1. In a well-known fable, a ruler tested integrity by distributing seeds, and it was the one who returned with an empty pot,honestly,that revealed fidelity to truth. The lesson often drawn is that the appearance of achievement is not necessarily indicative of its authenticity. In the context of public power, questions of legitimacy arise not merely from what is done, but from the legal framework within which it is undertaken.
2. This Petition engages that inquiry. The Constitution of Kenya, 2010 establishes the framework within which State organs and public officers exercise power, including the procedures attendant to such exercise. Where the law provides for a particular process, the Court is called upon to examine the relationship between that process and the actions impugned. The issue for determination is whether the process leading to the Petitioners’ removal falls within that constitutional and statutory framework.
3. The Petitioners, Leonard Okari Mogaru and Edith Nyaboke Omari, are adult Kenyan citizens who were, at all material times, appointed and serving as external members of the Nyamira County Assembly Service Board pursuant to Gazette Notice No. 14017 dated 01st November 2022.
4. The 1st Respondent is the Speaker of the County Assembly of Nyamira, the presiding officer charged with the conduct and regulation of the Assembly’s proceedings.
5. The 2nd Respondent is the County Assembly of Nyamira, a constitutional organ established under Article 176 of the Constitution.
6. The 3rd Respondent is the Clerk of the County Assembly of Nyamira, an office established under Section 13 of the County Governments Act, 2012.
7. The 1st Interested Party is the Nyamira County Assembly Service Board, a statutory body corporate established under the County Assembly Services Act, 2017.
8. The 2nd Interested Party is the Acting Clerk of the County Assembly of Nyamira.
9. These proceedings were commenced by way of a Petition dated 27th November 2024, filed at a time when the process for the Petitioners’ removal from office as members of the Nyamira County Assembly Service Board had been initiated.
10. The Petition was subsequently amended on 09th June 2025, in which the gravamen of the complaint remained that the Petitioners had neither been served with nor subjected to a lawful removal process as contemplated under the Constitution and the applicable statutory framework.
11. The operative pleading is the Further Amended Petition dated 02nd November 2025, supported by the affidavit of the 1st Petitioner sworn on 27th November 2024 and premised on Articles 1, 2, 3, 10, 22, 23, 47, 48 and 50 of the Constitution, as well as the County Governments Act (No. 17 of 2012), the County Assembly Services Act (No. 24 of 2017) and the Fair Administrative Action Act (No. 4 of 2015).
12. Subsequent to the filing of the Petition, the Respondents proceeded, on 28th November 2024, with the impugned process, culminating in the Petitioners’ removal from office, which now falls for determination.
13. The Petitioners aver that the process leading to their removal was initiated through a Motion dated 21st November 2024 and notices dated 26th November 2024 requiring them to appear before the County Assembly on 28th November 2024.
14. They contend that no petition for removal, as required under Section 10(2) of the County Assembly Services Act, was ever prepared, presented or served upon them. They plead that the statutory procedure governing removal was therefore not complied with.
15. The Petitioners further plead that the notices dated 26th November 2024 emanated from different persons each purporting to act as Clerk of the County Assembly, thereby creating uncertainty as to the lawful authority under which the process was undertaken. That uncertainty, in turn, raises the anterior question whether the process itself was anchored in a lawful foundation, or merely bore the appearance of legality without the authority required by law.
16. They further aver that the Assembly had been adjourned sine die prior to 28th November 2024 and that any sitting purportedly held on that date was unlawful and without jurisdiction.
17. The Petitioners contend that notwithstanding those irregularities, the Assembly proceeded on 28th November 2024 to deliberate upon the Motion dated 21st November 2024 and resolved to remove them from office, and thereafter declared and advertised their positions as vacant.
18. It is their case, therefore, that the process culminating in their removal was unlawful, procedurally unfair and in violation of their rights under Articles 47 and 50 of the Constitution.
19. In support of their case, the Petitioners rely on Gazette Notice No. 14017 dated 01st November 2022 together with their respective appointment letters, which establish the legality of their appointment as members of the Nyamira County Assembly Service Board.
20. They further rely on the letter dated 26th November 2024 and the Motion dated 21st November 2024, which initiated the process leading to their removal from office.
21. They also rely on the letter dated 26th November 2024 issued by the 2nd Interested Party, which challenged the authority of the 3rd Respondent to issue summons and demonstrates the existence of conflicting authority within the office of the Clerk.
22. Further reliance is placed on Gazette Notice No. 13576 dated 09th October 2024 relating to the attempted reconstitution of the Board, and Gazette Notice No. 14273 dated 30th October 2024, which confirmed the lawful composition of the Board.
23. The Petitioners also rely on Gazette Notice No. 14230 dated 26th October 2024, which appointed the 2nd Interested Party as Acting Clerk and subsequently as Secretary to the Board.
24. In addition, the Petitioners rely on the suspension letter dated 25th October 2024, the show cause letter dated 04th November 2024, and the handover documentation, which demonstrate that the 3rd Respondent lacked lawful authority at the material time.
25. The Petitioners further rely on Gazette Notice No. 15844 concerning the status of Assembly sittings, which is material to the legality of the proceedings conducted on 28th November 2024.
26. Finally, the Petitioners rely on the advertisement and/or newspaper publication declaring their positions vacant, which evidences the implementation of the decision removing them from office.
