[1] The two petitioners, Michael Kojo Otieno and Evance Otieno Oloo Gor, moved the Court vide their Petition dated 26th February 2026 seeking declaratory and other orders in connection with the alleged failure by the 1st and 2nd respondents to adhere to Standing Orders No. 35(1) and 35(2) of the County Assembly of Homa Bay which govern committee terms; thereby violating the rights of the interested parties and their electorate. Concomitantly, they filed a Notice of Motion dated 26th February 2026 pursuant to Articles 21, 22, 23, 31, 48, 50(1), 165, 258 of the Constitution of Kenya; Rules 3, 4, 8, 10, 11, 13, 15, 18, 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and all other enabling provisions of the Law, seeking the following orders:
[a] Spent
[b] THAT pending the hearing and determination of this application and the entire petition, a temporary order does issue suspending the reconstitution and removal of the 1st to 4th interested parties from their select and sectoral committees until the application/petition herein is heard and concluded.
[c] THAT pending the hearing and determination of the application/petition, an order does issue in terms of Sections 6 and 11 of the Fair Administrative Action Act compelling the respondents, jointly, severally, to supply the petitioners/applicants with written reasons for the decision to drop the 1st to 4th interested parties from their respective select and sectoral committees.
[d] THAT costs of this application be in cause.
[2] The application was premised on the grounds that the interested parties herein are elected members of the County Assembly of Homa Bay who have been serving in the various select and sectoral committees of the Assembly. The petitioners contended that, since they have served diligently, it was their legitimate expectation that the interested parties would continue to serve in those committees and would not be arbitrarily or whimsically dropped from the committees without any explanation, notice or consultation placed, published or publicized in the assembly portal as required by law.
[3] The petitioners therefore impugned the decision by the respondents to remove the interested parties from the various committees in which they have been serving and asserted that no prejudice will be suffered if the reconstituted committees are temporarily suspended. They further averred that Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and the right to be given notice and reasons for any administrative action that is likely to adversely affect others.
[4] It was therefore their assertion that 1st and 2nd respondents have a statutory obligation to inform members of the public and Kenyan voters of the reasons as to why they deemed it fit to remove the interested parties from the subject committees. They further stated that, despite written protests from the 1st interested party, the 1st respondent, approved and permitted a motion to be tabled before the Assembly on 24th February 2026 for debate and approval of the list of members to the Assembly Select and sectoral Committee with the outcome that the interested parties were dropped from their respective committees arbitrarily, whimsically and without any prior consultation, explanation or notice.
[5] The petitioners contended that, in the absence of reasons or a lawful justification for their action, a presumption arises against the respondents that the decision was actuated by malice and inspired by ulterior considerations. They added that, as individuals directly affected by the decision to drop the names of the interested parties from the select and sectoral committees, their rights under Articles 27 and 47 of the Constitution had been impinged. They were apprehensive that the select and sectoral committees will imminently begin sittings; thereby denying them a chance to participate in the affairs of the Assembly.
[6] Accordingly, the petitioners averred that, the conservatory orders sought herein are intended to countermand and stop the violations and/or threats posed by the impugned actions of the respondents. They urged the Court to intervene and arrest the violations and/or threats of violations to both the Constitution and the principles of natural justice by granting the orders prayed for in their Notice of Motion dated 26th February 2026.
[7] The application was supported by the affidavit of Michael Kojo Otieno, sworn on 26th February 2026; to which the petitioners attached several documents.
[8] In response to the application, the respondents filed a Notice of Preliminary Objection dated 2nd March 2026, contending that:
[a] That the petitioners lack the requisite locus standi to institute the present proceedings as they are neither Members of the Homa Bay County Assembly nor persons directly affected by the impugned decision of the Selection Committee concerning the reshuffling and reconstitution of Assembly committees; and that the allocation or reassignment of Members to committees neither creates nor extinguishes public rights and does not constitute a matter of public participation, public governance failure, or constitutional accountability affecting the citizenry at large.
[b] That this Court lacks jurisdiction to entertain either the application or the petition by reason of the constitutional doctrine of separation of powers and the institutional autonomy granted to legislative bodies under the Constitution of Kenya. They contended that the reconstitution, reshuffling, and nomination of Members to committees of a County Assembly is a purely internal legislative function vested exclusively in the County Assembly and exercised through the Selection Committee pursuant to Standing Orders 153 and 154 of the Homa Bay County Assembly Standing Orders.
