Before this court is a Notice of Motion application dated 13.11.2025 brought under Articles 1, 2, 3, 4, 5, 10, 19, 20, 21, 22, 23, 24, 25, 35, 47, 73, 74, 75, 129, 159, 165, 174, 175, 176, 177, 178, 185, 196 (1) (a), 228, 232, 258 and 259 of the Constitution of Kenya; the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; and all enabling provisions of the law] seeking that pending the hearing and determination of this application and the Petition the Honourable Court be pleased to issue conservatory orders restraining the Respondents from in any way suspending the Petitioners from Migori County Assembly for 30 days and 60 days respectively or any other period and/or removing them from forums of the Migori County Assembly on matters herein;
That pending the hearing and determination of this application and the Petition the Honourable Court be pleased to issue conservatory orders restraining the Respondents from in any way denying the Petitioners their sitting allowances, responsibility allowances or any other allowance that the Petitioners are entitled to under any law in discharge of their mandates as elected Members of County Assembly, Migori County.
The Petitioners also sought that pending the hearing and determination of this application and the Petition the Honourable Court be pleased to issue conservatory orders restraining the Migori County Assembly Committee of Powers and Privileges from deliberating matters herein concerning the Petitioners.
The Petitioners also sought for any further order or other orders permissible under Article 23 of the Constitution or any other law in the interest of justice in the circumstances as the Honourable court may deem fair, reasonable and just.
They also sought that the costs of this application be awarded to them.
The application was supported by the affidavit of Samson Olima Obonyo filed herewith on the grounds that:
1. The 1st Respondent has with utmost vindictiveness and without any legal right unlawfully and unconstitutionally made an oral communication to the Members of Migori County Assembly on 4.11.2025 in the plenary to the effect that the Petitioners are suspended from the County Assembly for 30 days and 60 days respectively.
2. To found a basis for allegations of misconduct, the 1st Respondent stated that the 1st Petitioner had warned the 2nd Respondent, Mr. Collins Bala, of dire consequences should he proceed to pay Members and staff their October salaries and operational expenses.
3. There was no motion moved by any member to warrant the impugned decision by the 1st Respondent.
4. Instead, the 1st Respondent, with utmost partiality and in a manner inconsistent with his office, made unsubstantiated allegations against the Petitioners and proceeded to make the impugned decision thereby becoming a judge in his own cause contrary to the legal principle of nemo judex in causa sua, which is a rule of fundamental component of natural justice, designed to prevent bias and ensure impartiality in legal and administrative proceedings.
5. The concomitant effect of the impugned decision is that the 2nd Respondent has now barred the Petitioners from accessing Migori County Assembly; the Petitioners have been removed from forums of the Migori County Assembly, including various Committees that they sit in hence they are unable to represent their constituents and perform their constitutional mandates that they were elected to do.
6. The impugned act of the 1st Respondent of suspending them from the Migori County Assembly is not only nonsensical and irrational but unconstitutional and contravenes Articles 47 (1) and 50 (1) of the Constitution which provide respectively that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
7. The impugned suspension also contravenes Standing Order No 64 of the Standing Orders of the County Assembly of Migori which mandatorily provides that whenever the Constitution, any written law or the Standing Orders requires the County Assembly to consider a petition or a proposal for the removal of a person from office, the person shall be entitled to appear before the relevant Committee of the County Assembly considering the matter and shall be entitled to legal representation.
8. The impugned suspension purporting to suspend them from the County Assembly for 30 days and 60 days respectively also contravenes Standing Order No 104 (2) of the Standing Orders of the County Assembly of Migori which only allows the 1st Respondent or the Chairperson of Committees, as the case may be, to order a Member whose conduct is grossly disorderly to withdraw immediately from the precincts of the County Assembly on the first occasion, for the remainder of that day’s sitting and on the second or subsequent occasion during the same session, for a maximum of three sitting days including the day of suspension.
9. It is only the said Committee of Powers and Privileges that can order for suspension of a member, among other sanctions, under Section 17 (3) (g) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya; and upon granting such a member a hearing hence the 1st Respondent made the impugned decision without any authority and/or power and in a predetermined manner. 7 Page 3 of 5
10. It is also noteworthy that the 1st Respodnent, who has demonstrably taken a position in the matter, is the Chairperson of the said Committee of Powers and Privileges under Section 15 (1) (a) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya hence the Petitioners are reasonably apprehensive that they might not be granted a fair hearing.
11. The Respondents’ impugned decision is malicious, made in bad faith and amounts to witch-hunt.
12. The Petitioners reasonably believe that the real mischief behind the impugned decision is to silence them in their quest for good governance and accountability in Migori County Assembly and Migori County Government at large.
13. The Petitioners’ position is buttressed by the fact that they got wind that the 1st Respondent had the intention of unlawfully diverting County Assemblies Sports Association (CASA) Games funds of KSh.22,459,500/= on the pretext of paying October, 2025 salaries and September, 2025 office operations whereas the Migori County assembly had separately vide another Request Reference Number MIG/REC/VOL.10(17) dated 28.10.2025 requested and indeed received KSh.36,858,194/= for County Assembly Members and Staff Salaries and allowances for the same month of October, 2025.
14. As a result of the foregoing, the Petitioners have been unlawfully barred from accessing Migori County Assembly and have been unconstitutionally barred from exercising their constitutional mandates of representation, oversight and legislative without following the law and the Constitution and without upholding integrity, transparency and accountability which are mandatory ingredients of good governance.
