THE REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CONSTITUTIONAL PETITION NO. E032 OF 2025
IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 35, 47, 48, 50, 129, 159, 163, 174, 175, 201, 226, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE CONTINUED ILLEGAL OCCUPATION OF OFFICE IN THE COUNTY ASSEMBLY OF MACHAKOS SERVICE BOARD
BETWEEN
NAHASHON WAMBUA MUINDE…………………....................…PETITIONER/APPLICANT
[Suing on his own behalf and in the public interest on behalf of residents of Machakos County]
AND
ALEX NYAMAI KITILI…………………………......................................….1ST RESPONDENT
JANET MWIKALI KIMEU……………………….…….......…..................….2ND RESPONDENT
COUNTY ASSEMBLY OF MACHAKOS SERVICE BOARD........................3RD RESPONDENT
COUNTY ASSEMBLY OF MACHAKOS…………....….…..................…….4TH RESPONDENT
CLERK, COUNTY ASSEMBLY OF MACHAKOS……………..................…5TH RESPONDENT
RULING
1. This ruling is on two Notices of Preliminary Objections. The first one is by the 1st Respondent dated 22nd September 2025 raised on the following grounds:-
a) The Honourable Court lacks the jurisdiction to hear both the application and the Petition as against the 1st and 2nd Respondents.
b) Both the application and the Petition violate the well-established principle and doctrine of exhaustion.
c) The application and the Petition are otherwise premature, based on misapprehension of the law and are not sustainable.
2. The second Notice of Preliminary Objection is by the 2nd Respondent dated 23rd September 2025 raised on the following grounds:-
a) Section 10 of the County Assembly Services Act on the procedure for removal of office of a member of the Board vis a vis jurisdiction of this Honourable Court to hear and determine the instant Petition.
b) Sections 12 & 35 of the County Assembly Services Act on the powers of the Board as a body corporate and procedure for legal proceedings against the board; and
c) Section 42 of the County Assembly Services Act on the protection of members and staff of the Board.
d) THAT therefore, the instant Petition and Application is filed in the wrong forum as the court lacks jurisdiction to hear and determine the matter and thus ought to be dismissed with costs in favour of the 2nd respondent.
3. The court gave directions for both preliminary objections to be canvassed together through written submissions. The 1st Respondent’s submissions are dated 15th December 2025, the 2nd Respondent’s submissions are dated 26th January 2026, the 3rd, 4th & 5th Respondents’ submissions are dated10th February 2026 and the Petitioner’s submissions are dated 29th April 2026.
1st Respondent’s submissions
4. The 1st Respondent submits that the Petitioner herein is attempting to remove the 1st and 2nd Respondent from office without following the due process under Section 10(2) of the Court Assembly Services Act. Without a Petition having been presented before the County Assembly of Machakos under the said provision, this Court does not have jurisdiction to entertain an ouster Constitutional Petition against the 1st and 2nd Respondent. Reliance is placed on the decision in Republic v Speaker, County Assembly of Elgeyo Marakwet & 2 others; Ex Parte Applicants Lawi Kibire & Another [2020] eKLR, the High Court held that removal from the office of a member of the Elgeyo Marakwet County Assembly Board in a manner that violated Section 10(2) of the County Assembly Services Act was null and void. The Court affirmed the supremacy of Section 10(2) of the County Assembly Services Act as the only path for the removal of members of the County Assembly Service Board.
5. The 1st Respondent submits that, on the other hand, Section 12(6) of County Governments Act, 2012 reasonably and justifiably provides for the scenario where the term of sitting external board member expires before successful recruitment of their replacement;
“Despite subsection (5), when the term of the county assembly ends, a member of the county assembly service board appointed under subsection (3)(d) shall continue in office until a new member has assumed office in the member’s place in the next assembly.
6. That the above safeguard was enacted into law to ringfence the composition, quorum and efficacy of the County Services Assembly Board where the absence of the two external members would be caused by delays or challenges in the recruitment process. The law foresaw a vacuum and dealt with it decisively. In petitioning the court to remove the 1st and 2nd Respondent, the Petitioner is effectively asking the court to use its power to defeat a clear intention and safeguard of the law in the operations of the County Assembly, a statutory and Constitutional body. It is submitted that the Court has no jurisdiction to do such.
7. The 1st Respondent further submits that the Petitioner has wholly misdirected himself in interpreting that the term of office for the 1st and 2nd Respondent is guided and determined by the letter of appointment dated 14th August 2019. The entire petition is anchored on an error, that the two external members are normal employees of the County Assembly, governed by the usual law of Employment & Contract. In that context, the court would have jurisdiction to determine the legality, probity and term of such a contract. To the contrary, Section 12(3A) of the County Government Act is explicit that the members of the Board appointed under Section 12(3)(d) shall serve on a part-time basis. It is therefore submitted that the 1st and 2nd Respondents are employees of the Assembly under Statute, and the court has no jurisdiction to apply the normal laws of employment and contract as invited by the Petition.
8. In light of the above provision, the 1st Respondent submits that the Court has no jurisdiction to oust the 1st and 2nd Respondent from office. The Petitioner has a statutory forum for pursuing the removal of the 1st and 2nd Respondents from office: County Assembly of Machakos. The Petitioner has not filed any Petition before the County Assembly seeking the removal of the 1st and 2nd Respondent. He seeks to unlawfully circumvent Section 10(2) of the Court Assembly Services Act by seeking remedies from this Court, which cannot grant itself jurisdiction that it does not have and purport to perform a function that is vested in another constitutional body by law.
9. The 1st respondent submits that in this case, the Petitioner is barred by the doctrine of exhaustion from sidestepping the procedure for removing members of the Machakos County Service Board as stipulated in Section 10(2) of the County Assembly Services Act to file the Petition before this Court. Reliance is placed on the decision in the High Court in Vincent v Akosi; Kakamega County Assembly Service Board & Another [2022] eKLR, was tasked with determination of a strikingly similar Preliminary Objection. The Petitioner filed a Petition seeking to remove members of the Kakamega County Assembly Service Board without pursuing the procedure under Section 10(2) of the County Assembly Services Act.