[c] That the petition and the application are premature and incompetent as they offend the doctrine of exhaustion of alternative dispute resolution mechanisms. The respondents relied on Standing Order 172 of the Homa Bay County Assembly Standing Orders and stated that it establishes the Powers and Privileges Committee and expressly provides that where disputes or conflicts arise touching on Members of the County Assembly in the execution of their parliamentary roles, the said Committee serves as the primary forum for consideration, inquiry, and determination of such matters in the first instance.
[d] That the dispute giving rise to the present proceedings concerns the reshuffling and reconstitution of County Assembly committees, a matter directly affecting Members of the County Assembly and arising from internal legislative processes governed by the Standing Orders of the Assembly; and therefore any grievance arising therefrom ought, in the first instance, to have been presented before the Powers and Privileges Committee as the designated internal appellate and dispute resolution mechanism.
[9] The Preliminary Objection was urged alongside the petitioner’s Notice of Motion. The respondents relied on their written submissions and invited the Court to consider and determine certain threshold issues of law arising from the Preliminary Objection. In their submission, the issues directly touch on the competence of the application and the propriety of invoking the jurisdiction of this Court in the circumstances of the present case.
[10] Hence, the respondents relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, and proposed the following issues for determination:
[a] Whether the petition offends the doctrine of exhaustion of internal remedies.
[b] Whether the Court lacks jurisdiction to entertain the application and the petition by virtue of the doctrine of separation of powers and legislative autonomy.
[c] Whether the dispute concerning the reshuffling of committees is an internal matter within the mandate of the Selection Committee.
[d] Whether the petitioners have demonstrated a justiciable public interest or locus standi to institute the proceedings.
[11] The respondents submitted that the doctrine of exhaustion is a fundamental principle of constitutional and administrative law, whose central purpose is to ensure that disputes are first addressed through the dispute resolution mechanisms specifically created by statute, institutional frameworks or regulations before the jurisdiction of the Court is invoked. They contended that the doctrine recognizes that specialized bodies established by law possess the necessary institutional competence and contextual understanding to handle disputes arising within their mandate in the first instance.
[12] The respondent relied on Article 159(2)(c) of the Constitution of Kenya, which obligates courts to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. They submitted that the Constitution itself encourages the resolution of disputes through appropriate institutional channels before parties can resort to judicial adjudication. In addition, the respondents relied on Section 9(2) of the Fair Administrative Action Act which expressly provides that the High Court or a subordinate court reviewing administrative action shall not review an administrative decision unless the mechanisms for appeal or review provided under any other written law are first exhausted.
[13] The respondents made reference to the decision of the Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) (29 May 1992) (Ruling), Republic v National Environment Management Authority Ex Parte Sound Equipment Limited [2011] KECA 412 (KLR) and Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, for the proposition that courts should be the forum of last resort and not the first port of call whenever a dispute arises. In this instance, the respondents argued that Standing Order 175 of the Homa Bay County Assembly Standing Orders establishes the Powers and Privileges Committee, whose mandate includes addressing grievances and disputes touching on Members of the County Assembly in the exercise of their parliamentary functions. In their view, that is the forum that the petitioners and the interested parties ought to have channeled their grievance to, instead of filing the instant suit.
[14] Further to the foregoing, the respondents cited Section 15 of the County Assemblies Powers and Privileges Act, which provides for the establishment of the Powers and Privileges Committee within County Assemblies and mandates it to inquire into and determine matters relating to the conduct, privileges, and rights of Members of the County Assembly. In the respondents’ view, the legislative intent behind this provision was to create a specialized internal mechanism within County Assemblies to address disputes involving members in the first instance. They posited that grievances touching on committee membership, privileges, or the internal functioning of the Assembly must first be ventilated before this Committee.
[15] The respondents further submitted that, in the absence of any attempt by the petitioners to invoke the internal mechanism provided under the Standing Orders and the governing statute, the petition amounts to a clear attempt to bypass the institutional framework established by law. They added that such conduct undermines the legislative autonomy of the County Assembly and disregards the principle that specialized bodies should first be allowed to address disputes within their competence.
[16] The respondents urged the Court to note that the petitioners have not demonstrated any exceptional circumstances that would justify bypassing the available internal dispute resolution mechanisms, in that they have not shown that the available mechanism is inadequate, ineffective, or that the matter raises pure constitutional questions incapable of resolution within the statutory framework. Accordingly, they submitted that the petition and the application filed by the petitioners are not only premature and incompetent but were also filed in disregard of the doctrine of exhaustion.
