REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E484 OF 2025
BETWEEN
NEWTON MUGAMBI BOORE………………………………..1 ST PETITIONER
DENNIS MWAKI CHABARI…………………………………..2 ND PETITIONER
MORRIS MAWIRA……………………………………………..3 RD PETITIONER
AGNES MWENDE JUSTUS……………………………………4 TH PETITIONER
SETH MARK KINOTI………………………………………….5 TH PETITIONER
CHRISTINE KANANA KITHINJI…………………………….6 TH PETITIONER
AND
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC)……………………………………………………..…….1 ST RESPONDENT
ATTORNEY GENERAL………………………………………2 ND RESPONDENT
NATIONAL ASSEMBLY OF KENYA………………………3 RD RESPONDENT
AND
SENATE OF KENYA…………………………………1 ST INTERESTED PARTY
LAW SOCIETY OF KENYA………………………...2 ND INTERESTED PARTY
KATIBA INSTITUTE………………………………...3 RD INTERESTED PARTY
JUDGMENT
Background
1. Article 104 of the Constitution stipulates that the electorate under Articles 97 and 98 have the right to recall the Members of Parliament (MPs) representing their constituency before the end of the term of the relevant House of Parliament. Under the said Article, Parliament is mandated to enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.
2. The Elections Act, 2011 (Elections Act) initially provided a framework for recall of MPs under sections 45, 46, 47 and 48 stipulating grounds such as violation of Chapter Six of the Constitution, mismanagement of public resources or conviction of an offence under the Elections Act.
3. On 14 th July 2017 in Katiba Institute & Another v Attorney General & Another [2017 eKLR (Katiba Judgment), the High Court declared sections 45 (2), (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act as well as sections 28(1) (b) (ii) and (c) of the County Government’s Act unconstitutional for imposing discriminatory and overly restrictive conditions. That decision has not been overturned by a superior court.
4. Following the Katiba Judgment, Parliament amended the County Governments Act 2012 in 2020 to provide a workable recall mechanism for Members of County Assemblies (MCAs) but failed to enact one for MPs.
5. By a letter dated 21 st August 2024, the petitioners wrote to the 1 st respondent IEBC inquiring on the modalities and procedures for recalling the Senator for Tharaka Nithi County. The 1 st respondent responded through letter dated 9 th September 2024 indicating that it could not recall MPs on the premise that it was not fully constituted and the absence of an enabling legislation following the Katiba Judgment.
6. Upon reconstitution of the 1 st respondent’s IEBC Commissioners, on 23 rd July 2025 the petitioners again wrote another letter to the 1 st respondent inquiring about the process and modalities of recall of Senator for Tharaka Nithi County. On 30 th July 2025, the 1 st respondent issued a public statement reiterating its earlier position.
The Petition
7. Aggrieved by the response received from the IEBC, the petitioners filed petition dated 1 st August 2025 challenging the 1 st respondent’s said communication and/or response. The petition is brought pursuant to Articles 1, 2, 3, 10, 22, 23, 104, 165, 258 and 261(5) of the Constitution and is supported by the affidavits of Newton Mugambi Boore sworn on 1 st August 2025 and 5 th September 2025 and written submissions dated 8 th September 2025,
The petitioners’ case
8. The petitioners aver that the implication of declaring the aforementioned sections of the Elections Act unconstitutional in the Katiba Judgment was to curtail rather than facilitate Kenyan citizens to hold their legislators accountable. They are of the view that recall is the most effective tool for oversighting MPs and that in failing to enact a law to facilitate recall, the legislators do not want to be oversighted.
9. The petitioners contend that the issues raised herein are not idle as there have been recent public outcry by electorates to recall some MPs such as Nairobi Woman Representative Esther Passaris among others and that therefore, the 1 st respondent’s inaction stifle this democratic process.
10. The petitioners urge the court to consider the decision in Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR ) and the provisions of Articles 20 (3) and (4), 88, 259(1) and 260 and the Fifth Schedule (Article 261(1) and (5) of the Constitution in determining this matter.
