'Introduction
1. The Petitioners filed a Petition dated 2nd May 2025. The gravamen of the Petition emanates from a Memorandum dated 9th December 2022 wherein His Excellency President William Ruto, requested the Parliament to embark on constitutional amendments to address implementation of the two thirds gender rule, establish the office of the leader of opposition and entrench into the Constitution certain funds including the Constituency Development Fund, Senate Oversight fund and National Government Affirmative Action fund.
2. Consequently, the Petitioners in the Petition seek the following reliefs:
a) A declaration that the proposed Constitution of Kenya (Amendment) Bill, 2025 is superfluous and redundant and violates Articles 201 (d) & (e) as read with Article 10 (2) (c) & (d) of the Constitution mandating the prudent and responsible use of public resources, good governance and sustainable development.
b) A declaration that the proposed amendments under Article 204A and 204B are inconsistent with the letter and spirit of the Constitution.
c) A declaration that the proposed amendments under Article 204C are constitutionally redundant as the NGAAF is capable of implementation, and is indeed presently being lawfully implemented, within the confines of Article 206(1)(a) of the Constitution.
d) A declaration that the constitutional imperatives under Articles 201(d) & (e) as read with Article 10 (2) (c) & (d) dictate that constitutional amendments should not be initiated to provide for issues that the Constitution already sufficiently considers and makes provision for.
e) A declaration that Parliament bears a positive obligation to sieve proposed constitutional amendments and ensure that the issues sought to be addressed are only those not capable of being adequately addressed within the confines of the existing Constitution so as to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources
f) A declaration that the failure by Parliament to enact a referendum law is a violation of the right to vote in referenda.
g) A declaration that Parliament’s failure to enact a referendum law after 14 years is an abdication of responsibility and, therefore, unconstitutional for violating Articles 10, 94, 95 and 96 of the Constitution.
h) A declaration that the National Assembly and Senate have violated Articles 10, 38, 47, 201, 259(8) and 261 of the Constitution of Kenya for failing to enact a referendum law after 14 years since the promulgation of the Constitution.
i) An order of mandamus be issued to operate as a condition precedent that before any further action can be taken in regard to processing and/or consideration of any constitutional amendments, including the Constitution of Kenya Amendment Act, 2025 (the impugned Bill), Parliament must enact the legislation required under Article 82, and also recommended by this Court, regulating constitutional amendments and referenda.
j) An order of Prohibition restraining the Respondents and any other state agency from introducing in parliament or considering a constitutional amendment bill without a referendum law having been enacted.
k) A declaration that the referendum law enacted by Parliament should among other things ensure that a mechanism is provided for contesting the classification of a Constitution Amendment Bill as either relating to or not relating to the entrenched provisions.
l) A declaration be issued that the Constitution of Kenya Amendment Act, 2025 (the impugned Bill) is unconstitutional for failure to include an explanation on whether the proposed amendments touch on entrenched provisions hence would require approval in a referendum.
m) A structural interdict directing the Respondents to report to the Court after six months to update the Court on the status of compliance with order i and j above.
n) Any other orders this Court deems fit.
3. The Petitioners alongside the Petition filed their Application of even date seeking conservatory orders and empanelment of a bench. The 2nd Respondent in reaction to the Petition filed its Notice of Preliminary Objection dated 20th May 2025.These two are the subject of the instant of the legal brief.
Application
4. The Petitioners in their Notice of Motion application seek orders that:
i. Spent.
ii. Pending the hearing and determination of the Application, a conservatory order do issue suspending the public participation exercise scheduled for 5th May 2025 to 7th May 2025.
iii. Pending the hearing and determination of the Application, a conservatory order do issue restraining the Controller of Budget from approving the withdrawal of any funds for any expenditure related to the conduct of the scheduled public participation.
iv. Pending the hearing and determination of the Petition, a conservatory order do issue suspending the public participation exercise scheduled for 5th May 2025 to 7th May 2025.
v. Pending the hearing and determination of the Petition, a conservatory order do issue prohibiting Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025 to the President for assent.
vi. Pending the hearing and determination of the Petition, a conservatory order do issue restraining the Controller of Budget from approving the withdrawal of any funds for any expenditure related to the conduct of the scheduled public participation.
vii. Pending hearing and determination of the Petition, a conservatory order do issue restraining the President from assenting to the Constitution of Kenya (Amendment) Bill, 2025.
viii. The Court be pleased to certify that the Petition raises substantial questions of law under Article 165(4) of the Constitution warranting the empanelment of an uneven number of judges (not less than three) to hear and determine the matter.
ix. Costs of the application be borne by the respective parties given the public interest nature of this Petition.
5. The application is supported by the 1st Petitioner’s Litigation Manager, Emily Kinama’s affidavit, sworn on even date and the grounds on the face of the application.
6. She depones that the Kenya is currently operating in a constrained fiscal environment which is a threat to the provision of basic services and the realization of rights yet contrary to this context and the constitutional imperatives under Article 10 (2)(c) & (d) and 201 (d) & (e) of the Constitution, the National Assembly has proposed constitutional amendments over matters that are either being lawfully implemented presently or that can rightly be implemented within the confines of the current constitutional framework. She states that the amendments proposed under the Constitution of Kenya (Amendment) Bill, 2025 seek to entrench three funds in the Constitution namely: National Government Constituencies Fund (NGCF), National Government Affirmative Action Fund (NGAAF) and the Senate Oversight Fund (SOF).
7. She avers that the proposed NGAAF is currently being implemented through the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016 while various court decisions, including that of the Supreme Court, have emphasized that the proposed NGCF can lawfully be implemented within the confines of the current Constitution. On the other hand, SOF is presently implemented through the budgetary provisions relating to Parliament under the Constitution.
