' BACKGROUND
On 13 th February, 2024 the County Assembly of Kisii received a Notice of Removal of Hon. Dr. Robert Onsare Monda (hereinafter also referred to as “the DG” ) from the Office of the Deputy Governor, Kisii County, by way of impeachment. The grounds listed for the said notice of removal were inter alia as follows; Gross Violation of the Constitution and other laws, Abuse of Office, Gross Misconduct, and Crimes under National Law.
The Notice of Removal precipitated the filing of Petitions in various courts as follows: -
Nyamira High Court Constitutional Petition No. 2 of 2024 (formerly Kisii High Court Petition No. 2/2024) filed by Dr. Monda on 26 th February 2024 (the 1 st Petition) challenging the impeachment proceedings before the Kisii County Assembly (hereinafter “the County Assembly”).
Nyamira Constitutional Petition No. 3 of 2024 (formerly Nairobi High Court Petition No. E159 of 2024) filed by Vincent Marita Omao on 21 st March 2024 (the 2 nd Petition) challenging the impeachment proceedings before the Kisii County Assembly and the Senate.
Nyamira Constitutional Petition No. 4 of 2024 (formerly Machakos Petition No. E007 of 2024 and later Nairobi Constitutional Petition No. 10 of 2024) filed by Purity Moraa Kirera dated 1 st April 2024 challenging the impeachment proceedings before the County Assembly and the Senate.
Nairobi Constitutional Petition No. E003 of 2024 (formerly Machakos Constitutional Petition No. E006 of 2024) filed by Jared Mairura Ratemo against the Senate seeking conservatory orders to stop the gazettement declaring the seat of the Kisii County Deputy Governor vacant. The Petition was however withdrawn.
The Petitioner in the first Petition sought the following reliefs: -
THAT an order do issue to prohibit the 1 st , 2 nd and 3 rd Respondents from proceeding at all, or any further, with the public participation on the removal of the Petitioner/Deputy Governor (DG) and from collecting, and or collating and or compiling and or presenting any public participation report to the County Assembly session of MCA’s and or acting upon any report and material obtained from the notice for public participation whatsoever pending hearing and determination of this Petition.
THAT an order do issue to prohibit and restrain the 1 st , 2 nd and 3 rd Respondents by themselves and or their representatives, agents, deputies, assistants, staff or whosoever whatsoever from further acts of entertaining for hearing and discussion at County Assembly MCA sessions, prosecuting, moving, arguing, debating, voting, and or making any resolution as to the Petitioner’s motion to impeach him, presented to the County Assembly on 13 th and 22 nd February 2024 pending hearing and determination of this Petition.
THAT a declaration do issue that there are no defined and clear issues and matters resolved and determined by the County Assembly, or otherwise through its “Relevant Committee” for which the Petitioner/DG can attend and respond to on 29 th February 2024, and the Petitioner’s right to be heard and in his defense has been violated pending hearing and determination of this Petition.
THAT a declaration do issue that the law as it stands does not provide nor expect a process of public participation on matters of impeachment and removal of a Deputy Governor.
THAT without prejudice to any other order prayed for herein, an order do issue that in this case, the public participation as formatted and published does not meet the reasonable, informed and viable public participation criteria in law and cannot result in any actionable output.
THAT a declaration do issue that any requisition for the Petitioner/DG to respond to the allegations made, being matters under active investigations by the EACC and by the police will violate his rights and fundamental freedoms.
THAT a declaration do issue that the motion to impeach and remove the Deputy Governor is improper and/or is premature.
THAT a declaration do issue that the motion to remove the Petitioner from office by way of impeachment is out of time, has abated and is null and void thereof.
THAT a declaration do issue that the law does not provide that ANY AND ALL complaints and or notice or motion for impeachment and removal be directly remitted to the person of interest as a basis for an invite, to make a defence before the County assembly has considered, evaluated, and resolved on the propriety of the motion, and issues to be answered, and that the Petitioner’s legitimate expectations of right to fair administrative action, and right to the rule of law have been breached.
THAT a declaration do issue that the Petitioner’s right to be heard has been infringed by the violation of the law to ensure the original notice of motion of 13 th February, 2024 is exactly the same as the motion on 21 st February, 2024.
THAT a declaration do issue, that the process, procedure and substance adopted for purpose of giving notice, moving the motion, entertaining Petitioner’s defence, debating and voting for the purpose of this motion for impeachment and for removal from office violates the Petitioner’s rights to a fair hearing.
THAT any other or further orders and or directions do issue in the best interest of justice.
THAT the 3 rd Respondent (Hon. Wycliffe Siocha Gesongori) do pay costs.
The Petitioner in the second Petition sought the following reliefs: -
A DECLARATION that the Notice issued on 13 th February, 2024 of intention to remove the 1 st Interested Party (DG) from office of the Deputy Governor, Kisii County by way of impeachment was defective and unlawful for want of compliance with Section 33 (1) of the County Government Act, 2012 as read with Orders 60 (1), 60 (5) and 60 (6) of the Standing Orders of the County Assembly of Kisii.
A DECLARATION that within the intendment of Section 87 of the County Government Act, 2012 as read with Article 10 and 196 (1) of the Constitution of Kenya, 2010, a County Assembly must conduct a meaningful and qualitative public participation in all wards of the county on any decision that leads to a motion to impeach a County Governor.
A DECLARATION that the 2 nd Respondent (Speaker of the Senate) by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent (The Senate) proceeding to hear the said motion against the 1 st Interested Party despite the 7 th Respondent having not conducted a meaningful and qualitative public participation, Section 87 of the County Government Act, 2012 was violated.
A DECLARATION that the 2 nd Respondent by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent proceeding to hear the said Motion against the 1 st Interested Party despite the 7 th Respondent (Kisii County Assembly) having been moved and canvassed out of time by the 7 th Respondent, Section 33 of the County Government Act, 2012 was violated.
A DECLARATION that the decision of the 1 st Respondent of the 14 th March, 2024 to remove from office the 1 st Interested Party as the Deputy Governor of Kisii County does not meet the threshold requirements in Article 181 (1) of the Constitution of Kenya.