27. On the basis of the foregoing, the Petitioners seek the following reliefs:
1) A DECLARATION that the Respondents in purporting to summon and, ipso facto, constructively purport to revoke the appointment of the petitioners as Members of the County Assembly Service Board in the absence of any Petition in the manner pleaded herein acted in contravention of Articles: 1(1); 3; 10; 22; 23; 27; 28; 41(1); 47; 48; 50; 124; 159; 165; 178(3) and 258 of the Constitution of Kenya, 2010; Sections: 3; 4; 6; 7 and 11 of the Fair Administrative Action Act [Cap. 7L Laws of Kenya]; Sections: 10 (2) of the County Governments Act [Cap. 265 – Laws of Kenya]; and in contravention of fundamental rules of natural justice and fairness;
2) A DECLARATION that the 3rd Respondents acts purporting to summon with intention to revoke the Petitioners appointment in the manner pleaded herein violated the Petitioners’ rights to due process, fair hearing and fair administrative action;
3) A DECLARATION that the letter dated 26th November 2024 by the 3rd Respondent herein is illegal, unlawful, null and void and thus of no consequence and the same be and is hereby quashed as the 3rd Respondent had no capacity to issue the said notice.
4) A DECLARATION that the sitting and resolution of 28th November 2024 by 2nd Respondent culminating to the purported removal of the Petitioners herein from office as the external County Assembly Service Board Members is illegal, unlawful and violates the Petitioner’s rights thus void.
5) ORDERS of permanent injunction restraining the Respondents from attempting to revoke the appointment of the Petitioners from office as the County Assembly Service Board Members in a manner and procedure other than the one articulated under section 10 of the County Assembly Service Act.
6) AN ORDER that Respondents be condemned to pay costs of this petition.
7) AN ORDER compelling the immediate payment of the Petitioners’ salary and allowances from December 2024 to the present.
8) Such other further, appropriate and consequential orders and reliefs as this Honourable court may lawfully make.
28. The Respondents and the 1st Interested Party opposed the Petition by way of a Replying Affidavit sworn by the 3rd Respondent on 02nd July 2025, wherein he contends that the Petition is incompetent, misconceived and an abuse of the court process, and is in any event barred by the doctrine of res judicata. He avers that the issues raised in the present Petition were directly and substantially in issue in Kisii ELRC Petition No. E002 of 2024 between the same parties, which was heard and determined, culminating in a dismissal on 25th March 2025, and that the said decision has neither been appealed against nor set aside.
29. He further depones that the Petitioners were duly notified of the County Assembly proceedings through notices dated 26th November 2024 inviting them to appear before the Assembly on 28th November 2024 at 10:00 a.m., and that the Motion dated 21st November 2024, setting out the grounds for their proposed removal, was annexed thereto. He states that the Petitioners were informed of their right to submit written responses and to be represented by counsel, and were thereby afforded an opportunity to be heard in accordance with the law.
30. It is further his deposition that, despite receipt of the said notices, the Petitioners failed to attend the proceedings and instead instituted court proceedings which did not yield any orders restraining the Assembly from proceeding. Consequently, and in the absence of any subsisting court order to the contrary, the Assembly proceeded to debate and adopt the Motion on 28th November 2024, thereby effecting the Petitioners’ removal from office.
31. The 3rd Respondent further avers that, at all material times, he was the duly gazetted Clerk of the County Assembly and was therefore clothed with the requisite authority to issue the notices dated 26th November 2024. He contends that any contrary actions or notices relied upon by the Petitioners were undertaken without lawful authority and were subsequently nullified or overtaken by court orders, and cannot therefore be relied upon to impugn the impugned process.
32. He further contends that the removal process complied with the applicable statutory framework, and in particular that Section 10 of the County Assembly Services Act does not require a formal petition in the strict sense, but permits initiation of the removal process through a motion or written complaint, the substance of which, rather than its form, is determinative. He avers that the Motion dated 21st November 2024 satisfied the statutory threshold for initiation of the removal process.
33. The 3rd Respondent further avers that the Petitioners were accorded a fair hearing, having been notified of the allegations against them and afforded an opportunity to respond, but failed to utilise that opportunity. He therefore denies that the Petitioners’ rights under Articles 47 and 50 of the Constitution were violated, and maintains that the process undertaken by the Assembly was lawful, procedurally fair and in accordance with the Constitution and the law.
34. The 2nd Interested Party opposed the Respondents’ position and supported the Petition through a Replying Affidavit sworn on 01st December 2025, in which he depones that the process leading to the removal of the Petitioners was undertaken in a context of significant institutional conflict within the County Assembly, marked by disputes as to the lawful holders of the offices of Speaker and Clerk, and the existence of rival factions purporting to exercise authority.
35. He avers that the 3rd Respondent lacked authority at the material time, having been under suspension, and therefore had no legal capacity to issue the notices dated 26th November 2024 or to facilitate any proceedings of the Assembly. He contends that the said notices, together with the Motion dated 21st November 2024, were unlawful, issued without authority, and are null and void.
36. He further depones that the Assembly had been adjourned sine die and that no lawful sitting could be convened thereafter without the authority of the duly recognized Speaker. It is therefore his position that the purported sitting of 28th November 2024, at which the Motion was debated and adopted, was irregular, unconstitutional, undertaken without jurisdiction, and devoid of any legal foundation.
37. He adds that the Petitioners were neither served with any valid petition nor furnished with specific allegations, but were instead summoned on short notice, thereby denying them a fair opportunity to prepare and present their defence, contrary to the requirements of fair administrative action and fair hearing under the Constitution.
38. He further contends that the entire process, including the issuance of the notices, the tabling of the Motion, and the conduct of the Assembly proceedings, was undertaken in disregard of subsisting court orders emanating from the High Court at Nyamira and Kisii, and therefore amounted to actions taken in open defiance and contempt of court, rendering the said process unlawful, null and void.
39. On the issue of res judicata, he disputes the Respondents’ position and depones that the earlier proceedings relied upon were not determined on the merits but were disposed of on jurisdictional or procedural grounds. In that regard, he relies on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), and maintains that the doctrine does not arise in the absence of a final determination on the merits by a court of competent jurisdiction.