10. In upholding the Preliminary Objection and striking out the Petition, the Court held as follows;
“The court then agrees with the respondent that it has no jurisdiction to entertain the application and the petition as it seeks for the court to exercise statutory powers of the county assembly being removal of the respondent from the county assembly service board of Kakamega county assembly. That would be a direct violation of the law”. (Para 33)
11. It is on the basis of this precedent with similar facts as this case that the 1st Respondent urges this Court to uphold the doctrine of exhaustion as preserved under Section 10(2) of the County Assembly Services Act and to uphold his Preliminary Objection and strike out the Petition, with costs.
2nd Respondent’s submissions
12. The 2nd Respondent submits that the issues raised in this matter arises from an ongoing process of recruitment of external members of the County Assembly Service Board of Machakos. Interviews were conducted, a report was tabled, but the same was rejected. The Assembly has since taken steps to continue with the process in accordance with law and Standing Orders. The Petitioner now seeks orders declaring that the Respondents are illegally in office and invites the Court to stop, supervise, and effectively direct the internal parliamentary process.
13. The 2nd Respondent also submits that this Court lacks jurisdiction to hear and determine the application and Petition filed by the Petitioner herein. The Petition is premature, offends parliamentary privilege and seeks to draw the Court into matters within the exclusive domain of the County Assembly.
14. The 2nd Respondent argues that the removal of the 2nd Respondent who is a member appointed from the public is governed primarily by the Constitution of Kenya and supplemented by the County Assembly Services Act, 2017. The 2nd Respondent has cited Section 12 (5) of the County Government Act which provides that;
“A member of the county assembly service board shall vacate office—
(a) if the person is a member of the county assembly— (i) at the end of the term of the county assembly; or
(ii) if the person ceases to be a member of the county assembly; or
(b) if the person is an appointed member, on revocation of the person’s appointment by the county assembly; or
(c) if the person is the Speaker, when the person ceases to be such Speaker.
15. The 2nd Respondent submits that the import of the above is that the 2nd Respondent having been appointed by the County Assembly can only be removed in compliance with the provisions of Section 12(5)(b) wherein the word used is “shall” which denotes mandatory. In the said provision it is only the County Assembly that is mandated to revoke the appointed of the 2nd Respondent.
16. That for the County Assembly, the revocation of appointment Member of the Board, a Petition must be lodged with the County Assembly for investigation and voting. Therefore. the allegation that the Respondents are illegally in office ignores the doctrine of holding over, allowing office holders to remain until successors are duly appointed, to ensure continuity. Reliance was placed on the finding in the High Court case in Republic v County Government of Kiambu ex parte Robert Gakuru & Others [2016] eKLR which recognized that courts should avoid creating administrative vacuum through injunctive orders wherein the Court observed as follows;
"The court should be slow in issuing orders that have the effect of creating a vacuum in the delivery of services to the public...
the principle of continuity in public administration is vital."
17. The 2nd Respondent submits that the County Assembly is in the middle of regularizing its appointments. The Court is being invited to prematurely declare vacancies and micromanage succession which is contrary to the dictates of the doctrine of separation of powers. That the instant Petition offends the doctrine of separation of powers. Articles 1, 94 and 185 of the Constitution allocate legislative authority to Parliament and County Assemblies respectively.
18. The 2nd Respondent further submits that the doctrine of separation of powers requires judicial restraint where another constitutional organ is seized of a matter within its competence. Reference is made to the case of Trusted Society of Human Rights Alliance v Attorney General & Others [2012] eKLR where the Court observed that courts must avoid usurping the role of other constitutional organs by ruling that;
"The Court must be conscious of the fact that it should not usurp the role of other constitutional organs... the Court’s role is to ensure that those organs perform their functions in accordance with the Constitution."
19. The 2nd Respondent submits that Article 196(3) as read with the Parliamentary Powers and Privileges Act offers protection over Assembly proceedings from undue interference whereas Section 12 of the Parliamentary Powers and Privileges Act provides that no civil or criminal proceedings shall be instituted against any person for actions done in good faith in the course of parliamentary proceedings.
20. That Courts have repeatedly emphasized respect for internal legislative processes and reference was made to the decision in the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & Others [2017] eKLR the Court posited that judicial intervention in legislative processes is limited and exercised with great caution. In the case the Court observed that;
"The Courts will not normally intervene in the internal processes of the Legislature... such intervention is limited to instances where there is a clear violation of the Constitution."
21. The 2nd Respondent argues that in the instant Petition, the Petitioner seeks to halt an ongoing process and to invite the Court to substitute its wisdom for that of the Assembly. Kenyan courts have cautioned against premature intervention where internal mechanisms are available and ongoing. In the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR it was the finding of the Court that where the Constitution or statute provides a procedure, it must be strictly followed.
"Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed."
22. The 2nd Respondent submits that in the instant suit the legislative process is not complete. The Assembly retains power to repeat interviews, reconsider reports, or otherwise regularize matters in accordance with its Standing Orders. The Petition therefore seeks an advisory or speculative determination; something the courts have consistently declined to do.
23. It is argued that the Petitioner never invoked or exhausted mechanisms within the Assembly including: petitioning the Assembly or even oversight and accountability avenues. That the doctrine of exhaustion is now firmly entrenched. Reference is made to the case of Geoffrey Muthinja Kibiru & 2 Others v Samuel Henry Ndungu Mukunya & 1756 Others [2015] eKLR held that;
"The Court should not be invited to intervene in a matter that is still within the deliberative process of the Legislature... the Court must exercise restraint unless a constitutional right is being breached."
24. The 2nd Respondent submits that taking into account the foregoing, the Petition therefore offends the exhaustion doctrine and ought not be entertained, thus the Notices of Preliminary objection are merited wherefore the Application as well the entire Petition ought to be struck out with costs to the 2nd Respondent.
The 3rd, 4th and 5th Respondents’ submissions
25. The 3rd, 4th and the 5th Respondents submit that, ideally, a court lacks jurisdiction if there is a specific initial remedy available for the settlement of a matter. That in certain cases, the initial remedy may be mandatory in the law.