AN ORDER OF CERTIORARI be issued to remove to this Honourable Court and quash the resolution passed by the 1 st Respondent on 14 th March, 2024 on the removal of the 1 st Interested Party as the Deputy Governor, Kisii County and all consequential Kenya Gazette Notices issued pursuant to the said Resolution.
AN ORDER OF PROHIBITION do issue prohibiting the 3 rd Respondent (Government Printers) from gazetting and/or publishing a gazette notice appointing any person to office of the Deputy Governor, Kisii County.
A DECLARATION that the actions of the Respondents in this cause violated the constitutional provisions under articles 27, 35 (1) (b) and (2). 47, 50 (1) and (2) of the Constitution of Kenya.
An ORDER compelling the 2 nd Interested Party (Hon. Elijah Obebo) to refund salaries, remuneration and personal emoluments expended during the illegal tenure.
This Honourable Court do order that the costs of this Petition be borne by the Respondents.
Such other orders as this Honourable Court shall deem fit and just to grant in the circumstances.
The Petitioner in the third Petition, Purity Moraa Kirera , sought the following reliefs in the Petition: -
A DECLARATION that the Notice issued on 13 th February, 2024 of intention to remove the 1 st Interested Party (DG) from office of the Deputy Governor, Kisii County by way of impeachment was defective and unlawful for want of compliance with Section 33 (1) of the County Government Act, 2012 as read with Orders 60 (1), 60 (5) and 60 (6) of the Standing Orders of the County Assembly of Kisii.
A DECLARATION that within the intendment of Section 87 of the County Government Act, 2012 as read with Article 10 and 196 (1) of the Constitution of Kenya, 2010, a County Assembly must conduct a meaningful and qualitative public participation in all the wards of the county on any decision that leads to a motion to impeach a County Governor.
A DECLARATION that the 2 nd Respondent by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent proceeding to hear the said motion against the 1 st Interested Party despite the 7 th Respondent having not conducted a meaningful and qualitative public participation, Section 87 of the County Government Act, 2012 was violated.
A DECLARATION that the 2 nd Respondent by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent proceeding to hear the said motion against the 1 st Interested Party despite the 7 th Respondent having been moved and canvassed out of time by the 7 th Respondent, Section 33 of the County Government Act, 2012 was violated.
A DECLARATION that the decision of the 1 st Respondent of the 14 th March, 2024 to remove from office the 1 st Interested Party as the Deputy Governor of Kisii County does not meet the threshold requirements in Article 181(1) of the Constitution of Kenya.
AN ORDER OF CERTIORARI be issued to remove to this Honourable Court and quash the resolutions passed by the 1 st Respondent on the 14 th March, 2024 on the removal of the 1 st Interested Party as the Deputy Governor, Kisii County and all consequential Kenya Gazette Notices issued pursuant to the said Resolution.
AN ORDER OF PROHIBITION do issue prohibiting the 3 rd Respondent from gazetting and or publishing a gazette notice appointing any person to office of the Deputy Governor, Kisii County.
A DECLARATION that the actions of the Respondents in this cause violated the constitutional provisions under Articles 27, 35(1) (b) and (2), 47, 50 (1) and (2) of the Constitution of Kenya.
An ORDER compelling the 2 nd Interested Party (Hon. Elijah Obebo) to refund the Salaries, remuneration and personal emoluments expended during the illegal tenure.
This Honourable Court do order that the costs of this Petition be borne by the Respondents.
Such other orders as this Honorable court shall deem fit and just to grant in the circumstances.
Concurrently with the Petitions, the Petitioners also filed various interlocutory Applications seeking conservatory orders to stop the impeachment process. On 9 th April 2024 Hon. Justice E. Ogola, the Principle Judge of the High Court, issued directions for the consolidation of all the Petitions and for their hearing before this Court. The interlocutory Applications were thereafter determined by this Court after which the parties were directed to file and exchange their respective written submissions on the Petitions.
This judgment is therefore in respect to the consolidated Petitions challenging the removal of the 1 st Petitioner herein, by way of impeachment.
For purposes of this judgment, the Petitioner in the 1 st Petition Dr. Robert Onsare Monda shall hereinafter be referred to as the 1 st Petitioner; the Petitioner in the 2 nd Petition Vincent Marita Omao shall be the 2 nd Petitioner; and the Petitioner in the 3 rd Petition Purity Moraa Kirera shall be the 3 rd Petitioner. The Respondents in the various Petitions shall appear as listed herein above while Hon. Elijah Obebo, the newly elected Deputy Governor, shall be listed herein as an Interested Party.
SUBMISSIONS
Mr. Katwa Kigen , Learned Counsel for the DG isolated the following issues for determination in his submissions: -
Whether the proceedings before the County Assembly were valid considering the time prescriptions and the Deputy Governor’s right to be heard.
Whether the Speaker of the Senate abdicated his functions.
Whether the proceedings at the Senate were valid considering the 1 st Petitioner’s right to be heard, the new evidence/materials that were introduced at the hearing and the inaccuracy of the Senate’s decision.
Proceedings before the County Assembly
On the validity of the proceedings before the County Assembly, Mr. Kigen submitted that while the Notice of Intention to Impeach the Deputy Governor was issued on 13 th February 2024, the Motion was moved before the County Assembly on 21 st February 2024 after which the Assembly considered the motion and arrived at its decision on 29 th February 2024. Mr. Katwa noted that the Notice for public participation was published on 27 th February 2024 while the report on public participation report was availed on 2 nd March 2024, long after the impeachment proceedings had been conducted and concluded on 29 th February 2024. According to the 1 st Petitioner, the delay in the presentation of the said report rendered the public participation a sham.
It was submitted that the Kisii County Assembly Standing Order Nos. 60 – 65 which provide for the procedure for impeaching a governor, required that the Notice of Motion for the impeachment be considered and concluded within 10 days. The 1 st Petitioner contended that since the Notice of Intention to Impeach the DG was issued on 13 th February 2024, the impeachment proceedings ought to have been conducted and concluded before 23 rd February 2024 and not 6 days later on 29 th February 2024 as was the case in the instant Petition. Counsel further noted that public participation was initiated on 27 th February 2024, 3 days after the 10 days period prescribed under the County Assembly Standing Orders had lapsed. It was further submitted that the public participation report was filed on 2 nd March 2024 which was also long after the cumulative 10 days prescribed by the law had expired, in clear violation of the DG’s right to a fair hearing.