[17] The respondents also argued that this Court lacks the jurisdiction to entertain the petition by virtue of the doctrine of separation of powers. They submitted that the impugned processes fall squarely within the internal administrative and procedural domain of the County Assembly. In their submission, the petition and the accompanying application, in essence, are an invitation to the Court to interrogate and potentially overturn the reshuffling and reconstitution of committees within the Assembly; an exercise that is purely internal to the legislative arm of government.
[18] The respondents made reference to Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR, for the proposition that while the Judiciary has the duty to interpret the Constitution, it must do so in a manner that respects the functional independence of other constitutional organs. They also referred to Speaker of the Senate & another v Attorney General & 4 others [2013] eKLR in which the Court of Appeal held that separation of powers requires each arm of government to exercise restraint and to respect the constitutional boundaries assigned to the others.
[19] The respondents pointed out that reshuffling of committees does not affect the constitutional structure of government, nor does it extinguish any justiciable legal right. They added that members of the County Assembly do not possess a vested right to remain in specific committees indefinitely; and therefore their placement in committees is subject to the discretion of the Selection Committee acting within the framework of the Standing Orders. They added that so long as members continue to serve within committees of the Assembly, their internal allocation of those committees remains a matter within the exclusive purview of the legislative institution.
[20] Hence, the respondents submitted that, since the dispute presented before this Court concerns a purely internal legislative matter that falls within the procedural autonomy of the County Assembly, entertaining the petition and by extension the application, would amount to judicial overreach and would offend the constitutional doctrine of separation of powers. Therefore, it was their contention that the Court lacks jurisdiction to adjudicate upon the issues raised herein.
[21] On whether the matter raises a question of public interest as alleged by the petitioners, the respondents submitted that that assertion is wholly misplaced, legally untenable, and amounts to a deliberate attempt to elevate an internal administrative matter of the Assembly into a constitutional dispute where none exists. The respondents submitted that the doctrine of public interest litigation exists to safeguard constitutional rights and protect the public from unlawful state action that affects the citizenry at large. They added that it was not designed to provide a platform for litigants to challenge routine institutional management decisions that bear no consequence on the rights of the public.
[22] The respondents further submitted that the electorate of Homa Bay County elected Members of the County Assembly to represent them within the legislative chamber; and that, once elected, those members collectively organize themselves through committees in order to perform their legislative and oversight functions. They therefore asserted that whether a particular Member serves in one committee or another does not alter the representation accorded to the electorate because the member remains a member of the County Assembly, retains full legislative voting rights within the Assembly, and continues to discharge his or her duties on behalf of the constituents.
[23] On the authority of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR the respondents submitted that it was imperative for the petitioners to demonstrate a genuine constitutional controversy and not seek to initiate a constitutional litigation simply as a vehicle for advancing personal or political grievances under the guise of public interest. They urged the Court to find that the application and petition raise no justiciable public interest issue and that the petitioners lack standing to invoke the Court's jurisdiction in relation to the internal committee arrangements of the County Assembly.
[24] In respect of the Notice of Motion dated 26th February 2026, the respondents submitted that the petitioners had not demonstrated the existence of any exceptional circumstances or irreparable harm warranting urgent consideration by this Court. They contended that a certificate of urgency must establish not only the existence of an urgent matter but also the specific and immediate consequences that would result if the Court does not hear the matter on an expedited basis.
[25] They pointed out that the interested parties continued to serve in committees within the Assembly and were fully able to discharge their legislative duties. Hence, in their view, no evidence had been placed before the Court to show that the reshuffling had caused, or was likely to cause any material or irreparable prejudice to the interested parties or to the public. They submitted therefore that there was no justification for abridging the normal procedural timelines of the Court by granting the orders sought in the petitioners’ Notice of Motion. They prayed for its dismissal with costs.
[26] On their part, the petitioners relied on their written submissions dated 3rd May 2026. They relied on Articles 22 and 258 of the Constitution and contended that this Petition was filed as a matter of great public importance touching on political rights under Articles 38 of the Constitution. They relied on John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance, & 5 Others (supra) on the role of public interest litigation in Kenya and urged the Court to find that they have locus standi to file the petition and the application and that the subject matter herein is of great public interest to the Kenyan taxpayers.
