'
Introduction
Few disputes lay bare institutional rupture as starkly as the conflict that befell the Nyamira County Assembly. What began as a leadership contest quickly devolved into parallel sittings, competing speakerships, and fractured political allegiances, conditions under which the Petitioners’ seats were ultimately declared vacant. This Petition invites the Court to distil the material facts from that turbulence, to test the impugned actions against the strict demands of the Constitution, and to determine whether the drastic step of extinguishing elected mandates was taken within the bounds of lawful authority.
The Petitioners before the Court comprise both elected and nominated Members of the Nyamira County Assembly who challenge the constitutionality and legality of the Respondents’ actions culminating in the declaration that their seats had fallen vacant.
The 1 st Petitioner is an elected Member of County Assembly of Nyamira representing the people of Bokeira Ward.
The 2 nd Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the ANC Party.
The 3 rd Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the Ford Kenya Party.
The 4 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 5 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 6 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the people of Rigoma Ward.
The 7 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 8 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 9 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the ODM Party.
The 10 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the Wiper Party.
The 1 st Respondent is the Nyamira County Assembly established under Article 176 of the Constitution of Kenya and vested with legislative authority and oversight functions as provided under Article 185 of the Constitution of Kenya.
The 2 nd Respondent is the current Speaker of the Nyamira County Assembly and also an elected Member of the County Assembly of Nyamira representing the people of Ekerenyo Ward, under the provisions of Article 178 (1) of the Constitution of Kenya.
The Interested Party is an Independent Commission under Article 88 of the Constitution of Kenya and the Independent Electoral and Boundaries Commission Act, Cap 7C, having functions inter alia , the conduct of elections and referenda.
The Petition
The Petitioners herein instituted the present suit vide Petition dated 08 th July 2025, seeking the following prayers: -
A DECLARATION that the Resolution passed and adopted by the Respondents regarding the Report of the Committee on Powers and Privilege concerning the conduct of the Petitioners in the Order Paper dated 07 th July 2025 is unconstitutional, null and void.
A DECLARATION that the 1 st Respondent’s purported Committee on Powers and Privilege concerning the conduct of the Petitioners was improperly and illegally constituted.
A DECLARATION be issued that the Resolution of the Respondents in the Order Paper dated 07 th July 2025 discussing the conduct of the Petitioners violated the fundamental rights and freedoms of the Petitioner to a fair hearing and fair administrative action.
THAT an Order of Certiorari do issue to bring up before this Honourable Court to quash the decision, procedure, proceedings or act and report by the 1 st Respondent’s purported Committee on Powers and Privilege concerning the conduct of the Petitioners culminating in its adoption of Order Paper dated 07 th July 2025.
AN ORDER that the Respondents be condemned to pay costs of the Petition.
Such further appropriate and consequential orders and reliefs as this Honourable Court may lawfully make.
The Petition is supported by the 1 st Petitioner’s Supporting Affidavit sworn on 08 th July 2025 in which he deposed that the Respondents had unlawfully invoked the provisions of Article 194 (1) (b) of the Constitution to declare the seats of duly elected Members of County Assembly, being the Petitioners herein, vacant and that the Committee on Powers and Privileges which tabled the impugned report was bereft of jurisdiction. He averred that the County Assembly of Nyamira had been embroiled in a prolonged political instability following suspension of the Speaker on 08 th October 2024 and his subsequent impeachment despite existing conservatory orders. He also averred that the Petitioners lawfully attended Assembly sittings in ‘Bunge Mashinani’ which had been duly gazetted vide Gazette Notice No. 14229 of 29 th October 2024 and that this was the basis of the retaliatory political action by a rival faction in the Assembly to eject them from office on the pretext that they absented themselves from eight (8) consecutive sittings, thereby warranting invoking of Article 194 (1) (b) of the Constitution.
The 1 st Petitioner averred that the Resolution in question was not only factually and legally flawed but equally procedurally defective as it was passed in open defiance of existing court orders; that the 2 nd Respondent had unlawfully assumed the role of the Speaker at the time thereby bringing to question the legitimacy of the Committee that was constituted to look into their conduct. It was averred that it was legally and factually untenable that there were proceedings totalling to the constitutional threshold of eight (8) sittings presided over by any other speaker other than Hon. Enock Okero Ogori, since the 2 nd Respondent was only elected on 19 th December 2024, which election was in any event stayed by the existing conservatory orders, until 04 th June 2025 when judgment was delivered by the High Court in Bomet affirming his position.
It was further averred that the period which the Petitioners are said to have absconded County Assembly sittings fell within the period when the County Assembly sittings had been suspended; that the purported Clerk of the County Assembly one Duke Onyari had been suspended from the office on 25 th October 2024 and issued with a suspension letter on 04 th November 2024. That even so, the Committee was empowered under Articles 75 (2) (b) and 194 (1) (c) to impose any other penalty other than what was stipulated in Article 194.
It was averred that the impugned Resolution was passed while there were ongoing court proceedings in breach of the res sub judice rule; that there was no verifiable evidence furnished to support the claim that the Petitioners had absented themselves from eight consecutive sittings since the alleged lists were never accompanied by any official copies of the Hansard to substantiate the claim that the sittings actually took place. The 1 st Petitioner contended that the action by the Respondents was not a lawful execution of their constitutional mandate, but a clear manifestation of a politically motivated purge which if left unchecked would result in silencing dissenting voices and punishing perceived political opponents.
The Responses
In response to the Petition, the 1 st Respondent filed a Replying Affidavit sworn on 1 st August 2025 by Duke Onyari, the Clerk of the County Assembly opposing the Petition and he stated that Article 194 (1) (b) of the Constitution did not provide for the procedure for the removal of the Petitioners as that procedural law was anchored on Standing Order No. 239 of the Nyamira County Assembly Standing Orders. He deposed that the Petitioners admitted in their supporting affidavit to the Petition that they had been attending ‘Bunge Mashinani’ under the leadership of the impeached speaker from October 2024 to June 2025, yet they knew of the High Court at Bomet’s decision in Petition No. E004 of 2025 where it was held that all actions undertaken by the Speaker post-impeachment were illegal, null and void, with no other court orders post-impeachment maintaining him as the Speaker of the County Assembly of Nyamira.