15. The Petition is meritorious and raises serious and weighty constitutional issues and has high probability of success; and if the conservatory orders as sought herein are not granted, the Petitioners will suffer irreparable harm and the Petition rendered merely academic.
16. The Petition and the accompanying motion herein have been brought with immense promptitude.
17. It is in the interest of fair administration of justice and fairness that the Petition be determined first and the proceedings in conservatory orders issued to prevent further miscarriage of justice if the Petition is successful.
The application was filed concurrently with petition of even date seeking for an ORDER OF DECLARATION declaring that the 1st Respondent’s decision made on 4.11.2025 in the Plenary of Migori County Assembly against the Petitioners purporting to suspend the Petitioners from Migori County Assembly for 30 days and 60 days respectively and that the Petitioners are to forfeit their sitting allowance; responsibility allowance and also that they are removed from all forums of the Migori County Assembly, including various Committees that they sit in; and referring the matter to the Committee of Powers and Privileges is malicious, vindictive, amounts to witch-hunt hence unconstitutional and therefore illegal and void.
AN ORDER OF JUDICIAL REVIEW BY WAY OF CERTIORARI quashing the 1st Respondent’s decision made on 4.11.2025 in the Plenary of Migori County Assembly against the Petitioners as particularised under prayer (a) above.
AN ORDER OF PROHIBITION prohibiting the Respondents from in any way continuing to suspend the Petitioners from Migori County Assembly for 30 days and 60 days respectively on matters hereof and,
AN ORDER OF DECLARATION declaring that the Respondents have violated the Constitution hence not fit to hold public office.
The Court was also asked to compel the Respondents to compute and pay to the Petitioners their sitting allowances, responsibility allowances or any other allowances that the Petitioners were denied due to the impugned decision of 4.11.2025.
The Court was also asked to compel the Respondents to compensate the Petitioners for violation of their rights.
Costs of the Petition was also sought
The application is premised on the GROUNDS THAT:
The 1st Respondent has with utmost vindictiveness and without any legal right unlawfully and unconstitutionally made an oral communication to the Members of Migori County Assembly on 4.11.2025 in the plenary to the effect that the Petitioners are suspended from the County Assembly for 30 days and 60 days respectively.
There was no motion moved by any member to warrant the impugned decision by the 1st Respondent.
Instead, the 1st Respondent, with utmost partiality and in a manner inconsistent with his office, made unsubstantiated allegations against the Petitioners and proceeded to make the impugned decision thereby becoming a judge in his own cause contrary to the legal principle of nemo judex in causa sua, which is a rule of fundamental component of natural justice, designed to prevent bias and ensure impartiality in legal and administrative proceedings.
The concomitant effect of the impugned decision is that the 2nd Respondent has now barred the Petitioners from accessing Migori County Assembly; the Petitioners have been removed from forums of the Migori County Assembly, including various Committees that they sit in hence they are unable to represent their constituents and perform their constitutional mandates that they were elected to do.
The impugned act of the 1st Respondent of suspending them from the Migori County Assembly is not only nonsensical and irrational but unconstitutional and contravenes Articles 47 (1) and 50 (1) of the Constitution which provide respectively that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
The impugned suspension also contravenes Standing Order No 64 of the Standing Orders of the County Assembly of Migori which mandatorily provides that whenever the Constitution, any written law or the Standing Orders requires the County Assembly to consider a petition or a proposal for the removal of a person from office, the person shall be entitled to appear before the relevant Committee of the County Assembly considering the matter and shall be entitled to legal representation.
The impugned suspension purporting to suspend them from the County Assembly for 30 days and 60 days respectively also contravenes Standing Order No 104 (2) of the Standing Orders of the County Assembly of Migori which only allows the 1st Respondent or the Chairperson of Committees, as the case may be, to order a Member whose conduct is grossly disorderly to withdraw immediately from the precincts of the County Assembly on the first occasion, for the remainder of that day’s sitting and on the second or subsequent occasion during the same session, for a maximum of three sitting days including the day of suspension.
The Respondents’ impugned decision is malicious, made in bad faith and amounts to witch-hunt.
The Petitioners reasonably believe that the real mischief behind the impugned decision is to silence them in their quest for good governance and accountability in Migori County Assembly and Migori County Government at large, noting that the Petitioners got wind that the 1st Respondent had the intention of unlawfully diverting County Assemblies Sports Association (CASA) Games funds of KSh.22,459,500/= on the pretext of paying October, 2025 salaries and September, 2025 office operations whereas the Migori County assembly had separately vide another Request Reference Number MIG/REC/VOL.10(17) dated 28.10.2025 requested and indeed received KSh.36,858,194/= for County Assembly Members and Staff Salaries and allowances for the same month of October, 2025.
That as a result of the foregoing, the Petitioners have been unlawfully barred accessing Migori County Assembly and have been unconstitutionally barred from exercising their constitutional mandates of representation, oversight and legislative without following the law and the Constitution and without upholding integrity, transparency and accountability which are mandatory ingredients of good governance.
The Petition is meritorious and raises serious and weighty constitutional issues and has high probability of success; and if the conservatory orders as sought herein are not granted, the Petitioners will suffer irreparable harm and the Petition rendered merely academic.
That it is in the interest of fair administration of justice and fairness that the Petition be determined first and the proceedings in conservatory orders issued to prevent further miscarriage of justice if the Petition is successful.
The application is also supported by the affidavit in support sworn on 13th November 2025 by Samson Olima Obonyo the 1st Petitioner herein who averred that he was well conversant with the facts giving rise to this case and that he was duly authorized by his Co-Petitioner herein as per anexture “SOO - 1” is the Letter of Authority.