40. He further avers that the Gazette Notices relied upon by the Respondents were issued in violation of subsisting court orders and were subsequently revoked and rendered of no legal effect, and therefore cannot be relied upon to validate the impugned process. It is his position that proceedings founded on such actions, including the impugned notices, Motion and Assembly sitting, are illegal, null and void and incapable of sustaining a lawful removal process or a plea of res judicata.
41. The Petition was argued by way of submissions. The Petitioners filed written submissions dated 20th January 2026, in which they reiterate the contents of the Further Amended Petition dated 02nd November 2025 and the supporting affidavit sworn on 27th November 2024.
42. The Petitioners’ principal submission is that their removal from office as members of the Nyamira County Assembly Service Board was undertaken in violation of the law, and in particular Section 10 of the County Assembly Services Act, which they contend prescribes a mandatory statutory procedure for removal. They argue that the process must be initiated by way of a petition, and that the absence of such a petition renders the entire process void ab initio, as it goes to the root of the jurisdiction to undertake the removal.
43. In support of that proposition, the Petitioners rely on Republic v County Government of Mombasa; Outdoor Advertising Association of Kenya (Ex parte) [2014] KEHC 5564 (KLR), where the Court affirmed the settled principle that where a statute prescribes a specific procedure for the exercise of a power, that procedure must be strictly followed. They submit that the ratio decidendi of that decision is that administrative or statutory power cannot be exercised in disregard of prescribed procedural safeguards, and any action so taken is a nullity in law. They therefore contend that the Respondents’ failure to initiate the removal process through a petition was not a mere procedural lapse, but a jurisdictional defect that invalidates the entire process.
44. The Petitioners further submit that the process was fundamentally defective on account of conflicting notices dated 26th November 2024, allegedly issued by different persons purporting to act as Clerk of the County Assembly. They argue that such conflicting notices demonstrate uncertainty, lack of lawful authority, and procedural irregularity, thereby vitiating the entire process. It is their case that a process grounded on such ambiguity cannot meet the constitutional threshold of legality and procedural fairness.
45. It is their further submission that the notices summoning them were issued by a person who lacked lawful authority, and that the process was therefore ultra vires. They argue that actions undertaken without legal authority are void and incapable of conferring any rights or obligations, and that the Respondents acted outside the scope of their statutory mandate, thereby rendering the entire process unlawful.
46. The Petitioners also challenge the legality of the plenary sitting held on 28th November 2024, submitting that the County Assembly had previously been adjourned sine die pursuant to Gazette Notice No. 15844, and that in the absence of a lawful sitting, the Assembly lacked jurisdiction to transact any business. They therefore contend that the proceedings conducted on that date, including the debate and adoption of the motion for their removal, were null and void for want of jurisdiction.
47. They further submit that the subsequent advertisement of their positions was founded on an unlawful process and is therefore equally invalid, as it constitutes a consequential act flowing from an illegality.
48. On the question of fair hearing, the Petitioners submit that they were denied an opportunity to be heard prior to their removal, in violation of Articles 47 and 50 of the Constitution. They rely on Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR), in which the Court of Appeal emphasized that the right to fair administrative action entails prior notice, disclosure of allegations, an opportunity to be heard, and reasons for the decision, and that these requirements apply even in administrative and quasi-judicial processes. They submit that failure to comply with these requirements renders the process unconstitutional.
49. The Petitioners further rely on Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR), where the Supreme Court underscored that the right to a fair hearing under Article 50 is fundamental and non-derogable, and cannot be limited or ignored even in administrative proceedings. They argue that their removal without a fair hearing violated these constitutional guarantees.
50. In addition, the Petitioners invoke Article 236 of the Constitution, submitting that as public officers they were entitled to protection from removal without due process. They contend that the impugned process fell short of the constitutional threshold of procedural fairness, legality, and rationality, and ought therefore to be invalidated.
51. The Respondents and the 1stInterested Party filed written submissions dated 02nd July 2025, opposing the Petition and urging the Court to dismiss it with costs.
52. As a preliminary issue, the Respondents and the 1st Interested Party submit that the Petition is barred by the doctrine of res judicata, on the basis that a similar petition was previously filed and determined in Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) [2025] KEELRC 995 (KLR), which was dismissed on 25th March 2025 and has neither been appealed nor set aside. They contend that the issues raised in the present Petition were directly and substantially in issue in the earlier proceedings.
53. In support of that argument, they rely on John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (supra) where the Supreme Court affirmed that the doctrine of res judicata applies with equal force to constitutional litigation and serves to prevent the re-litigation of issues that have been conclusively determined between the same parties. They submit that, in the circumstances, the dismissal of the earlier Petition constituted a final determination for purposes of the doctrine, thereby barring the present proceedings.
54. On the merits, the Respondents submit that the Petitioners were lawfully removed from office following due process. They contend that the Petitioners were duly notified of the proceedings through notices dated 26th November 2024, were furnished with the Motion dated 21st November 2024 setting out the grounds for their removal, and were invited to appear before the Assembly on 28th November 2024.
55. They further submit that the Petitioners were informed of their right to submit written responses and to be represented by counsel, but failed to attend the proceedings, and cannot therefore be heard to complain that their right to fair hearing was violated. They argue that the right to be heard includes an obligation on the affected party to take advantage of the opportunity afforded.
56. The Respondents contend that in the absence of any court order restraining the Assembly from proceeding, the Assembly lawfully debated and adopted the motion on 28th November 2024, thereby effecting the Petitioners’ removal.