[27] In response to the respondents’ submissions on jurisdiction, the petitioners conceded that the question of jurisdiction is indeed a threshold issue that must be settled upfront. They relied on the following authorities to underscore their submissions:
[a] Petition No. 7 of 2013 Mary Wambui Munene v Peter Gichuki Kingara and Six Others [2014] eKLR
[b] In the Matter of Interim Independent Electoral Commission [2011] eKLR
[c] Petition No. E282 of 2020, David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae) [2020] eKLR
[d] Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1
[e] Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR
[f] Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] eKLR
[g] Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others [2012] eKLR
[28] The petitioners submitted that Article 165(3)(d)(i) and (ii) of the Constitution empowers the High Court to hear and determine questions on the interpretation of the Constitution including the determination of whether any law is inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution. They submitted that courts of law are not helpless in the face of violation or threats of violation of rights or disregard of the Constitution itself. They relied on Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 Others [2016] eKLR and Republic Ex Parte Chudasama v The Chief Magistrate’s Court [2007] eKLR, to further buttress their argument that the Court has unhindered jurisdiction to intervene and protect the Constitution in instances of either threats or violation to the Constitution.
[29] On the doctrine of exhaustion the petitioners placed reliance on William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR and Speaker of National Assembly v Karume (supra) and Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others (supra) and acknowledged the importance of the doctrine of exhaustion. They however submitted that, since they are not members of the County Assembly, but are ordinary Kenyans who are questioning the ultra vires acts of the respondents, they had no option but approach the Court for intervention.
[30] The petitioners therefore prayed that the respondents’ Preliminary Objection be dismissed with costs and that their Notice of Motion dated 26th February 2026 be allowed and orders granted as prayed with costs.
[31] The interested parties also responded to the respondents’ Preliminary Objection. They relied on their written submissions dated 4th March 2026 in which they pointed out that at the core of the petition and the application is the place of Article 47 of the Constitution of Kenya and the ramifications of its interpretation. They opted to address the core issue of jurisdiction and relied on Article 165(3) (b) which gives the High Court the jurisdiction to determine questions whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened with violation. They pointed out that Article 165 (3)(d)(ii) further provides that the High Court shall have jurisdiction to hear any question respecting the interpretation of the constitution of whether anything said to be under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution.
[32] The interested parties pointed out that the 1st respondent holds a constitutional office established under Article 178(1); and is bestowed with the authority to preside over a County Assembly pursuant to Article 178(2)(a). They posited therefore that in issuing the order for the removal of the 1st to 4th interested parties from membership of respective committees, the 1st respondent was exercising his constitutional role as provided under Article 178(2)(a) and therefore that exercise of power is amenable to interrogation by the Court as to whether it was constitutional or not. They referred to Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, James Opiyo Wandayi v Kenya National Assembly & 2 others, [2016] eKLR and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR for purposes of demonstrating instances where the High Court rightly intervened to avert constitutional breaches by the legislature.
[33] I have given due consideration to the averments in the petition, the application dated 26th February 2026 and the response thereto as well as the written submissions filed by learned counsel for the parties. I noted that the parties strayed and delved into issues that ought to be reserved for determination in the substantive Petition. Accordingly, for purposes of the Preliminary Objection, the issues for determination are:
[a] Whether the Court has jurisdiction to entertain the Petition and by extension the application;
[b] Whether the petitioners have the locus standi to present the Petition;
[c] Whether the petitioners complied with the doctrine of exhaustion; and
[d] Whether this is a matter in which the Court ought to exercise judicial restraint in view of the orders sought.
A. On Jurisdiction:
[34] The paramountcy of jurisdiction was aptly captured as follows in the Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited [1989] KLR 1:
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[35] Hence, in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain
any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[36] The jurisdiction of the High Court is provided for in Article 165(3) of the Constitution as follows:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[37] Further, Article 165 of the Constitution, grants the High Court supervisory jurisdiction over any individual, body, or authority performing a judicial or quasi-judicial function, excluding Superior Courts. In this regard, Sub Articles (6) and (7) of Article 165 of the Constitution provide:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
[38] The High Court’s supervisory jurisdiction over entities other than Superior Courts is extensive. The Court may issue any order or direction it deems necessary to ensure fair administration of justice. In the same vein, Article 2 establishes the Constitution as the supreme law of the Republic, binding all individuals and State organs at every level of government. The Article is explicit that no person or body may exercise state authority unless authorized by the Constitution.
[39] In the premises, the National Assembly can be sued in so far it performs public duties mandated by the Constitution and legislation as shown above. Indeed, Article 165(6) of the Constitution is plain that the supervisory jurisdiction of the High Court encompasses decisions made by “…any person, body or authority exercising a judicial or quasi-judicial function…”
[40] In this instance, it is notable that one of the Articles alleged to have been violated is Article 47 of the Constitution; and some of the reliefs sought against the respondent were in the nature of judicial review. It is therefore my finding that this Court has the jurisdiction to entertain not only the petition but also the application filed therewith.
