immunities of parliament.
34. It is a settled principle of jurisprudence that courts alone possess the jurisdiction to inquire into whether a privilege that asserted exists, and if it does, to determine its nature and extent. The principle was articulated by the Supreme Court of Canada in Canada (house of Commons) vs Vaid 92005) 1 SCR 66 where the court held as follows at paragraph 11: -
“The courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists. This jurisdictional rule has been accepted by authorities on the law and custom of the Canadian Parliament as well (see Maingot, at p. 66) and is not challenged in this appeal.”
35. The Court went on to hold that though it is its exclusive preserve to inquire into the existence and scope of privilege, once a privilege has been found to exist, and its scope is considered appropriate, it will not question how Parliament exercises or applies a privilege.
Accordingly, to determine whether a privilege exists for the benefit of the Senate or House of Commons, or their members, a court must decide whether the category and scope of the claimed privilege have been authoritatively established in relation to our own parliament or to the House of Commons at Westminster. If so, the claim to privilege ought to be accepted by the court. However, if the existence and scope of privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity- the foundation of all parliamentary privilege. In such a case, in order to sustain a claim of privilege, the assembly or member seeking its immunity must show that the sphere of activity for which the privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including he assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency. Once a claim to privilege is made out, the court will enquire into the merits of its exercise in any particular instance.
36. Whereas courts will exercise caution not to unduly interfere with or micromanage parliamentary proceedings, it is the duty and the obligation of this court to ensure that Parliament and Parliamentary committees conduct their proceedings in accordance with the Constitution and the law. The existence of the law on privilege in Article 117 of the Constitution and Section 12 of the Parliamentary Powers and privileges Act does not ousts this Court’s supervisory jurisdiction granted under Article 165(3) and (6) of the Constitution.
37. This position was reiterated by the Supreme Court of Kenya in Speaker of National assembly vs Attorney General & 3 Others (2013) eKLR where the court expressed itself as follows: -
Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of parliamentary supremacy does not commend itself to nascent democracies such as ours. Where the Constitution decrees a specific procedure to be enacted in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. If parliament violates the procedural requirements of the supreme law of the land, it is for the courts of law, not least the Supreme Court to assert the authority and supremacy of the Constitution. It would be different if the procedure in question were not constitutionally mandated. This Court would be averse to questioning parliamentary procedures that are formulated by the Houses to regulate their internal workings as long as the same do not breach the Constitution. Where however, as in this case, one of the Houses is alleging that the other has violated the Constitution, and moves the court to make a determination by way of an advisory opinion, it would be remiss of the court to look the other way. Understood in this context therefore, by rendering his opinion, the court does not violate the doctrine of separation of powers. It is simply performing its solemn duty under the Constitution and the Supreme Court Act.
38. To that extent, the issue of whether and to what extent the 1 st Respondent is protected by parliamentary privilege is in the instant case a matter that must be inquired into by the Court, especially because the Petitioner alleges that the 1 st Respondent’s conduct violated his constitutional rights. Although Parliamentary privilege is necessary for the conduct of parliamentary business, it cannot override rights that the Constitutional guarantees or provide a blanket cover that buffers constitutional violation. The Court thus has a duty to interrogate all the circumstances, of both facts and applicable law, in order to determine if the privilege is to be upheld in this particular case or not. Being a case that prima facie raises an arguable case of violation of
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1. The Petitioner, filed the Petition dated 7 th August, 2025 duly supported by his own signed and sworn affidavit, but undated.
2. The core of this Petition arises from the Petitioner’s discovery that the 1 st Respondent, who was then the Senator of Murang’a County, misrepresented to the 2 nd Respondent (the Senate) that the Petitioner and seven other staff members working under the 1 st Respondent were either involved in or were affected by the tragic air clash by the Boeing 737 Ethiopian Airlines Flight 302.