57. On the interpretation of Section 10 of the County Assembly Services Act, they submit that the provision does not make it mandatory for removal to be initiated by a formal petition, and that the use of the term “may” denotes discretion. They argue that the Motion dated 21st November 2024 satisfied the statutory requirement, and that the Court should adopt a substantive rather than formalistic interpretation of the provision.
58. The Respondents further submit that the 3rd Respondent was the duly gazetted Clerk of the County Assembly and was lawfully authorized to issue the notices in question. They contend that any Gazette Notices relied upon by the Petitioners had been stayed and subsequently quashed by court orders, and cannot therefore be relied upon to impugn the process.
59. On costs, the Respondents and the 1st Interested Party submit that costs follow the event. In that regard, they rely on Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) for the principle that a successful party is ordinarily entitled to costs. They further cite Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383 for the proposition that although the court has discretion in awarding costs, such discretion must be exercised judiciously. They also rely on Re Ebuneiri Waisswa Kafuko Kampala HCMA No. 81 of 1993, as cited in Republic v Kenya National Highway Authority, Kasarani Police Station DTO, Traffic Commandant & Attorney General Ex Parte Kanyingi Wahome [2015] KEHC 7558 (KLR), to emphasize that a successful party should not ordinarily be denied costs absent good reason.
60. The Respondents further rely on authorities addressing the centrality of jurisdiction and the proper constitutional framework applicable to disputes of this nature. In that regard, they place reliance on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR for the principle that jurisdiction is foundational and that a court must down its tools the moment it finds that it lacks jurisdiction. They submit that the question whether this Court is properly seized of the dispute must be determined at the outset.
61. They further rely on County Government of Kakamega & others v Onsongo & 12 others [2025] KECA 190 (KLR), County Government of Kakamega v Ali Adam & another [2023] KECA 1384 (KLR), and County Government of Kakamega v Nyongesa & another [2023] KECA 177 (KLR), to submit that disputes relating to the removal of members of County Assembly Service Boards raise constitutional and jurisdictional questions which must be situated within the proper statutory and constitutional framework, and that the Court must carefully characterize the nature of the dispute before determining it.
62. The 2nd Interested Party did not file written submissions and relies solely on the Replying Affidavit sworn on 01st December 2025.
63. Having considered the pleadings, affidavits and submissions on record, as well as the reliefs sought in the Further Amended Petition, the issues that arise for determination are as follows:
1) Whether this Petition is barred by the doctrine of res judicata.
2) Whether the removal of the Petitioners complied with Section 10 of the County Assembly Services Act, including whether initiation by way of a petition was mandatory.
3) Whether the 3rd Respondent had lawful authority to issue the notices dated 26th November 2024 and to initiate and facilitate the process leading to the Petitioners’ removal.
4) Whether the County Assembly was lawfully constituted and had jurisdiction to conduct the proceedings of 28th November 2024, including the effect of the alleged adjournment sine die.
5) Whether the process leading to the removal of the Petitioners met the constitutional threshold of fairness under Articles 47 and 50 of the Constitution.
6) Whether, in light of the foregoing, the removal of the Petitioners from office was unconstitutional, unlawful, null and void, and whether the consequential acts flowing therefrom are invalid.
7) Whether the Petitioners are entitled to a permanent injunction restraining unlawful removal otherwise than in accordance with Section 10 of the County Assembly Services Act.
8) Whether the Petitioners are entitled to payment of salaries, allowances and benefits from the date of removal to the expiry of their respective terms of office.
9) Whether the Petitioners are entitled to the other reliefs sought.
64. The Court now proceeds to determine each of the issues framed for determination. In doing so, the Court is guided by the central question that underlies this dispute, namely whether the process leading to the Petitioners’ removal was anchored in the law, or whether it was merely clothed in the appearance of legality without the requisite legal foundation. In doing so, the Court has carefully considered the Further Amended Petition, the supporting affidavit, the Replying Affidavit sworn by the 3rd Respondent on behalf of the Respondents and the 1st Interested Party, and the 2nd Interested Party’s Replying Affidavit, together with the respective written submissions and authorities cited by the parties.
1) Whether the Petition is barred by the doctrine of res judicata
65. The Respondents and the 1st Interested Party have raised the plea that the present Petition is barred by the doctrine of res judicata, contending that the issues herein were previously litigated and determined in earlier proceedings involving the same parties, namely Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) (supra). The plea of res judicata, therefore, is not merely procedural; it determines whether this Court is properly seized of the question whether the impugned process possessed a lawful foundation.
66. The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which provides that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit… between the same parties… and has been heard and finally decided by such court.”
67. The rationale underpinning the doctrine is the principle of finality in litigation, aimed at preventing parties from being vexed twice over the same matter and safeguarding the integrity of judicial decisions. Its application, however, is not automatic and is subject to the satisfaction of well-settled conditions.
68. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (supra) the Court of Appeal set out the elements that must be satisfied before the doctrine can apply, namely that the matter in issue must be identical in both suits, the parties must be the same or litigating under the same title, the matter must have been heard and finally determined, and the court that determined the former suit must have been competent.
69. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (supra) affirmed that while the doctrine applies with equal force to constitutional litigation, it must be applied with circumspection so as not to unjustifiably impede access to justice or the enforcement of constitutional rights. The Court emphasized that the plea cannot succeed where the earlier proceedings did not result in a final determination on the merits.
70. In the present case, this Court has perused the judgment in the earlier proceedings relied upon by the Respondents and notes that the Petition therein was dismissed solely on the ground that the Court lacked jurisdiction to determine the dispute, the matter relating to the removal of members of a County Assembly Service Board having been found to raise a constitutional question falling within the jurisdiction of the High Court and not the Employment and Labour Relations Court. A determination on jurisdiction, without more, does not engage with the substance of legality that now falls for determination before this Court.