11. The petitioners contend that the 1 st and the 3 rd respondents’ inactions violate the provisions of Articles 1, 2(1), 3(1), 10 (2) (a), 27 (1), 38, 47 and 104 of the Constitution. They further urge the court to find that the 1 st respondent can adapt the provisions of sections 47 of the Elections Act and section 27-29 of the County Governments Act, 2012 to process the recalls in the interim. That it can also put in place interim administrative measures to effectuate the right.
12. The petitioners therefore seek the following reliefs:
i. A declaration that the 1 st respondent’s refusal to process applications and requests for recall of Members of Parliament, is unconstitutional and violates Articles 1, 2, 3, 10, 20 and 104 of the Constitution.
ii. A declaration that the 3 rd respondent’s failure to enact legislation to provide for the grounds and procedures for the recall of Members of Parliament, as mandated by Article 104(2), is a breach of Articles 1, 2, 3, 10, 20 and 104 of the Constitution.
iii. A declaration that the conduct of the 1 st and 3 rd respondents has and continue to violate Articles 27, 38 and 47 of the Bill of Rights.
iv. An order of Mandamus compelling the 1 st respondent to facilitate the processing of recall petitions for Members of Parliament, pending the enactment of enabling legislation, using surviving provisions of the Elections Act, 2011 and the model provided by the County Government’s Act, 2012 and the provisions applicable to recall of Members of County Assembly.
v. An order of Mandamus compelling the 3 rd respondent to enact legislation, within 90 days, to provide for the grounds and procedures for recall of Members or Parliament in compliance with Article 104(2) of the Constitution.
vi. A conservatory order restraining the 1 st respondent from declining to process any recall petitions submitted by the electorate pending the determination of this petition or the enactment of enabling legislation.
vii. A declaration that the right to recall under Article 104(1) is a self-executing constitutional right that does not require enabling legislation to be exercised, and that the 1 st respondent has a duty to facilitate its exercise.
viii. Costs of this petition to be borne by the respondents.
The response by the 1 st respondent-the Independent Electoral and Boundaries Commission-IEBC
13. The 1 st respondent opposed the petition through replying affidavit sworn on 15 th August 2025 by Chrispine Owiye. It urges that by dint of Article 88 (4) of the Constitution, its role is limited to implementation. That it cannot therefore create substantive recall procedure or grounds without a law enacted by Parliament under Article 104(2), without violating Articles 94(1) and (5) of the Constitution.
14. The 1 st respondent asserts that Article 104(1) of the Constitution is not self-executing because under clause (2), Parliament is mandated to enact legislation prescribing the grounds and procedures on the exercise of the right of recall and that the absence of such legislation renders the said right inoperative in practical terms.
15. According to the 1 st respondent, this does amount to the non-existence of the right; rather, it underscores that its constitutional mandate is limited by the doctrine of separation of powers. Consequently, its position on its media update on 30 th July 2025 regarding its inability to effect a recall, constitutes a lawful acknowledgement of the prevailing legislative lacuna.
16. The 1 st respondent contends that the court’s holding at paragraph 601 of the decision in Ndii & Others v Attorney General & Others [2021] KEHC 9746 (KLR) is only applicable to provisions that are self-executing. It further asserts that its actions were undertaken in a transparent and lawful manner; it publicly communicated its inability to process recall petitions for MPs due to the legal vacuum which aligns with the dictates of Articles 2(2), 10 ad 35 of the Constitution.
17. The 1 st respondent states that since the Katiba Judgment, it has submitted Comments to both Chambers of Parliament for review of sections 45 (2), (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act. That in 2021/2022, it submitted Memorandum to the 3 rd respondent urging Parliament to enact provisions for Recall of MPs to mirror those of Recall of MCAs under sections 27, 28 and 29 of the County Governments Act, to operationalize the provisions of Article 104 (2) of the Constitution but that those proposed amendments never materialized because the life of the 12 th Parliament ended before the Bill could be passed by both Chambers of Parliament.
18. It avers that subsequently, Senate invited the 1 st respondent to submit Memorandum on the Elections (Amendment) Bill, 2024 that emanated from NADCO recommendations and that in its submission, it again urged its earlier position and that these same submissions were made in April 2025 before the 3 rd respondent’s House Committee.