26. The 3rd, 4th and 5th Respondents submit that the Petitioner predominantly seeks for the removal of the 1st and 2nd Respondents from office. The Petitioner filed a petition on the basis that the terms of office for the 1st and 2nd Respondents as members of the County Assembly Service Board (herein “CASB”) has ended and that their continued occupation of office is illegal and void. The Petitioner asserts that the appointment of the 1st and 2nd Respondents terminated upon election of a new County Assembly in August 2022 and issuance of a public notice by the Respondents in October 2022 inviting qualified applicants to apply for the positions.
27. That the Petitioner further asserts that the positions were not filled contrary to the law and that the 1st and 2nd Respondents continued to serve in office after August 2022 thus resulting in the exercise of public functions without lawful authority. The Petitioner avers that the 1st and 2nd Respondents continued to serve in office until 1st September 2024 whereby the terms of their contracts lapsed however they are still serving in office.
28. The 3rd, 4th and 5th Respondents submit that the law envisaged a situation where a County Assembly Service Board member could be removed from office through the petition of a person who has evidence to prove any of the reasons contained under Section 10(1) of the County Assembly Services Act No. 24 of 2017. Therefore, Section 10 provides the initial remedy that the Petitioner should have used vide a petition to the 4th Respondent. Violation of the Constitution is one of the reasons which one may Petition the 4th Respondent to remove a CASB member from office.
29. The 3rd, 4th and 5th Respondents submit that the record shows that the Petitioner has not petitioned the 4th Respondent but has instead moved directly to court to challenge the occupation the 1st and 2nd Respondents in office. The case of Njoroge & 19 Others –vs- County Government of Nakuru & Another [2023] KEHC 24876 (KLR) reaffirmed the requirement to exhaust available statutory remedies before judicial intervention.
30. It is submitted that in unique and special circumstances, the Courts have recognized exceptions to the doctrine of exhaustion of remedies. The Fair Administrative Action Act Cap 7L (“the FAAA”) provides under Section 9 (4) that one must seek leave of Court to exempt a party from the obligation of exhausting alternative remedies. Therefore, for the Petitioner to have approached this Court without being granted the opportunity formally by the Court shows that the Petition is not only premature but also erroneously before the Court.
31. That the Petitioner has not demonstrated that the 4th Respondent is ineffective, inadequate or unable to resolve or consider the instant matter. On the contrary, the 4th Respondent is adequately empowered through Article 195(1) of the Constitution to summon any person and compel production of evidence to reach a decision. Similarly, there are no complex constitutional questions to determine that may require the Court’s indulgence of the petition. Reliance was placed on the Court of Appeal finding in the case of Geoffrey Muthinja & another –vs- Samuel Muguna Henry & 1756 others [2015] eKLR where it was stated that the court’s responsibility to give way for alternative dispute resolution processes stems from the Constitution under Article 159(2)(c) to promote alternative dispute resolution processes.
32. The 3rd, 4th and 5th Respondents invited this Court to decline jurisdiction in this matter so as to enable administrative and other bodies to carry out their mandate without interference. Notably was the Court’s holding that—
“it is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the for a of last resort and not the first port of call the moment a storm brews…as is bound to happen. The exhaustion doctrine is a sound one and served the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
33. That without the anchorage of proper jurisdiction and legal justification, the Petition is unsustainable before this Court. It is also trite that the Court should not aid the indolent whereby the petitioner has been indolent by failing to follow the rules of procedure to manage the administration of justice in their matter.
34. It is improper for the Petitioner to challenge the decision of the 4th Respondent who appointed the 1st and 2nd Respondents, without using the proper channel. Thus, the protection accorded to members of the CASB under Section 42(1) ought to apply until proven that their actions were in bad faith for other objectives not provided in the statute. That it was upheld in Laban –vs- Machakos County Assembly Service Board & 2 Others (Petition E004 of 2023) [2025] KEELRC 1160 (KLR) that the presence of alternative mechanisms for resolving a dispute has the effect of postponing jurisdiction of a court of law over the dispute. Further the learned Judge held that:-
“Both the Court of Appeal and the Supreme Court have underscored the importance of deference to existing alternative dispute resolution processes. Unless parties to a dispute have waived the right to have it (the dispute) resolved through the existing alternative dispute resolution mechanisms, it is generally desirable that a court of law should allow the dispute to be processed through these mechanisms.”
35. Accordingly, the 3rd, 4th and 5th Respondent submit that the preliminary objections are merited and should be upheld.
Petitioner’s submissions
36. The Petitioner submits that the Honourable Court has jurisdiction to determine the Petition. That pursuant to Articles 22, 23, 165(3) and 258 of the Constitution of Kenya, 2010, a person, acting on their own behalf and in the public interest, is entitled to invoke the Honourable Court’s jurisdiction to determine the question whether a right or fundamental freedom has been denied, violated, infringed or threatened and to hear any question on the interpretation of the Constitution including the determination of the question of whether any act done purportedly pursuant to the Constitution or any law is inconsistent with or contravenes the Constitution.
37. The Petitioner argues that the Petition is expressly premised on the violation and threatened violation of Article 27(1) of the Constitution of Kenya, 2010 on the right to equal protection and equal benefit of the law and Article 47 of the Constitution on right to fair administrative action. That the Petition further concerns violation of Articles 10(2) and 232 of the Constitution on values and principles of public service, violation of Article 129 of the Constitution on exercise of public authority, violation of Articles 174 and 175 of the Constitution on objects and principles of devolution, and violation of Articles 201 and 226(5) of the Constitution on public finance.