8. It is asserted that despite this, the National Assembly proceeded to schedule public hearings in all the 290 constituencies and which were set to take place between 5th May and 7th May 2025. She contends that public participation is for an ordinary legislative proposal as opposed to a constitutional amendment. She avers that the exercise which costs between 10 million and 100 million will not only strain the already scarce public resources but is being utilized on a constitutionally superfluous process which runs afoul the established constitutional principles.
9. She equally asserts that the constitutional amendment contemplated under chapter sixteen of the Constitution is an arduous and convoluted process that cannot be undertaken without first setting the guiding statutory and procedural rubric. It is highlighted that the timelines within which such legislation was to be passed as per Article 261 of the Constitution, as read together with the fifth schedule of the Constitution, was within 5 years from the date of promulgation of the Constitution which was not done. It is stated that when the impugned Memorandum was issued, the President knew that there was no legislation governing the process.
10. Consequently, she avers that the first step ought to have been requesting Parliament to enact the legislation. More so since lack of legislation has created a gap in how referenda is to be understood and conducted. Accordingly, it is stressed that Parliament, by initiating an amendment to the Constitution before passing the required legislation on referenda overlooked the constitutional requirement to enact legislation governing the constitutional amendment process.
11. It is postulated that if the sought orders are not issued the Petition will be rendered nugatory because, the constitutional obligation and commandment to use public resources prudently will be violated, the superfluous and redundant provisions that are inconsistent and in disharmony with the letter and spirit of the Constitution will be passed and assented to, the Constitution will be amended without a referendum law that sets out legal safeguards and procedures on amending the Constitution, the Constitution of Kenya (Amendment) Bill, will be passed without a referendum, yet it contains amendments touching on entrenched provisions that require one, the Constitution of Kenya (Amendment) Bill, will be passed and assented to and will not be subject to a challenge before any Court of law and public resources once used in the public participation exercise cannot be recovered.
12. Furthermore, it is argued that Petition raises substantial questions warranting the empanelment of a bench of an uneven number of judges as follows:
i. Whether the Constitution can be amended to introduce amendments which conflict with existing constitutional provisions and principles.
ii. Whether constitutional amendments can be initiated to provide for issues that the Constitution sufficiently considers and makes provision for.
iii. Whether Parliament bears a positive obligation to sieve proposed constitutional amendments and make a determination on whether the issues sought to be addressed through the proposed amendments are capable of being adequately addressed within the confines of the existing the Constitution so as to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources.
iv. Whether a constitutional amendment can be initiated, considered and passed without a referendum law to govern the process.
v. Whether the memorandum accompanying a constitutional amendment bill should declare whether the bill touches on the entrenched provisions, hence should be subjected to a referendum.
vi. Whether the referendum law should provide for a mechanism for contesting the classification of an amendment Bill as either relating to or not relating to the entrenched provisions.
1st Respondent’s case
13. The 2nd Respondent in rejoinder filed grounds of opposition dated 12th May 2025 on the basis that:
i. The prayers sought under (b) and (d) have been overtaken by events.
ii. Prayers (c), (e), (f), and (g) are inviting the Court to venture into the constitutional mandates of other arms of government in violation of the principle of separation of powers.
iii. The Application does not disclose with the requisite specificity, the right violated by the Respondents.
iv. The Application is premature as the same is based on mere suspicion rather than actual violation.
v. The Application is frivolous, vexatious, incompetent and improperly before court and an abuse of the Court process.
2nd Respondent’s Case
14. The 2nd Respondent in rebuttal filed its Replying Affidavit through its Clerk, Samuel Njoroge, C.B.S sworn on 29th May 2025.
15. On a preliminary note, he avers that the Petitioners failed to exhaust the remedies provided under Article 119 of the Constitution to the Petition Parliament if aggrieved by its decision. He notes that the Petitions to Parliament (Procedure) Act provides the procedure to be followed by an aggrieved person, which the Petitioners did not utilize. On this premise, Counsel argued that this Court lacks jurisdiction to entertain this matter.
16. It is further stated that Parliament has the unfettered constitutional mandate to legislate. In this case, in line with Article 256(2) of the Constitution, the 2nd Respondent has been collecting views from the public. He points out that this Article provides for the amendment of the Constitution through a Parliamentary initiative.
17. He depones that the Constitution of Kenya (Amendment)Bill, was read for the first time in the 2nd Respondent on 12th March 2025 and thereafter committed to the Departmental Committee on Justice and Legal Affairs for consideration and facilitation of public participation. Members of the public were invited to issue their memoranda on 15th March 2025. Additionally, public hearings on the Bill were conducted between 5th and 9th May 2025. At the time of making this response, he informs that the Committee was still receiving views and memorandum from the public concerning the Bill.
18. He depones also that at the time the impugned Bill was yet to be read for a second time before the 2nd Respondent and legislative process completed. By virtue of this, the Petition is adjudged to be premature and Petitioner’s apprehensions unfounded as the Bill is in its infancy.
19. Moreover, he argues that the Petition violates the principle of separation of powers by seeking to have this Court interfere with the constitutional mandate of the Respondents. Considering this, the Court is urged to exercise judicial restraint in this matter. Additionally, he argues that the Petitioners rights as against those of the public lies in favour of the general public.
20. It is asserted that before the Petitioners can be granted conservatory orders they must satisfy the set threshold. That is a prima facie case and unless the orders are granted the matter would be rendered nugatory. It is contended that a prima facie case has not been established as Article 256 of the Constitution lays down the process for the amendment of the Constitution by Parliamentary initiative. As such, it is argued that the Petitioners have not laid down a basis for any apprehension that the Petition will be rendered nugatory. Likewise, it was underscored that it is in public interest that the Respondents continue to carry put their constitutional mandate.