It was submitted that the proceedings before the County Assembly were null and void and could therefore not yield a proper resolution on impeachment.
Counsel further submitted on specific issues as follows: -
The Role of the Speaker of the Senate
On whether the Speaker of the Senate abdicated his duties, reference was made to the Senate Standing Order No. 80 (8) and Rules of procedure on impeachment and specifically Rules 14, 20 and 30 thereof for the argument that the Speaker did not hear or make any decision on the preliminary objection over the issue of whether new evidence could be admitted before the Senate. It was submitted that allegations of bribery, infanticide and the alleged influencing of award of tenders against the DG were new matters that did not arise before the County Assembly and should not have been entertained before the Senate.
Validity of the Senate Proceedings
It was submitted that allowing new witnesses and new evidence before the Senate contravened the provisions of Rule 20 of the Senate Standing Orders and rendered the Senate’s proceedings null and void. Counsel contended that the Senate Plenary Sessions conducted on 13 th and 14 th February 2024 allowed the introduction of new evidence that the DG was neither notified about nor given sufficient time to respond to. Reference was made to the case of Martin Wambora vs. Speaker of the Senate [2014] eKLR where the court referred to Section 33 of the County Government Act on the rules of procedure.
It was submitted that the Senate usurped the role of the County Assembly by accepting the new evidence. Counsel cited the decision in the case of Martin Wambora (supra) for the argument that the impeachment process is hierarchical in nature, starting from the County Assembly to the Senate, such that all the evidence should have been presented before the County Assembly as opposed to the introduction of new evidence before the Senate.
Reference was also made to the case of County Assembly of Kisumu & 2 Others vs. Kisumu County Assembly Service Board [2015] eKLR where the court held that impeachment proceedings conducted without a written notice of the allegations were null and void for violating the right to a fair hearing.
It was submitted that the Speaker of the Senate made an erroneous conclusion to the effect that it had investigated the allegations and that the provisions of Sections 33(4) of the County Government Act were applied to the proceedings when the matter was not referred to any committee.
Ms. Kemunto , Learned Counsel for the 2 nd Petitioner submitted on the jurisdiction of the Court and breach of the fundamental rights and freedoms.
On jurisdiction, it was submitted that the High Court has supervisory powers, under Article 165(6) of the Constitution , to interrogate the impeachment proceedings before both the County Assembly and the Senate in view of the fact that they are quasi-judicial processes. Reference was made to the Martin Wambora case (supra) and Mumo Matemu case (Supra).
It was further submitted that the County Assembly and the Senate did not follow the due process in their proceedings thus leading to the violation of fundamental rights under Article 47 (1) and (2) of the Constitution on the right to fair administrative action. Counsel maintained that the DG was not furnished with all the evidentiary material so as to enable him effectively defend himself before the Senate where new matters that he did not know about were raised. Reference was made to the case of Catherine Chepkemoi Keya vs. Evanson [2020] eKLR where the court allowed a petition for lack of fair administrative action where the Respondent did not supply the Petitioner with the documents that they relied upon.
Counsel reiterated that public participation was not conducted by the County Assembly as envisaged under Article 196 (1) (b) of the Constitution . She noted that notice of public participation was issued on 24 th February 2024 and the public participation exercise carried out two days later on 26 th February 2024 which was not adequate time to get the views of every resident in the county.
It was submitted that the threshold of public participation as set out under Section 87 of the County Governments Act was not met. Counsel submitted that the impeachment was driven by political witch-hunt and was conducted in blatant disregard to the ideals of democracy.
Mr. Maeche , Learned Counsel for the Petitioner 3 rd Petitioner associated himself with the submissions of the other Petitioners and added that there was no competent impeachment motion before the County Assembly as the Notice of Impeachment was not served upon the DG so as to enable him defend himself and that the one third (1/3) threshold of support of the motion by the Members of the County Assembly (MCAs) was not met. Reference was made to Kisii County Assembly Standing Orders 60(1) and (2) .
It was submitted that the impeachment motion was time barred having been canvassed before the County Assembly five (5) days after the expiry of the 10-days’ period. It was submitted that the quantitative and qualitative components of public participation were also not met owing to the short notice given and the fact that it was conducted after the motion was tabled on 21 st February 2024. Reference was made to the decision in Biosystem Consultants vs. Nyali Links Arcade Case No. E185 of 2023 where it was held that anything done out of time is a nullity as timelines go to the merit since they create rights. Reliance was also placed on the decision in British American Tobacco (Kenya) vs. CS – Health & 2 Others Pet. No. 5 of 2017 where the Supreme Court outlined the principles governing public participation.
The Respondents’ Submissions
Mr. Ochieng’ Oginga , Learned Counsel for the County Assembly cited the doctrines of Parole Rule of evidence and estoppel by conduct and representation founded on Section 120 of the Evidence Act . He submitted that pursuant to Section 59 (f) of the Evidence Act , the court should take judicial notice of Gazette Notice No. Vol. CXXVI No. 11 of 11/7/2024 being a notification to the public of the election of the Interested Party herein as the new Deputy Governor of Kisii County. According to Mr. Ochieng’, only an election court could, under Article 88 (4) of the Constitution , annul the said election after its conclusion. He submitted that this Court’s jurisdiction is limited to determining if there were any violations during the impeachment process which jurisdiction did not extend to the nullification of the election of a Deputy Governor.
It was further submitted that the Court lacks the jurisdiction to enter into a merit review of the decision of the Senate and the County Assembly and could not interrogate the allegations made against the DG, the evidence tendered against him and the decision or rulings made, as that was the preserve of the two houses. Reference was made to the decision in Justus Kariuki Mate & Anor. vs. Martin Nyaga Wambora [2027] eKLR and the case of Mike Mbuvi Sonko vs. County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 76 (KLR) (5 December 2022) where the Supreme Court outlined the court’s role in impeachment cases.
It was submitted that the substantive prayers in the 1 st Petition had already been overtaken by events and that the Court was therefore being invited to engage in an academic exercise.