The 2 nd Respondent also filed a Replying Affidavit dated 20 th August 2025 opposing the Petition. He deposed that the Committee on Powers and Privileges drew its mandate from the provisions of Standing Order No. 195 of the Nyamira County Assembly which gave it the mandate to scrutinize the conduct of the Petitioners as Members of the County Assembly. It was averred that the County Assembly of Nyamira wrote to the Petitioners through the office of the Clerk of the County Assembly vide letters dated 20 th June 2025 requiring them to individually appear before the Committee at the County Assembly boardroom on specific dates and time for hearing.
The 2 nd Respondent averred that they complied with Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act by according the Petitioners procedural fairness and gave them the reasons for the disciplinary hearing which the Petitioners duly acknowledged, attended, and fully participated in the proceedings, some with their legal counsel. Therefore, they could not contend that the committee was bereft of jurisdiction on account of impending judicial proceedings in cases which they were not even parties to.
The 2 nd Respondent further averred that the Petitioners admitted to abandoning the sittings of the gazetted precincts of the County Assembly for several months in favour of ‘Bunge Mashinani’ and that their conduct was the subject of inquiry by the Senate House of the Standing Committee on Devolution and Intergovernmental Relations on the Operational and Leadership Crisis in Nyamira County Assembly.
The Petitioners filed a further affidavit sworn by the 1 st Petitioner on 23 rd September 2025 in which he deposed that the issue of jurisdiction was now res judicata as it had already been addressed by the Court and that the appointment of the committee referred to by the 2 nd Respondent in his replying affidavit marked “DSO-8’ was an invalid appointment made by the 2 nd Respondent; that there was no report tabled by him as required by Standing Order No. 239 on the Petitioners’ absenteeism. He averred that none of the Respondents proved that the Assembly was quorate to conduct any business or debate and that the Assembly reserved the right to gazette other stations as places of sitting and amend their calendar accordingly to ensure efficient discharge of its duties. He contended that some of the issues raised by the Respondents in their replying affidavits were no longer viable as they had been resolved by way of consent in other courts.
He further deposed that the actions of the 1 st Respondent’s Committee of Privileges were ultra vires and bereft of the County Assembly’s approval, that the Senate’s resolutions could not usurp the principles of sub judice because there were active appellate and ELRC matters directly touching on the issues at hand. It was averred that the process of declaring the seats of the Petitioners vacant under the Elections Act did not end with communicating with the Interested Party herein but required that the Interested Party transmits a notice to the respective Returning Officer within prescribed timelines under the Elections Act.
With respect to the 2 nd Respondent’s response, the Petitioners through the 1 st Petitioner deposed that the provisions of the Standing Orders on removal of a member from the County Assembly due to absenteeism was donated by part IV of the County Assemblies Powers and Privileges Act Cap 265C and that the only way they could be removed was through the provisions of Article 194 (1) (b) of the Constitution, which required members to seek permission for missing sittings from the Speaker; yet, this was impossible for them to do as the 2 nd Respondent had been barred by conservatory orders from assuming that role and the Petitioners could therefore not address or approach him. That the 2 nd Respondent ought to demonstrate which of his purported sittings as a speaker they failed to attend without permission if any.
The 1 st Petitioner also deposed that because there was a change of guard at the County Assembly owing to the judgment in Bomet, they chose to comply with the summons in obedience to the administrative authority in place, but that did not mean that they were in agreement with the constitution of the impugned committee. That they had clearly demonstrated several breaches of constitutional rights and blatant disregard of procedure which were sufficient to discredit any actions undertaken by the Respondents. He further deposed that no authority could usurp the court’s proceedings and that no report called for the removal of any faction of the Members of County Assembly from office.
At the close of the pleadings, parties took directions before this Court to canvass the Petition by way of written submissions.
The Submissions
The Petitioners’ Submissions
In their submissions dated 30 th September 2025, counsel for the Petitioners identified the following issues for determination, namely whether the Committee on Powers and Privileges had the mandate to initiate or undertake removal proceedings against the Petitioners under Article 194(1)(b) of the Constitution, whether the Committee was properly and lawfully constituted if such mandate existed, and whether the impugned Resolution adopted by the 1st Respondent was valid or a nullity.
Counsel for the Petitioners submitted, on the first issue, that the Committee on Powers and Privileges derived its mandate from Article 196 of the Constitution and Sections 15(4) and 16 of the County Assemblies Powers and Privileges Act, Cap 265C. It was argued that the Committee’s authority is limited to inquiring into whether a member has breached the provisions of Sections 25, 26(1), 27 and 29 of the Act, and to recommending the penalties provided under Section 17(3). Counsel contended that none of these provisions empowers the Committee to inquire into or determine matters relating to absenteeism. The Constitution and the Act, it was submitted, supersede the Standing Orders, and since neither instrument assigns the Committee a role in proceedings under Article 194(1)(b), Parliament must be taken to have deliberately excluded such a mandate. Consequently, any body purporting to exercise that function would be acting without lawful authority.
For the above argument, counsel cited the Court of Appeal’s decision in Mohamed Ali Sheikh vs. Abdiwahab Sheikh & 4 Others; Emmanuel Changawa Kombe (IP) (2018) KECA 75 KLR and Republic vs. Transitional Authority and Another & Another Ex Parte Crispus Fwamba and 4 Others (2013) KEHC 6518 KLR for the proposition that if parliament was aware of a scenario but omitted or remained silent on it then it did not intend to provide for it; together with the fact that actions or decisions made in excess or without jurisdiction pursuant to delegated power were grounds for review of a decision under Section 7 (2) (a) of the Fair Administrative Action Act.
Counsel also submitted that the Committee was unknown to the County Assembly because there already existed a Privileges Committee duly approved by the County Assembly before the onset of the volatile leadership crisis that was experienced in the county of Nyamira and that no legal provision existed to the effect that the impeachment of a Speaker ousted all existing committees. It was submitted that there was no evidence of the House being invited to approve the constitution of the said Committee or a discharge of the members sitting in the previous committee, contrary to Standing Order No. 159 on Discharge of Committees, lending credence to the assertion that the Committee was formed from the 2 nd Respondent’s unilateral communication when he purported to act as speaker.