B. On Locus Standi:
[41] I have similarly considered the copious submissions filed herein and the various authorities relied on by the parties. There is no gainsaying that that Articles 3(1) and 258 of the Constitution have indeed widened the concept of locus standi considerably. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra) the Court of Appeal held:
“[27] Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process…We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to
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[a] Spent
[b] THAT pending the hearing and determination of this application and the entire petition, a temporary order does issue suspending the reconstitution and removal of the 1st to 4th interested parties from their select and sectoral committees until the application/petition herein is heard and concluded.
[c] THAT pending the hearing and determination of the application/petition, an order does issue in terms of Sections 6 and 11 of the Fair Administrative Action Act compelling the respondents, jointly, severally, to supply the petitioners/applicants with written reasons for the decision to drop the 1st to 4th interested parties from their respective select and sectoral committees.
[d] THAT costs of this application be in cause.
[2] The application was premised on the grounds that the interested parties herein are elected members of the County Assembly of Homa Bay who have been serving in the various select and sectoral committees of the Assembly. The petitioners contended that, since they have served diligently, it was their legitimate expectation that the interested parties would continue to serve in those committees and would not be arbitrarily or whimsically dropped from the committees without any explanation, notice or consultation placed, published or publicized in the assembly portal as required by law.
[3] The petitioners therefore impugned the decision by the respondents to remove the interested parties from the various committees in which they have been serving and asserted that no prejudice will be suffered if the reconstituted committees are temporarily suspended. They further averred that Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and the right to be given notice and reasons for any administrative action that is likely to adversely affect others.
[4] It was therefore their assertion that 1st and 2nd respondents have a statutory obligation to inform members of the public and Kenyan voters of the reasons as to why they deemed it fit to remove the interested parties from the subject committees. They further stated that, despite written protests from the 1st interested party, the 1st respondent, approved and permitted a motion to be tabled before the Assembly on 24th February 2026 for debate and approval of the list of members to the Assembly Select and sectoral Committee with the outcome that the interested parties were dropped from their respective committees arbitrarily, whimsically and without any prior consultation, explanation or notice.
[5] The petitioners contended that, in the absence of reasons or a lawful justification for their action, a presumption arises against the respondents that the decision was actuated by malice and inspired by ulterior considerations. They added that, as individuals directly affected by the decision to drop the names of the interested parties from the select and sectoral committees, their rights under Articles 27 and 47 of the Constitution had been impinged. They were apprehensive that the select and sectoral committees will imminently begin sittings; thereby denying them a chance to participate in the affairs of the Assembly.
[6] Accordingly, the petitioners averred that, the conservatory orders sought herein are intended to countermand and stop the violations and/or threats posed by the impugned actions of the respondents. They urged the Court to intervene and arrest the violations and/or threats of violations to both the Constitution and the principles of natural justice by granting the orders prayed for in their Notice of Motion dated 26th February 2026.
[7] The application was supported by the affidavit of Michael Kojo Otieno, sworn on 26th February 2026; to which the petitioners attached several documents.
[8] In response to the application, the respondents filed a Notice of Preliminary Objection dated 2nd March 2026, contending that:
[a] That the petitioners lack the requisite locus standi to institute the present proceedings as they are neither Members of the Homa Bay County Assembly nor persons directly affected by the impugned decision of the Selection Committee concerning the reshuffling and reconstitution of Assembly committees; and that the allocation or reassignment of Members to committees neither creates nor extinguishes public rights and does not constitute a matter of public participation, public governance failure, or constitutional accountability affecting the citizenry at large.
[b] That this Court lacks jurisdiction to entertain either the application or the petition by reason of the constitutional doctrine of separation of powers and the institutional autonomy granted to legislative bodies under the Constitution of Kenya. They contended that the reconstitution, reshuffling, and nomination of Members to committees of a County Assembly is a purely internal legislative function vested exclusively in the County Assembly and exercised through the Selection Committee pursuant to Standing Orders 153 and 154 of the Homa Bay County Assembly Standing Orders.
[c] That the petition and the application are premature and incompetent as they offend the doctrine of exhaustion of alternative dispute resolution mechanisms. The respondents relied on Standing Order 172 of the Homa Bay County Assembly Standing Orders and stated that it establishes the Powers and Privileges Committee and expressly provides that where disputes or conflicts arise touching on Members of the County Assembly in the execution of their parliamentary roles, the said Committee serves as the primary forum for consideration, inquiry, and determination of such matters in the first instance.