3. As a result, the Petitioner’s name and the said staff members names were unlawfully included in the Petition submitted to the 2 nd Respondent for inclusion in the compensation list of the victims or affected. The Petitioner states that efforts to obtain an explanation from the 1 st Respondent or obtain further information from him or the 2 nd Respondent regarding the unlawful use of his name have been frustrated despite writing a formal complaint to the 2 nd Respondent and the Commission on Administrative Justice. Worse still, the 1 st Respondent has resorted to threats and harassment using the police to intimidate the Petitioner from seeking transparency and accountability for falsely using his name in a fraudulent manner.
4. As a result, the Petitioner alleges that his fundamental rights and freedoms under Articles 28, 33, 35, 47 and 50 of the Constitution have been violated and thus seek reliefs as follows:
a) A Declaration that the inclusion of the Petitioner's name in Senate Petition that was presented to the Senate on the 19th day of June 2019 Without his consent, knowledge, or participation was unlawful and unconstitutional, and a violation of his rights under Articles 28, 33, 35, 47, and 50 of the Constitution.
b) A Declaration that the 1" Respondent's conduct, both in admitting to advising the petitioners and later denying personal knowledge, constitutes a breach of the principles of integrity, transparency, and accountability under Article 10 and Article 73 of the Constitution.
c) A Declaration that the failure by the 1st Respondent to provide information sought by the Petitioner under Article 35(1)(a), and to respond to his formal access to information request regarding Senate Petition that was presented to the Senate on the 19th day of June 2019, constitutes a violation of the Petitioner's constitutional right to access information.
d) A Declaration that the failure by the 1st Respondent to publicize and disseminate information under Article 35(3), in response to the Petitioner's request dated 5th February, 2025, is a violation of Article 10 of the Constitution, specifically the values of the rule of law, participation of the people, human rights, good governance, transparency, and accountability.
e) A declaration be and is here made that fraudulent acts by members of the parliament are not covered by Article 117 of the constitution of Kenya.
f) An Order compelling the 1st and 2nd Respondents, at their own cost, to forthwith provide the Petitioner with all information requested in his letter dated February 5th, 2025, including but not limited to:
i. Official list of petitioners named in Senate Petition that was presented to the senate on the 19 June 2019;
ii. Any documentation submitted in support of the said petition; iii. Full record of the Committee's deliberations on the petition.
g) An Order directing the 1st Respondent to expunge the Petitioner's name from all public records, reports, and references related to Senate Petition that was presented to the Senate on the 19th day of June 2019.
h) An Order directing the 1" Respondent to issue a formal, written public apology to the Petitioner and to make an official correction of the record on the floor of the Senate or in a public forum of equivalent standing.
i) General damages for violation of constitutional rights, reputational harm, and emotional distress caused to the Petitioner by the actions and omissions of the Respondents.
h) Costs of this Petition be awarded to the Petitioner.
i) Any other relief or orders that this Honourable Court may deem fit and just to grant in the circumstances.
5. In response, the 1 st Respondent filed a Notice of Preliminary Objection dated 26 th August 2025 seeking the striking out of the Petition and Notice of Motion dated 7 th August 2025 on the following grounds:
a) The Petition and Notice of Motion of Motion, both dated 7th August 2025, offends Article 117 of the Constitution and the sections 2,9,11 and 12 of Parliamentary Powers and Privileges Act, No. 29 of 2017, which provides for powers, privileges and immunities of Parliament.
b) The 1st Respondent was at all material times immune from being subjected to legal proceedings under section 12 of the Parliamentary Powers and Privileges Act, No. 29 of 2017 for acts done in his official capacity as Member of Parliament.
c) The Petition and Notice of Motion both dated 7th August 2025 are premature and hence non-justiciable for violating the doctrine of ripeness.
d) The petition and the motion violate the doctrine of specificity and is full of generalities thus failing to meet the threshold for enforcement of fundamental human rights. This offends the holdings in the cases of; Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR &_communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)
6. In opposition to the notice of Preliminary objection, the Petitioner filed grounds of opposition dated 16 th February 2026. While the approach deviates from the conventional practice where written submissions would ordinarily suffice, it is not necessarily fatal to the Petitioner’s case. It merely reflects abundance of caution on their part. In a nutshell, the Petitioner reaction to the the Preliminary objection was/is that it does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 as it raises factual issues requiring evidentiary interrogation.