19. The 1 st respondent accordingly urges that this challenge must not therefore be seen as a deliberate act on its part in denying any recall rights but rather, as the actions of a law conscious institution caught at the cross-roads of intending to implement its mandate where the legislative foundations and procedures thereof are non-existence.
20. The 1 st respondent states that although the right of recall is expressly guaranteed under Article 104 of the Constitution, its realization is subject to specific procedures and grounds, the formulation of which lies exclusively within the legislative mandate of Parliament. That its role is confined to implementation of such procedures once duly enacted and that in the absence of the requisite legislation, it can only acknowledge the existence of the right but cannot, without acting unlawfully, usurp the legislative functions necessary to effectuate the right.
21. The 1 st respondent avers that the petitioner’s attempt to compel it to permit recall process in the absence of enabling legislation constitutes an illegality. It contends that the doctrine of necessity, or the proposition that the law may be breached owing to exigent circumstances, has been consistently disfavoured and rejected by the courts. It cites R v. Dudley & Stephens (1884) 14 QBD 273 and United States v. Bailey, 444 U.S. 394 (1980) where the Court held that a man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. The respondent argues that despite the necessity of the political rights and fair administrative action under Article 38 and 47 respectively, the same cannot compel it to act ultra vires.
22. The 1 st respondent avers that a proper constitutional remedy lies against the 3 rd respondent who under Article 261(1) and (5) of the Constitution, is mandated to initiate and enact the requisite legislative framework to give effect to Article 104 of the Constitution. It urges the court to take judicial notice that political and election related disputes are inherently emotive and must, therefore, be addressed with the highest degree of caution and strict adherence to the law.
23. The 1 st respondent urges this court to dismiss the petition and accord the 3 rd respondent an opportunity to pass the Elections (Amendment) Bill before the floor of the House which seeks to amend the provisions on recall of MPs. In the alternative, it seeks directions on the development of guidelines for Recall of MPs that mirror those of Recall of MCAs encapsulated under sections 27, 28 and 29 of the County Governments Act, Cap 265 with necessary modification and/or how to operationalise provisions of Article 104 of the Constitution.
The response by the 2 nd respondent-the Attorney General
24. The 2 nd respondent Attorney General opposed the petition through grounds of opposition dated 4 th September, 2025. It is contended that the petition has not demonstrated how the Attorney General has violated constitutional rights; that the AG has not been cited for any commission and/or omission and that there are no reliefs sought against the AG. The AG urges this Court to dismiss the petition with costs.
The response by the 3 rd respondent-The National Assembly
25. The 3 rd respondent, the National Assembly, opposed the petition through replying affidavit sworn on 5 th November 2025 by Samuel Njoroge, C.B. S. It contends that the petition is premature and in violation of the principle of separation of powers. That while the petitioners rely on the Katiba Judgment to fault it for failing to enact legislation to operationalize Article 104 the same is misleading because the legislative process to cure the mischief highlighted by the Court in the Katiba Judgment is underway; the court should not intervene.
26. According to the 3 rd respondent, the Elections (Amendment) (No.2) Bill (Senate Bill No. 29 of 2024) was passed by the Senate on 5 th December 2024 and transmitted to the National Assembly where it was read for a First Time on 13 th February 2025. Subsequently, the Bill was committed to the Departmental Committee on Justice and Legal Affairs pursuant to Standing Order 143(2) of the National Assembly Standing Orders for public participation.
27. The 3 rd respondent states that Clauses 25, 26 and 27 of the Bill seek to amend the provisions of sections 45, 46 (1) (b) (ii) and (c) and 48 of the Act that were declared unconstitutional. Further, that in line with the provisions of Article 118 (1) (b) of the Constitution and the National Assembly Standing Order 127 (3) and (4), the Clerk of the National Assembly placed an advertisement in the print media on 18 th and 19 th February, 2025 inviting the public to submit memoranda by way of written statements on the Bill on or before 5 th March 2025 at 5.00 p.m.
28. That the said Clerk further through letter Ref. NO. NA/DDC/JLAC/2025/017 dated 10 th April 2025 invited key stakeholders to submit views on the Bill and attend a public participation forum on 17 th April 2025. That the said forum was attended by the Kenya Law Reform Commission (KLRC), the Office of the Registrar of Political Parties (ORPP), Katiba Institute, the CRADLE and the Electoral Law and Governance Institute of Africa (ELGIA). That the Independent Electoral and Boundaries Commission (IEBC) appeared before the Committee on 22 nd April 2025.