[d] That the dispute giving rise to the present proceedings concerns the reshuffling and reconstitution of County Assembly committees, a matter directly affecting Members of the County Assembly and arising from internal legislative processes governed by the Standing Orders of the Assembly; and therefore any grievance arising therefrom ought, in the first instance, to have been presented before the Powers and Privileges Committee as the designated internal appellate and dispute resolution mechanism.
[9] The Preliminary Objection was urged alongside the petitioner’s Notice of Motion. The respondents relied on their written submissions and invited the Court to consider and determine certain threshold issues of law arising from the Preliminary Objection. In their submission, the issues directly touch on the competence of the application and the propriety of invoking the jurisdiction of this Court in the circumstances of the present case.
[10] Hence, the respondents relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, and proposed the following issues for determination:
[a] Whether the petition offends the doctrine of exhaustion of internal remedies.
[b] Whether the Court lacks jurisdiction to entertain the application and the petition by virtue of the doctrine of separation of powers and legislative autonomy.
[c] Whether the dispute concerning the reshuffling of committees is an internal matter within the mandate of the Selection Committee.
[d] Whether the petitioners have demonstrated a justiciable public interest or locus standi to institute the proceedings.
[11] The respondents submitted that the doctrine of exhaustion is a fundamental principle of constitutional and administrative law, whose central purpose is to ensure that disputes are first addressed through the dispute resolution mechanisms specifically created by statute, institutional frameworks or regulations before the jurisdiction of the Court is invoked. They contended that the doctrine recognizes that specialized bodies established by law possess the necessary institutional competence and contextual understanding to handle disputes arising within their mandate in the first instance.
[12] The respondent relied on Article 159(2)(c) of the Constitution of Kenya, which obligates courts to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. They submitted that the Constitution itself encourages the resolution of disputes through appropriate institutional channels before parties can resort to judicial adjudication. In addition, the respondents relied on Section 9(2) of the Fair Administrative Action Act which expressly provides that the High Court or a subordinate court reviewing administrative action shall not review an administrative decision unless the mechanisms for appeal or review provided under any other written law are first exhausted.
[13] The respondents made reference to the decision of the Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) (29 May 1992) (Ruling), Republic v National Environment Management Authority Ex Parte Sound Equipment Limited [2011] KECA 412 (KLR) and Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, for the proposition that courts should be the forum of last resort and not the first port of call whenever a dispute arises. In this instance, the respondents argued that Standing Order 175 of the Homa Bay County Assembly Standing Orders establishes the Powers and Privileges Committee, whose mandate includes addressing grievances and disputes touching on Members of the County Assembly in the exercise of their parliamentary functions. In their view, that is the forum that the petitioners and the interested parties ought to have channeled their grievance to, instead of filing the instant suit.
[14] Further to the foregoing, the respondents cited Section 15 of the County Assemblies Powers and Privileges Act, which provides for the establishment of the Powers and Privileges Committee within County Assemblies and mandates it to inquire into and determine matters relating to the conduct, privileges, and rights of Members of the County Assembly. In the respondents’ view, the legislative intent behind this provision was to create a specialized internal mechanism within County Assemblies to address disputes involving members in the first instance. They posited that grievances touching on committee membership, privileges, or the internal functioning of the Assembly must first be ventilated before this Committee.
[15] The respondents further submitted that, in the absence of any attempt by the petitioners to invoke the internal mechanism provided under the Standing Orders and the governing statute, the petition amounts to a clear attempt to bypass the institutional framework established by law. They added that such conduct undermines the legislative autonomy of the County Assembly and disregards the principle that specialized bodies should first be allowed to address disputes within their competence.
[16] The respondents urged the Court to note that the petitioners have not demonstrated any exceptional circumstances that would justify bypassing the available internal dispute resolution mechanisms, in that they have not shown that the available mechanism is inadequate, ineffective, or that the matter raises pure constitutional questions incapable of resolution within the statutory framework. Accordingly, they submitted that the petition and the application filed by the petitioners are not only premature and incompetent but were also filed in disregard of the doctrine of exhaustion.
[17] The respondents also argued that this Court lacks the jurisdiction to entertain the petition by virtue of the doctrine of separation of powers. They submitted that the impugned processes fall squarely within the internal administrative and procedural domain of the County Assembly. In their submission, the petition and the accompanying application, in essence, are an invitation to the Court to interrogate and potentially overturn the reshuffling and reconstitution of committees within the Assembly; an exercise that is purely internal to the legislative arm of government.