7. Parties relied on their written submissions.
The 1 st Respondent’s Submissions.
8. The 1 st respondent identified two issues for determination, namely, one, the Petition offends Article 117 of the Constitution and Parliamentary Powers and Privileges Act and two, the Petition is non justiciable for violating the doctrine of ripeness.
9. The 1 st respondent cited Article 117 of the Constitution and submitted that it givea Members of Parliament freedom of speech and debate in Parliament while Section 12 of the Parliamentary Powers and Privileges Act provides for immunity from legal proceedings for words spoken before or written in a report to Parliament or a Committee or by reason of any matter or thing brought by him or her by a report, petition, bill, resolution, motion or other document written to Parliament. He also relies on the case of Republic vs Ethics and Anti-Corruption Commission ex parte Nairobi City County Assembly & 13 Others [2019] eKLR arguing that it extended the parliamentary privileges to include “ the statements by members of the legislature in the course of its proceedings and the right to remove, suspend or even expel a member for disorderly conduct’’.
10. The 1 st respondent submitted that it is not in dispute that he was a Senator of Muranga County from 2017 to 2022 and has been sued in his official capacity, hence Section 12 of the Parliamentary Powers and Privileges Act applies to him. Further, he argues that it is not in dispute that the gist of the Petition relates to statements he made in the course of proceedings before a committee of the 2 nd respondent. Specifically in paragraph 14 and 16 of the Petition, the Petitioner admits that the statement is contained in the official Hansard of the 2 nd respondent. In paragraph 15, the Petitioner admits that the statements were made during or in the course of the deliberations within the confines of official proceedings of the 2 nd respondent on 16 th July 2019.
11. The 1 st respondent argued that the instant Court held that Members of the 2 nd Respondent enjoy parliamentary immunity and hence cannot be sued in their individual capacities on account of their membership and utterances while in the process of conducting official parliamentary business. To buttress that point, the 1 st respondent relied to the case of Chamao & 2 Others vs Ichung’wah & 13 Others; Independent Electoral and Boundaries Commission & 2 Others (Interested Parties) [2024] KEHC 157727 (KLR) where the court reaffirmed the freedom of Members of Parliament under the auspices of Article 117 of the Constitution as follows: -
It is not disputed that the 7 th and 9 th respondents were at the time of filing this Petition serving in Parliament as members of joint committee of both Houses of Parliament. The work they were doing in that Committee belonged to Parliament hence official duties of Parliament and not private or personal duties. Under section 12 of the Parliamentary Powers and Privileges Act, a Member of Parliament cannot be sued for performing duties of the House in Committee as the committee’s function constitutes parliamentary business. Moreover, parliament cannot be stopped from establishing a committee to carry out tasks that are relevant to its mandate… I uphold the 7 th and 9 th respondents’ preliminary objection. It is my finding that the 7 th and 9 th respondents enjoy parliamentary immunity and cannot therefore be sued in their individual capacities on account of their membership in a parliamentary committee. I allow the preliminary objection that not only removes the two from this petition but also any other member of parliament or senator sued in this petition in his/her individual capacity.
12. On the second issue, the 1 st Respondent contends that the Petitioner confirms that on 8 th November 2024, he wrote to the Clerk of the Senate making various requests as evidenced in exhibit ‘DMK. ’ The request was considered in the letter dated 12 th November 2024 in which the 2 nd Respondent indicated that it was in liaising with the Ministry of Foreign Affairs the process of verification of the next of kin for death certificates that were yet to be released was concluded judiciously, hence the 1 st Respondent submitted the verification of next of kin was ongoing.