38. The Petitioner submits that it is now settled that where the responsible legislative, executive or administrative organ has omitted or failed to perform its functions, the Honourable Court retains jurisdiction to scrutinise such failure or omission. Reliance is placed on the Supreme Court of Kenya decision in Parliament of Kenya & Another v Okiya Omtatah Okoiti & 2 Others, Petition E016 & E017 of 2025 (Consolidated) [2026] KESC 26 (KLR) Judgment 31 March 2026 at paragraphs 46-47 where the Court emphatically held as follows:-
“Article 2(4) of the Constitution provides that “…any act or omission in contravention of the Constitution is invalid” [Emphasis added]. In effect, this provision declares invalid any act or omission inconsistent with the Constitution. The express inclusion of omission constitutionalises judicial scrutiny of inaction by duty bearers, including legislative inaction. Moreover, Article 21(1) imposes a positive obligation on the State and all State organs to observe, respect, protect, promote, and fulfil the rights in the Bill of Rights. Since the alleged omission implicated the right of access to justice and fair hearing under Articles 48 and 50, the dispute raised a direct constitutional question for judicial determination. The 1st respondent’s petition further challenged the continued appointment of the members of local tribunals by the Executive claiming it violates various rights, including the right to access justice, the right to a fair hearing, impedes on the independence of the Judiciary and undermines the administration of justice. The High Court was therefore required to determine whether the relevant duty-bearers had complied with a binding constitutional obligation - an inquiry that is inherently justiciable.
Turning to the interplay between the doctrine of separation of powers and the High Court’s duty to interpret and apply the Constitution, the doctrine of separation of powers, though foundational to our constitutional order, does not shield any arm of government from judicial scrutiny. Legislative authority is vested in Parliament, but it must be exercised within the bounds of the Constitution. Courts, for their part, are constitutionally mandated to interpret and apply the Constitution, and to determine whether any law, act, or omission is inconsistent with it.”
39. The Petitioner submits that the Petition challenges, inter alia, the failure by the 3rd and 4th Respondents to recruit members of the County Assembly Service Board following the expiry of the contracts of the 1st and 2nd Respondents in September 2024. A delay of 1½ years to fully constitute a critical institution such as the County Assembly Service Board is a serious dereliction of a constitutional and statutory mandate, which dereliction has significant consequences for devolution and service delivery, hence the Honourable Court is obligated to intervene. Reference was made to the decision by the High Court of Kenya in Kasichana Riziki Mumba & Another (suing on their own behalf and in the public interest on behalf of residents of Nairobi City County) v Governor, Nairobi City County & 4 others, Constitutional Petition E480 of 2024 [2025] KEHC 19209 (KLR) Judgment 05 December 2025) affirmed this position thus [at paragraphs 17-18] :-
17. Article 10 binds all State organs and officers to uphold the national values of accountability, transparency and public participation. In Mutua v Governor, Kitui County & 4 others; Muisyo, Acting Municipal Manager, Kitui Municipality & 3 others (Interested Parties), (Constitutional Petition 16 of 2020) [2022] KEHC 10872 (KLR) (8 June 2022) (Judgment)the High Court observed that “state organs and State officers in all their decisions or activities” must reflect the values and principles in article 10. Article 232(1)– (2) similarly requires public service to be efficient, effective, accountable and responsive, grounded in professionalism, merit and equality. As that court held, county secretaries, as heads of county public services, must “respect inter alia principles of equality in employment, transparency [and] accountability” and ensure non-discriminatory appointments. A vacancy spanning years defeats these constitutional imperatives.
18. These constitutional provisions aim to promote good governance and to guard against arbitrary or capricious administration. The Respondents’ failure to initiate or conclude a recruitment process subverts these values. A key office left vacant for years is incompatible with accountability and effective administration; it deprives the county of competent leadership and impairs the public’s entitlement to merit-based, transparent governance. The prolonged vacancy therefore undermines articles 10 and 232.”
40. It is submitted by the Petitioner that by referencing to Section 10 of the County Assembly Services Act, the Respondents are mischaracterising the substance of the Petition in an attempt to mislead the Court. The cited provision concerns the procedure for the removal of a sitting member of the County Assembly Service Board who is lawfully in office. On the contrary, the Petition argues that the 1st and 2nd Respondents are not lawfully in office (that is, are former members) since their terms already expired in September 2024, yet they continue to purport to perform the functions of the said office. This is an issue to which the procedure under Section 10 of the County Assembly Services Act does not apply.
41. With respect to Sections 12 and 35 of the County Assembly Services Act concerning powers of the Board and legal proceedings against the Board and which are cited by the Respondents, the Petitioner submits that these provisions are irrelevant to the question of the Honourable Court’s jurisdiction. In any event, these provisions expressly provide that the Board can indeed be sued. Additionally, Section 42 of the County Assembly Services Act cited by the Respondents does not insulate members or former members of the Board from being sued, particularly for unlawful actions which violate provisions of the Constitution of Kenya, 2010.
42. Further, the Petitioner submits that the doctrine of exhaustion is not an absolute doctrine that would deprive the Honourable Court of its jurisdiction, particularly not where it is alleged that the responsible organ/body has omitted or failed to perform its functions and where such failure implicates rights guaranteed in the Constitution of Kenya, 2010. Reference was made to the Supreme Court of Kenya decision in Parliament of Kenya & Another v Okiya Omtatah Okoiti & 2 others, Petition E016 & E017 of 2025 (Consolidated) [2026] KESC 26 (KLR) Judgment 31 March 2026 at paragraphs 50-51 where it held that–
“50. […] However, this doctrine is not absolute, and in Benjamin Vs Attorney General & 55 Others [2026] KESC 5 (KLR), we clarified that the exhaustion doctrine ought not to be applied in a blanket manner. We also observed that the dispute in the Benjamin Case transcended the suitability of individual nominees and touched on broader constitutional questions regarding adherence to the two-thirds gender rule and, accordingly, fell within the jurisdictional ambit of the High Court.