[18] The respondents made reference to Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR, for the proposition that while the Judiciary has the duty to interpret the Constitution, it must do so in a manner that respects the functional independence of other constitutional organs. They also referred to Speaker of the Senate & another v Attorney General & 4 others [2013] eKLR in which the Court of Appeal held that separation of powers requires each arm of government to exercise restraint and to respect the constitutional boundaries assigned to the others.
[19] The respondents pointed out that reshuffling of committees does not affect the constitutional structure of government, nor does it extinguish any justiciable legal right. They added that members of the County Assembly do not possess a vested right to remain in specific committees indefinitely; and therefore their placement in committees is subject to the discretion of the Selection Committee acting within the framework of the Standing Orders. They added that so long as members continue to serve within committees of the Assembly, their internal allocation of those committees remains a matter within the exclusive purview of the legislative institution.
[20] Hence, the respondents submitted that, since the dispute presented before this Court concerns a purely internal legislative matter that falls within the procedural autonomy of the County Assembly, entertaining the petition and by extension the application, would amount to judicial overreach and would offend the constitutional doctrine of separation of powers. Therefore, it was their contention that the Court lacks jurisdiction to adjudicate upon the issues raised herein.
[21] On whether the matter raises a question of public interest as alleged by the petitioners, the respondents submitted that that assertion is wholly misplaced, legally untenable, and amounts to a deliberate attempt to elevate an internal administrative matter of the Assembly into a constitutional dispute where none exists. The respondents submitted that the doctrine of public interest litigation exists to safeguard constitutional rights and protect the public from unlawful state action that affects the citizenry at large. They added that it was not designed to provide a platform for litigants to challenge routine institutional management decisions that bear no consequence on the rights of the public.
[22] The respondents further submitted that the electorate of Homa Bay County elected Members of the County Assembly to represent them within the legislative chamber; and that, once elected, those members collectively organize themselves through committees in order to perform their legislative and oversight functions. They therefore asserted that whether a particular Member serves in one committee or another does not alter the representation accorded to the electorate because the member remains a member of the County Assembly, retains full legislative voting rights within the Assembly, and continues to discharge his or her duties on behalf of the constituents.
[23] On the authority of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR the respondents submitted that it was imperative for the petitioners to demonstrate a genuine constitutional controversy and not seek to initiate a constitutional litigation simply as a vehicle for advancing personal or political grievances under the guise of public interest. They urged the Court to find that the application and petition raise no justiciable public interest issue and that the petitioners lack standing to invoke the Court's jurisdiction in relation to the internal committee arrangements of the County Assembly.
[24] In respect of the Notice of Motion dated 26th February 2026, the respondents submitted that the petitioners had not demonstrated the existence of any exceptional circumstances or irreparable harm warranting urgent consideration by this Court. They contended that a certificate of urgency must establish not only the existence of an urgent matter but also the specific and immediate consequences that would result if the Court does not hear the matter on an expedited basis.
[25] They pointed out that the interested parties continued to serve in committees within the Assembly and were fully able to discharge their legislative duties. Hence, in their view, no evidence had been placed before the Court to show that the reshuffling had caused, or was likely to cause any material or irreparable prejudice to the interested parties or to the public. They submitted therefore that there was no justification for abridging the normal procedural timelines of the Court by granting the orders sought in the petitioners’ Notice of Motion. They prayed for its dismissal with costs.
[26] On their part, the petitioners relied on their written submissions dated 3rd May 2026. They relied on Articles 22 and 258 of the Constitution and contended that this Petition was filed as a matter of great public importance touching on political rights under Articles 38 of the Constitution. They relied on John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance, & 5 Others (supra) on the role of public interest litigation in Kenya and urged the Court to find that they have locus standi to file the petition and the application and that the subject matter herein is of great public interest to the Kenyan taxpayers.
[27] In response to the respondents’ submissions on jurisdiction, the petitioners conceded that the question of jurisdiction is indeed a threshold issue that must be settled upfront. They relied on the following authorities to underscore their submissions:
[a] Petition No. 7 of 2013 Mary Wambui Munene v Peter Gichuki Kingara and Six Others [2014] eKLR
[b] In the Matter of Interim Independent Electoral Commission [2011] eKLR
[c] Petition No. E282 of 2020, David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae) [2020] eKLR
[d] Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1
[e] Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR
[f] Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] eKLR
[g] Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others [2012] eKLR
[28] The petitioners submitted that Article 165(3)(d)(i) and (ii) of the Constitution empowers the High Court to hear and determine questions on the interpretation of the Constitution including the determination of whether any law is inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution. They submitted that courts of law are not helpless in the face of violation or threats of violation of rights or disregard of the Constitution itself. They relied on Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 Others [2016] eKLR and Republic Ex Parte Chudasama v The Chief Magistrate’s Court [2007] eKLR, to further buttress their argument that the Court has unhindered jurisdiction to intervene and protect the Constitution in instances of either threats or violation to the Constitution.