The Preliminary Objection
21. The 2nd Respondent in its Notice of Preliminary Objection opposes the Petition on the grounds that:
i. The instant Application and Petition which seeks to interfere with the legislative mandate of the National Assembly under 95 (3) and 256 (1) (a) of the Constitution and is therefore defective. The Petition seeks to influence the decision of the National Assembly to accede to the demands of the Petitioner in contravention of Article 1 (3), (4) and Article 2 (1) of the Constitution.
ii. The Petitioners’ Notice of Motion and Petition are not justiciable for violating the doctrine of ripeness. The Constitution of Kenya (Amendment) Bill, 2025 (hereinafter ‘the Bill) is still undergoing the legislative process hence the Petitioner is yet to exhaust the avenues for redress and has a forum to air its views on the Bill through the public participation forum and is therefore prematurely before this Court.
iii. The Notice of Motion application and Petition herein violate the Constitution which requires public participation in legislative processes under Article 1(3), (4), 10, 118 and 256 of the Constitution. Article 256 (2) provides: “(2) Parliament shall publicise any Bill to amend this Constitution, and facilitate public discussion about the Bill.”
iv. The Petitioners’ Notice of Motion and Petition are based on speculation and address potential future scenarios rather than current or likely events regarding the passage of the Constitution of Kenya (Amendment) Bill, 2025. The Court should exercise restraint and refrain from engaging in the uncertain prediction of the success of the Constitution of Kenya (Amendment Bill), 2025. It is essential to allow the National Assembly to fulfil its legislative duties without unnecessary interference, in accordance with the doctrine of avoidance. As such, the application and petition herein is unconstitutional is speculative and lacks legal basis.
v. The jurisdiction of this Court to determine challenges to constitutionality of a Bill under Article 165(3) (d) of the Constitution are limited to challenges to a Bill often focused to procedural irregularities such as lack of public participation, violation of legislative processes or failure to meet constitutional requirements before enactment. As held by the Supreme Court of Kenya in Senate of The Republic of Kenya & 3 others v Speaker of The National Assembly of The Republic of Kenya & 10 others; Fund Board (Interested Party) (Petition 19(E027) of 2021) [2022] KESC 20 (KLR) (Paragraph 157).
vi. This Court lacks jurisdiction to interrogate the constitutionality of the substantive provisions of the Constitution of Kenya (Amendment) Bill (National Assembly Bill No. 4 of 2025) before its enactment. (As held by the Supreme Court of Kenya in Senate of The Republic of Kenya & 3 others v Speaker of The National Assembly of The Republic of Kenya & 10 others; Fund Board (Interested Party) (Petition 19(E027) of 2021) [2022] KESC 20 (KLR) (Paragraph 157).
vii. The Petitioner’s application violates the principle of separation of powers under Articles 1(3) and 175(a) which provides that no person shall direct another in the performance of their duties by purporting to use judicial craft to compel the National Assembly not to involve Members of the Public in their consideration of their legislative mandate contrary to Article 10 and 118 of the Constitution.
viii. The Application and Petition herein violate the provisions of Article 1 (3) and 4; Article 2 (2); Article 95 (3); Article 118 and Article 256 of the Constitution which provide for the exercise of sovereign power through Parliament and the facilitation of public discussion on a bill under Article 256 of the Constitution.
ix. The orders sought herein violate the Constitution, as they attempt to usurp the powers of the National Assembly to propose constitutional amendments through a Parliamentary Initiative under Articles 95 and 256 of the Constitution.
x. In light of the foregoing, the Petition and the Application herein are bad in law, frivolous, vexatious and an abuse of the court process and liable to be struck out by this Court with costs to the 2nd Respondent.
Other Parties Case
22. There were no responses to the Application both in the Court file and the online Court platform (CTS) by the rest of the Parties that are named in the Petition.
Petitioner’s Submissions
23. The Petitioner filed submissions dated 3rd June 2025 through their Counsel, Joshua Malidzo Nyawa who identified the issues for determination as: whether this Court has jurisdiction to hear and determine the Application and the Petition, whether the Applicants have met the threshold to warrant this court to grant conservatory orders and whether the Applicant has met the test for certification under Article 165(4) of the Constitution.
24. Counsel referring to the 2nd Respondent’s Preliminary Objection in the first issue submitted that the Objection lacks merit as only the High Court can determine the constitutionality of an action and not the 2nd Respondent as advanced by purportedly seeking to rely on Article 119 of the Constitution. Counsel submitted that this Article does not oust the jurisdiction of the Court and that this Court should not abdicate its role.
25. Reliance was placed on William Odhiambo Ramogi & 3 others v Attorney-General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR where it was held that:
“Where a suit primarily seeks to enforce fundamental rights and freedoms, and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
26. Comparable dependence was placed on NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR), Independent Electoral & Boundaries Commission Vs. Jane Cheperenger & Two Others [2015] eKLR and Nicholus Abidha v Attorney-General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR).
27. On ripeness and separation of powers, Counsel submitted that the doctrine of ripeness is a pre-2010 doctrine and so must be read in line with Articles 22 and 258 of the Constitution which allow parties to approach the Court when there is a threat to the Constitution. As such, Kenyans can approach Court before the harm has crystallized. Counsel stressed that the instant Petition and Application demonstrate crystallization and looming threats to the Constitution.
28. Counsel underscored that this was also the finding of this Court in HCCHRPET/E269/2025 Kelvin Roy Omondi and Bonface Mwangi Vs National Assembly and Chief Of Staff & Head Of Public Service And 8 Others where it was held that:
“Under the Constitution, even a threat to violation of the Constitution can be actionable if it is demonstrated that the threat is imminent, is real and is not imaginary or fictional. The set of facts or circumstances relied upon must credibly demonstrate the looming threat of violation.”