13. The 1 st Respondent pointed in the instant submitted that the in the present Petition, the Petitioner is seeking an immediate finding from the Court as to the actual number and extent of victims of crash, and whether the 1 st Respondent made a fraudulent statement regarding the extent of the victims. The 1 st Respondent contended that the Petition is premature and not ripe for determination because the Petitioner had already made a formal request to the Clerk concerning the victims of the clash. The 2 nd Respondent subsequently took up the matter and issued appropriate directions, which are still in process of being implemented and are yet to be completed.
14. The 1 st Respondent submitted that the process of verification of the next of kin is incomplete as per the recommendations of the committee of the 2 nd respondent hence this Court’s intervention is being sought too early instead of giving time for the process to be completed. To buttress that point, the 1 st respondent relied on the case of Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR where Onguto J. stated: -
Effectively, the justiciability dogma prohibits the court from entertaining the hypothetical or academic interest cases… The Court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before court must be ripe, through a factual matrix for determination.
15. The 1 st respondent contends that the Petitioner has already petitioned the legally assigned body to deal with the complaint herein, namely, the 2 nd respondent through lodging of a complaint under Section 35 of the Parliamentary Powers and Privileges Act. The complaint has been admitted and is awaiting final resolution through the said mechanisms.
16. The 1 st respondent argued that were this Court to proceed and entertain the instant Petition, it would be interfering with the core mandate of the 2 nd respondent as outlined in Section 35 of the Parliamentary Powers and Privileges Act . Reliance was placed in the case of Awino vs Mugilwa; Ethics & Anti Corruption Commission (Interested Party) [2026] KEHC 978 (KLR) where the court held as follows: -
In my view, the petitioner cannot be allowed to run away from institutions that are constitutionally and legally assigned the specific primary mandate of dealing with the issues raised in the petition. This court must exercise judicial restraint by showing deference to the coordinate branches of government by abstaining from interfering with the core functions that are within the constitutional and statutory mandate of these bodies…
17. Further, the 1 st Respondent argues that the Petitioner seeks to invite this Court to adjudicate over a grievance concerning a statement made by the 1 st respondent in the conduct of official business of Parliament. The 1 st respondent asserted that the court cannot take any evidence to prove fraud or otherwise as the same would usurp the functions of the 2 nd respondent thereby making the Petition herein unripe for judicial determination. Reliance was placed on the case of William Kabogo Gitau vs Ferdinand Ndung’u Waititu [2016] eKLR where the court held as follows:-
I hold the view that the petitioner’s contentions in regard to the commission of the alleged offences must be raised with the relevant authorities and this court cannot at this juncture usurp the powers of such authorities. This court cannot for instance sit to investigate matters of alleged forgeries of academic documents as invited by the petitioner and neither can the court make conclusions pertaining to those allegations in the absence of evidence for instance that the investigating agencies have made investigations and the relevant court has made a finding as to the innocence or otherwise of the respondent on those allegations.
18. The 1 st respondent further argued that the doctrine of ripeness dictates that the Petitioner cannot abandon the process of the resolution through the 2 nd Respondent having commenced it by seek to institute a Petition in the manner he has done so. Reliance was placed in the case of KKB vs SCM & 5 Others (2022) KEHC 289 (KLR) where the court held as follows:-
The doctrine of ripeness and constitutional avoidance gives credence to the concept that the constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with the applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common law remedies are part of the legal system.
The Petitioner’s Submissions.
19. The petitioner identified five issues for determination as follows:
i) whether the Petition offends Article 117 of the Constitution and the Parliamentary Powers and privileges Act,
ii) whether the 1 st respondent enjoys absolute immunity under Section 12;
iii) whether the petition is premature and non justiciable;
iv) whether the petition lacks specificity and
v) whether the preliminary objection meets the mukisa biscuit test.