On the alleged breach of fundamental rights and freedoms under the Constitution, it was submitted that the Petitioner did not make out a case or discharge the burden of proving the violation of the said rights.
On the right to fair hearing, reference was made to the decision in the Mike Sonko case (supra) where it was held that the County Assembly is vested with the jurisdiction and latitude to conduct an impeachment process. Reference was made to the Kisii County Assembly Hansard to show that the County Assembly deliberated on the requirement for public participation and decided to adjourn its sittings so as to conduct public participation pursuant to its Standing Orders. Reliance was placed on the Mike Sonko case (supra) where the Supreme Court considered the strict timelines in impeachment proceedings and held that even 2 days was sufficient period for public participation.
It was submitted that the Public Participation Report was submitted on 27 th February 2024 and not 2 nd March 2024 as alleged by the Petitioners. Counsel added that public participation was conducted in all the wards in Kisii County and that no evidence was presented to show that anyone was denied the opportunity to present their views or that they did not see the advertisement or complained that the period was too short.
On the competence of the Impeachment Motion, it was submitted that it was misleading for the Petitioners to allege that there were no affidavits to support of the impeachment as there were affidavits sworn by Dennis Mokaya Misati , Reuben Monda Orangi and Joseph Misati .
On whether the County Assembly should have considered the impeachment motion in a committee, it was submitted that the County Assembly had the discretion to move in a committee or the full house and that the speaker ruled that the motion be determined by the full house after it failed to get approval for hearing through the committee.
On the claim that the DG was impeached over allegations that were still pending before criminal courts, it was submitted that this Court lacks the jurisdiction to consider/review the merits of the impeachment decision and that proof of even one ground of impeachment was sufficient to support an impeachment, the existence of the criminal investigations notwithstanding.
It was submitted that the submission of new evidence before the Senate did not vitiate the impeachment proceedings before the County Assembly and that even assuming that the new evidence was to be omitted, the impeachment would still stand.
It was the Respondents’ case that the doctrine of estoppel is applicable in this case since the DG was duly represented by counsel before both the Senate and the County Assembly. Counsel noted that the DG’s advocates cross-examined all the witnesses who testified before the Senate which means that the alleged new evidence was fully interrogated.
Reference was made to Article 124 of the Constitution which gives the Standing Orders a constitutional underpinning. It was submitted that Petitions Nos. 2 and 4 of 2024 were identical and exact replica of each other thus amounting to an abuse of the court’s process through duplicity of pleadings. It was submitted that the said petitions are based on matters of pure hearsay by parties who did not participate in the proceedings before the Senate and the County Assembly.
Mr. Wambulwa , Learned Counsel for the Senate, submitted that the impeachment proceedings before the Senate were conducted in strict compliance with the law and the Senate Standing Orders. He argued that the Senate complied with all the laws and procedures on impeachment upon receiving the resolution by the County Assembly. It was also submitted that the Senate acted within the law when it considered the impeachment motion in the plenary.
It was submitted that the Senate’s decision on the issue of gross violation of the Constitution under Article 181 was a merit decision which is an exclusive preserve of the Senate and the County Assembly that the Court could not review. Reference was made to the decision in Mwangi Wairia case (supra) where it was held that the Senate, as the impeachment court, was expected to investigate and interrogate the process undertaken at the County Assembly.
On the claim that the Speaker of the Senate did not make a ruling on the preliminary issues raised by the DG, it was submitted that all the parties were granted an opportunity to canvass the preliminary issues and that the Speaker thereafter issued a detailed and reasoned ruling on all the matters that had been raised.
On the claim that the Senate erred in allowing the introduction of new evidence, reference was made to Article 125(1) of the Constitution and Rule No. 10 of the Senate Rules for the argument that the Senate may summon any person to appear before it to give evidence. It was the Senate’s case that the Speaker did not allow new evidence as the witnesses tendered evidence that was limited to the charges that were read out to the DG. Counsel argued that the Petitioners did not establish any basis for the granting of the orders sought in the Petitions.
Ms. Opola , Learned Counsel for the Senate referred to the decision in Justus Mate case (supra) among other cases, and urged this Court to restrain itself from interfering with the mandate of other institutions in the spirit of Separation of Powers. Counsel also submitted that the allegation that the Senate was biased against the DG was not proved. She added that the jurisdiction of this Court has been invoked in order to circumvent the Constitution and the County Government Act.
The Petitioners’ Rejoinder
Mr. Katwa Kigen , advocate for the 1 st Petitioner, submitted that there were four irreducible uncontested facts namely; that the impeachment proceedings of 29 th February 2024 were conducted outside the set timelines; that public participation was carried out on very short notice and the report made on 27 th February 2024; that new evidence was presented before the Senate and lastly, that the DG was not supplied with witness statements beforehand so as to enable him prepare his defence.
It was submitted that the Petitioners’ case was about the fairness of the procedure adopted by both the County Assembly and the Senate and the enforcement of the DG’s rights under the Articles of the Constitution.
On the application of Rule 10 of Senate Rules on the summoning of witnesses, counsel submitted that Rule 20 thereof requires that the name(s) of the witnesses be availed before the County Assembly and not the Senate, and further, that the evidence should have been presented before the County Assembly and that such evidence must be part of the allegations made before the said Assembly.
The Petitioner maintained that Article 125 of the Constitution , on freedom to call evidence, was subject to Article 181 (2) on the removal of the Governor or his Deputy.
Mr. Ochoki , Learned Counsel for the 1 st Petitioner submitted that the substantive prayers in the Petition had not been overtaken by events as they related to the violation of constitutional rights. He noted that the facts in the Justus Mate case (supra) were distinguishable from the facts in this case as the said case involved issues of interference with the ongoing process of impeachment while, in the instant case, the impeachment process had been concluded.
Regarding the issue of the gazettement of the new Deputy Governor, it was submitted that the instant case does not fall under the ambit of an election court as it related to infringement of constitutional rights.
On the allegation that the Petitions were founded on matters of hearsay, Ms. Kemunto submitted that the evidence that the Petitioners relied on were matters available on public records/documents.