29. Like dependence was placed in Aperera v Officer Commanding Langata Police Station & 2 others; Maina (Interested Party) [2025] KEHC 4472 (KLR).
30. Counsel further argued that Parliament cannot be shielded from the reach of the Constitution as long as acts outside the constitutional limits. Reliance was placed in Doctors for Life International v Speaker of the National Assembly and Others (CCT 12/05) [2006] ZACC 11 where it was held that:
“under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled.’ Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations.”
31. Like dependence was placed in the Matter of the Speaker of the Senate & another [2013] eKLR.
32. Moving on to the second issue, Counsel submitted that the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014]eKLR guided that to obtain a conservatory order, an applicant must show that the petition is arguable and not frivolous, unless the conservatory order is granted, the petition would be rendered nugatory, and that it is in the public interest that the order be granted.
33. Comparable dependence was placed in Mwangi Wa Iria & 2 others v Speaker Murang’a County Assembly & 3 others[2015] eKLR, Nkunja v Magistrates and Judges Vetting Board & another (Petition 154 of 2016) [2016] KEHC 7269 (KLR), Centre for Human Rights Education and Awareness (CREAW) & 7 others v Attorney-General (2011) eKLR, Kevin K Mwiti & others v Kenya School of Law & others [2015] eKLR, saiah Luyara Odando & another v Kenya Revenue Authority & 6 others; Nairobi Branch Law Society of Kenya (Interested party) [2022] eKLR, etition No. E031 Of 2024 As Consolidated with Petitions Nos. E032 & E033 Of 2024, The Cabinet Secretary For The National Treasury And Planning and others vs Okiya Omtata and others, and Dari Limited & 5 Others vs. East African Development Bank Petition (Application) No. E012 of 2023 and Application No. E017 of 2023.
34. In this matter, Counsel submitted that the Petitioners had demonstrated various arguable constitutional issues which have a likelihood of success being whether the Constitution can be amended to introduce amendments which conflict with existing constitutional provisions and principles, whether constitutional amendments can be initiated to provide for issues that the Constitution sufficiently considers and makes provision for, whether Parliament bears a positive obligation to sieve proposed constitutional amendments and make a determination on whether the issues sought to be addressed through the proposed amendments are capable of being adequately addressed within the confines of the existing the Constitution so as to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources, whether a constitutional amendment can be initiated, considered and passed without a referendum law to govern the process, whether the memorandum accompanying a constitutional amendment bill should declare whether the bill touches on the entrenched provisions, hence should be subjected to a referendum, whether the referendum law should provide for a mechanism for contesting the classification of an amendment Bill as either relating to or not relating to the entrenched provisions and whether the failure to enact a referendum law amounts to a violation of the right to vote under Article 38 of the Constitution.
35. Counsel submitted that if the orders are not issued the Petition would be rendered nugatory as amendments passed become part of the Constitution and therefore immune to a challenge before any court of law. Counsel further contended that there is no greater public interest than observing strict adherence to the Constitution. In this case, it was argued that the constitutional amendments are issues of great public interest.
36. Reliance was placed in David Ndii & others v Attorney General & others [2021] eKLR where it was held that:
“It is however argued that in the event that the President takes the view that the said Bill does not touch on the protected articles of the Constitution that requires a referendum, he may well proceed to assent to the same thus triggering article 2(3) of the Constitution. Article 2(3) provides that:
The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
34.This constitutional provision has the effect of insulating the validity or legality of the Constitution from being questioned before a court of law. As to whether questioning the process leading to the presidential assent to a Constitutional Amendment Bill once given is the same as challenging the validity or legality of the Constitution, is again a matter that is not properly before us in the consolidated petitions. While the parties herein are not all agreed as to the effect of the presidential assent, the Applicants’ apprehensions are not unfounded: the applicants are simply saying that the view that presidential assent might inoculate the new constitutional amendments from legal challenge is a reasonable one which may well prevail hence irrevocably defeating the core of their claims in the consolidated petitions before this court. It is a risk, they essentially argue, that they are not willing to take given the implications for the Constitution and the prevailing Social Contract Kenyans have with the State.
35. The respondents, however, contend that the application is premature and speculative as there is no evidence that the president conducted himself in such a manner as to clearly indicate that he will not seek the constitutionally required approval of the people in a national referendum, when circumstances require that he so does. In other words, it is contended that no crystallised threat is, as yet, evident.
36. In our view, a relief based on a threat of contravention of the Constitution or violation of a fundamental right or freedom cannot be denied simply on the basis that the supplicant has not proved that the respondent intends to violate the Constitution or fundamental rights and freedoms. As long as a person presents reasonable apprehension based on credible evidence of the likelihood of the impugned action and where the apprehended happening is likely to lead to irreparable or irrevocable consequences if they were to occur, this court cannot overlook that apprehension that hat the Constitution is likely to be violated or that person’s fundamental rights and freedoms are likely to be contravened. The court ought not just twiddle its thumbs or wring its hands and mutter, perhaps breathlessly, that the court is helpless as long as the respondent has not given any indication that he intends to contravene the Constitution or violate the fundamental rights or freedoms of that person. Where it is credibly demonstrated, as has been done in this court, whether rightly or wrongly, that the respondent has two options, one of which if taken is likely to lead to the apprehensions coming to reality, in our view, it would be better for the court to err on the side of caution. The case for this course of action is strengthened where, as here, no serious prejudice – other than passage of time – is visited on the respondent.”