20. On the first issue, the petitioner argued that the issues raised particularly the applicability of Article 117 of the Constitution and the Parliamentary Powers and Privileges Act require factual interrogation and cannot be determined in limine. He further argued that the protection under article 117 and Section 12 is not absolute as it does not extend to fraudulent conduct, misrepresentation outside the house, administrative violations and constitutional infractions affecting third parties. The Petitioner argued that the Petition does not challenge the internal deliberations of the senate but challenges the unlawful inclusion of his name without consent, failure to respond to a request for information under article 35, contradictory representations made outside Parliamentary privilege and subsequent retaliatory conduct culminating in arrest. Further, citing the Supreme Court decision of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others (no citation given), the Petitioner reiterated the Court’s position that parliamentary privilege cannot be invoked to shield unconstitutional conduct. Further Article 2(4) of the Constitution renders void any act inconsistent with the Constitution, and parliamentary privilege cannot override the bill of rights.
21. On the second issue, the petitioner argued that his grievances go beyond parliamentary speech and concern the use of his identity without authority, failure to respond to a statutory information request, inconsistent written representations to the Commission on Administrative justice and the conduct allegedly leading to his arrest. He cited the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (no citation given) where the court emphasized that constitutional accountability applies to all state officers.
22. Additionally, Article 73 of the Constitution imposes personal responsibility on state officers for integrity in public office thus immunity cannot be used as a cloak for alleged abuse of office. The Petitioner argued that the question whether the 1 st respondent acted within protected legislative space is a substantive issue requiring evidence and cannot be determined summarily at the preliminary stage.
23. On the issue of the doctrine of ripeness, the petitioner argued that the present dispute is neither speculative or premature. The Petitioner argued that he demonstrated that his name was included in a senate petition without his consent, the Hansard records the 1 st respondent claiming personal knowledge of the petitioner, a formal information request was ignored, a complaint was lodged before the commission on administrative justice and an arrest and criminal proceedings followed. The Petitioner argued that a constitutional violation crystalizes the moment a right is infringed, and in the instant case, these were completed events which violated his rights as portrayed in his petition herein.
24. On the fourth issue, the petitioner cites Articles 28, 33, 35, 47, 50, 10 and 73 of the Constitution and particularises their nexus with the Hansard statement. The petition further identifies the date of the senate presentation and refers to written correspondence and CAJ complaints, and also, gives the details of arrest and detention and the reputational harm and the reliefs sought. The Petitioner thus contends that the Petition is not generalized grievance but fact-specific and evidence-based. The Petitioner thus submitted that the preliminary objection does not raise pure points of law but raises factual and evidentiary matters.
25. The 1 st respondent filed Further Submissions dated 9 th March 2026 which reiterate his earlier submissions save to add that the petitioner has not indicated under what qualification he seeks to waive the applicability of Section 12 of the Parliamentary Powers and Privileges Act. Further on the doctrine of ripeness, the 1 st respondent cited the case of Sports and Recreation Commission vs Sagittarius Wrestling Club & Another [2001] (2) ZLR 501 where the court stated: -
Courts will normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition, a breach of the Declaration of Rights.
26. The 1 st respondent argued that the Petitioner has avoided answering to the clear violations of the doctrine of ripeness as he has expressed. The issues are still live before the relevant body and therefore the Court ought to avoid determining the issues raised by the Petitioner.
Analysis and Determination
27. Having considered the pleadings and submissions of the Parties herein, the issue that arises for determination is:
Whether the 1 st Respondent’s Preliminary Objection is merited.
28. For an objection to qualify to be raised as a Preliminary Objection, it must meet the established procedural and substantive threshold for it to be determined by the Court without the necessity of going into the substance or merits of the matter. The threshold of a preliminary objection was articulated in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69 and the principle was subsequently adopted with approval by the Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR where the Court held as follows:
“[31] To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696:
“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit . Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration …a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct . It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion ”.
29. Further, in the case of Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR the Court explained:
“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”
30. The expediency of raising a preliminary objection in the administration of justice elaborated by Supreme Court in the Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) as follows:
“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…”
31. Having regard to the foregoing authorities, the fundamental characteristics of a Preliminary Objection may be summarized and condensed as follows:
a) a preliminary objection, argued successfully should be capable of disposing of the whole suit.
b) It is argued on the assumption that all the facts pleaded by the other side are correct
c) It cannot be raised if any fact has to be ascertained by evidence
d) It cannot be raised if what is sought is the exercise of judicial discretion.