[29] On the doctrine of exhaustion the petitioners placed reliance on William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR and Speaker of National Assembly v Karume (supra) and Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others (supra) and acknowledged the importance of the doctrine of exhaustion. They however submitted that, since they are not members of the County Assembly, but are ordinary Kenyans who are questioning the ultra vires acts of the respondents, they had no option but approach the Court for intervention.
[30] The petitioners therefore prayed that the respondents’ Preliminary Objection be dismissed with costs and that their Notice of Motion dated 26th February 2026 be allowed and orders granted as prayed with costs.
[31] The interested parties also responded to the respondents’ Preliminary Objection. They relied on their written submissions dated 4th March 2026 in which they pointed out that at the core of the petition and the application is the place of Article 47 of the Constitution of Kenya and the ramifications of its interpretation. They opted to address the core issue of jurisdiction and relied on Article 165(3) (b) which gives the High Court the jurisdiction to determine questions whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened with violation. They pointed out that Article 165 (3)(d)(ii) further provides that the High Court shall have jurisdiction to hear any question respecting the interpretation of the constitution of whether anything said to be under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution.
[32] The interested parties pointed out that the 1st respondent holds a constitutional office established under Article 178(1); and is bestowed with the authority to preside over a County Assembly pursuant to Article 178(2)(a). They posited therefore that in issuing the order for the removal of the 1st to 4th interested parties from membership of respective committees, the 1st respondent was exercising his constitutional role as provided under Article 178(2)(a) and therefore that exercise of power is amenable to interrogation by the Court as to whether it was constitutional or not. They referred to Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, James Opiyo Wandayi v Kenya National Assembly & 2 others, [2016] eKLR and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR for purposes of demonstrating instances where the High Court rightly intervened to avert constitutional breaches by the legislature.
[33] I have given due consideration to the averments in the petition, the application dated 26th February 2026 and the response thereto as well as the written submissions filed by learned counsel for the parties. I noted that the parties strayed and delved into issues that ought to be reserved for determination in the substantive Petition. Accordingly, for purposes of the Preliminary Objection, the issues for determination are:
[a] Whether the Court has jurisdiction to entertain the Petition and by extension the application;
[b] Whether the petitioners have the locus standi to present the Petition;
[c] Whether the petitioners complied with the doctrine of exhaustion; and
[d] Whether this is a matter in which the Court ought to exercise judicial restraint in view of the orders sought.
A. On Jurisdiction:
[34] The paramountcy of jurisdiction was aptly captured as follows in the Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited [1989] KLR 1:
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[35] Hence, in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain
any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[36] The jurisdiction of the High Court is provided for in Article 165(3) of the Constitution as follows:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[37] Further, Article 165 of the Constitution, grants the High Court supervisory jurisdiction over any individual, body, or authority performing a judicial or quasi-judicial function, excluding Superior Courts. In this regard, Sub Articles (6) and (7) of Article 165 of the Constitution provide:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
[38] The High Court’s supervisory jurisdiction over entities other than Superior Courts is extensive. The Court may issue any order or direction it deems necessary to ensure fair administration of justice. In the same vein, Article 2 establishes the Constitution as the supreme law of the Republic, binding all individuals and State organs at every level of government. The Article is explicit that no person or body may exercise state authority unless authorized by the Constitution.
[39] In the premises, the National Assembly can be sued in so far it performs public duties mandated by the Constitution and legislation as shown above. Indeed, Article 165(6) of the Constitution is plain that the supervisory jurisdiction of the High Court encompasses decisions made by “…any person, body or authority exercising a judicial or quasi-judicial function…”
[40] In this instance, it is notable that one of the Articles alleged to have been violated is Article 47 of the Constitution; and some of the reliefs sought against the respondent were in the nature of judicial review. It is therefore my finding that this Court has the jurisdiction to entertain not only the petition but also the application filed therewith.
B. On Locus Standi:
[41] I have similarly considered the copious submissions filed herein and the various authorities relied on by the parties. There is no gainsaying that that Articles 3(1) and 258 of the Constitution have indeed widened the concept of locus standi considerably. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra) the Court of Appeal held:
“[27] Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process…We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to
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