Counsel cited the case of Michael Sistu Mwaura Kamau vs. Ethics and Anti-Corruption Commission and 4 Others (2017) eKLR where the Court of Appeal held that a body not properly constituted cannot purport to carry out its mandate under the law. Counsel also cited the case of Republic vs. Non-Governmental Organizations Coordination Board Ex Parte Evans Kidero Foundation (2017) eKLR where Odunga J. (as he then was) nullified the actions of the Respondents which were not backed by the law. Counsel submitted that the Petitioners’ right to a fair trial were threatened and grossly violated by the utter disregard of legal procedures and provisions and they relied on the Court of Appeal’s decision in Law Society of Kenya vs. Centre for Human Rights and Democracy and 13 Others (2013) KECA 172 KLR where the court found that the tribunal had deviated from established legal beacons.
On the second issue, counsel submitted that the impugned Resolution emanated from a report (“NJO-1A”), which enclosed summons issued to twelve MCAs, all dated 20 th June 2025, requiring them to appear before the Committee. The summons cited various dates relating to sittings allegedly not attended by the Petitioners, with those addressed to the 1 st to 9 th Petitioners referring to the period between 29 th October 2024 and 10 th December 2024, while only the summons to the 10th Petitioner referred to sittings between 03 rd January 2025 and 18 th February 2025. Counsel argued that these references were inconsistent with the 1 st Respondent’s position that the Petitioners failed to attend sittings between 25 th February 2025 and 3rd June 2025, thereby demonstrating the absence of a fair hearing, as the Committee itself was not clear on the particulars of the allegations. It was further submitted that although the 2 nd Respondent was elected on 19 th December 2024, he could only assume the functions of Speaker on 04 th June 2025 after the delivery of the Bomet judgment, owing to conservatory orders issued on 10 th February 2025.
Counsel further submitted that the alleged sittings of the County Assembly were fictitious as the Respondents did not adduce evidence of the Hansard, registers of the sittings signed by the members and an Order Paper for the sittings’ deliberations to prove the absenteeism but merely produced registers which were fictitious documents as proof of non-attendance. Counsel also added that the alleged County Assembly sittings were not even quorate (12 members) to conduct its businesses as demonstrated by the registers which indicated that sittings of 28 th to 30 th January had 7, 6 and 10 members respectively.
It was additionally submitted that Standing Order No. 33 required that the sittings be adjourned if the House was not quorate and because the various sittings relied on by the Committee to conclude the Petitioner’s non-attendance were not quorate, they failed to prove the Petitioners’ failure to attend the sessions. Further, that no Hansard report had been adduced in respect of 29 th October 2024 and 10 th December 2024 as the dates relied on by the Committee to find the Petitioners culpable for absenteeism and no proof was adduced of the election of a speaker to preside over the House proceedings as such proceedings would have been impossible in light of the unstable and existing turmoil in the Assembly.
Counsel for the Petitioners submitted that conservatory orders had preserved the office of the former Speaker, Hon. Enock Okero Ogori, together with his authority to discharge the functions of that office, which formed the basis for the issuance of Gazette Notices designating an alternative venue for County Assembly sittings. It was therefore argued that the Petitioners could not be faulted for associating with the Speaker who was lawfully recognized at the time, particularly when the 2 nd Respondent had no legal capacity to act as Speaker under the subsisting orders. Counsel further contended that the move to remove the Petitioners from office amounted to the retroactive application of disciplinary measures without regard to the prevailing circumstances, and that the decisions taken against them were tainted by unreasonableness and bias. Counsel cited the Court of Appeal decision in Godfrey Ajuong Okumu & Another vs. Engineers Board of Kenya (2020) KACA 203 (KLR) to this end.
On the issue of the Senate’s Resolutions, Counsel submitted that there was no logical reason for implementing the resolutions of the Senate while there were ongoing court proceedings. Counsel stated that the constitutional threshold for removing the Petitioners from their duly elected offices had neither been met under Article 194 (1) (b) on failure to attend 8 consecutive sittings nor had they accorded them a fair hearing. They relied on the Supreme Court case of Munya vs. Kithinji and 2 Others Application No. 5 of 2014 (2014) KESC 30 KLR where it was held that in interpreting provisions of the Elections Act, a court of law could not disengage from the Constitution.
Petitioners’ Further Submissions
The Petitioners filed further submissions dated 24 th October 2025 with the leave of the Court granted on 22 nd October 2025. Counsel submitted that this Court (differently constituted) on 11 th July 2025 dismissed all preliminary issues of jurisdiction such that to raise it herein would be akin to creating confusion and making a mockery of the Court. Counsel submitted that the issue before the Court was not an Election Petition as envisioned by Part VII of the Elections Act on Election Disputes Resolution of Section 75 (1) (A) and 78 of the Elections Act which required that the election of a Member of County Assembly be challenged in the subordinate courts and Petitioner to deposit security for costs. That the present Petition was a constitutional issue seeking to challenge the exercise of the County Assembly’s mandate in exercising its authority as it did against the Petitioners in accordance with the Court’s jurisdiction under Article 165 (3) (d) .
Counsel also submitted that there were numerous authorities from the superior courts which held that provisions such as Section 10 of the County Assemblies Powers and Privileges Act had to be overlooked if there was an apparent or actual risk of infringement of rights or conduct that was ultra vires any powers donated by the constitution. The case of Peter O. Ngoge vs. Francis Ole Kaparo & 4 Others (2007) KEHC 1433 KLR was cited where a three-judge bench emphasised the need for courts to promote the principle of separation of powers and not interfere with internal arrangements of the legislative bodies unless they violated the constitution and the principle that there was nothing that was immune from the court’s scrutiny if it was in conflict with the Constitution. Counsel further cited the Court of Appeal’s decision in LSK vs. Centre for Human Rights and Democracy & 13 Others (2013) KECA 172, KLR and Republic vs. County Assembly of Nyamira Committee of Powers and Privileges & 4 Others Ex Parte Thaddeus Nyabaro and Another (2019) KEHC 4204 KLR in support of their argument for the application of Section 10 of the County Assemblies Powers and Privileges Act.