29. The 3 rd respondent states that the Departmental Committee oN Justice and Legal Affairs received ten memoranda from Council of Governors (COG), the IEBC, Inter-Religious Council of Kenya (IRCK), KLRC, ORPP, The Law Society of Kenya (LSK), the Centre for Multiparty Democracy (CMD), the CRADLE, the (ELGIA) and the Architects Alliance (TAA).
30. The 3 rd respondent states that the Clerk of the National Assembly through letters REF. NO. NA/DDC/JLAC/2025/111 dated 9 th October 2025 also invited the petitioners herein through the firm of KMK Africa Advocates LLP, to appear before the Departmental Committee on Justice and Legal Affairs to give their views on the Bill. Consequently, that the Bill is alive before the House and the legislative process is at an active stage hence, the claim that the National Assembly has abdicated its mandate is baseless.
31. The 3 rd respondent urges that pursuant to Article 94(1) of the Constitution, this Court cannot direct Parliament in the manner of execution of its Constitutional mandate; that the Court can only make a declaration against actions of Parliament that violate the Constitution. That the order for mandamus to compel Parliament to enact the specific legislation prescribing grounds and procedures for recall of Members of Parliament therefore offends the principle of separation of powers. The 3 rd respondent asserts that a similar prayer was sought in the Katiba Judgment but was declined.
32. According to the 3 rd respondent, the petition is premature and non- justiciable under the doctrine of exhaustion of remedies because the petitioners have not utilized the dispute resolution mechanisms provided under Article 119 of the Constitution. It urges for the dismissal of the petition with costs.
The 1 st interested party- the Law Society of Kenya did not file any response to the petition
The response by the 2 nd interested party- the Senate of Kenya
33. The 2 nd interested party, the Senate, opposed the petition through replying affidavit sworn on 30 th September 2025 by Jeremiah Nyegenye, CBS. It cites the provisions of Articles 93(1), 96(1), 97, 98, 101, 102 and 103 of the Constitution that speak to among others, its establishment, mandate and vacation of office and asserts that it is bound by the provisions of Article 10 in carrying out its mandate.
34. The 2 nd interested party reiterates the facts regarding the enactment of the Elections Act, 2011; the challenge to sections 45, 46, 47 and 48 of the Elections Act and sections 27, 28 and 29 of the County Governments Act, 2012 in the Katiba Judgment and the outcome thereof and the amendments to the County Governments Act, 2012 through the County Governments (Amendment) Act, 2020-Act No. 11 of 2020.
35. The 2 nd interested party objects to the invitation to this court to borrow from the provisions of the County Governments Act, 2012 (amended) on the issue of recall of MPs. It argues that this is tantamount to inviting this court to read and/or impose words into the Elections Act, 2011 for purposes of enabling the recall provisions under Article 104 of the Constitution, which power this Court is devoid of as it cannot legislate.
36. The 2 nd interested party further urges that this court lacks the standing to legally direct Parliament on the way, shape or form of legislation to be enacted. That doing so would be an affront to separation of powers. It also asserts that in any event, on 5 th December 2024, the Senate considered and passed The Elections (Amendment) (No. 2) Bill, 2024 which seeks to amend the Elections Act; with Clauses 25 and 26 therein seeking to amend sections 45 and 46 of the Elections Act.
37. The 2 nd interested party states that the Amendment Bill was transmitted to the National Assembly for consideration and for public participation in line with Articles 10 and 118 of the Constitution. That therefore, any orders form this court would usurp the mandate of Parliament and cripple it from discharging lawful duties. It further states that the petitioners have neither utilized the dispute resolution mechanism envisaged under Article 119 of the Constitution and petitions to Parliament (Procedure) Act nor demonstrated how the Senate or Parliament has threatened/or violated the petitioners’ rights under the Constitution. It urges for the dismissal of petition with costs.
The 3 rd interested party did not file any response to the petition.