71. Such a determination, being one founded on jurisdiction, does not constitute a substantive adjudication on the merits of the issues in dis
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2. This Petition engages that inquiry. The Constitution of Kenya, 2010 establishes the framework within which State organs and public officers exercise power, including the procedures attendant to such exercise. Where the law provides for a particular process, the Court is called upon to examine the relationship between that process and the actions impugned. The issue for determination is whether the process leading to the Petitioners’ removal falls within that constitutional and statutory framework.
3. The Petitioners, Leonard Okari Mogaru and Edith Nyaboke Omari, are adult Kenyan citizens who were, at all material times, appointed and serving as external members of the Nyamira County Assembly Service Board pursuant to Gazette Notice No. 14017 dated 01st November 2022.
4. The 1st Respondent is the Speaker of the County Assembly of Nyamira, the presiding officer charged with the conduct and regulation of the Assembly’s proceedings.
5. The 2nd Respondent is the County Assembly of Nyamira, a constitutional organ established under Article 176 of the Constitution.
6. The 3rd Respondent is the Clerk of the County Assembly of Nyamira, an office established under Section 13 of the County Governments Act, 2012.
7. The 1st Interested Party is the Nyamira County Assembly Service Board, a statutory body corporate established under the County Assembly Services Act, 2017.
8. The 2nd Interested Party is the Acting Clerk of the County Assembly of Nyamira.
9. These proceedings were commenced by way of a Petition dated 27th November 2024, filed at a time when the process for the Petitioners’ removal from office as members of the Nyamira County Assembly Service Board had been initiated.
10. The Petition was subsequently amended on 09th June 2025, in which the gravamen of the complaint remained that the Petitioners had neither been served with nor subjected to a lawful removal process as contemplated under the Constitution and the applicable statutory framework.
11. The operative pleading is the Further Amended Petition dated 02nd November 2025, supported by the affidavit of the 1st Petitioner sworn on 27th November 2024 and premised on Articles 1, 2, 3, 10, 22, 23, 47, 48 and 50 of the Constitution, as well as the County Governments Act (No. 17 of 2012), the County Assembly Services Act (No. 24 of 2017) and the Fair Administrative Action Act (No. 4 of 2015).
12. Subsequent to the filing of the Petition, the Respondents proceeded, on 28th November 2024, with the impugned process, culminating in the Petitioners’ removal from office, which now falls for determination.
13. The Petitioners aver that the process leading to their removal was initiated through a Motion dated 21st November 2024 and notices dated 26th November 2024 requiring them to appear before the County Assembly on 28th November 2024.
14. They contend that no petition for removal, as required under Section 10(2) of the County Assembly Services Act, was ever prepared, presented or served upon them. They plead that the statutory procedure governing removal was therefore not complied with.
15. The Petitioners further plead that the notices dated 26th November 2024 emanated from different persons each purporting to act as Clerk of the County Assembly, thereby creating uncertainty as to the lawful authority under which the process was undertaken. That uncertainty, in turn, raises the anterior question whether the process itself was anchored in a lawful foundation, or merely bore the appearance of legality without the authority required by law.
16. They further aver that the Assembly had been adjourned sine die prior to 28th November 2024 and that any sitting purportedly held on that date was unlawful and without jurisdiction.
17. The Petitioners contend that notwithstanding those irregularities, the Assembly proceeded on 28th November 2024 to deliberate upon the Motion dated 21st November 2024 and resolved to remove them from office, and thereafter declared and advertised their positions as vacant.
18. It is their case, therefore, that the process culminating in their removal was unlawful, procedurally unfair and in violation of their rights under Articles 47 and 50 of the Constitution.
19. In support of their case, the Petitioners rely on Gazette Notice No. 14017 dated 01st November 2022 together with their respective appointment letters, which establish the legality of their appointment as members of the Nyamira County Assembly Service Board.
20. They further rely on the letter dated 26th November 2024 and the Motion dated 21st November 2024, which initiated the process leading to their removal from office.
21. They also rely on the letter dated 26th November 2024 issued by the 2nd Interested Party, which challenged the authority of the 3rd Respondent to issue summons and demonstrates the existence of conflicting authority within the office of the Clerk.
22. Further reliance is placed on Gazette Notice No. 13576 dated 09th October 2024 relating to the attempted reconstitution of the Board, and Gazette Notice No. 14273 dated 30th October 2024, which confirmed the lawful composition of the Board.
23. The Petitioners also rely on Gazette Notice No. 14230 dated 26th October 2024, which appointed the 2nd Interested Party as Acting Clerk and subsequently as Secretary to the Board.
24. In addition, the Petitioners rely on the suspension letter dated 25th October 2024, the show cause letter dated 04th November 2024, and the handover documentation, which demonstrate that the 3rd Respondent lacked lawful authority at the material time.
25. The Petitioners further rely on Gazette Notice No. 15844 concerning the status of Assembly sittings, which is material to the legality of the proceedings conducted on 28th November 2024.
26. Finally, the Petitioners rely on the advertisement and/or newspaper publication declaring their positions vacant, which evidences the implementation of the decision removing them from office.