Counsel additionally submitted that the summons issued to the Petitioners indicated different dates that they allegedly failed to attend the Assembly sittings from what was stated at paragraph 34 of their submissions; that they allegedly absconded between 25 th February 2025 and 03 rd June 2025 according to the submissions but the Summons indicated different dates which were relied on by the Committee in arriving at their decision. Counsel further contended that the Committee members were alien and did not have the House’s approval to act but were merely constituted as a result of communication passed by the 2 nd Respondent and because the 1 st Respondent contended that ‘Bunge Mashinani’ which the Petitioners attended was never approved by the County Assembly, there was equally no quorum at the Assembly to constitute the impugned Committee.
Lastly, it was submitted that the 1 st Respondent deceived the Court and made a mockery of the rule of law by denying the existence of valid consents executed by the parties in Kisumu ELRC 054 of 2024 and alleging that the Speaker made a communication to the Assembly on 17 th June 2025 as submitted, yet they did not attach the specific Hansard proceedings to prove this. It was their further submission that the 2 nd Respondent misapprehended the law by arguing that he was wrongfully joined in the present proceedings because he enjoyed immunity from civil and criminal liabilities in the discharge of his functions as the Speaker, yet he was a party and a beneficiary of a Ruling of this Court (differently constituted) in Republic vs. County Assembly of Nyamira Committee of Powers and Privileges & 4 Others Ex Parte Thaddeus Nyabaro (supra).
The 2 nd Respondent’s Submissions
Counsel for the 2 nd Respondent submitted on two main issues being whether the 2 nd Respondent as the speaker of the County Assembly of Nyamira has properly been sued in his personal capacity and whether the Petitioners are entitled to the orders sought in their Petition.
Counsel submitted that after the delivery of the decision in the High Court at Bomet, the contestation of the election of the 2 nd Respondent as speaker of the County Assembly of Nyamira ended on 04 th June 2025 and that the Petitioners failed to recognize him as the Speaker thereby suing him in his personal capacity as opposed to his official role which was the basis of him discharging the Speaker’s functions in the present Petition. It was submitted that Section 11 of the County Assembly Powers and Privileges Act clearly granted the speaker of the Assembly immunity from civil and criminal proceedings in the course of his official functions and therefore the Court ought to find that it was improper for him to be sued in his personal capacity while discharging official speaker duties.
On the second issue, it was submitted that the substantive law on the vacation of office of a member of County Assembly was Article 194 (1) (b) of the Constitution, while the procedural law was Sections 16 and 17 of the County Assemblies Powers and Privileges Act and Nyamira County Assembly Standing Orders (2024) under No. 239. Counsel submitted that the Petitioners failed to attend the sittings of the Assembly at the gazetted precincts from October 2024 and defiantly joined the former impeached speaker to establish a parallel illegal outfit dubbed, ‘Bunge Mashinani’, which became the subject of inquiry by the Senate where a resolution was passed on 15 th May 2025 that nullified the said Assembly and actions undertaken. That this Resolution further got legal backing by the High Court in Bomet in its judgment of 04 th June 2025.
Counsel also submitted that it was the above events that led to the 2 nd Respondent informing the County Assembly of the Petitioners’ conduct where the Assembly opted to refer the matter to the Committee of Powers and Privileges and not out of retaliation or vendetta as alleged in the Petition. That even then, the Committee was guided by Articles 47 and 50 of the Constitution and the provisions of the Fair Administrative Action Act in according the Petitioners an opportunity to be heard. Counsel submitted that the Petitioners bore the burden of proof to substantiate their claim for violation of their constitutional rights and cited the case of Kimaru vs. Inspector General of Police & Another; Independent Medico-Legal Unit & Another, Constitutional Petition No. E007 of 2023 (2025) KEHC , 1782 KLR in this regard, together with the case of Anarita Karimi Njeru vs. Republic (1979) KLR where it was held that a petitioner ought to set out with a reasonable degree of precision the rights infringed and the manner of infringement. The cases of Mohammed and Another vs. Attorney General & 282 Others, Constitutional Petition No. E007 of 2023 (2024) KEHC 12089 KLR and Leonard Otieno vs. Airtel Kenya Limited (2018) eKLR were also cited.
It was further submitted that the constitution of the select Committee of Powers and Privileges pursuant to Standing Order No. 193 of the Nyamira County Assembly on 17 th June 2025 was a resolution of the entire House including the Petitioners herein and it was incumbent upon them to tender evidence that the findings of the Committee were wrong and that they indeed never absconded the sittings at the gazetted Assembly precincts.
Finally, Counsel submitted that the County Assembly was an institution and creature of the Constitution and enabling statutes and that the Petitioners placed their allegiance on the former speaker who had been impeached on 24 th October 2024, yet it should have been to the institution of the County Assembly. That for these reasons, the Petition ought to be found as unmerited and dismissed in its entirety.
On costs, it was submitted that costs should be awarded to the successful litigant in accordance with Section 27 of the Civil Procedure Act and as determined in the case of Republic vs. Rosemary Wairimu Munene, Ex Parte Applicants vs. Ihururu Dairy Farmers Cooperative Society Limited, Judicial Review Application No. 6 of 2014.
The Interested Party’s Submissions
Counsel submitted on behalf of the Interested Party that its role in these proceedings was confined to providing clarification on the applicable laws, procedures, and administrative steps undertaken by the Commission to the extent relevant to the issues before the Court. Counsel further emphasized that the Interested Party maintained a strictly neutral posture and left the determination of the substantive issues entirely to the Court.