That he swore the affidavit on his behalf and on behalf of his Co - Petitioner herein and he brought Petition and the instant application on his behalf and on behalf of his Co - Petitioner in defence of the Constitution and in public interest.
That Article 3 of the Constitution of Kenya provides in mandatory terms that every person has an obligation to respect, uphold and defend this Constitution and the provision of Article 3 binds the Respondents herein.
That vide Request Reference Number MIG/REC/VOL.10(16) dated 21.10.2025 the Migori County Assembly requested and indeed received KSh.22,459,500/= for County Assemblies Sports Association (CASA) Games that was scheduled to be held in Meru County, Kenya from October, 24 to November 1, 2025 in which Migori County Assembly was to participate in several sports disciplines including, Soccer, Volleyball, Netball, Ajua, Badminton, Table Tennis, Pool table, Swimming, Darts, Athletics Beauty Contest and Scrabble.
That however, the sports event was postponed for 3 weeks hence it did not take place as envisaged.
That they got wind that the 1st Respondent had the intention of taking advantage of the postponement of the said CASA Games to unlawfully divert the CASA funds of KSh.22,459,500/= aforestated on the pretext of paying October, 2025 salaries and September, 2025 office operations contrary to Article 228 (4) and (5) of the Constitution and the Public Finance Management Act Chapter 412A of the Laws of Kenya because the Migori County assembly had separately vide another Request Reference Number MIG/REC/VOL.10(17) dated 28.10.2025 requested and indeed received KSh.36,858,194/= for County Assembly Members and Staff Salaries and allowances for the same month of October, 2025.
That the 1st Respondent had also received KSh.2,876,93/= for payment of County Assembly Members & Staff Gratuities for the month of October, 2025 vide Request Reference Number MIG/REC/VOL.10(18) dated 28.10.2025; KSh.3,762,000/= for payment of County Assembly Reissue Ward Offices Standing Imprests for September, 2025 vide Request Reference Number MIG/REC/VOL.10(22) dated 28.10.2025 among other payments.
That upon receiving the information aforesaid they engaged the Interested Party through a proxy as a whistle blower.
That pursuant to the whistle blower’s said complaint, the Interested Party wrote to the 1st Respondent and directed the 1st Respondent not to utilize the funds for the activities that they were not requisitioned and/or intended but the 1st Respondent defiantly proceeded to divert the funds.
That later on 4.11.2025 they attended the Migori County Assembly sitting which was presided by the 1st Respondent.
That the orders of Business were well known in advance through the Order Paper of the day as is the parliamentary practice as per annexture marked “SOO - 2” .
That however, the 1st Respondent with utmost vindictiveness and without any legal right unlawfully and unconstitutionally made an oral communication to the Members of Migori County Assembly to the effect that the Petitioners were both suspended from the County Assembly for 30 days each.
That to found a basis for allegations of misconduct, the 1st Respondent stated that the 1st Petitioner had warned the 2nd Respondent, Mr. Collins Bala, of dire consequences should he proceed to pay Members and staff their October salaries and operational expenses.
That while so doing, the 1st Respondent did not give them the opportunity to defend themselves. That when the 2nd Petitioner rose to inquire why we were not granted a right of reply the 1st Respondent whimsically and arbitrarily enhanced the 2nd Petitioner’s suspension from 30 to 60 days. (Annexed hereto and marked “SOO - 3” is the Hansard).
That the 1st Respondent stated that the Petitioners were to forfeit their sitting allowance; responsibility allowance and also that they were removed from all forums of the Migori County Assembly, including various Committees that they were sitting in.
That there was no motion moved by any member to warrant the impugned decision by the 1st Respondent.
That instead, the 1st Respondent, with utmost partiality and in a manner inconsistent with his office, made unsubstantiated allegations against the Petitioners and proceeded to make the impugned decision thereby becoming a judge in his own cause contrary to the legal principle of nemo judex in causa sua, which is a rule of fundamental component of natural justice, designed to prevent bias and ensure impartiality in legal
and administrative proceedings. That the concomitant effect of the impugned decision is that the 2nd Respondent has now barred them from accessing Migori County Assembly; they had been removed from forums of the Migori County Assembly, including various Committees that they sit in hence they are unable to represent their constituents and perform their constitutional mandates that they were elected to do.
(Annexed hereto and marked “SOO - 4a” and “SOO - 4b” are screenshots of WhatsApp communication and Certificate of Electronic Record respectively
That while making the impugned decision the 1st Respondent cited Standing Orders 1, 104, 105 and 106 of the Standing Orders of the County Assembly of Migori.
That the impugned act of the 1st Respondent of suspending the Petitioners from the Migori County Assembly is not only nonsensical and irrational but unconstitutional and contravenes Articles 47 (1) and 50 (1) of the Constitution which provide respectively that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
That the impugned suspension contravenes Standing Order No 64 of the Standing Orders of the County Assembly of Migori which mandatorily provides that whenever the Constitution, any written law or the Standing Orders requires the County Assembly to consider a petition or a proposal for the removal of a person from office, the person shall be entitled to appear before the relevant Committee of the County Assembly considering the matter and shall be entitled to legal representation.
That the impugned suspension purporting to suspend the Petitioners from the County Assembly for 30 days and 60 days respectively also contravenes Standing Order No 104 (2) of the Standing Orders of the County Assembly of Migori which only allows the 1st Respondent or the Chairperson of Committees, as the case may be, to order a Member whose conduct is grossly disorderly to withdraw immediately from the precincts of the County Assembly on the first occasion, for the remainder of that day’s sitting and on the second or subsequent occasion during the same session, for a maximum of three sitting days including the day of suspension. (Annexed hereto and marked “SOO - 5” is the Standing Orders of the County Assembly of Migori).