27. On the basis of the foregoing, the Petitioners seek the following reliefs:
1) A DECLARATION that the Respondents in purporting to summon and, ipso facto, constructively purport to revoke the appointment of the petitioners as Members of the County Assembly Service Board in the absence of any Petition in the manner pleaded herein acted in contravention of Articles: 1(1); 3; 10; 22; 23; 27; 28; 41(1); 47; 48; 50; 124; 159; 165; 178(3) and 258 of the Constitution of Kenya, 2010; Sections: 3; 4; 6; 7 and 11 of the Fair Administrative Action Act [Cap. 7L Laws of Kenya]; Sections: 10 (2) of the County Governments Act [Cap. 265 – Laws of Kenya]; and in contravention of fundamental rules of natural justice and fairness;
2) A DECLARATION that the 3rd Respondents acts purporting to summon with intention to revoke the Petitioners appointment in the manner pleaded herein violated the Petitioners’ rights to due process, fair hearing and fair administrative action;
3) A DECLARATION that the letter dated 26th November 2024 by the 3rd Respondent herein is illegal, unlawful, null and void and thus of no consequence and the same be and is hereby quashed as the 3rd Respondent had no capacity to issue the said notice.
4) A DECLARATION that the sitting and resolution of 28th November 2024 by 2nd Respondent culminating to the purported removal of the Petitioners herein from office as the external County Assembly Service Board Members is illegal, unlawful and violates the Petitioner’s rights thus void.
5) ORDERS of permanent injunction restraining the Respondents from attempting to revoke the appointment of the Petitioners from office as the County Assembly Service Board Members in a manner and procedure other than the one articulated under section 10 of the County Assembly Service Act.
6) AN ORDER that Respondents be condemned to pay costs of this petition.
7) AN ORDER compelling the immediate payment of the Petitioners’ salary and allowances from December 2024 to the present.
8) Such other further, appropriate and consequential orders and reliefs as this Honourable court may lawfully make.
28. The Respondents and the 1st Interested Party opposed the Petition by way of a Replying Affidavit sworn by the 3rd Respondent on 02nd July 2025, wherein he contends that the Petition is incompetent, misconceived and an abuse of the court process, and is in any event barred by the doctrine of res judicata. He avers that the issues raised in the present Petition were directly and substantially in issue in Kisii ELRC Petition No. E002 of 2024 between the same parties, which was heard and determined, culminating in a dismissal on 25th March 2025, and that the said decision has neither been appealed against nor set aside.
29. He further depones that the Petitioners were duly notified of the County Assembly proceedings through notices dated 26th November 2024 inviting them to appear before the Assembly on 28th November 2024 at 10:00 a.m., and that the Motion dated 21st November 2024, setting out the grounds for their proposed removal, was annexed thereto. He states that the Petitioners were informed of their right to submit written responses and to be represented by counsel, and were thereby afforded an opportunity to be heard in accordance with the law.
30. It is further his deposition that, despite receipt of the said notices, the Petitioners failed to attend the proceedings and instead instituted court proceedings which did not yield any orders restraining the Assembly from proceeding. Consequently, and in the absence of any subsisting court order to the contrary, the Assembly proceeded to debate and adopt the Motion on 28th November 2024, thereby effecting the Petitioners’ removal from office.
31. The 3rd Respondent further avers that, at all material times, he was the duly gazetted Clerk of the County Assembly and was therefore clothed with the requisite authority to issue the notices dated 26th November 2024. He contends that any contrary actions or notices relied upon by the Petitioners were undertaken without lawful authority and were subsequently nullified or overtaken by court orders, and cannot therefore be relied upon to impugn the impugned process.
32. He further contends that the removal process complied with the applicable statutory framework, and in particular that Section 10 of the County Assembly Services Act does not require a formal petition in the strict sense, but permits initiation of the removal process through a motion or written complaint, the substance of which, rather than its form, is determinative. He avers that the Motion dated 21st November 2024 satisfied the statutory threshold for initiation of the removal process.
33. The 3rd Respondent further avers that the Petitioners were accorded a fair hearing, having been notified of the allegations against them and afforded an opportunity to respond, but failed to utilise that opportunity. He therefore denies that the Petitioners’ rights under Articles 47 and 50 of the Constitution were violated, and maintains that the process undertaken by the Assembly was lawful, procedurally fair and in accordance with the Constitution and the law.
34. The 2nd Interested Party opposed the Respondents’ position and supported the Petition through a Replying Affidavit sworn on 01st December 2025, in which he depones that the process leading to the removal of the Petitioners was undertaken in a context of significant institutional conflict within the County Assembly, marked by disputes as to the lawful holders of the offices of Speaker and Clerk, and the existence of rival factions purporting to exercise authority.
35. He avers that the 3rd Respondent lacked authority at the material time, having been under suspension, and therefore had no legal capacity to issue the notices dated 26th November 2024 or to facilitate any proceedings of the Assembly. He contends that the said notices, together with the Motion dated 21st November 2024, were unlawful, issued without authority, and are null and void.
36. He further depones that the Assembly had been adjourned sine die and that no lawful sitting could be convened thereafter without the authority of the duly recognized Speaker. It is therefore his position that the purported sitting of 28th November 2024, at which the Motion was debated and adopted, was irregular, unconstitutional, undertaken without jurisdiction, and devoid of any legal foundation.
37. He adds that the Petitioners were neither served with any valid petition nor furnished with specific allegations, but were instead summoned on short notice, thereby denying them a fair opportunity to prepare and present their defence, contrary to the requirements of fair administrative action and fair hearing under the Constitution.
38. He further contends that the entire process, including the issuance of the notices, the tabling of the Motion, and the conduct of the Assembly proceedings, was undertaken in disregard of subsisting court orders emanating from the High Court at Nyamira and Kisii, and therefore amounted to actions taken in open defiance and contempt of court, rendering the said process unlawful, null and void.
39. On the issue of res judicata, he disputes the Respondents’ position and depones that the earlier proceedings relied upon were not determined on the merits but were disposed of on jurisdictional or procedural grounds. In that regard, he relies on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), and maintains that the doctrine does not arise in the absence of a final determination on the merits by a court of competent jurisdiction.