ISSUES FOR DETERMINATION
I have considered the grounds enumerated in the Petitions, together with the evidence pre
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On 13 th February, 2024 the County Assembly of Kisii received a Notice of Removal of Hon. Dr. Robert Onsare Monda (hereinafter also referred to as “the DG” ) from the Office of the Deputy Governor, Kisii County, by way of impeachment. The grounds listed for the said notice of removal were inter alia as follows; Gross Violation of the Constitution and other laws, Abuse of Office, Gross Misconduct, and Crimes under National Law.
The Notice of Removal precipitated the filing of Petitions in various courts as follows: -
Nyamira High Court Constitutional Petition No. 2 of 2024 (formerly Kisii High Court Petition No. 2/2024) filed by Dr. Monda on 26 th February 2024 (the 1 st Petition) challenging the impeachment proceedings before the Kisii County Assembly (hereinafter “the County Assembly”).
Nyamira Constitutional Petition No. 3 of 2024 (formerly Nairobi High Court Petition No. E159 of 2024) filed by Vincent Marita Omao on 21 st March 2024 (the 2 nd Petition) challenging the impeachment proceedings before the Kisii County Assembly and the Senate.
Nyamira Constitutional Petition No. 4 of 2024 (formerly Machakos Petition No. E007 of 2024 and later Nairobi Constitutional Petition No. 10 of 2024) filed by Purity Moraa Kirera dated 1 st April 2024 challenging the impeachment proceedings before the County Assembly and the Senate.
Nairobi Constitutional Petition No. E003 of 2024 (formerly Machakos Constitutional Petition No. E006 of 2024) filed by Jared Mairura Ratemo against the Senate seeking conservatory orders to stop the gazettement declaring the seat of the Kisii County Deputy Governor vacant. The Petition was however withdrawn.
The Petitioner in the first Petition sought the following reliefs: -
THAT an order do issue to prohibit the 1 st , 2 nd and 3 rd Respondents from proceeding at all, or any further, with the public participation on the removal of the Petitioner/Deputy Governor (DG) and from collecting, and or collating and or compiling and or presenting any public participation report to the County Assembly session of MCA’s and or acting upon any report and material obtained from the notice for public participation whatsoever pending hearing and determination of this Petition.
THAT an order do issue to prohibit and restrain the 1 st , 2 nd and 3 rd Respondents by themselves and or their representatives, agents, deputies, assistants, staff or whosoever whatsoever from further acts of entertaining for hearing and discussion at County Assembly MCA sessions, prosecuting, moving, arguing, debating, voting, and or making any resolution as to the Petitioner’s motion to impeach him, presented to the County Assembly on 13 th and 22 nd February 2024 pending hearing and determination of this Petition.
THAT a declaration do issue that there are no defined and clear issues and matters resolved and determined by the County Assembly, or otherwise through its “Relevant Committee” for which the Petitioner/DG can attend and respond to on 29 th February 2024, and the Petitioner’s right to be heard and in his defense has been violated pending hearing and determination of this Petition.
THAT a declaration do issue that the law as it stands does not provide nor expect a process of public participation on matters of impeachment and removal of a Deputy Governor.
THAT without prejudice to any other order prayed for herein, an order do issue that in this case, the public participation as formatted and published does not meet the reasonable, informed and viable public participation criteria in law and cannot result in any actionable output.
THAT a declaration do issue that any requisition for the Petitioner/DG to respond to the allegations made, being matters under active investigations by the EACC and by the police will violate his rights and fundamental freedoms.
THAT a declaration do issue that the motion to impeach and remove the Deputy Governor is improper and/or is premature.
THAT a declaration do issue that the motion to remove the Petitioner from office by way of impeachment is out of time, has abated and is null and void thereof.
THAT a declaration do issue that the law does not provide that ANY AND ALL complaints and or notice or motion for impeachment and removal be directly remitted to the person of interest as a basis for an invite, to make a defence before the County assembly has considered, evaluated, and resolved on the propriety of the motion, and issues to be answered, and that the Petitioner’s legitimate expectations of right to fair administrative action, and right to the rule of law have been breached.
THAT a declaration do issue that the Petitioner’s right to be heard has been infringed by the violation of the law to ensure the original notice of motion of 13 th February, 2024 is exactly the same as the motion on 21 st February, 2024.
THAT a declaration do issue, that the process, procedure and substance adopted for purpose of giving notice, moving the motion, entertaining Petitioner’s defence, debating and voting for the purpose of this motion for impeachment and for removal from office violates the Petitioner’s rights to a fair hearing.
THAT any other or further orders and or directions do issue in the best interest of justice.
THAT the 3 rd Respondent (Hon. Wycliffe Siocha Gesongori) do pay costs.
The Petitioner in the second Petition sought the following reliefs: -
A DECLARATION that the Notice issued on 13 th February, 2024 of intention to remove the 1 st Interested Party (DG) from office of the Deputy Governor, Kisii County by way of impeachment was defective and unlawful for want of compliance with Section 33 (1) of the County Government Act, 2012 as read with Orders 60 (1), 60 (5) and 60 (6) of the Standing Orders of the County Assembly of Kisii.
A DECLARATION that within the intendment of Section 87 of the County Government Act, 2012 as read with Article 10 and 196 (1) of the Constitution of Kenya, 2010, a County Assembly must conduct a meaningful and qualitative public participation in all wards of the county on any decision that leads to a motion to impeach a County Governor.
A DECLARATION that the 2 nd Respondent (Speaker of the Senate) by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent (The Senate) proceeding to hear the said motion against the 1 st Interested Party despite the 7 th Respondent having not conducted a meaningful and qualitative public participation, Section 87 of the County Government Act, 2012 was violated.
A DECLARATION that the 2 nd Respondent by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent proceeding to hear the said Motion against the 1 st Interested Party despite the 7 th Respondent (Kisii County Assembly) having been moved and canvassed out of time by the 7 th Respondent, Section 33 of the County Government Act, 2012 was violated.
A DECLARATION that the decision of the 1 st Respondent of the 14 th March, 2024 to remove from office the 1 st Interested Party as the Deputy Governor of Kisii County does not meet the threshold requirements in Article 181 (1) of the Constitution of Kenya.