That under Standing Order No 105 which the 1st Respondent also relied on in his impugned decision, it is only a Member who can, on a point of order, invite the 1st Respondent or the Chairperson of Committees to name another Member for grossly disorderly conduct, which was not the case herein.
That demonstrably, the impugned decision was ultra vires the powers of the 1st Respondent.
That in fulfilling their respective mandates, the Respondents are obligated to be guided by the national values and principles of governance in Article 10 of the Constitution and the values and principles of public service in article 232(1) of the Constitution.
That specifically, Article 10 (2) (c) and (d) of the Constitution behoves the Respondents to uphold the national values and principles of governance, which include good governance, integrity, transparency and accountability and sustainable development.
Article 232 (e) on the other hand imbues the Respondents while exercising their respective mandates to have regard to accountability for administrative acts.
That to the contrary, as already demonstrated hereinabove, the Respondents have blatantly violated the foregoing provisions of the Constitution.
That by purporting to suspend the Petitioners from the County Assembly for 30 days and 60 days respectively and referring the matter to the Committee of Powers and Privileges, the 1st Respondent usurped the powers of the said Committee.
That it is only the said Committee of Powers and Privileges that can order for suspension of a member, among other sanctions, under Section 17 (3) (g) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya; and upon granting such a member a hearing hence the 1st Respondent made the impugned decision without any authority and/or power and in a predetermined manner.
That it is also noteworthy that the 1st Respondent, who has demonstrably taken a position in the matter, is the Chairperson of the said Committee of Powers and Privileges under Section 15 (1) (a) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya hence we are reasonably apprehensive that they might not be granted a fair hearing.
That the Respondents’ impugned decision is malicious, made in bad faith and amounts to witch-hunt and the Petitioners reasonably believe that the real mischief behind the impugned decision is to silence them in their quest for good governance and accountability in Migori County Assembly and Migori County Government at large.
That the Respondents have proceeded with their impugned conducts aforementioned with reckless abandon and in total disregard of the Constitution and the relevant laws.
That as a result of the foregoing, the Petitioners have been unlawfully barred from accessing Migori County Assembly and we have been unconstitutionally barred from exercising our constitutional mandates of representation, oversight and legislative without following the law and the Constitution and without upholding integrity, transparency and accountability which are mandatory ingredients of good governance.
That under Article 10 (2) of the Constitution, national values and principles of governance include:
a. patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
b. human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
c. good governance, integrity, transparency and accountability; and
d. sustainable development.
That there was no iota of, good governance, integrity, transparency and accountability on the part of the Respondents in arriving at the impugned decision.
That the 1st Respondent does not have the authority and/or power to suspend the Petitioners for 30 days and 60 days respectively as purported.
That the Petitioners are reasonably apprehensive that since the impugned decision has already been made, the referral of the matter to the Committee of Powers and Privileges by the 1st Respondent is a charade for a predetermined outcome to achieve an intended outcome.
That the Respondents are playing with the sensitive and serious matters of governance and behaving in a manner that suggests that they are not accountable to the people of Kenya for their decisions.
That Article 232 (1) on the other hand adumbrates the values and principle of public service to include:
e. high standards of professional ethics;
f. efficient, effective and economic use of resources;
g. responsive, prompt, effective, impartial and equitable provision of services;
h. involvement of the people in the process of policy making;
i. accountability for administrative acts;
j. transparency and provision to the public of timely, accurate information;
k. subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;
l. representation of Kenya’s diverse communities; and
m. affording adequate and equal opportunities for appointment, training and
advancement, at all levels of the public service, of–– (i) men and women;
(ii) the members of all ethnic groups; and (iii) persons with disabilities.
That Article 232 (2) further provides that the values and principles of public service apply to public service in all State organs in both levels of government and all State corporations.
That however, the Respondents in purporting to suspend the Petitioners from Migori County Assembly for 30 days and 60 days respectively have violated the foregoing provisions of the Constitution.
That firstly, the impugned decision does not promote accountability for administrative acts.
That there is no transparency and provision to the public of timely, accurate information.
That demonstrably therefore, the impugned decision does not promote public interest and the interest of the Kenyans at large.
That the Respondents have prejudiced and compromised the Petitioners’ right to fair administrative action by purporting to suspend them from Migori County Assembly for 30 days and 60 days respectively without due regard to the mandatory constitutional provisions aforestated.
That Article 201 provides for the principles of public finance as follows:
“The following principles shall guide all aspects of public finance in the
Republic—
a. there shall be openness and accountability, including public participation in financial matters;
b. the public finance system shall promote an equitable society, and in particular—
(i) the burden of taxation shall be shared fairly;
1. revenue raised nationally shall be shared equitably among national and county governments; and
2. expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;
c. the burden and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;
d. public money shall be used in a prudent and responsible way; and
e.
f. financial management shall be responsible, and fiscal reporting shall be clear.
That Articles 228 (4) and (5) on the other hand respectively provide that the Controller of Budget shall oversee the implementation of the budgets of the national and county governments by authorising withdrawals from public funds under Articles 204, 206 and 207; and that the Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorised by law.
That in purporting to divert the CASA Games funds for the activities that they were not requisitioned and/or intended, more so against the advice of the Interested Party, the 1st Respondent violated Articles 201 and 228 (4) and (5) aforestated.
That the Respondents have in effect acted in a manner tantamount to miscarriage of justice and due process.