51.Likewise, in the Nicholus Abidha Case, we took the position that firstly, the existence of an alternative remedy does not, by itself, preclude an individual from seeking constitutional relief. Secondly, where the alternative reliefs are not adequate or effective, the court is not precluded from providing constitutional relief. Further, in Aluochier Vs Senate & 2 Others [2025] KESC 59 (KLR), this Court affirmed the High Court decision that Article 119 of the Constitution did not bar it from determ
[...truncated]
IN THE HIGH COURT AT MACHAKOS
CONSTITUTIONAL PETITION NO. E032 OF 2025
IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 27, 35, 47, 48, 50, 129, 159, 163, 174, 175, 201, 226, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: THE CONTINUED ILLEGAL OCCUPATION OF OFFICE IN THE COUNTY ASSEMBLY OF MACHAKOS SERVICE BOARD
BETWEEN
NAHASHON WAMBUA MUINDE…………………....................…PETITIONER/APPLICANT
[Suing on his own behalf and in the public interest on behalf of residents of Machakos County]
AND
ALEX NYAMAI KITILI…………………………......................................….1ST RESPONDENT
JANET MWIKALI KIMEU……………………….…….......…..................….2ND RESPONDENT
COUNTY ASSEMBLY OF MACHAKOS SERVICE BOARD........................3RD RESPONDENT
COUNTY ASSEMBLY OF MACHAKOS…………....….…..................…….4TH RESPONDENT
CLERK, COUNTY ASSEMBLY OF MACHAKOS……………..................…5TH RESPONDENT
RULING
1. This ruling is on two Notices of Preliminary Objections. The first one is by the 1st Respondent dated 22nd September 2025 raised on the following grounds:-
a) The Honourable Court lacks the jurisdiction to hear both the application and the Petition as against the 1st and 2nd Respondents.
b) Both the application and the Petition violate the well-established principle and doctrine of exhaustion.
c) The application and the Petition are otherwise premature, based on misapprehension of the law and are not sustainable.
2. The second Notice of Preliminary Objection is by the 2nd Respondent dated 23rd September 2025 raised on the following grounds:-
a) Section 10 of the County Assembly Services Act on the procedure for removal of office of a member of the Board vis a vis jurisdiction of this Honourable Court to hear and determine the instant Petition.
b) Sections 12 & 35 of the County Assembly Services Act on the powers of the Board as a body corporate and procedure for legal proceedings against the board; and
c) Section 42 of the County Assembly Services Act on the protection of members and staff of the Board.
d) THAT therefore, the instant Petition and Application is filed in the wrong forum as the court lacks jurisdiction to hear and determine the matter and thus ought to be dismissed with costs in favour of the 2nd respondent.
3. The court gave directions for both preliminary objections to be canvassed together through written submissions. The 1st Respondent’s submissions are dated 15th December 2025, the 2nd Respondent’s submissions are dated 26th January 2026, the 3rd, 4th & 5th Respondents’ submissions are dated10th February 2026 and the Petitioner’s submissions are dated 29th April 2026.
1st Respondent’s submissions
4. The 1st Respondent submits that the Petitioner herein is attempting to remove the 1st and 2nd Respondent from office without following the due process under Section 10(2) of the Court Assembly Services Act. Without a Petition having been presented before the County Assembly of Machakos under the said provision, this Court does not have jurisdiction to entertain an ouster Constitutional Petition against the 1st and 2nd Respondent. Reliance is placed on the decision in Republic v Speaker, County Assembly of Elgeyo Marakwet & 2 others; Ex Parte Applicants Lawi Kibire & Another [2020] eKLR, the High Court held that removal from the office of a member of the Elgeyo Marakwet County Assembly Board in a manner that violated Section 10(2) of the County Assembly Services Act was null and void. The Court affirmed the supremacy of Section 10(2) of the County Assembly Services Act as the only path for the removal of members of the County Assembly Service Board.
5. The 1st Respondent submits that, on the other hand, Section 12(6) of County Governments Act, 2012 reasonably and justifiably provides for the scenario where the term of sitting external board member expires before successful recruitment of their replacement;
“Despite subsection (5), when the term of the county assembly ends, a member of the county assembly service board appointed under subsection (3)(d) shall continue in office until a new member has assumed office in the member’s place in the next assembly.
6. That the above safeguard was enacted into law to ringfence the composition, quorum and efficacy of the County Services Assembly Board where the absence of the two external members would be caused by delays or challenges in the recruitment process. The law foresaw a vacuum and dealt with it decisively. In petitioning the court to remove the 1st and 2nd Respondent, the Petitioner is effectively asking the court to use its power to defeat a clear intention and safeguard of the law in the operations of the County Assembly, a statutory and Constitutional body. It is submitted that the Court has no jurisdiction to do such.
7. The 1st Respondent further submits that the Petitioner has wholly misdirected himself in interpreting that the term of office for the 1st and 2nd Respondent is guided and determined by the letter of appointment dated 14th August 2019. The entire petition is anchored on an error, that the two external members are normal employees of the County Assembly, governed by the usual law of Employment & Contract. In that context, the court would have jurisdiction to determine the legality, probity and term of such a contract. To the contrary, Section 12(3A) of the County Government Act is explicit that the members of the Board appointed under Section 12(3)(d) shall serve on a part-time basis. It is therefore submitted that the 1st and 2nd Respondents are employees of the Assembly under Statute, and the court has no jurisdiction to apply the normal laws of employment and contract as invited by the Petition.
8. In light of the above provision, the 1st Respondent submits that the Court has no jurisdiction to oust the 1st and 2nd Respondent from office. The Petitioner has a statutory forum for pursuing the removal of the 1st and 2nd Respondents from office: County Assembly of Machakos. The Petitioner has not filed any Petition before the County Assembly seeking the removal of the 1st and 2nd Respondent. He seeks to unlawfully circumvent Section 10(2) of the Court Assembly Services Act by seeking remedies from this Court, which cannot grant itself jurisdiction that it does not have and purport to perform a function that is vested in another constitutional body by law.
9. The 1st respondent submits that in this case, the Petitioner is barred by the doctrine of exhaustion from sidestepping the procedure for removing members of the Machakos County Service Board as stipulated in Section 10(2) of the County Assembly Services Act to file the Petition before this Court. Reliance is placed on the decision in the High Court in Vincent v Akosi; Kakamega County Assembly Service Board & Another [2022] eKLR, was tasked with determination of a strikingly similar Preliminary Objection. The Petitioner filed a Petition seeking to remove members of the Kakamega County Assembly Service Board without pursuing the procedure under Section 10(2) of the County Assembly Services Act.