32. The question thus becomes, does the Preliminary Objection raised against the Petition and the Notice of Motion by the 1 st Respondent herein satisfy the above threshold?
33. The 1 st Respondent submits that the Petition and Notice of Motion dated 7 th August 2025 offends Article 117 of the Constitution and Section 12 of the Parliamentary Powers and Privileges Act which provides for powers, privileges and immunities of parliament.
34. It is a settled principle of jurisprudence that courts alone possess the jurisdiction to inquire into whether a privilege that asserted exists, and if it does, to determine its nature and extent. The principle was articulated by the Supreme Court of Canada in Canada (house of Commons) vs Vaid 92005) 1 SCR 66 where the court held as follows at paragraph 11: -
“The courts will see whether what the House of Commons declares to be its privileges really are so, the mere affirmance by that body that a certain act is a breach of their privileges will not oust the courts from enquiring and deciding whether the privilege claimed really exists. This jurisdictional rule has been accepted by authorities on the law and custom of the Canadian Parliament as well (see Maingot, at p. 66) and is not challenged in this appeal.”
35. The Court went on to hold that though it is its exclusive preserve to inquire into the existence and scope of privilege, once a privilege has been found to exist, and its scope is considered appropriate, it will not question how Parliament exercises or applies a privilege.
Accordingly, to determine whether a privilege exists for the benefit of the Senate or House of Commons, or their members, a court must decide whether the category and scope of the claimed privilege have been authoritatively established in relation to our own parliament or to the House of Commons at Westminster. If so, the claim to privilege ought to be accepted by the court. However, if the existence and scope of privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity- the foundation of all parliamentary privilege. In such a case, in order to sustain a claim of privilege, the assembly or member seeking its immunity must show that the sphere of activity for which the privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including he assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency. Once a claim to privilege is made out, the court will enquire into the merits of its exercise in any particular instance.
36. Whereas courts will exercise caution not to unduly interfere with or micromanage parliamentary proceedings, it is the duty and the obligation of this court to ensure that Parliament and Parliamentary committees conduct their proceedings in accordance with the Constitution and the law. The existence of the law on privilege in Article 117 of the Constitution and Section 12 of the Parliamentary Powers and privileges Act does not ousts this Court’s supervisory jurisdiction granted under Article 165(3) and (6) of the Constitution.
37. This position was reiterated by the Supreme Court of Kenya in Speaker of National assembly vs Attorney General & 3 Others (2013) eKLR where the court expressed itself as follows: -
Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of parliamentary supremacy does not commend itself to nascent democracies such as ours. Where the Constitution decrees a specific procedure to be enacted in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. If parliament violates the procedural requirements of the supreme law of the land, it is for the courts of law, not least the Supreme Court to assert the authority and supremacy of the Constitution. It would be different if the procedure in question were not constitutionally mandated. This Court would be averse to questioning parliamentary procedures that are formulated by the Houses to regulate their internal workings as long as the same do not breach the Constitution. Where however, as in this case, one of the Houses is alleging that the other has violated the Constitution, and moves the court to make a determination by way of an advisory opinion, it would be remiss of the court to look the other way. Understood in this context therefore, by rendering his opinion, the court does not violate the doctrine of separation of powers. It is simply performing its solemn duty under the Constitution and the Supreme Court Act.
38. To that extent, the issue of whether and to what extent the 1 st Respondent is protected by parliamentary privilege is in the instant case a matter that must be inquired into by the Court, especially because the Petitioner alleges that the 1 st Respondent’s conduct violated his constitutional rights. Although Parliamentary privilege is necessary for the conduct of parliamentary business, it cannot override rights that the Constitutional guarantees or provide a blanket cover that buffers constitutional violation. The Court thus has a duty to interrogate all the circumstances, of both facts and applicable law, in order to determine if the privilege is to be upheld in this particular case or not. Being a case that prima facie raises an arguable case of violation of
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