This application was opposed by the Replying Affidavit sworn by Christopher Odhiambo Rusana in which he averred that he was responding to the application on his behalf and on behalf of the 2nd Respondent.
The 2nd Respondent averred that the entire content of the Petitioners' application and supporting affida
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That pending the hearing and determination of this application and the Petition the Honourable Court be pleased to issue conservatory orders restraining the Respondents from in any way denying the Petitioners their sitting allowances, responsibility allowances or any other allowance that the Petitioners are entitled to under any law in discharge of their mandates as elected Members of County Assembly, Migori County.
The Petitioners also sought that pending the hearing and determination of this application and the Petition the Honourable Court be pleased to issue conservatory orders restraining the Migori County Assembly Committee of Powers and Privileges from deliberating matters herein concerning the Petitioners.
The Petitioners also sought for any further order or other orders permissible under Article 23 of the Constitution or any other law in the interest of justice in the circumstances as the Honourable court may deem fair, reasonable and just.
They also sought that the costs of this application be awarded to them.
The application was supported by the affidavit of Samson Olima Obonyo filed herewith on the grounds that:
1. The 1st Respondent has with utmost vindictiveness and without any legal right unlawfully and unconstitutionally made an oral communication to the Members of Migori County Assembly on 4.11.2025 in the plenary to the effect that the Petitioners are suspended from the County Assembly for 30 days and 60 days respectively.
2. To found a basis for allegations of misconduct, the 1st Respondent stated that the 1st Petitioner had warned the 2nd Respondent, Mr. Collins Bala, of dire consequences should he proceed to pay Members and staff their October salaries and operational expenses.
3. There was no motion moved by any member to warrant the impugned decision by the 1st Respondent.
4. Instead, the 1st Respondent, with utmost partiality and in a manner inconsistent with his office, made unsubstantiated allegations against the Petitioners and proceeded to make the impugned decision thereby becoming a judge in his own cause contrary to the legal principle of nemo judex in causa sua, which is a rule of fundamental component of natural justice, designed to prevent bias and ensure impartiality in legal and administrative proceedings.
5. The concomitant effect of the impugned decision is that the 2nd Respondent has now barred the Petitioners from accessing Migori County Assembly; the Petitioners have been removed from forums of the Migori County Assembly, including various Committees that they sit in hence they are unable to represent their constituents and perform their constitutional mandates that they were elected to do.
6. The impugned act of the 1st Respondent of suspending them from the Migori County Assembly is not only nonsensical and irrational but unconstitutional and contravenes Articles 47 (1) and 50 (1) of the Constitution which provide respectively that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
7. The impugned suspension also contravenes Standing Order No 64 of the Standing Orders of the County Assembly of Migori which mandatorily provides that whenever the Constitution, any written law or the Standing Orders requires the County Assembly to consider a petition or a proposal for the removal of a person from office, the person shall be entitled to appear before the relevant Committee of the County Assembly considering the matter and shall be entitled to legal representation.
8. The impugned suspension purporting to suspend them from the County Assembly for 30 days and 60 days respectively also contravenes Standing Order No 104 (2) of the Standing Orders of the County Assembly of Migori which only allows the 1st Respondent or the Chairperson of Committees, as the case may be, to order a Member whose conduct is grossly disorderly to withdraw immediately from the precincts of the County Assembly on the first occasion, for the remainder of that day’s sitting and on the second or subsequent occasion during the same session, for a maximum of three sitting days including the day of suspension.
9. It is only the said Committee of Powers and Privileges that can order for suspension of a member, among other sanctions, under Section 17 (3) (g) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya; and upon granting such a member a hearing hence the 1st Respondent made the impugned decision without any authority and/or power and in a predetermined manner. 7 Page 3 of 5
10. It is also noteworthy that the 1st Respodnent, who has demonstrably taken a position in the matter, is the Chairperson of the said Committee of Powers and Privileges under Section 15 (1) (a) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya hence the Petitioners are reasonably apprehensive that they might not be granted a fair hearing.
11. The Respondents’ impugned decision is malicious, made in bad faith and amounts to witch-hunt.
12. The Petitioners reasonably believe that the real mischief behind the impugned decision is to silence them in their quest for good governance and accountability in Migori County Assembly and Migori County Government at large.
13. The Petitioners’ position is buttressed by the fact that they got wind that the 1st Respondent had the intention of unlawfully diverting County Assemblies Sports Association (CASA) Games funds of KSh.22,459,500/= on the pretext of paying October, 2025 salaries and September, 2025 office operations whereas the Migori County assembly had separately vide another Request Reference Number MIG/REC/VOL.10(17) dated 28.10.2025 requested and indeed received KSh.36,858,194/= for County Assembly Members and Staff Salaries and allowances for the same month of October, 2025.
14. As a result of the foregoing, the Petitioners have been unlawfully barred from accessing Migori County Assembly and have been unconstitutionally barred from exercising their constitutional mandates of representation, oversight and legislative without following the law and the Constitution and without upholding integrity, transparency and accountability which are mandatory ingredients of good governance.
15. The Petition is meritorious and raises serious and weighty constitutional issues and has high probability of success; and if the conservatory orders as sought herein are not granted, the Petitioners will suffer irreparable harm and the Petition rendered merely academic.
16. The Petition and the accompanying motion herein have been brought with immense promptitude.
17. It is in the interest of fair administration of justice and fairness that the Petition be determined first and the proceedings in conservatory orders issued to prevent further miscarriage of justice if the Petition is successful.