On costs, it was submitted that since the Commission was neither a protagonist in the dispute nor initiated or volunteered to be part of the dispute before the Court but should be awarded costs in the final determination o
[...truncated]
Introduction
Few disputes lay bare institutional rupture as starkly as the conflict that befell the Nyamira County Assembly. What began as a leadership contest quickly devolved into parallel sittings, competing speakerships, and fractured political allegiances, conditions under which the Petitioners’ seats were ultimately declared vacant. This Petition invites the Court to distil the material facts from that turbulence, to test the impugned actions against the strict demands of the Constitution, and to determine whether the drastic step of extinguishing elected mandates was taken within the bounds of lawful authority.
The Petitioners before the Court comprise both elected and nominated Members of the Nyamira County Assembly who challenge the constitutionality and legality of the Respondents’ actions culminating in the declaration that their seats had fallen vacant.
The 1 st Petitioner is an elected Member of County Assembly of Nyamira representing the people of Bokeira Ward.
The 2 nd Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the ANC Party.
The 3 rd Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the Ford Kenya Party.
The 4 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 5 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 6 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the people of Rigoma Ward.
The 7 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 8 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party.
The 9 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the ODM Party.
The 10 th Petitioner is a Special Elected Member of the County Assembly of Nyamira representing the Wiper Party.
The 1 st Respondent is the Nyamira County Assembly established under Article 176 of the Constitution of Kenya and vested with legislative authority and oversight functions as provided under Article 185 of the Constitution of Kenya.
The 2 nd Respondent is the current Speaker of the Nyamira County Assembly and also an elected Member of the County Assembly of Nyamira representing the people of Ekerenyo Ward, under the provisions of Article 178 (1) of the Constitution of Kenya.
The Interested Party is an Independent Commission under Article 88 of the Constitution of Kenya and the Independent Electoral and Boundaries Commission Act, Cap 7C, having functions inter alia , the conduct of elections and referenda.
The Petition
The Petitioners herein instituted the present suit vide Petition dated 08 th July 2025, seeking the following prayers: -
A DECLARATION that the Resolution passed and adopted by the Respondents regarding the Report of the Committee on Powers and Privilege concerning the conduct of the Petitioners in the Order Paper dated 07 th July 2025 is unconstitutional, null and void.
A DECLARATION that the 1 st Respondent’s purported Committee on Powers and Privilege concerning the conduct of the Petitioners was improperly and illegally constituted.
A DECLARATION be issued that the Resolution of the Respondents in the Order Paper dated 07 th July 2025 discussing the conduct of the Petitioners violated the fundamental rights and freedoms of the Petitioner to a fair hearing and fair administrative action.
THAT an Order of Certiorari do issue to bring up before this Honourable Court to quash the decision, procedure, proceedings or act and report by the 1 st Respondent’s purported Committee on Powers and Privilege concerning the conduct of the Petitioners culminating in its adoption of Order Paper dated 07 th July 2025.
AN ORDER that the Respondents be condemned to pay costs of the Petition.
Such further appropriate and consequential orders and reliefs as this Honourable Court may lawfully make.
The Petition is supported by the 1 st Petitioner’s Supporting Affidavit sworn on 08 th July 2025 in which he deposed that the Respondents had unlawfully invoked the provisions of Article 194 (1) (b) of the Constitution to declare the seats of duly elected Members of County Assembly, being the Petitioners herein, vacant and that the Committee on Powers and Privileges which tabled the impugned report was bereft of jurisdiction. He averred that the County Assembly of Nyamira had been embroiled in a prolonged political instability following suspension of the Speaker on 08 th October 2024 and his subsequent impeachment despite existing conservatory orders. He also averred that the Petitioners lawfully attended Assembly sittings in ‘Bunge Mashinani’ which had been duly gazetted vide Gazette Notice No. 14229 of 29 th October 2024 and that this was the basis of the retaliatory political action by a rival faction in the Assembly to eject them from office on the pretext that they absented themselves from eight (8) consecutive sittings, thereby warranting invoking of Article 194 (1) (b) of the Constitution.
The 1 st Petitioner averred that the Resolution in question was not only factually and legally flawed but equally procedurally defective as it was passed in open defiance of existing court orders; that the 2 nd Respondent had unlawfully assumed the role of the Speaker at the time thereby bringing to question the legitimacy of the Committee that was constituted to look into their conduct. It was averred that it was legally and factually untenable that there were proceedings totalling to the constitutional threshold of eight (8) sittings presided over by any other speaker other than Hon. Enock Okero Ogori, since the 2 nd Respondent was only elected on 19 th December 2024, which election was in any event stayed by the existing conservatory orders, until 04 th June 2025 when judgment was delivered by the High Court in Bomet affirming his position.
It was further averred that the period which the Petitioners are said to have absconded County Assembly sittings fell within the period when the County Assembly sittings had been suspended; that the purported Clerk of the County Assembly one Duke Onyari had been suspended from the office on 25 th October 2024 and issued with a suspension letter on 04 th November 2024. That even so, the Committee was empowered under Articles 75 (2) (b) and 194 (1) (c) to impose any other penalty other than what was stipulated in Article 194.
It was averred that the impugned Resolution was passed while there were ongoing court proceedings in breach of the res sub judice rule; that there was no verifiable evidence furnished to support the claim that the Petitioners had absented themselves from eight consecutive sittings since the alleged lists were never accompanied by any official copies of the Hansard to substantiate the claim that the sittings actually took place. The 1 st Petitioner contended that the action by the Respondents was not a lawful execution of their constitutional mandate, but a clear manifestation of a politically motivated purge which if left unchecked would result in silencing dissenting voices and punishing perceived political opponents.
The Responses
In response to the Petition, the 1 st Respondent filed a Replying Affidavit sworn on 1 st August 2025 by Duke Onyari, the Clerk of the County Assembly opposing the Petition and he stated that Article 194 (1) (b) of the Constitution did not provide for the procedure for the removal of the Petitioners as that procedural law was anchored on Standing Order No. 239 of the Nyamira County Assembly Standing Orders. He deposed that the Petitioners admitted in their supporting affidavit to the Petition that they had been attending ‘Bunge Mashinani’ under the leadership of the impeached speaker from October 2024 to June 2025, yet they knew of the High Court at Bomet’s decision in Petition No. E004 of 2025 where it was held that all actions undertaken by the Speaker post-impeachment were illegal, null and void, with no other court orders post-impeachment maintaining him as the Speaker of the County Assembly of Nyamira.