10. In upholding the Preliminary Objection and striking out the Petition, the Court held as follows;
“The court then agrees with the respondent that it has no jurisdiction to entertain the application and the petition as it seeks for the court to exercise statutory powers of the county assembly being removal of the respondent from the county assembly service board of Kakamega county assembly. That would be a direct violation of the law”. (Para 33)
11. It is on the basis of this precedent with similar facts as this case that the 1st Respondent urges this Court to uphold the doctrine of exhaustion as preserved under Section 10(2) of the County Assembly Services Act and to uphold his Preliminary Objection and strike out the Petition, with costs.
2nd Respondent’s submissions
12. The 2nd Respondent submits that the issues raised in this matter arises from an ongoing process of recruitment of external members of the County Assembly Service Board of Machakos. Interviews were conducted, a report was tabled, but the same was rejected. The Assembly has since taken steps to continue with the process in accordance with law and Standing Orders. The Petitioner now seeks orders declaring that the Respondents are illegally in office and invites the Court to stop, supervise, and effectively direct the internal parliamentary process.
13. The 2nd Respondent also submits that this Court lacks jurisdiction to hear and determine the application and Petition filed by the Petitioner herein. The Petition is premature, offends parliamentary privilege and seeks to draw the Court into matters within the exclusive domain of the County Assembly.
14. The 2nd Respondent argues that the removal of the 2nd Respondent who is a member appointed from the public is governed primarily by the Constitution of Kenya and supplemented by the County Assembly Services Act, 2017. The 2nd Respondent has cited Section 12 (5) of the County Government Act which provides that;
“A member of the county assembly service board shall vacate office—
(a) if the person is a member of the county assembly— (i) at the end of the term of the county assembly; or
(ii) if the person ceases to be a member of the county assembly; or
(b) if the person is an appointed member, on revocation of the person’s appointment by the county assembly; or
(c) if the person is the Speaker, when the person ceases to be such Speaker.
15. The 2nd Respondent submits that the import of the above is that the 2nd Respondent having been appointed by the County Assembly can only be removed in compliance with the provisions of Section 12(5)(b) wherein the word used is “shall” which denotes mandatory. In the said provision it is only the County Assembly that is mandated to revoke the appointed of the 2nd Respondent.
16. That for the County Assembly, the revocation of appointment Member of the Board, a Petition must be lodged with the County Assembly for investigation and voting. Therefore. the allegation that the Respondents are illegally in office ignores the doctrine of holding over, allowing office holders to remain until successors are duly appointed, to ensure continuity. Reliance was placed on the finding in the High Court case in Republic v County Government of Kiambu ex parte Robert Gakuru & Others [2016] eKLR which recognized that courts should avoid creating administrative vacuum through injunctive orders wherein the Court observed as follows;
"The court should be slow in issuing orders that have the effect of creating a vacuum in the delivery of services to the public...
the principle of continuity in public administration is vital."
17. The 2nd Respondent submits that the County Assembly is in the middle of regularizing its appointments. The Court is being invited to prematurely declare vacancies and micromanage succession which is contrary to the dictates of the doctrine of separation of powers. That the instant Petition offends the doctrine of separation of powers. Articles 1, 94 and 185 of the Constitution allocate legislative authority to Parliament and County Assemblies respectively.
18. The 2nd Respondent further submits that the doctrine of separation of powers requires judicial restraint where another constitutional organ is seized of a matter within its competence. Reference is made to the case of Trusted Society of Human Rights Alliance v Attorney General & Others [2012] eKLR where the Court observed that courts must avoid usurping the role of other constitutional organs by ruling that;
"The Court must be conscious of the fact that it should not usurp the role of other constitutional organs... the Court’s role is to ensure that those organs perform their functions in accordance with the Constitution."
19. The 2nd Respondent submits that Article 196(3) as read with the Parliamentary Powers and Privileges Act offers protection over Assembly proceedings from undue interference whereas Section 12 of the Parliamentary Powers and Privileges Act provides that no civil or criminal proceedings shall be instituted against any person for actions done in good faith in the course of parliamentary proceedings.
20. That Courts have repeatedly emphasized respect for internal legislative processes and reference was made to the decision in the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & Others [2017] eKLR the Court posited that judicial intervention in legislative processes is limited and exercised with great caution. In the case the Court observed that;
"The Courts will not normally intervene in the internal processes of the Legislature... such intervention is limited to instances where there is a clear violation of the Constitution."
21. The 2nd Respondent argues that in the instant Petition, the Petitioner seeks to halt an ongoing process and to invite the Court to substitute its wisdom for that of the Assembly. Kenyan courts have cautioned against premature intervention where internal mechanisms are available and ongoing. In the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR it was the finding of the Court that where the Constitution or statute provides a procedure, it must be strictly followed.
"Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed."
22. The 2nd Respondent submits that in the instant suit the legislative process is not complete. The Assembly retains power to repeat interviews, reconsider reports, or otherwise regularize matters in accordance with its Standing Orders. The Petition therefore seeks an advisory or speculative determination; something the courts have consistently declined to do.
23. It is argued that the Petitioner never invoked or exhausted mechanisms within the Assembly including: petitioning the Assembly or even oversight and accountability avenues. That the doctrine of exhaustion is now firmly entrenched. Reference is made to the case of Geoffrey Muthinja Kibiru & 2 Others v Samuel Henry Ndungu Mukunya & 1756 Others [2015] eKLR held that;
"The Court should not be invited to intervene in a matter that is still within the deliberative process of the Legislature... the Court must exercise restraint unless a constitutional right is being breached."
24. The 2nd Respondent submits that taking into account the foregoing, the Petition therefore offends the exhaustion doctrine and ought not be entertained, thus the Notices of Preliminary objection are merited wherefore the Application as well the entire Petition ought to be struck out with costs to the 2nd Respondent.