The application was filed concurrently with petition of even date seeking for an ORDER OF DECLARATION declaring that the 1st Respondent’s decision made on 4.11.2025 in the Plenary of Migori County Assembly against the Petitioners purporting to suspend the Petitioners from Migori County Assembly for 30 days and 60 days respectively and that the Petitioners are to forfeit their sitting allowance; responsibility allowance and also that they are removed from all forums of the Migori County Assembly, including various Committees that they sit in; and referring the matter to the Committee of Powers and Privileges is malicious, vindictive, amounts to witch-hunt hence unconstitutional and therefore illegal and void.
AN ORDER OF JUDICIAL REVIEW BY WAY OF CERTIORARI quashing the 1st Respondent’s decision made on 4.11.2025 in the Plenary of Migori County Assembly against the Petitioners as particularised under prayer (a) above.
AN ORDER OF PROHIBITION prohibiting the Respondents from in any way continuing to suspend the Petitioners from Migori County Assembly for 30 days and 60 days respectively on matters hereof and,
AN ORDER OF DECLARATION declaring that the Respondents have violated the Constitution hence not fit to hold public office.
The Court was also asked to compel the Respondents to compute and pay to the Petitioners their sitting allowances, responsibility allowances or any other allowances that the Petitioners were denied due to the impugned decision of 4.11.2025.
The Court was also asked to compel the Respondents to compensate the Petitioners for violation of their rights.
Costs of the Petition was also sought
The application is premised on the GROUNDS THAT:
The 1st Respondent has with utmost vindictiveness and without any legal right unlawfully and unconstitutionally made an oral communication to the Members of Migori County Assembly on 4.11.2025 in the plenary to the effect that the Petitioners are suspended from the County Assembly for 30 days and 60 days respectively.
There was no motion moved by any member to warrant the impugned decision by the 1st Respondent.
Instead, the 1st Respondent, with utmost partiality and in a manner inconsistent with his office, made unsubstantiated allegations against the Petitioners and proceeded to make the impugned decision thereby becoming a judge in his own cause contrary to the legal principle of nemo judex in causa sua, which is a rule of fundamental component of natural justice, designed to prevent bias and ensure impartiality in legal and administrative proceedings.
The concomitant effect of the impugned decision is that the 2nd Respondent has now barred the Petitioners from accessing Migori County Assembly; the Petitioners have been removed from forums of the Migori County Assembly, including various Committees that they sit in hence they are unable to represent their constituents and perform their constitutional mandates that they were elected to do.
The impugned act of the 1st Respondent of suspending them from the Migori County Assembly is not only nonsensical and irrational but unconstitutional and contravenes Articles 47 (1) and 50 (1) of the Constitution which provide respectively that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
The impugned suspension also contravenes Standing Order No 64 of the Standing Orders of the County Assembly of Migori which mandatorily provides that whenever the Constitution, any written law or the Standing Orders requires the County Assembly to consider a petition or a proposal for the removal of a person from office, the person shall be entitled to appear before the relevant Committee of the County Assembly considering the matter and shall be entitled to legal representation.
The impugned suspension purporting to suspend them from the County Assembly for 30 days and 60 days respectively also contravenes Standing Order No 104 (2) of the Standing Orders of the County Assembly of Migori which only allows the 1st Respondent or the Chairperson of Committees, as the case may be, to order a Member whose conduct is grossly disorderly to withdraw immediately from the precincts of the County Assembly on the first occasion, for the remainder of that day’s sitting and on the second or subsequent occasion during the same session, for a maximum of three sitting days including the day of suspension.
The Respondents’ impugned decision is malicious, made in bad faith and amounts to witch-hunt.
The Petitioners reasonably believe that the real mischief behind the impugned decision is to silence them in their quest for good governance and accountability in Migori County Assembly and Migori County Government at large, noting that the Petitioners got wind that the 1st Respondent had the intention of unlawfully diverting County Assemblies Sports Association (CASA) Games funds of KSh.22,459,500/= on the pretext of paying October, 2025 salaries and September, 2025 office operations whereas the Migori County assembly had separately vide another Request Reference Number MIG/REC/VOL.10(17) dated 28.10.2025 requested and indeed received KSh.36,858,194/= for County Assembly Members and Staff Salaries and allowances for the same month of October, 2025.
That as a result of the foregoing, the Petitioners have been unlawfully barred accessing Migori County Assembly and have been unconstitutionally barred from exercising their constitutional mandates of representation, oversight and legislative without following the law and the Constitution and without upholding integrity, transparency and accountability which are mandatory ingredients of good governance.
The Petition is meritorious and raises serious and weighty constitutional issues and has high probability of success; and if the conservatory orders as sought herein are not granted, the Petitioners will suffer irreparable harm and the Petition rendered merely academic.
That it is in the interest of fair administration of justice and fairness that the Petition be determined first and the proceedings in conservatory orders issued to prevent further miscarriage of justice if the Petition is successful.
The application is also supported by the affidavit in support sworn on 13th November 2025 by Samson Olima Obonyo the 1st Petitioner herein who averred that he was well conversant with the facts giving rise to this case and that he was duly authorized by his Co-Petitioner herein as per anexture “SOO - 1” is the Letter of Authority.
That he swore the affidavit on his behalf and on behalf of his Co - Petitioner herein and he brought Petition and the instant application on his behalf and on behalf of his Co - Petitioner in defence of the Constitution and in public interest.
That Article 3 of the Constitution of Kenya provides in mandatory terms that every person has an obligation to respect, uphold and defend this Constitution and the provision of Article 3 binds the Respondents herein.