The 2 nd Respondent also filed a Replying Affidavit dated 20 th August 2025 opposing the Petition. He deposed that the Committee on Powers and Privileges drew its mandate from the provisions of Standing Order No. 195 of the Nyamira County Assembly which gave it the mandate to scrutinize the conduct of the Petitioners as Members of the County Assembly. It was averred that the County Assembly of Nyamira wrote to the Petitioners through the office of the Clerk of the County Assembly vide letters dated 20 th June 2025 requiring them to individually appear before the Committee at the County Assembly boardroom on specific dates and time for hearing.
The 2 nd Respondent averred that they complied with Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act by according the Petitioners procedural fairness and gave them the reasons for the disciplinary hearing which the Petitioners duly acknowledged, attended, and fully participated in the proceedings, some with their legal counsel. Therefore, they could not contend that the committee was bereft of jurisdiction on account of impending judicial proceedings in cases which they were not even parties to.
The 2 nd Respondent further averred that the Petitioners admitted to abandoning the sittings of the gazetted precincts of the County Assembly for several months in favour of ‘Bunge Mashinani’ and that their conduct was the subject of inquiry by the Senate House of the Standing Committee on Devolution and Intergovernmental Relations on the Operational and Leadership Crisis in Nyamira County Assembly.
The Petitioners filed a further affidavit sworn by the 1 st Petitioner on 23 rd September 2025 in which he deposed that the issue of jurisdiction was now res judicata as it had already been addressed by the Court and that the appointment of the committee referred to by the 2 nd Respondent in his replying affidavit marked “DSO-8’ was an invalid appointment made by the 2 nd Respondent; that there was no report tabled by him as required by Standing Order No. 239 on the Petitioners’ absenteeism. He averred that none of the Respondents proved that the Assembly was quorate to conduct any business or debate and that the Assembly reserved the right to gazette other stations as places of sitting and amend their calendar accordingly to ensure efficient discharge of its duties. He contended that some of the issues raised by the Respondents in their replying affidavits were no longer viable as they had been resolved by way of consent in other courts.
He further deposed that the actions of the 1 st Respondent’s Committee of Privileges were ultra vires and bereft of the County Assembly’s approval, that the Senate’s resolutions could not usurp the principles of sub judice because there were active appellate and ELRC matters directly touching on the issues at hand. It was averred that the process of declaring the seats of the Petitioners vacant under the Elections Act did not end with communicating with the Interested Party herein but required that the Interested Party transmits a notice to the respective Returning Officer within prescribed timelines under the Elections Act.
With respect to the 2 nd Respondent’s response, the Petitioners through the 1 st Petitioner deposed that the provisions of the Standing Orders on removal of a member from the County Assembly due to absenteeism was donated by part IV of the County Assemblies Powers and Privileges Act Cap 265C and that the only way they could be removed was through the provisions of Article 194 (1) (b) of the Constitution, which required members to seek permission for missing sittings from the Speaker; yet, this was impossible for them to do as the 2 nd Respondent had been barred by conservatory orders from assuming that role and the Petitioners could therefore not address or approach him. That the 2 nd Respondent ought to demonstrate which of his purported sittings as a speaker they failed to attend without permission if any.
The 1 st Petitioner also deposed that because there was a change of guard at the County Assembly owing to the judgment in Bomet, they chose to comply with the summons in obedience to the administrative authority in place, but that did not mean that they were in agreement with the constitution of the impugned committee. That they had clearly demonstrated several breaches of constitutional rights and blatant disregard of procedure which were sufficient to discredit any actions undertaken by the Respondents. He further deposed that no authority could usurp the court’s proceedings and that no report called for the removal of any faction of the Members of County Assembly from office.
At the close of the pleadings, parties took directions before this Court to canvass the Petition by way of written submissions.
The Submissions
The Petitioners’ Submissions
In their submissions dated 30 th September 2025, counsel for the Petitioners identified the following issues for determination, namely whether the Committee on Powers and Privileges had the mandate to initiate or undertake removal proceedings against the Petitioners under Article 194(1)(b) of the Constitution, whether the Committee was properly and lawfully constituted if such mandate existed, and whether the impugned Resolution adopted by the 1st Respondent was valid or a nullity.
Counsel for the Petitioners submitted, on the first issue, that the Committee on Powers and Privileges derived its mandate from Article 196 of the Constitution and Sections 15(4) and 16 of the County Assemblies Powers and Privileges Act, Cap 265C. It was argued that the Committee’s authority is limited to inquiring into whether a member has breached the provisions of Sections 25, 26(1), 27 and 29 of the Act, and to recommending the penalties provided under Section 17(3). Counsel contended that none of these provisions empowers the Committee to inquire into or determine matters relating to absenteeism. The Constitution and the Act, it was submitted, supersede the Standing Orders, and since neither instrument assigns the Committee a role in proceedings under Article 194(1)(b), Parliament must be taken to have deliberately excluded such a mandate. Consequently, any body purporting to exercise that function would be acting without lawful authority.
For the above argument, counsel cited the Court of Appeal’s decision in Mohamed Ali Sheikh vs. Abdiwahab Sheikh & 4 Others; Emmanuel Changawa Kombe (IP) (2018) KECA 75 KLR and Republic vs. Transitional Authority and Another & Another Ex Parte Crispus Fwamba and 4 Others (2013) KEHC 6518 KLR for the proposition that if parliament was aware of a scenario but omitted or remained silent on it then it did not intend to provide for it; together with the fact that actions or decisions made in excess or without jurisdiction pursuant to delegated power were grounds for review of a decision under Section 7 (2) (a) of the Fair Administrative Action Act.