40. He further avers that the Gazette Notices relied upon by the Respondents were issued in violation of subsisting court orders and were subsequently revoked and rendered of no legal effect, and therefore cannot be relied upon to validate the impugned process. It is his position that proceedings founded on such actions, including the impugned notices, Motion and Assembly sitting, are illegal, null and void and incapable of sustaining a lawful removal process or a plea of res judicata.
41. The Petition was argued by way of submissions. The Petitioners filed written submissions dated 20th January 2026, in which they reiterate the contents of the Further Amended Petition dated 02nd November 2025 and the supporting affidavit sworn on 27th November 2024.
42. The Petitioners’ principal submission is that their removal from office as members of the Nyamira County Assembly Service Board was undertaken in violation of the law, and in particular Section 10 of the County Assembly Services Act, which they contend prescribes a mandatory statutory procedure for removal. They argue that the process must be initiated by way of a petition, and that the absence of such a petition renders the entire process void ab initio, as it goes to the root of the jurisdiction to undertake the removal.
43. In support of that proposition, the Petitioners rely on Republic v County Government of Mombasa; Outdoor Advertising Association of Kenya (Ex parte) [2014] KEHC 5564 (KLR), where the Court affirmed the settled principle that where a statute prescribes a specific procedure for the exercise of a power, that procedure must be strictly followed. They submit that the ratio decidendi of that decision is that administrative or statutory power cannot be exercised in disregard of prescribed procedural safeguards, and any action so taken is a nullity in law. They therefore contend that the Respondents’ failure to initiate the removal process through a petition was not a mere procedural lapse, but a jurisdictional defect that invalidates the entire process.
44. The Petitioners further submit that the process was fundamentally defective on account of conflicting notices dated 26th November 2024, allegedly issued by different persons purporting to act as Clerk of the County Assembly. They argue that such conflicting notices demonstrate uncertainty, lack of lawful authority, and procedural irregularity, thereby vitiating the entire process. It is their case that a process grounded on such ambiguity cannot meet the constitutional threshold of legality and procedural fairness.
45. It is their further submission that the notices summoning them were issued by a person who lacked lawful authority, and that the process was therefore ultra vires. They argue that actions undertaken without legal authority are void and incapable of conferring any rights or obligations, and that the Respondents acted outside the scope of their statutory mandate, thereby rendering the entire process unlawful.
46. The Petitioners also challenge the legality of the plenary sitting held on 28th November 2024, submitting that the County Assembly had previously been adjourned sine die pursuant to Gazette Notice No. 15844, and that in the absence of a lawful sitting, the Assembly lacked jurisdiction to transact any business. They therefore contend that the proceedings conducted on that date, including the debate and adoption of the motion for their removal, were null and void for want of jurisdiction.
47. They further submit that the subsequent advertisement of their positions was founded on an unlawful process and is therefore equally invalid, as it constitutes a consequential act flowing from an illegality.
48. On the question of fair hearing, the Petitioners submit that they were denied an opportunity to be heard prior to their removal, in violation of Articles 47 and 50 of the Constitution. They rely on Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR), in which the Court of Appeal emphasized that the right to fair administrative action entails prior notice, disclosure of allegations, an opportunity to be heard, and reasons for the decision, and that these requirements apply even in administrative and quasi-judicial processes. They submit that failure to comply with these requirements renders the process unconstitutional.
49. The Petitioners further rely on Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR), where the Supreme Court underscored that the right to a fair hearing under Article 50 is fundamental and non-derogable, and cannot be limited or ignored even in administrative proceedings. They argue that their removal without a fair hearing violated these constitutional guarantees.
50. In addition, the Petitioners invoke Article 236 of the Constitution, submitting that as public officers they were entitled to protection from removal without due process. They contend that the impugned process fell short of the constitutional threshold of procedural fairness, legality, and rationality, and ought therefore to be invalidated.
51. The Respondents and the 1stInterested Party filed written submissions dated 02nd July 2025, opposing the Petition and urging the Court to dismiss it with costs.
52. As a preliminary issue, the Respondents and the 1st Interested Party submit that the Petition is barred by the doctrine of res judicata, on the basis that a similar petition was previously filed and determined in Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) [2025] KEELRC 995 (KLR), which was dismissed on 25th March 2025 and has neither been appealed nor set aside. They contend that the issues raised in the present Petition were directly and substantially in issue in the earlier proceedings.
53. In support of that argument, they rely on John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (supra) where the Supreme Court affirmed that the doctrine of res judicata applies with equal force to constitutional litigation and serves to prevent the re-litigation of issues that have been conclusively determined between the same parties. They submit that, in the circumstances, the dismissal of the earlier Petition constituted a final determination for purposes of the doctrine, thereby barring the present proceedings.
54. On the merits, the Respondents submit that the Petitioners were lawfully removed from office following due process. They contend that the Petitioners were duly notified of the proceedings through notices dated 26th November 2024, were furnished with the Motion dated 21st November 2024 setting out the grounds for their removal, and were invited to appear before the Assembly on 28th November 2024.
55. They further submit that the Petitioners were informed of their right to submit written responses and to be represented by counsel, but failed to attend the proceedings, and cannot therefore be heard to complain that their right to fair hearing was violated. They argue that the right to be heard includes an obligation on the affected party to take advantage of the opportunity afforded.
56. The Respondents contend that in the absence of any court order restraining the Assembly from proceeding, the Assembly lawfully debated and adopted the motion on 28th November 2024, thereby effecting the Petitioners’ removal.
57. On the interpretation of Section 10 of the County Assembly Services Act, they submit that the provision does not make it mandatory for removal to be initiated by a formal petition, and that the use of the term “may” denotes discretion. They argue that the Motion dated 21st November 2024 satisfied the statutory requirement, and that the Court should adopt a substantive rather than formalistic interpretation of the provision.