That vide Request Reference Number MIG/REC/VOL.10(16) dated 21.10.2025 the Migori County Assembly requested and indeed received KSh.22,459,500/= for County Assemblies Sports Association (CASA) Games that was scheduled to be held in Meru County, Kenya from October, 24 to November 1, 2025 in which Migori County Assembly was to participate in several sports disciplines including, Soccer, Volleyball, Netball, Ajua, Badminton, Table Tennis, Pool table, Swimming, Darts, Athletics Beauty Contest and Scrabble.
That however, the sports event was postponed for 3 weeks hence it did not take place as envisaged.
That they got wind that the 1st Respondent had the intention of taking advantage of the postponement of the said CASA Games to unlawfully divert the CASA funds of KSh.22,459,500/= aforestated on the pretext of paying October, 2025 salaries and September, 2025 office operations contrary to Article 228 (4) and (5) of the Constitution and the Public Finance Management Act Chapter 412A of the Laws of Kenya because the Migori County assembly had separately vide another Request Reference Number MIG/REC/VOL.10(17) dated 28.10.2025 requested and indeed received KSh.36,858,194/= for County Assembly Members and Staff Salaries and allowances for the same month of October, 2025.
That the 1st Respondent had also received KSh.2,876,93/= for payment of County Assembly Members & Staff Gratuities for the month of October, 2025 vide Request Reference Number MIG/REC/VOL.10(18) dated 28.10.2025; KSh.3,762,000/= for payment of County Assembly Reissue Ward Offices Standing Imprests for September, 2025 vide Request Reference Number MIG/REC/VOL.10(22) dated 28.10.2025 among other payments.
That upon receiving the information aforesaid they engaged the Interested Party through a proxy as a whistle blower.
That pursuant to the whistle blower’s said complaint, the Interested Party wrote to the 1st Respondent and directed the 1st Respondent not to utilize the funds for the activities that they were not requisitioned and/or intended but the 1st Respondent defiantly proceeded to divert the funds.
That later on 4.11.2025 they attended the Migori County Assembly sitting which was presided by the 1st Respondent.
That the orders of Business were well known in advance through the Order Paper of the day as is the parliamentary practice as per annexture marked “SOO - 2” .
That however, the 1st Respondent with utmost vindictiveness and without any legal right unlawfully and unconstitutionally made an oral communication to the Members of Migori County Assembly to the effect that the Petitioners were both suspended from the County Assembly for 30 days each.
That to found a basis for allegations of misconduct, the 1st Respondent stated that the 1st Petitioner had warned the 2nd Respondent, Mr. Collins Bala, of dire consequences should he proceed to pay Members and staff their October salaries and operational expenses.
That while so doing, the 1st Respondent did not give them the opportunity to defend themselves. That when the 2nd Petitioner rose to inquire why we were not granted a right of reply the 1st Respondent whimsically and arbitrarily enhanced the 2nd Petitioner’s suspension from 30 to 60 days. (Annexed hereto and marked “SOO - 3” is the Hansard).
That the 1st Respondent stated that the Petitioners were to forfeit their sitting allowance; responsibility allowance and also that they were removed from all forums of the Migori County Assembly, including various Committees that they were sitting in.
That there was no motion moved by any member to warrant the impugned decision by the 1st Respondent.
That instead, the 1st Respondent, with utmost partiality and in a manner inconsistent with his office, made unsubstantiated allegations against the Petitioners and proceeded to make the impugned decision thereby becoming a judge in his own cause contrary to the legal principle of nemo judex in causa sua, which is a rule of fundamental component of natural justice, designed to prevent bias and ensure impartiality in legal
and administrative proceedings. That the concomitant effect of the impugned decision is that the 2nd Respondent has now barred them from accessing Migori County Assembly; they had been removed from forums of the Migori County Assembly, including various Committees that they sit in hence they are unable to represent their constituents and perform their constitutional mandates that they were elected to do.
(Annexed hereto and marked “SOO - 4a” and “SOO - 4b” are screenshots of WhatsApp communication and Certificate of Electronic Record respectively
That while making the impugned decision the 1st Respondent cited Standing Orders 1, 104, 105 and 106 of the Standing Orders of the County Assembly of Migori.
That the impugned act of the 1st Respondent of suspending the Petitioners from the Migori County Assembly is not only nonsensical and irrational but unconstitutional and contravenes Articles 47 (1) and 50 (1) of the Constitution which provide respectively that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; and that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
That the impugned suspension contravenes Standing Order No 64 of the Standing Orders of the County Assembly of Migori which mandatorily provides that whenever the Constitution, any written law or the Standing Orders requires the County Assembly to consider a petition or a proposal for the removal of a person from office, the person shall be entitled to appear before the relevant Committee of the County Assembly considering the matter and shall be entitled to legal representation.
That the impugned suspension purporting to suspend the Petitioners from the County Assembly for 30 days and 60 days respectively also contravenes Standing Order No 104 (2) of the Standing Orders of the County Assembly of Migori which only allows the 1st Respondent or the Chairperson of Committees, as the case may be, to order a Member whose conduct is grossly disorderly to withdraw immediately from the precincts of the County Assembly on the first occasion, for the remainder of that day’s sitting and on the second or subsequent occasion during the same session, for a maximum of three sitting days including the day of suspension. (Annexed hereto and marked “SOO - 5” is the Standing Orders of the County Assembly of Migori).
That under Standing Order No 105 which the 1st Respondent also relied on in his impugned decision, it is only a Member who can, on a point of order, invite the 1st Respondent or the Chairperson of Committees to name another Member for grossly disorderly conduct, which was not the case herein.