Counsel also submitted that the Committee was unknown to the County Assembly because there already existed a Privileges Committee duly approved by the County Assembly before the onset of the volatile leadership crisis that was experienced in the county of Nyamira and that no legal provision existed to the effect that the impeachment of a Speaker ousted all existing committees. It was submitted that there was no evidence of the House being invited to approve the constitution of the said Committee or a discharge of the members sitting in the previous committee, contrary to Standing Order No. 159 on Discharge of Committees, lending credence to the assertion that the Committee was formed from the 2 nd Respondent’s unilateral communication when he purported to act as speaker.
Counsel cited the case of Michael Sistu Mwaura Kamau vs. Ethics and Anti-Corruption Commission and 4 Others (2017) eKLR where the Court of Appeal held that a body not properly constituted cannot purport to carry out its mandate under the law. Counsel also cited the case of Republic vs. Non-Governmental Organizations Coordination Board Ex Parte Evans Kidero Foundation (2017) eKLR where Odunga J. (as he then was) nullified the actions of the Respondents which were not backed by the law. Counsel submitted that the Petitioners’ right to a fair trial were threatened and grossly violated by the utter disregard of legal procedures and provisions and they relied on the Court of Appeal’s decision in Law Society of Kenya vs. Centre for Human Rights and Democracy and 13 Others (2013) KECA 172 KLR where the court found that the tribunal had deviated from established legal beacons.
On the second issue, counsel submitted that the impugned Resolution emanated from a report (“NJO-1A”), which enclosed summons issued to twelve MCAs, all dated 20 th June 2025, requiring them to appear before the Committee. The summons cited various dates relating to sittings allegedly not attended by the Petitioners, with those addressed to the 1 st to 9 th Petitioners referring to the period between 29 th October 2024 and 10 th December 2024, while only the summons to the 10th Petitioner referred to sittings between 03 rd January 2025 and 18 th February 2025. Counsel argued that these references were inconsistent with the 1 st Respondent’s position that the Petitioners failed to attend sittings between 25 th February 2025 and 3rd June 2025, thereby demonstrating the absence of a fair hearing, as the Committee itself was not clear on the particulars of the allegations. It was further submitted that although the 2 nd Respondent was elected on 19 th December 2024, he could only assume the functions of Speaker on 04 th June 2025 after the delivery of the Bomet judgment, owing to conservatory orders issued on 10 th February 2025.
Counsel further submitted that the alleged sittings of the County Assembly were fictitious as the Respondents did not adduce evidence of the Hansard, registers of the sittings signed by the members and an Order Paper for the sittings’ deliberations to prove the absenteeism but merely produced registers which were fictitious documents as proof of non-attendance. Counsel also added that the alleged County Assembly sittings were not even quorate (12 members) to conduct its businesses as demonstrated by the registers which indicated that sittings of 28 th to 30 th January had 7, 6 and 10 members respectively.
It was additionally submitted that Standing Order No. 33 required that the sittings be adjourned if the House was not quorate and because the various sittings relied on by the Committee to conclude the Petitioner’s non-attendance were not quorate, they failed to prove the Petitioners’ failure to attend the sessions. Further, that no Hansard report had been adduced in respect of 29 th October 2024 and 10 th December 2024 as the dates relied on by the Committee to find the Petitioners culpable for absenteeism and no proof was adduced of the election of a speaker to preside over the House proceedings as such proceedings would have been impossible in light of the unstable and existing turmoil in the Assembly.
Counsel for the Petitioners submitted that conservatory orders had preserved the office of the former Speaker, Hon. Enock Okero Ogori, together with his authority to discharge the functions of that office, which formed the basis for the issuance of Gazette Notices designating an alternative venue for County Assembly sittings. It was therefore argued that the Petitioners could not be faulted for associating with the Speaker who was lawfully recognized at the time, particularly when the 2 nd Respondent had no legal capacity to act as Speaker under the subsisting orders. Counsel further contended that the move to remove the Petitioners from office amounted to the retroactive application of disciplinary measures without regard to the prevailing circumstances, and that the decisions taken against them were tainted by unreasonableness and bias. Counsel cited the Court of Appeal decision in Godfrey Ajuong Okumu & Another vs. Engineers Board of Kenya (2020) KACA 203 (KLR) to this end.
On the issue of the Senate’s Resolutions, Counsel submitted that there was no logical reason for implementing the resolutions of the Senate while there were ongoing court proceedings. Counsel stated that the constitutional threshold for removing the Petitioners from their duly elected offices had neither been met under Article 194 (1) (b) on failure to attend 8 consecutive sittings nor had they accorded them a fair hearing. They relied on the Supreme Court case of Munya vs. Kithinji and 2 Others Application No. 5 of 2014 (2014) KESC 30 KLR where it was held that in interpreting provisions of the Elections Act, a court of law could not disengage from the Constitution.
Petitioners’ Further Submissions
The Petitioners filed further submissions dated 24 th October 2025 with the leave of the Court granted on 22 nd October 2025. Counsel submitted that this Court (differently constituted) on 11 th July 2025 dismissed all preliminary issues of jurisdiction such that to raise it herein would be akin to creating confusion and making a mockery of the Court. Counsel submitted that the issue before the Court was not an Election Petition as envisioned by Part VII of the Elections Act on Election Disputes Resolution of Section 75 (1) (A) and 78 of the Elections Act which required that the election of a Member of County Assembly be challenged in the subordinate courts and Petitioner to deposit security for costs. That the present Petition was a constitutional issue seeking to challenge the exercise of the County Assembly’s mandate in exercising its authority as it did against the Petitioners in accordance with the Court’s jurisdiction under Article 165 (3) (d) .
Counsel also submitted that there were numerous authorities from the superior courts which held that provisions such as Section 10 of the County Assemblies Powers and Privileges Act had to be overlooked if there was an apparent or actual risk of infringement of rights or conduct that was ultra vires any powers donated by the constitution. The case of Peter O. Ngoge vs. Francis Ole Kaparo & 4 Others (2007) KEHC 1433 KLR was cited where a three-judge bench emphasised the need for courts to promote the principle of separation of powers and not interfere with internal arrangements of the legislative bodies unless they violated the constitution and the principle that there was nothing that was immune from the court’s scrutiny if it was in conflict with the Constitution. Counsel further cited the Court of Appeal’s decision in LSK vs. Centre for Human Rights and Democracy & 13 Others (2013) KECA 172, KLR and Republic vs. County Assembly of Nyamira Committee of Powers and Privileges & 4 Others Ex Parte Thaddeus Nyabaro and Another (2019) KEHC 4204 KLR in support of their argument for the application of Section 10 of the County Assemblies Powers and Privileges Act.