37. On the final issue, Counsel submitted that the Petitioners had clearly set out the substantial questions attributable to
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1. The Petitioners filed a Petition dated 2nd May 2025. The gravamen of the Petition emanates from a Memorandum dated 9th December 2022 wherein His Excellency President William Ruto, requested the Parliament to embark on constitutional amendments to address implementation of the two thirds gender rule, establish the office of the leader of opposition and entrench into the Constitution certain funds including the Constituency Development Fund, Senate Oversight fund and National Government Affirmative Action fund.
2. Consequently, the Petitioners in the Petition seek the following reliefs:
a) A declaration that the proposed Constitution of Kenya (Amendment) Bill, 2025 is superfluous and redundant and violates Articles 201 (d) & (e) as read with Article 10 (2) (c) & (d) of the Constitution mandating the prudent and responsible use of public resources, good governance and sustainable development.
b) A declaration that the proposed amendments under Article 204A and 204B are inconsistent with the letter and spirit of the Constitution.
c) A declaration that the proposed amendments under Article 204C are constitutionally redundant as the NGAAF is capable of implementation, and is indeed presently being lawfully implemented, within the confines of Article 206(1)(a) of the Constitution.
d) A declaration that the constitutional imperatives under Articles 201(d) & (e) as read with Article 10 (2) (c) & (d) dictate that constitutional amendments should not be initiated to provide for issues that the Constitution already sufficiently considers and makes provision for.
e) A declaration that Parliament bears a positive obligation to sieve proposed constitutional amendments and ensure that the issues sought to be addressed are only those not capable of being adequately addressed within the confines of the existing Constitution so as to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources
f) A declaration that the failure by Parliament to enact a referendum law is a violation of the right to vote in referenda.
g) A declaration that Parliament’s failure to enact a referendum law after 14 years is an abdication of responsibility and, therefore, unconstitutional for violating Articles 10, 94, 95 and 96 of the Constitution.
h) A declaration that the National Assembly and Senate have violated Articles 10, 38, 47, 201, 259(8) and 261 of the Constitution of Kenya for failing to enact a referendum law after 14 years since the promulgation of the Constitution.
i) An order of mandamus be issued to operate as a condition precedent that before any further action can be taken in regard to processing and/or consideration of any constitutional amendments, including the Constitution of Kenya Amendment Act, 2025 (the impugned Bill), Parliament must enact the legislation required under Article 82, and also recommended by this Court, regulating constitutional amendments and referenda.
j) An order of Prohibition restraining the Respondents and any other state agency from introducing in parliament or considering a constitutional amendment bill without a referendum law having been enacted.
k) A declaration that the referendum law enacted by Parliament should among other things ensure that a mechanism is provided for contesting the classification of a Constitution Amendment Bill as either relating to or not relating to the entrenched provisions.
l) A declaration be issued that the Constitution of Kenya Amendment Act, 2025 (the impugned Bill) is unconstitutional for failure to include an explanation on whether the proposed amendments touch on entrenched provisions hence would require approval in a referendum.
m) A structural interdict directing the Respondents to report to the Court after six months to update the Court on the status of compliance with order i and j above.
n) Any other orders this Court deems fit.
3. The Petitioners alongside the Petition filed their Application of even date seeking conservatory orders and empanelment of a bench. The 2nd Respondent in reaction to the Petition filed its Notice of Preliminary Objection dated 20th May 2025.These two are the subject of the instant of the legal brief.
Application
4. The Petitioners in their Notice of Motion application seek orders that:
i. Spent.
ii. Pending the hearing and determination of the Application, a conservatory order do issue suspending the public participation exercise scheduled for 5th May 2025 to 7th May 2025.
iii. Pending the hearing and determination of the Application, a conservatory order do issue restraining the Controller of Budget from approving the withdrawal of any funds for any expenditure related to the conduct of the scheduled public participation.
iv. Pending the hearing and determination of the Petition, a conservatory order do issue suspending the public participation exercise scheduled for 5th May 2025 to 7th May 2025.
v. Pending the hearing and determination of the Petition, a conservatory order do issue prohibiting Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025 to the President for assent.
vi. Pending the hearing and determination of the Petition, a conservatory order do issue restraining the Controller of Budget from approving the withdrawal of any funds for any expenditure related to the conduct of the scheduled public participation.
vii. Pending hearing and determination of the Petition, a conservatory order do issue restraining the President from assenting to the Constitution of Kenya (Amendment) Bill, 2025.
viii. The Court be pleased to certify that the Petition raises substantial questions of law under Article 165(4) of the Constitution warranting the empanelment of an uneven number of judges (not less than three) to hear and determine the matter.
ix. Costs of the application be borne by the respective parties given the public interest nature of this Petition.
5. The application is supported by the 1st Petitioner’s Litigation Manager, Emily Kinama’s affidavit, sworn on even date and the grounds on the face of the application.
6. She depones that the Kenya is currently operating in a constrained fiscal environment which is a threat to the provision of basic services and the realization of rights yet contrary to this context and the constitutional imperatives under Article 10 (2)(c) & (d) and 201 (d) & (e) of the Constitution, the National Assembly has proposed constitutional amendments over matters that are either being lawfully implemented presently or that can rightly be implemented within the confines of the current constitutional framework. She states that the amendments proposed under the Constitution of Kenya (Amendment) Bill, 2025 seek to entrench three funds in the Constitution namely: National Government Constituencies Fund (NGCF), National Government Affirmative Action Fund (NGAAF) and the Senate Oversight Fund (SOF).
7. She avers that the proposed NGAAF is currently being implemented through the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016 while various court decisions, including that of the Supreme Court, have emphasized that the proposed NGCF can lawfully be implemented within the confines of the current Constitution. On the other hand, SOF is presently implemented through the budgetary provisions relating to Parliament under the Constitution.