58. The Respondents further submit that the 3rd Respondent was the duly gazetted Clerk of the County Assembly and was lawfully authorized to issue the notices in question. They contend that any Gazette Notices relied upon by the Petitioners had been stayed and subsequently quashed by court orders, and cannot therefore be relied upon to impugn the process.
59. On costs, the Respondents and the 1st Interested Party submit that costs follow the event. In that regard, they rely on Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) for the principle that a successful party is ordinarily entitled to costs. They further cite Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383 for the proposition that although the court has discretion in awarding costs, such discretion must be exercised judiciously. They also rely on Re Ebuneiri Waisswa Kafuko Kampala HCMA No. 81 of 1993, as cited in Republic v Kenya National Highway Authority, Kasarani Police Station DTO, Traffic Commandant & Attorney General Ex Parte Kanyingi Wahome [2015] KEHC 7558 (KLR), to emphasize that a successful party should not ordinarily be denied costs absent good reason.
60. The Respondents further rely on authorities addressing the centrality of jurisdiction and the proper constitutional framework applicable to disputes of this nature. In that regard, they place reliance on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR for the principle that jurisdiction is foundational and that a court must down its tools the moment it finds that it lacks jurisdiction. They submit that the question whether this Court is properly seized of the dispute must be determined at the outset.
61. They further rely on County Government of Kakamega & others v Onsongo & 12 others [2025] KECA 190 (KLR), County Government of Kakamega v Ali Adam & another [2023] KECA 1384 (KLR), and County Government of Kakamega v Nyongesa & another [2023] KECA 177 (KLR), to submit that disputes relating to the removal of members of County Assembly Service Boards raise constitutional and jurisdictional questions which must be situated within the proper statutory and constitutional framework, and that the Court must carefully characterize the nature of the dispute before determining it.
62. The 2nd Interested Party did not file written submissions and relies solely on the Replying Affidavit sworn on 01st December 2025.
63. Having considered the pleadings, affidavits and submissions on record, as well as the reliefs sought in the Further Amended Petition, the issues that arise for determination are as follows:
1) Whether this Petition is barred by the doctrine of res judicata.
2) Whether the removal of the Petitioners complied with Section 10 of the County Assembly Services Act, including whether initiation by way of a petition was mandatory.
3) Whether the 3rd Respondent had lawful authority to issue the notices dated 26th November 2024 and to initiate and facilitate the process leading to the Petitioners’ removal.
4) Whether the County Assembly was lawfully constituted and had jurisdiction to conduct the proceedings of 28th November 2024, including the effect of the alleged adjournment sine die.
5) Whether the process leading to the removal of the Petitioners met the constitutional threshold of fairness under Articles 47 and 50 of the Constitution.
6) Whether, in light of the foregoing, the removal of the Petitioners from office was unconstitutional, unlawful, null and void, and whether the consequential acts flowing therefrom are invalid.
7) Whether the Petitioners are entitled to a permanent injunction restraining unlawful removal otherwise than in accordance with Section 10 of the County Assembly Services Act.
8) Whether the Petitioners are entitled to payment of salaries, allowances and benefits from the date of removal to the expiry of their respective terms of office.
9) Whether the Petitioners are entitled to the other reliefs sought.
64. The Court now proceeds to determine each of the issues framed for determination. In doing so, the Court is guided by the central question that underlies this dispute, namely whether the process leading to the Petitioners’ removal was anchored in the law, or whether it was merely clothed in the appearance of legality without the requisite legal foundation. In doing so, the Court has carefully considered the Further Amended Petition, the supporting affidavit, the Replying Affidavit sworn by the 3rd Respondent on behalf of the Respondents and the 1st Interested Party, and the 2nd Interested Party’s Replying Affidavit, together with the respective written submissions and authorities cited by the parties.
1) Whether the Petition is barred by the doctrine of res judicata
65. The Respondents and the 1st Interested Party have raised the plea that the present Petition is barred by the doctrine of res judicata, contending that the issues herein were previously litigated and determined in earlier proceedings involving the same parties, namely Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) (supra). The plea of res judicata, therefore, is not merely procedural; it determines whether this Court is properly seized of the question whether the impugned process possessed a lawful foundation.
66. The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which provides that:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit… between the same parties… and has been heard and finally decided by such court.”
67. The rationale underpinning the doctrine is the principle of finality in litigation, aimed at preventing parties from being vexed twice over the same matter and safeguarding the integrity of judicial decisions. Its application, however, is not automatic and is subject to the satisfaction of well-settled conditions.
68. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (supra) the Court of Appeal set out the elements that must be satisfied before the doctrine can apply, namely that the matter in issue must be identical in both suits, the parties must be the same or litigating under the same title, the matter must have been heard and finally determined, and the court that determined the former suit must have been competent.
69. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (supra) affirmed that while the doctrine applies with equal force to constitutional litigation, it must be applied with circumspection so as not to unjustifiably impede access to justice or the enforcement of constitutional rights. The Court emphasized that the plea cannot succeed where the earlier proceedings did not result in a final determination on the merits.
70. In the present case, this Court has perused the judgment in the earlier proceedings relied upon by the Respondents and notes that the Petition therein was dismissed solely on the ground that the Court lacked jurisdiction to determine the dispute, the matter relating to the removal of members of a County Assembly Service Board having been found to raise a constitutional question falling within the jurisdiction of the High Court and not the Employment and Labour Relations Court. A determination on jurisdiction, without more, does not engage with the substance of legality that now falls for determination before this Court.
71. Such a determination, being one founded on jurisdiction, does not constitute a substantive adjudication on the merits of the issues in dis
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