That demonstrably, the impugned decision was ultra vires the powers of the 1st Respondent.
That in fulfilling their respective mandates, the Respondents are obligated to be guided by the national values and principles of governance in Article 10 of the Constitution and the values and principles of public service in article 232(1) of the Constitution.
That specifically, Article 10 (2) (c) and (d) of the Constitution behoves the Respondents to uphold the national values and principles of governance, which include good governance, integrity, transparency and accountability and sustainable development.
Article 232 (e) on the other hand imbues the Respondents while exercising their respective mandates to have regard to accountability for administrative acts.
That to the contrary, as already demonstrated hereinabove, the Respondents have blatantly violated the foregoing provisions of the Constitution.
That by purporting to suspend the Petitioners from the County Assembly for 30 days and 60 days respectively and referring the matter to the Committee of Powers and Privileges, the 1st Respondent usurped the powers of the said Committee.
That it is only the said Committee of Powers and Privileges that can order for suspension of a member, among other sanctions, under Section 17 (3) (g) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya; and upon granting such a member a hearing hence the 1st Respondent made the impugned decision without any authority and/or power and in a predetermined manner.
That it is also noteworthy that the 1st Respondent, who has demonstrably taken a position in the matter, is the Chairperson of the said Committee of Powers and Privileges under Section 15 (1) (a) of the County Assemblies Powers And Privileges Act Chapter 265C of the Laws of Kenya hence we are reasonably apprehensive that they might not be granted a fair hearing.
That the Respondents’ impugned decision is malicious, made in bad faith and amounts to witch-hunt and the Petitioners reasonably believe that the real mischief behind the impugned decision is to silence them in their quest for good governance and accountability in Migori County Assembly and Migori County Government at large.
That the Respondents have proceeded with their impugned conducts aforementioned with reckless abandon and in total disregard of the Constitution and the relevant laws.
That as a result of the foregoing, the Petitioners have been unlawfully barred from accessing Migori County Assembly and we have been unconstitutionally barred from exercising our constitutional mandates of representation, oversight and legislative without following the law and the Constitution and without upholding integrity, transparency and accountability which are mandatory ingredients of good governance.
That under Article 10 (2) of the Constitution, national values and principles of governance include:
a. patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;
b. human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;
c. good governance, integrity, transparency and accountability; and
d. sustainable development.
That there was no iota of, good governance, integrity, transparency and accountability on the part of the Respondents in arriving at the impugned decision.
That the 1st Respondent does not have the authority and/or power to suspend the Petitioners for 30 days and 60 days respectively as purported.
That the Petitioners are reasonably apprehensive that since the impugned decision has already been made, the referral of the matter to the Committee of Powers and Privileges by the 1st Respondent is a charade for a predetermined outcome to achieve an intended outcome.
That the Respondents are playing with the sensitive and serious matters of governance and behaving in a manner that suggests that they are not accountable to the people of Kenya for their decisions.
That Article 232 (1) on the other hand adumbrates the values and principle of public service to include:
e. high standards of professional ethics;
f. efficient, effective and economic use of resources;
g. responsive, prompt, effective, impartial and equitable provision of services;
h. involvement of the people in the process of policy making;
i. accountability for administrative acts;
j. transparency and provision to the public of timely, accurate information;
k. subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;
l. representation of Kenya’s diverse communities; and
m. affording adequate and equal opportunities for appointment, training and
advancement, at all levels of the public service, of–– (i) men and women;
(ii) the members of all ethnic groups; and (iii) persons with disabilities.
That Article 232 (2) further provides that the values and principles of public service apply to public service in all State organs in both levels of government and all State corporations.
That however, the Respondents in purporting to suspend the Petitioners from Migori County Assembly for 30 days and 60 days respectively have violated the foregoing provisions of the Constitution.
That firstly, the impugned decision does not promote accountability for administrative acts.
That there is no transparency and provision to the public of timely, accurate information.
That demonstrably therefore, the impugned decision does not promote public interest and the interest of the Kenyans at large.
That the Respondents have prejudiced and compromised the Petitioners’ right to fair administrative action by purporting to suspend them from Migori County Assembly for 30 days and 60 days respectively without due regard to the mandatory constitutional provisions aforestated.
That Article 201 provides for the principles of public finance as follows:
“The following principles shall guide all aspects of public finance in the
Republic—
a. there shall be openness and accountability, including public participation in financial matters;
b. the public finance system shall promote an equitable society, and in particular—
(i) the burden of taxation shall be shared fairly;
1. revenue raised nationally shall be shared equitably among national and county governments; and
2. expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;
c. the burden and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;
d. public money shall be used in a prudent and responsible way; and
e.
f. financial management shall be responsible, and fiscal reporting shall be clear.
That Articles 228 (4) and (5) on the other hand respectively provide that the Controller of Budget shall oversee the implementation of the budgets of the national and county governments by authorising withdrawals from public funds under Articles 204, 206 and 207; and that the Controller shall not approve any withdrawal from a public fund unless satisfied that the withdrawal is authorised by law.
That in purporting to divert the CASA Games funds for the activities that they were not requisitioned and/or intended, more so against the advice of the Interested Party, the 1st Respondent violated Articles 201 and 228 (4) and (5) aforestated.
That the Respondents have in effect acted in a manner tantamount to miscarriage of justice and due process.
This application was opposed by the Replying Affidavit sworn by Christopher Odhiambo Rusana in which he averred that he was responding to the application on his behalf and on behalf of the 2nd Respondent.
The 2nd Respondent averred that the entire content of the Petitioners' application and supporting affida
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