The 3rd, 4th and 5th Respondents’ submissions
25. The 3rd, 4th and the 5th Respondents submit that, ideally, a court lacks jurisdiction if there is a specific initial remedy available for the settlement of a matter. That in certain cases, the initial remedy may be mandatory in the law.
26. The 3rd, 4th and 5th Respondents submit that the Petitioner predominantly seeks for the removal of the 1st and 2nd Respondents from office. The Petitioner filed a petition on the basis that the terms of office for the 1st and 2nd Respondents as members of the County Assembly Service Board (herein “CASB”) has ended and that their continued occupation of office is illegal and void. The Petitioner asserts that the appointment of the 1st and 2nd Respondents terminated upon election of a new County Assembly in August 2022 and issuance of a public notice by the Respondents in October 2022 inviting qualified applicants to apply for the positions.
27. That the Petitioner further asserts that the positions were not filled contrary to the law and that the 1st and 2nd Respondents continued to serve in office after August 2022 thus resulting in the exercise of public functions without lawful authority. The Petitioner avers that the 1st and 2nd Respondents continued to serve in office until 1st September 2024 whereby the terms of their contracts lapsed however they are still serving in office.
28. The 3rd, 4th and 5th Respondents submit that the law envisaged a situation where a County Assembly Service Board member could be removed from office through the petition of a person who has evidence to prove any of the reasons contained under Section 10(1) of the County Assembly Services Act No. 24 of 2017. Therefore, Section 10 provides the initial remedy that the Petitioner should have used vide a petition to the 4th Respondent. Violation of the Constitution is one of the reasons which one may Petition the 4th Respondent to remove a CASB member from office.
29. The 3rd, 4th and 5th Respondents submit that the record shows that the Petitioner has not petitioned the 4th Respondent but has instead moved directly to court to challenge the occupation the 1st and 2nd Respondents in office. The case of Njoroge & 19 Others –vs- County Government of Nakuru & Another [2023] KEHC 24876 (KLR) reaffirmed the requirement to exhaust available statutory remedies before judicial intervention.
30. It is submitted that in unique and special circumstances, the Courts have recognized exceptions to the doctrine of exhaustion of remedies. The Fair Administrative Action Act Cap 7L (“the FAAA”) provides under Section 9 (4) that one must seek leave of Court to exempt a party from the obligation of exhausting alternative remedies. Therefore, for the Petitioner to have approached this Court without being granted the opportunity formally by the Court shows that the Petition is not only premature but also erroneously before the Court.
31. That the Petitioner has not demonstrated that the 4th Respondent is ineffective, inadequate or unable to resolve or consider the instant matter. On the contrary, the 4th Respondent is adequately empowered through Article 195(1) of the Constitution to summon any person and compel production of evidence to reach a decision. Similarly, there are no complex constitutional questions to determine that may require the Court’s indulgence of the petition. Reliance was placed on the Court of Appeal finding in the case of Geoffrey Muthinja & another –vs- Samuel Muguna Henry & 1756 others [2015] eKLR where it was stated that the court’s responsibility to give way for alternative dispute resolution processes stems from the Constitution under Article 159(2)(c) to promote alternative dispute resolution processes.
32. The 3rd, 4th and 5th Respondents invited this Court to decline jurisdiction in this matter so as to enable administrative and other bodies to carry out their mandate without interference. Notably was the Court’s holding that—
“it is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the for a of last resort and not the first port of call the moment a storm brews…as is bound to happen. The exhaustion doctrine is a sound one and served the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
33. That without the anchorage of proper jurisdiction and legal justification, the Petition is unsustainable before this Court. It is also trite that the Court should not aid the indolent whereby the petitioner has been indolent by failing to follow the rules of procedure to manage the administration of justice in their matter.
34. It is improper for the Petitioner to challenge the decision of the 4th Respondent who appointed the 1st and 2nd Respondents, without using the proper channel. Thus, the protection accorded to members of the CASB under Section 42(1) ought to apply until proven that their actions were in bad faith for other objectives not provided in the statute. That it was upheld in Laban –vs- Machakos County Assembly Service Board & 2 Others (Petition E004 of 2023) [2025] KEELRC 1160 (KLR) that the presence of alternative mechanisms for resolving a dispute has the effect of postponing jurisdiction of a court of law over the dispute. Further the learned Judge held that:-
“Both the Court of Appeal and the Supreme Court have underscored the importance of deference to existing alternative dispute resolution processes. Unless parties to a dispute have waived the right to have it (the dispute) resolved through the existing alternative dispute resolution mechanisms, it is generally desirable that a court of law should allow the dispute to be processed through these mechanisms.”
35. Accordingly, the 3rd, 4th and 5th Respondent submit that the preliminary objections are merited and should be upheld.
Petitioner’s submissions
36. The Petitioner submits that the Honourable Court has jurisdiction to determine the Petition. That pursuant to Articles 22, 23, 165(3) and 258 of the Constitution of Kenya, 2010, a person, acting on their own behalf and in the public interest, is entitled to invoke the Honourable Court’s jurisdiction to determine the question whether a right or fundamental freedom has been denied, violated, infringed or threatened and to hear any question on the interpretation of the Constitution including the determination of the question of whether any act done purportedly pursuant to the Constitution or any law is inconsistent with or contravenes the Constitution.
37. The Petitioner argues that the Petition is expressly premised on the violation and threatened violation of Article 27(1) of the Constitution of Kenya, 2010 on the right to equal protection and equal benefit of the law and Article 47 of the Constitution on right to fair administrative action. That the Petition further concerns violation of Articles 10(2) and 232 of the Constitution on values and principles of public service, violation of Article 129 of the Constitution on exercise of public authority, violation of Articles 174 and 175 of the Constitution on objects and principles of devolution, and violation of Articles 201 and 226(5) of the Constitution on public finance.