Counsel additionally submitted that the summons issued to the Petitioners indicated different dates that they allegedly failed to attend the Assembly sittings from what was stated at paragraph 34 of their submissions; that they allegedly absconded between 25 th February 2025 and 03 rd June 2025 according to the submissions but the Summons indicated different dates which were relied on by the Committee in arriving at their decision. Counsel further contended that the Committee members were alien and did not have the House’s approval to act but were merely constituted as a result of communication passed by the 2 nd Respondent and because the 1 st Respondent contended that ‘Bunge Mashinani’ which the Petitioners attended was never approved by the County Assembly, there was equally no quorum at the Assembly to constitute the impugned Committee.
Lastly, it was submitted that the 1 st Respondent deceived the Court and made a mockery of the rule of law by denying the existence of valid consents executed by the parties in Kisumu ELRC 054 of 2024 and alleging that the Speaker made a communication to the Assembly on 17 th June 2025 as submitted, yet they did not attach the specific Hansard proceedings to prove this. It was their further submission that the 2 nd Respondent misapprehended the law by arguing that he was wrongfully joined in the present proceedings because he enjoyed immunity from civil and criminal liabilities in the discharge of his functions as the Speaker, yet he was a party and a beneficiary of a Ruling of this Court (differently constituted) in Republic vs. County Assembly of Nyamira Committee of Powers and Privileges & 4 Others Ex Parte Thaddeus Nyabaro (supra).
The 2 nd Respondent’s Submissions
Counsel for the 2 nd Respondent submitted on two main issues being whether the 2 nd Respondent as the speaker of the County Assembly of Nyamira has properly been sued in his personal capacity and whether the Petitioners are entitled to the orders sought in their Petition.
Counsel submitted that after the delivery of the decision in the High Court at Bomet, the contestation of the election of the 2 nd Respondent as speaker of the County Assembly of Nyamira ended on 04 th June 2025 and that the Petitioners failed to recognize him as the Speaker thereby suing him in his personal capacity as opposed to his official role which was the basis of him discharging the Speaker’s functions in the present Petition. It was submitted that Section 11 of the County Assembly Powers and Privileges Act clearly granted the speaker of the Assembly immunity from civil and criminal proceedings in the course of his official functions and therefore the Court ought to find that it was improper for him to be sued in his personal capacity while discharging official speaker duties.
On the second issue, it was submitted that the substantive law on the vacation of office of a member of County Assembly was Article 194 (1) (b) of the Constitution, while the procedural law was Sections 16 and 17 of the County Assemblies Powers and Privileges Act and Nyamira County Assembly Standing Orders (2024) under No. 239. Counsel submitted that the Petitioners failed to attend the sittings of the Assembly at the gazetted precincts from October 2024 and defiantly joined the former impeached speaker to establish a parallel illegal outfit dubbed, ‘Bunge Mashinani’, which became the subject of inquiry by the Senate where a resolution was passed on 15 th May 2025 that nullified the said Assembly and actions undertaken. That this Resolution further got legal backing by the High Court in Bomet in its judgment of 04 th June 2025.
Counsel also submitted that it was the above events that led to the 2 nd Respondent informing the County Assembly of the Petitioners’ conduct where the Assembly opted to refer the matter to the Committee of Powers and Privileges and not out of retaliation or vendetta as alleged in the Petition. That even then, the Committee was guided by Articles 47 and 50 of the Constitution and the provisions of the Fair Administrative Action Act in according the Petitioners an opportunity to be heard. Counsel submitted that the Petitioners bore the burden of proof to substantiate their claim for violation of their constitutional rights and cited the case of Kimaru vs. Inspector General of Police & Another; Independent Medico-Legal Unit & Another, Constitutional Petition No. E007 of 2023 (2025) KEHC , 1782 KLR in this regard, together with the case of Anarita Karimi Njeru vs. Republic (1979) KLR where it was held that a petitioner ought to set out with a reasonable degree of precision the rights infringed and the manner of infringement. The cases of Mohammed and Another vs. Attorney General & 282 Others, Constitutional Petition No. E007 of 2023 (2024) KEHC 12089 KLR and Leonard Otieno vs. Airtel Kenya Limited (2018) eKLR were also cited.
It was further submitted that the constitution of the select Committee of Powers and Privileges pursuant to Standing Order No. 193 of the Nyamira County Assembly on 17 th June 2025 was a resolution of the entire House including the Petitioners herein and it was incumbent upon them to tender evidence that the findings of the Committee were wrong and that they indeed never absconded the sittings at the gazetted Assembly precincts.
Finally, Counsel submitted that the County Assembly was an institution and creature of the Constitution and enabling statutes and that the Petitioners placed their allegiance on the former speaker who had been impeached on 24 th October 2024, yet it should have been to the institution of the County Assembly. That for these reasons, the Petition ought to be found as unmerited and dismissed in its entirety.
On costs, it was submitted that costs should be awarded to the successful litigant in accordance with Section 27 of the Civil Procedure Act and as determined in the case of Republic vs. Rosemary Wairimu Munene, Ex Parte Applicants vs. Ihururu Dairy Farmers Cooperative Society Limited, Judicial Review Application No. 6 of 2014.
The Interested Party’s Submissions
Counsel submitted on behalf of the Interested Party that its role in these proceedings was confined to providing clarification on the applicable laws, procedures, and administrative steps undertaken by the Commission to the extent relevant to the issues before the Court. Counsel further emphasized that the Interested Party maintained a strictly neutral posture and left the determination of the substantive issues entirely to the Court.
On costs, it was submitted that since the Commission was neither a protagonist in the dispute nor initiated or volunteered to be part of the dispute before the Court but should be awarded costs in the final determination o
[...truncated]