AN ORDER OF CERTIORARI be issued to remove to this Honourable Court and quash the resolution passed by the 1 st Respondent on 14 th March, 2024 on the removal of the 1 st Interested Party as the Deputy Governor, Kisii County and all consequential Kenya Gazette Notices issued pursuant to the said Resolution.
AN ORDER OF PROHIBITION do issue prohibiting the 3 rd Respondent (Government Printers) from gazetting and/or publishing a gazette notice appointing any person to office of the Deputy Governor, Kisii County.
A DECLARATION that the actions of the Respondents in this cause violated the constitutional provisions under articles 27, 35 (1) (b) and (2). 47, 50 (1) and (2) of the Constitution of Kenya.
An ORDER compelling the 2 nd Interested Party (Hon. Elijah Obebo) to refund salaries, remuneration and personal emoluments expended during the illegal tenure.
This Honourable Court do order that the costs of this Petition be borne by the Respondents.
Such other orders as this Honourable Court shall deem fit and just to grant in the circumstances.
The Petitioner in the third Petition, Purity Moraa Kirera , sought the following reliefs in the Petition: -
A DECLARATION that the Notice issued on 13 th February, 2024 of intention to remove the 1 st Interested Party (DG) from office of the Deputy Governor, Kisii County by way of impeachment was defective and unlawful for want of compliance with Section 33 (1) of the County Government Act, 2012 as read with Orders 60 (1), 60 (5) and 60 (6) of the Standing Orders of the County Assembly of Kisii.
A DECLARATION that within the intendment of Section 87 of the County Government Act, 2012 as read with Article 10 and 196 (1) of the Constitution of Kenya, 2010, a County Assembly must conduct a meaningful and qualitative public participation in all the wards of the county on any decision that leads to a motion to impeach a County Governor.
A DECLARATION that the 2 nd Respondent by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent proceeding to hear the said motion against the 1 st Interested Party despite the 7 th Respondent having not conducted a meaningful and qualitative public participation, Section 87 of the County Government Act, 2012 was violated.
A DECLARATION that the 2 nd Respondent by admitting the motion of impeachment dated 21 st February, 2024 and the 1 st Respondent proceeding to hear the said motion against the 1 st Interested Party despite the 7 th Respondent having been moved and canvassed out of time by the 7 th Respondent, Section 33 of the County Government Act, 2012 was violated.
A DECLARATION that the decision of the 1 st Respondent of the 14 th March, 2024 to remove from office the 1 st Interested Party as the Deputy Governor of Kisii County does not meet the threshold requirements in Article 181(1) of the Constitution of Kenya.
AN ORDER OF CERTIORARI be issued to remove to this Honourable Court and quash the resolutions passed by the 1 st Respondent on the 14 th March, 2024 on the removal of the 1 st Interested Party as the Deputy Governor, Kisii County and all consequential Kenya Gazette Notices issued pursuant to the said Resolution.
AN ORDER OF PROHIBITION do issue prohibiting the 3 rd Respondent from gazetting and or publishing a gazette notice appointing any person to office of the Deputy Governor, Kisii County.
A DECLARATION that the actions of the Respondents in this cause violated the constitutional provisions under Articles 27, 35(1) (b) and (2), 47, 50 (1) and (2) of the Constitution of Kenya.
An ORDER compelling the 2 nd Interested Party (Hon. Elijah Obebo) to refund the Salaries, remuneration and personal emoluments expended during the illegal tenure.
This Honourable Court do order that the costs of this Petition be borne by the Respondents.
Such other orders as this Honorable court shall deem fit and just to grant in the circumstances.
Concurrently with the Petitions, the Petitioners also filed various interlocutory Applications seeking conservatory orders to stop the impeachment process. On 9 th April 2024 Hon. Justice E. Ogola, the Principle Judge of the High Court, issued directions for the consolidation of all the Petitions and for their hearing before this Court. The interlocutory Applications were thereafter determined by this Court after which the parties were directed to file and exchange their respective written submissions on the Petitions.
This judgment is therefore in respect to the consolidated Petitions challenging the removal of the 1 st Petitioner herein, by way of impeachment.
For purposes of this judgment, the Petitioner in the 1 st Petition Dr. Robert Onsare Monda shall hereinafter be referred to as the 1 st Petitioner; the Petitioner in the 2 nd Petition Vincent Marita Omao shall be the 2 nd Petitioner; and the Petitioner in the 3 rd Petition Purity Moraa Kirera shall be the 3 rd Petitioner. The Respondents in the various Petitions shall appear as listed herein above while Hon. Elijah Obebo, the newly elected Deputy Governor, shall be listed herein as an Interested Party.
SUBMISSIONS
Mr. Katwa Kigen , Learned Counsel for the DG isolated the following issues for determination in his submissions: -
Whether the proceedings before the County Assembly were valid considering the time prescriptions and the Deputy Governor’s right to be heard.
Whether the Speaker of the Senate abdicated his functions.
Whether the proceedings at the Senate were valid considering the 1 st Petitioner’s right to be heard, the new evidence/materials that were introduced at the hearing and the inaccuracy of the Senate’s decision.
Proceedings before the County Assembly
On the validity of the proceedings before the County Assembly, Mr. Kigen submitted that while the Notice of Intention to Impeach the Deputy Governor was issued on 13 th February 2024, the Motion was moved before the County Assembly on 21 st February 2024 after which the Assembly considered the motion and arrived at its decision on 29 th February 2024. Mr. Katwa noted that the Notice for public participation was published on 27 th February 2024 while the report on public participation report was availed on 2 nd March 2024, long after the impeachment proceedings had been conducted and concluded on 29 th February 2024. According to the 1 st Petitioner, the delay in the presentation of the said report rendered the public participation a sham.
It was submitted that the Kisii County Assembly Standing Order Nos. 60 – 65 which provide for the procedure for impeaching a governor, required that the Notice of Motion for the impeachment be considered and concluded within 10 days. The 1 st Petitioner contended that since the Notice of Intention to Impeach the DG was issued on 13 th February 2024, the impeachment proceedings ought to have been conducted and concluded before 23 rd February 2024 and not 6 days later on 29 th February 2024 as was the case in the instant Petition. Counsel further noted that public participation was initiated on 27 th February 2024, 3 days after the 10 days period prescribed under the County Assembly Standing Orders had lapsed. It was further submitted that the public participation report was filed on 2 nd March 2024 which was also long after the cumulative 10 days prescribed by the law had expired, in clear violation of the DG’s right to a fair hearing.