8. It is asserted that despite this, the National Assembly proceeded to schedule public hearings in all the 290 constituencies and which were set to take place between 5th May and 7th May 2025. She contends that public participation is for an ordinary legislative proposal as opposed to a constitutional amendment. She avers that the exercise which costs between 10 million and 100 million will not only strain the already scarce public resources but is being utilized on a constitutionally superfluous process which runs afoul the established constitutional principles.
9. She equally asserts that the constitutional amendment contemplated under chapter sixteen of the Constitution is an arduous and convoluted process that cannot be undertaken without first setting the guiding statutory and procedural rubric. It is highlighted that the timelines within which such legislation was to be passed as per Article 261 of the Constitution, as read together with the fifth schedule of the Constitution, was within 5 years from the date of promulgation of the Constitution which was not done. It is stated that when the impugned Memorandum was issued, the President knew that there was no legislation governing the process.
10. Consequently, she avers that the first step ought to have been requesting Parliament to enact the legislation. More so since lack of legislation has created a gap in how referenda is to be understood and conducted. Accordingly, it is stressed that Parliament, by initiating an amendment to the Constitution before passing the required legislation on referenda overlooked the constitutional requirement to enact legislation governing the constitutional amendment process.
11. It is postulated that if the sought orders are not issued the Petition will be rendered nugatory because, the constitutional obligation and commandment to use public resources prudently will be violated, the superfluous and redundant provisions that are inconsistent and in disharmony with the letter and spirit of the Constitution will be passed and assented to, the Constitution will be amended without a referendum law that sets out legal safeguards and procedures on amending the Constitution, the Constitution of Kenya (Amendment) Bill, will be passed without a referendum, yet it contains amendments touching on entrenched provisions that require one, the Constitution of Kenya (Amendment) Bill, will be passed and assented to and will not be subject to a challenge before any Court of law and public resources once used in the public participation exercise cannot be recovered.
12. Furthermore, it is argued that Petition raises substantial questions warranting the empanelment of a bench of an uneven number of judges as follows:
i. Whether the Constitution can be amended to introduce amendments which conflict with existing constitutional provisions and principles.
ii. Whether constitutional amendments can be initiated to provide for issues that the Constitution sufficiently considers and makes provision for.
iii. Whether Parliament bears a positive obligation to sieve proposed constitutional amendments and make a determination on whether the issues sought to be addressed through the proposed amendments are capable of being adequately addressed within the confines of the existing the Constitution so as to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources.
iv. Whether a constitutional amendment can be initiated, considered and passed without a referendum law to govern the process.
v. Whether the memorandum accompanying a constitutional amendment bill should declare whether the bill touches on the entrenched provisions, hence should be subjected to a referendum.
vi. Whether the referendum law should provide for a mechanism for contesting the classification of an amendment Bill as either relating to or not relating to the entrenched provisions.
1st Respondent’s case
13. The 2nd Respondent in rejoinder filed grounds of opposition dated 12th May 2025 on the basis that:
i. The prayers sought under (b) and (d) have been overtaken by events.
ii. Prayers (c), (e), (f), and (g) are inviting the Court to venture into the constitutional mandates of other arms of government in violation of the principle of separation of powers.
iii. The Application does not disclose with the requisite specificity, the right violated by the Respondents.
iv. The Application is premature as the same is based on mere suspicion rather than actual violation.
v. The Application is frivolous, vexatious, incompetent and improperly before court and an abuse of the Court process.
2nd Respondent’s Case
14. The 2nd Respondent in rebuttal filed its Replying Affidavit through its Clerk, Samuel Njoroge, C.B.S sworn on 29th May 2025.
15. On a preliminary note, he avers that the Petitioners failed to exhaust the remedies provided under Article 119 of the Constitution to the Petition Parliament if aggrieved by its decision. He notes that the Petitions to Parliament (Procedure) Act provides the procedure to be followed by an aggrieved person, which the Petitioners did not utilize. On this premise, Counsel argued that this Court lacks jurisdiction to entertain this matter.
16. It is further stated that Parliament has the unfettered constitutional mandate to legislate. In this case, in line with Article 256(2) of the Constitution, the 2nd Respondent has been collecting views from the public. He points out that this Article provides for the amendment of the Constitution through a Parliamentary initiative.
17. He depones that the Constitution of Kenya (Amendment)Bill, was read for the first time in the 2nd Respondent on 12th March 2025 and thereafter committed to the Departmental Committee on Justice and Legal Affairs for consideration and facilitation of public participation. Members of the public were invited to issue their memoranda on 15th March 2025. Additionally, public hearings on the Bill were conducted between 5th and 9th May 2025. At the time of making this response, he informs that the Committee was still receiving views and memorandum from the public concerning the Bill.
18. He depones also that at the time the impugned Bill was yet to be read for a second time before the 2nd Respondent and legislative process completed. By virtue of this, the Petition is adjudged to be premature and Petitioner’s apprehensions unfounded as the Bill is in its infancy.
19. Moreover, he argues that the Petition violates the principle of separation of powers by seeking to have this Court interfere with the constitutional mandate of the Respondents. Considering this, the Court is urged to exercise judicial restraint in this matter. Additionally, he argues that the Petitioners rights as against those of the public lies in favour of the general public.
20. It is asserted that before the Petitioners can be granted conservatory orders they must satisfy the set threshold. That is a prima facie case and unless the orders are granted the matter would be rendered nugatory. It is contended that a prima facie case has not been established as Article 256 of the Constitution lays down the process for the amendment of the Constitution by Parliamentary initiative. As such, it is argued that the Petitioners have not laid down a basis for any apprehension that the Petition will be rendered nugatory. Likewise, it was underscored that it is in public interest that the Respondents continue to carry put their constitutional mandate.