38. The Petitioner submits that it is now settled that where the responsible legislative, executive or administrative organ has omitted or failed to perform its functions, the Honourable Court retains jurisdiction to scrutinise such failure or omission. Reliance is placed on the Supreme Court of Kenya decision in Parliament of Kenya & Another v Okiya Omtatah Okoiti & 2 Others, Petition E016 & E017 of 2025 (Consolidated) [2026] KESC 26 (KLR) Judgment 31 March 2026 at paragraphs 46-47 where the Court emphatically held as follows:-
“Article 2(4) of the Constitution provides that “…any act or omission in contravention of the Constitution is invalid” [Emphasis added]. In effect, this provision declares invalid any act or omission inconsistent with the Constitution. The express inclusion of omission constitutionalises judicial scrutiny of inaction by duty bearers, including legislative inaction. Moreover, Article 21(1) imposes a positive obligation on the State and all State organs to observe, respect, protect, promote, and fulfil the rights in the Bill of Rights. Since the alleged omission implicated the right of access to justice and fair hearing under Articles 48 and 50, the dispute raised a direct constitutional question for judicial determination. The 1st respondent’s petition further challenged the continued appointment of the members of local tribunals by the Executive claiming it violates various rights, including the right to access justice, the right to a fair hearing, impedes on the independence of the Judiciary and undermines the administration of justice. The High Court was therefore required to determine whether the relevant duty-bearers had complied with a binding constitutional obligation - an inquiry that is inherently justiciable.
Turning to the interplay between the doctrine of separation of powers and the High Court’s duty to interpret and apply the Constitution, the doctrine of separation of powers, though foundational to our constitutional order, does not shield any arm of government from judicial scrutiny. Legislative authority is vested in Parliament, but it must be exercised within the bounds of the Constitution. Courts, for their part, are constitutionally mandated to interpret and apply the Constitution, and to determine whether any law, act, or omission is inconsistent with it.”
39. The Petitioner submits that the Petition challenges, inter alia, the failure by the 3rd and 4th Respondents to recruit members of the County Assembly Service Board following the expiry of the contracts of the 1st and 2nd Respondents in September 2024. A delay of 1½ years to fully constitute a critical institution such as the County Assembly Service Board is a serious dereliction of a constitutional and statutory mandate, which dereliction has significant consequences for devolution and service delivery, hence the Honourable Court is obligated to intervene. Reference was made to the decision by the High Court of Kenya in Kasichana Riziki Mumba & Another (suing on their own behalf and in the public interest on behalf of residents of Nairobi City County) v Governor, Nairobi City County & 4 others, Constitutional Petition E480 of 2024 [2025] KEHC 19209 (KLR) Judgment 05 December 2025) affirmed this position thus [at paragraphs 17-18] :-
17. Article 10 binds all State organs and officers to uphold the national values of accountability, transparency and public participation. In Mutua v Governor, Kitui County & 4 others; Muisyo, Acting Municipal Manager, Kitui Municipality & 3 others (Interested Parties), (Constitutional Petition 16 of 2020) [2022] KEHC 10872 (KLR) (8 June 2022) (Judgment)the High Court observed that “state organs and State officers in all their decisions or activities” must reflect the values and principles in article 10. Article 232(1)– (2) similarly requires public service to be efficient, effective, accountable and responsive, grounded in professionalism, merit and equality. As that court held, county secretaries, as heads of county public services, must “respect inter alia principles of equality in employment, transparency [and] accountability” and ensure non-discriminatory appointments. A vacancy spanning years defeats these constitutional imperatives.
18. These constitutional provisions aim to promote good governance and to guard against arbitrary or capricious administration. The Respondents’ failure to initiate or conclude a recruitment process subverts these values. A key office left vacant for years is incompatible with accountability and effective administration; it deprives the county of competent leadership and impairs the public’s entitlement to merit-based, transparent governance. The prolonged vacancy therefore undermines articles 10 and 232.”
40. It is submitted by the Petitioner that by referencing to Section 10 of the County Assembly Services Act, the Respondents are mischaracterising the substance of the Petition in an attempt to mislead the Court. The cited provision concerns the procedure for the removal of a sitting member of the County Assembly Service Board who is lawfully in office. On the contrary, the Petition argues that the 1st and 2nd Respondents are not lawfully in office (that is, are former members) since their terms already expired in September 2024, yet they continue to purport to perform the functions of the said office. This is an issue to which the procedure under Section 10 of the County Assembly Services Act does not apply.
41. With respect to Sections 12 and 35 of the County Assembly Services Act concerning powers of the Board and legal proceedings against the Board and which are cited by the Respondents, the Petitioner submits that these provisions are irrelevant to the question of the Honourable Court’s jurisdiction. In any event, these provisions expressly provide that the Board can indeed be sued. Additionally, Section 42 of the County Assembly Services Act cited by the Respondents does not insulate members or former members of the Board from being sued, particularly for unlawful actions which violate provisions of the Constitution of Kenya, 2010.
42. Further, the Petitioner submits that the doctrine of exhaustion is not an absolute doctrine that would deprive the Honourable Court of its jurisdiction, particularly not where it is alleged that the responsible organ/body has omitted or failed to perform its functions and where such failure implicates rights guaranteed in the Constitution of Kenya, 2010. Reference was made to the Supreme Court of Kenya decision in Parliament of Kenya & Another v Okiya Omtatah Okoiti & 2 others, Petition E016 & E017 of 2025 (Consolidated) [2026] KESC 26 (KLR) Judgment 31 March 2026 at paragraphs 50-51 where it held that–
“50. […] However, this doctrine is not absolute, and in Benjamin Vs Attorney General & 55 Others [2026] KESC 5 (KLR), we clarified that the exhaustion doctrine ought not to be applied in a blanket manner. We also observed that the dispute in the Benjamin Case transcended the suitability of individual nominees and touched on broader constitutional questions regarding adherence to the two-thirds gender rule and, accordingly, fell within the jurisdictional ambit of the High Court.
51.Likewise, in the Nicholus Abidha Case, we took the position that firstly, the existence of an alternative remedy does not, by itself, preclude an individual from seeking constitutional relief. Secondly, where the alternative reliefs are not adequate or effective, the court is not precluded from providing constitutional relief. Further, in Aluochier Vs Senate & 2 Others [2025] KESC 59 (KLR), this Court affirmed the High Court decision that Article 119 of the Constitution did not bar it from determ
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