It was submitted that the proceedings before the County Assembly were null and void and could therefore not yield a proper resolution on impeachment.
Counsel further submitted on specific issues as follows: -
The Role of the Speaker of the Senate
On whether the Speaker of the Senate abdicated his duties, reference was made to the Senate Standing Order No. 80 (8) and Rules of procedure on impeachment and specifically Rules 14, 20 and 30 thereof for the argument that the Speaker did not hear or make any decision on the preliminary objection over the issue of whether new evidence could be admitted before the Senate. It was submitted that allegations of bribery, infanticide and the alleged influencing of award of tenders against the DG were new matters that did not arise before the County Assembly and should not have been entertained before the Senate.
Validity of the Senate Proceedings
It was submitted that allowing new witnesses and new evidence before the Senate contravened the provisions of Rule 20 of the Senate Standing Orders and rendered the Senate’s proceedings null and void. Counsel contended that the Senate Plenary Sessions conducted on 13 th and 14 th February 2024 allowed the introduction of new evidence that the DG was neither notified about nor given sufficient time to respond to. Reference was made to the case of Martin Wambora vs. Speaker of the Senate [2014] eKLR where the court referred to Section 33 of the County Government Act on the rules of procedure.
It was submitted that the Senate usurped the role of the County Assembly by accepting the new evidence. Counsel cited the decision in the case of Martin Wambora (supra) for the argument that the impeachment process is hierarchical in nature, starting from the County Assembly to the Senate, such that all the evidence should have been presented before the County Assembly as opposed to the introduction of new evidence before the Senate.
Reference was also made to the case of County Assembly of Kisumu & 2 Others vs. Kisumu County Assembly Service Board [2015] eKLR where the court held that impeachment proceedings conducted without a written notice of the allegations were null and void for violating the right to a fair hearing.
It was submitted that the Speaker of the Senate made an erroneous conclusion to the effect that it had investigated the allegations and that the provisions of Sections 33(4) of the County Government Act were applied to the proceedings when the matter was not referred to any committee.
Ms. Kemunto , Learned Counsel for the 2 nd Petitioner submitted on the jurisdiction of the Court and breach of the fundamental rights and freedoms.
On jurisdiction, it was submitted that the High Court has supervisory powers, under Article 165(6) of the Constitution , to interrogate the impeachment proceedings before both the County Assembly and the Senate in view of the fact that they are quasi-judicial processes. Reference was made to the Martin Wambora case (supra) and Mumo Matemu case (Supra).
It was further submitted that the County Assembly and the Senate did not follow the due process in their proceedings thus leading to the violation of fundamental rights under Article 47 (1) and (2) of the Constitution on the right to fair administrative action. Counsel maintained that the DG was not furnished with all the evidentiary material so as to enable him effectively defend himself before the Senate where new matters that he did not know about were raised. Reference was made to the case of Catherine Chepkemoi Keya vs. Evanson [2020] eKLR where the court allowed a petition for lack of fair administrative action where the Respondent did not supply the Petitioner with the documents that they relied upon.
Counsel reiterated that public participation was not conducted by the County Assembly as envisaged under Article 196 (1) (b) of the Constitution . She noted that notice of public participation was issued on 24 th February 2024 and the public participation exercise carried out two days later on 26 th February 2024 which was not adequate time to get the views of every resident in the county.
It was submitted that the threshold of public participation as set out under Section 87 of the County Governments Act was not met. Counsel submitted that the impeachment was driven by political witch-hunt and was conducted in blatant disregard to the ideals of democracy.
Mr. Maeche , Learned Counsel for the Petitioner 3 rd Petitioner associated himself with the submissions of the other Petitioners and added that there was no competent impeachment motion before the County Assembly as the Notice of Impeachment was not served upon the DG so as to enable him defend himself and that the one third (1/3) threshold of support of the motion by the Members of the County Assembly (MCAs) was not met. Reference was made to Kisii County Assembly Standing Orders 60(1) and (2) .
It was submitted that the impeachment motion was time barred having been canvassed before the County Assembly five (5) days after the expiry of the 10-days’ period. It was submitted that the quantitative and qualitative components of public participation were also not met owing to the short notice given and the fact that it was conducted after the motion was tabled on 21 st February 2024. Reference was made to the decision in Biosystem Consultants vs. Nyali Links Arcade Case No. E185 of 2023 where it was held that anything done out of time is a nullity as timelines go to the merit since they create rights. Reliance was also placed on the decision in British American Tobacco (Kenya) vs. CS – Health & 2 Others Pet. No. 5 of 2017 where the Supreme Court outlined the principles governing public participation.
The Respondents’ Submissions
Mr. Ochieng’ Oginga , Learned Counsel for the County Assembly cited the doctrines of Parole Rule of evidence and estoppel by conduct and representation founded on Section 120 of the Evidence Act . He submitted that pursuant to Section 59 (f) of the Evidence Act , the court should take judicial notice of Gazette Notice No. Vol. CXXVI No. 11 of 11/7/2024 being a notification to the public of the election of the Interested Party herein as the new Deputy Governor of Kisii County. According to Mr. Ochieng’, only an election court could, under Article 88 (4) of the Constitution , annul the said election after its conclusion. He submitted that this Court’s jurisdiction is limited to determining if there were any violations during the impeachment process which jurisdiction did not extend to the nullification of the election of a Deputy Governor.
It was further submitted that the Court lacks the jurisdiction to enter into a merit review of the decision of the Senate and the County Assembly and could not interrogate the allegations made against the DG, the evidence tendered against him and the decision or rulings made, as that was the preserve of the two houses. Reference was made to the decision in Justus Kariuki Mate & Anor. vs. Martin Nyaga Wambora [2027] eKLR and the case of Mike Mbuvi Sonko vs. County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022) [2022] KESC 76 (KLR) (5 December 2022) where the Supreme Court outlined the court’s role in impeachment cases.
It was submitted that the substantive prayers in the 1 st Petition had already been overtaken by events and that the Court was therefore being invited to engage in an academic exercise.