The Preliminary Objection
21. The 2nd Respondent in its Notice of Preliminary Objection opposes the Petition on the grounds that:
i. The instant Application and Petition which seeks to interfere with the legislative mandate of the National Assembly under 95 (3) and 256 (1) (a) of the Constitution and is therefore defective. The Petition seeks to influence the decision of the National Assembly to accede to the demands of the Petitioner in contravention of Article 1 (3), (4) and Article 2 (1) of the Constitution.
ii. The Petitioners’ Notice of Motion and Petition are not justiciable for violating the doctrine of ripeness. The Constitution of Kenya (Amendment) Bill, 2025 (hereinafter ‘the Bill) is still undergoing the legislative process hence the Petitioner is yet to exhaust the avenues for redress and has a forum to air its views on the Bill through the public participation forum and is therefore prematurely before this Court.
iii. The Notice of Motion application and Petition herein violate the Constitution which requires public participation in legislative processes under Article 1(3), (4), 10, 118 and 256 of the Constitution. Article 256 (2) provides: “(2) Parliament shall publicise any Bill to amend this Constitution, and facilitate public discussion about the Bill.”
iv. The Petitioners’ Notice of Motion and Petition are based on speculation and address potential future scenarios rather than current or likely events regarding the passage of the Constitution of Kenya (Amendment) Bill, 2025. The Court should exercise restraint and refrain from engaging in the uncertain prediction of the success of the Constitution of Kenya (Amendment Bill), 2025. It is essential to allow the National Assembly to fulfil its legislative duties without unnecessary interference, in accordance with the doctrine of avoidance. As such, the application and petition herein is unconstitutional is speculative and lacks legal basis.
v. The jurisdiction of this Court to determine challenges to constitutionality of a Bill under Article 165(3) (d) of the Constitution are limited to challenges to a Bill often focused to procedural irregularities such as lack of public participation, violation of legislative processes or failure to meet constitutional requirements before enactment. As held by the Supreme Court of Kenya in Senate of The Republic of Kenya & 3 others v Speaker of The National Assembly of The Republic of Kenya & 10 others; Fund Board (Interested Party) (Petition 19(E027) of 2021) [2022] KESC 20 (KLR) (Paragraph 157).
vi. This Court lacks jurisdiction to interrogate the constitutionality of the substantive provisions of the Constitution of Kenya (Amendment) Bill (National Assembly Bill No. 4 of 2025) before its enactment. (As held by the Supreme Court of Kenya in Senate of The Republic of Kenya & 3 others v Speaker of The National Assembly of The Republic of Kenya & 10 others; Fund Board (Interested Party) (Petition 19(E027) of 2021) [2022] KESC 20 (KLR) (Paragraph 157).
vii. The Petitioner’s application violates the principle of separation of powers under Articles 1(3) and 175(a) which provides that no person shall direct another in the performance of their duties by purporting to use judicial craft to compel the National Assembly not to involve Members of the Public in their consideration of their legislative mandate contrary to Article 10 and 118 of the Constitution.
viii. The Application and Petition herein violate the provisions of Article 1 (3) and 4; Article 2 (2); Article 95 (3); Article 118 and Article 256 of the Constitution which provide for the exercise of sovereign power through Parliament and the facilitation of public discussion on a bill under Article 256 of the Constitution.
ix. The orders sought herein violate the Constitution, as they attempt to usurp the powers of the National Assembly to propose constitutional amendments through a Parliamentary Initiative under Articles 95 and 256 of the Constitution.
x. In light of the foregoing, the Petition and the Application herein are bad in law, frivolous, vexatious and an abuse of the court process and liable to be struck out by this Court with costs to the 2nd Respondent.
Other Parties Case
22. There were no responses to the Application both in the Court file and the online Court platform (CTS) by the rest of the Parties that are named in the Petition.
Petitioner’s Submissions
23. The Petitioner filed submissions dated 3rd June 2025 through their Counsel, Joshua Malidzo Nyawa who identified the issues for determination as: whether this Court has jurisdiction to hear and determine the Application and the Petition, whether the Applicants have met the threshold to warrant this court to grant conservatory orders and whether the Applicant has met the test for certification under Article 165(4) of the Constitution.
24. Counsel referring to the 2nd Respondent’s Preliminary Objection in the first issue submitted that the Objection lacks merit as only the High Court can determine the constitutionality of an action and not the 2nd Respondent as advanced by purportedly seeking to rely on Article 119 of the Constitution. Counsel submitted that this Article does not oust the jurisdiction of the Court and that this Court should not abdicate its role.
25. Reliance was placed on William Odhiambo Ramogi & 3 others v Attorney-General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR where it was held that:
“Where a suit primarily seeks to enforce fundamental rights and freedoms, and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
26. Comparable dependence was placed on NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR), Independent Electoral & Boundaries Commission Vs. Jane Cheperenger & Two Others [2015] eKLR and Nicholus Abidha v Attorney-General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR).
27. On ripeness and separation of powers, Counsel submitted that the doctrine of ripeness is a pre-2010 doctrine and so must be read in line with Articles 22 and 258 of the Constitution which allow parties to approach the Court when there is a threat to the Constitution. As such, Kenyans can approach Court before the harm has crystallized. Counsel stressed that the instant Petition and Application demonstrate crystallization and looming threats to the Constitution.
28. Counsel underscored that this was also the finding of this Court in HCCHRPET/E269/2025 Kelvin Roy Omondi and Bonface Mwangi Vs National Assembly and Chief Of Staff & Head Of Public Service And 8 Others where it was held that:
“Under the Constitution, even a threat to violation of the Constitution can be actionable if it is demonstrated that the threat is imminent, is real and is not imaginary or fictional. The set of facts or circumstances relied upon must credibly demonstrate the looming threat of violation.”