On the alleged breach of fundamental rights and freedoms under the Constitution, it was submitted that the Petitioner did not make out a case or discharge the burden of proving the violation of the said rights.
On the right to fair hearing, reference was made to the decision in the Mike Sonko case (supra) where it was held that the County Assembly is vested with the jurisdiction and latitude to conduct an impeachment process. Reference was made to the Kisii County Assembly Hansard to show that the County Assembly deliberated on the requirement for public participation and decided to adjourn its sittings so as to conduct public participation pursuant to its Standing Orders. Reliance was placed on the Mike Sonko case (supra) where the Supreme Court considered the strict timelines in impeachment proceedings and held that even 2 days was sufficient period for public participation.
It was submitted that the Public Participation Report was submitted on 27 th February 2024 and not 2 nd March 2024 as alleged by the Petitioners. Counsel added that public participation was conducted in all the wards in Kisii County and that no evidence was presented to show that anyone was denied the opportunity to present their views or that they did not see the advertisement or complained that the period was too short.
On the competence of the Impeachment Motion, it was submitted that it was misleading for the Petitioners to allege that there were no affidavits to support of the impeachment as there were affidavits sworn by Dennis Mokaya Misati , Reuben Monda Orangi and Joseph Misati .
On whether the County Assembly should have considered the impeachment motion in a committee, it was submitted that the County Assembly had the discretion to move in a committee or the full house and that the speaker ruled that the motion be determined by the full house after it failed to get approval for hearing through the committee.
On the claim that the DG was impeached over allegations that were still pending before criminal courts, it was submitted that this Court lacks the jurisdiction to consider/review the merits of the impeachment decision and that proof of even one ground of impeachment was sufficient to support an impeachment, the existence of the criminal investigations notwithstanding.
It was submitted that the submission of new evidence before the Senate did not vitiate the impeachment proceedings before the County Assembly and that even assuming that the new evidence was to be omitted, the impeachment would still stand.
It was the Respondents’ case that the doctrine of estoppel is applicable in this case since the DG was duly represented by counsel before both the Senate and the County Assembly. Counsel noted that the DG’s advocates cross-examined all the witnesses who testified before the Senate which means that the alleged new evidence was fully interrogated.
Reference was made to Article 124 of the Constitution which gives the Standing Orders a constitutional underpinning. It was submitted that Petitions Nos. 2 and 4 of 2024 were identical and exact replica of each other thus amounting to an abuse of the court’s process through duplicity of pleadings. It was submitted that the said petitions are based on matters of pure hearsay by parties who did not participate in the proceedings before the Senate and the County Assembly.
Mr. Wambulwa , Learned Counsel for the Senate, submitted that the impeachment proceedings before the Senate were conducted in strict compliance with the law and the Senate Standing Orders. He argued that the Senate complied with all the laws and procedures on impeachment upon receiving the resolution by the County Assembly. It was also submitted that the Senate acted within the law when it considered the impeachment motion in the plenary.
It was submitted that the Senate’s decision on the issue of gross violation of the Constitution under Article 181 was a merit decision which is an exclusive preserve of the Senate and the County Assembly that the Court could not review. Reference was made to the decision in Mwangi Wairia case (supra) where it was held that the Senate, as the impeachment court, was expected to investigate and interrogate the process undertaken at the County Assembly.
On the claim that the Speaker of the Senate did not make a ruling on the preliminary issues raised by the DG, it was submitted that all the parties were granted an opportunity to canvass the preliminary issues and that the Speaker thereafter issued a detailed and reasoned ruling on all the matters that had been raised.
On the claim that the Senate erred in allowing the introduction of new evidence, reference was made to Article 125(1) of the Constitution and Rule No. 10 of the Senate Rules for the argument that the Senate may summon any person to appear before it to give evidence. It was the Senate’s case that the Speaker did not allow new evidence as the witnesses tendered evidence that was limited to the charges that were read out to the DG. Counsel argued that the Petitioners did not establish any basis for the granting of the orders sought in the Petitions.
Ms. Opola , Learned Counsel for the Senate referred to the decision in Justus Mate case (supra) among other cases, and urged this Court to restrain itself from interfering with the mandate of other institutions in the spirit of Separation of Powers. Counsel also submitted that the allegation that the Senate was biased against the DG was not proved. She added that the jurisdiction of this Court has been invoked in order to circumvent the Constitution and the County Government Act.
The Petitioners’ Rejoinder
Mr. Katwa Kigen , advocate for the 1 st Petitioner, submitted that there were four irreducible uncontested facts namely; that the impeachment proceedings of 29 th February 2024 were conducted outside the set timelines; that public participation was carried out on very short notice and the report made on 27 th February 2024; that new evidence was presented before the Senate and lastly, that the DG was not supplied with witness statements beforehand so as to enable him prepare his defence.
It was submitted that the Petitioners’ case was about the fairness of the procedure adopted by both the County Assembly and the Senate and the enforcement of the DG’s rights under the Articles of the Constitution.
On the application of Rule 10 of Senate Rules on the summoning of witnesses, counsel submitted that Rule 20 thereof requires that the name(s) of the witnesses be availed before the County Assembly and not the Senate, and further, that the evidence should have been presented before the County Assembly and that such evidence must be part of the allegations made before the said Assembly.
The Petitioner maintained that Article 125 of the Constitution , on freedom to call evidence, was subject to Article 181 (2) on the removal of the Governor or his Deputy.
Mr. Ochoki , Learned Counsel for the 1 st Petitioner submitted that the substantive prayers in the Petition had not been overtaken by events as they related to the violation of constitutional rights. He noted that the facts in the Justus Mate case (supra) were distinguishable from the facts in this case as the said case involved issues of interference with the ongoing process of impeachment while, in the instant case, the impeachment process had been concluded.
Regarding the issue of the gazettement of the new Deputy Governor, it was submitted that the instant case does not fall under the ambit of an election court as it related to infringement of constitutional rights.
On the allegation that the Petitions were founded on matters of hearsay, Ms. Kemunto submitted that the evidence that the Petitioners relied on were matters available on public records/documents.
ISSUES FOR DETERMINATION
I have considered the grounds enumerated in the Petitions, together with the evidence pre
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