29. Like dependence was placed in Aperera v Officer Commanding Langata Police Station & 2 others; Maina (Interested Party) [2025] KEHC 4472 (KLR).
30. Counsel further argued that Parliament cannot be shielded from the reach of the Constitution as long as acts outside the constitutional limits. Reliance was placed in Doctors for Life International v Speaker of the National Assembly and Others (CCT 12/05) [2006] ZACC 11 where it was held that:
“under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled.’ Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations.”
31. Like dependence was placed in the Matter of the Speaker of the Senate & another [2013] eKLR.
32. Moving on to the second issue, Counsel submitted that the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014]eKLR guided that to obtain a conservatory order, an applicant must show that the petition is arguable and not frivolous, unless the conservatory order is granted, the petition would be rendered nugatory, and that it is in the public interest that the order be granted.
33. Comparable dependence was placed in Mwangi Wa Iria & 2 others v Speaker Murang’a County Assembly & 3 others[2015] eKLR, Nkunja v Magistrates and Judges Vetting Board & another (Petition 154 of 2016) [2016] KEHC 7269 (KLR), Centre for Human Rights Education and Awareness (CREAW) & 7 others v Attorney-General (2011) eKLR, Kevin K Mwiti & others v Kenya School of Law & others [2015] eKLR, saiah Luyara Odando & another v Kenya Revenue Authority & 6 others; Nairobi Branch Law Society of Kenya (Interested party) [2022] eKLR, etition No. E031 Of 2024 As Consolidated with Petitions Nos. E032 & E033 Of 2024, The Cabinet Secretary For The National Treasury And Planning and others vs Okiya Omtata and others, and Dari Limited & 5 Others vs. East African Development Bank Petition (Application) No. E012 of 2023 and Application No. E017 of 2023.
34. In this matter, Counsel submitted that the Petitioners had demonstrated various arguable constitutional issues which have a likelihood of success being whether the Constitution can be amended to introduce amendments which conflict with existing constitutional provisions and principles, whether constitutional amendments can be initiated to provide for issues that the Constitution sufficiently considers and makes provision for, whether Parliament bears a positive obligation to sieve proposed constitutional amendments and make a determination on whether the issues sought to be addressed through the proposed amendments are capable of being adequately addressed within the confines of the existing the Constitution so as to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources, whether a constitutional amendment can be initiated, considered and passed without a referendum law to govern the process, whether the memorandum accompanying a constitutional amendment bill should declare whether the bill touches on the entrenched provisions, hence should be subjected to a referendum, whether the referendum law should provide for a mechanism for contesting the classification of an amendment Bill as either relating to or not relating to the entrenched provisions and whether the failure to enact a referendum law amounts to a violation of the right to vote under Article 38 of the Constitution.
35. Counsel submitted that if the orders are not issued the Petition would be rendered nugatory as amendments passed become part of the Constitution and therefore immune to a challenge before any court of law. Counsel further contended that there is no greater public interest than observing strict adherence to the Constitution. In this case, it was argued that the constitutional amendments are issues of great public interest.
36. Reliance was placed in David Ndii & others v Attorney General & others [2021] eKLR where it was held that:
“It is however argued that in the event that the President takes the view that the said Bill does not touch on the protected articles of the Constitution that requires a referendum, he may well proceed to assent to the same thus triggering article 2(3) of the Constitution. Article 2(3) provides that:
The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.
34.This constitutional provision has the effect of insulating the validity or legality of the Constitution from being questioned before a court of law. As to whether questioning the process leading to the presidential assent to a Constitutional Amendment Bill once given is the same as challenging the validity or legality of the Constitution, is again a matter that is not properly before us in the consolidated petitions. While the parties herein are not all agreed as to the effect of the presidential assent, the Applicants’ apprehensions are not unfounded: the applicants are simply saying that the view that presidential assent might inoculate the new constitutional amendments from legal challenge is a reasonable one which may well prevail hence irrevocably defeating the core of their claims in the consolidated petitions before this court. It is a risk, they essentially argue, that they are not willing to take given the implications for the Constitution and the prevailing Social Contract Kenyans have with the State.
35. The respondents, however, contend that the application is premature and speculative as there is no evidence that the president conducted himself in such a manner as to clearly indicate that he will not seek the constitutionally required approval of the people in a national referendum, when circumstances require that he so does. In other words, it is contended that no crystallised threat is, as yet, evident.
36. In our view, a relief based on a threat of contravention of the Constitution or violation of a fundamental right or freedom cannot be denied simply on the basis that the supplicant has not proved that the respondent intends to violate the Constitution or fundamental rights and freedoms. As long as a person presents reasonable apprehension based on credible evidence of the likelihood of the impugned action and where the apprehended happening is likely to lead to irreparable or irrevocable consequences if they were to occur, this court cannot overlook that apprehension that hat the Constitution is likely to be violated or that person’s fundamental rights and freedoms are likely to be contravened. The court ought not just twiddle its thumbs or wring its hands and mutter, perhaps breathlessly, that the court is helpless as long as the respondent has not given any indication that he intends to contravene the Constitution or violate the fundamental rights or freedoms of that person. Where it is credibly demonstrated, as has been done in this court, whether rightly or wrongly, that the respondent has two options, one of which if taken is likely to lead to the apprehensions coming to reality, in our view, it would be better for the court to err on the side of caution. The case for this course of action is strengthened where, as here, no serious prejudice – other than passage of time – is visited on the respondent.”
37. On the final issue, Counsel submitted that the Petitioners had clearly set out the substantial questions attributable to
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