The Petitioners’ supplementary affidavit
38. The petitioners filed a supplementary affidavit asserting that the constitutional commissions such as the 1 st respondent are not wholly or purely implementation bodies; that the 1 st respondent also plays regulatory /delegated legislative roles and monitoring roles under Article 88(4) (d), (i), (j) and (k) of the Constitution.
39. The petitioners urge that the duty to develop the law envisaged under Article 20(3) of the Constitution also binds the 1 st respondent. Further, that Article 10(1) anticipates interpretation of the law by implementing agencies and the 1 st respondent is therefore guilty of dereliction of duty. That contrary to the assertion that the 1 st respondent cannot create substantive recall procedures or grounds, the Constitution provides for the right of recall and sections 27 and 28 of the County Governments Act provide for grounds and procedures for recall of MCAs, which can be applied mutatis mutandis to recall of MPs.
40. The petitioners in addition, urge that the provisioning of the right of recall outside the Bill of Rights does not in any way diminish its importance or remove it from the interpretation matrix provided for in Articles 19-22 of the Constitution. They further urge that the 1 st respondent retains residual powers to promulgate regulations and provide guidance over and above its role of implementation so as to give effect to constitutional provisions, especially where the absence of a statutory framework has the effect of holding constitutional provisions in abeyance for an inordinate time.
41. The petitioners assert that Article 104 is self-executing in nature and can be exercised even in the absence of legislation as found in Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] eKLR . That any position that supposes a different interpretation of Ndii & others v Attorney General & others (supra) must also be contextually applied in the current matter.
42. According to the petitioners, the MCAs and Members of the national Assembly do the same work but only at different levels of government. That the provisions applicable to MCAs must therefore be similarly applied to Members of the National Assembly to cure the intentional violation of Article 27 by the 1 st respondent and the artificial lacuna created by the Members of the National Assembly. Further, that the 1 st respondent has not provided evidence of the Comments and or the Memorandum issued to Parliament or any efforts to have legislation enacted.
43. The petitioners are of the view that, taking efforts to effectuate the right of recall cannot amount to an illegality; that the determination of this petition does not prevent the 3 rd respondent from discharging legislative mandate and the Attorney General has been sued as the principal legal advisor of government as provided by Article 156 of the Constitution.
The Petitioners’ submissions
44. The petitioners’ submissions are dated 8 th September, 2025. They submit that Article 104(1) of the Constitution vests in the electorate a direct and inalienable right to recall MPs; that the right embodies the sovereignty of the people under Article 1 and pre-exists any statutory framework. They also assert that the said right is self-executing, hence the 1 st respondent’s refusal to process recalls petitions, citing the absence of legislation, violates Articles 1, 2(1), 3(1), 10, 88(4) and 104(1) of the Constitution.
45. To augment that position, the petitioners cite the Katiba Judgment; Centre for Rights Education & Awareness (CREAW) v Attorney General & Another [2015] eKLR; Mumo Matemu v Trusted Society [2013] eKLR; Ndii & others v Attorney General & others [2021] KEHC 9746 (KLR); August and Another v Electoral Commission and others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363A and Gachagua & 40 others v Speaker, National Assembly & 15 others [2024] KEHC 13473 (KLR).
46. The petitioners urge that Article 20(3) of the Constitution mandates courts and state organs to develop the law to enforce rights, adopting interpretations favouring enforcements. That the 1 st respondent must therefore interpret surviving provisions (such as the Elections Act section 47 on by-elections) and apply County Governments Act (sections 27-29) mutatis mutandis to exercise the recall of MPs.
47. The petitioners again reiterate their position that, the 1 st respondent has not provided proof of the submissions of memoranda or comments to Parliament; that the 1 st respondent retains quasi-legislative powers for interim measures; that Article 88 of the Constitution empowers it to act creatively within constitutional bounds to facilitate rights and that the 3 rd respondent’s delay in enacting the enabling legislation is not an excuse available to it for not effectuating the right of recall because, that duty is mandatory. They rely on Speaker of the Senate & Another v Hon. Attorney & Another &3 others Supt. CT. Advisory Opinion Reference No. 2 of 2013; Para 2013 [2013] eKLR (Re Senate) and August v Electoral Commission (supra).
48. The petitioners maintain that by failing to enact legislation to effectuate Article 104(1) of the Constitution, the 3 rd respondent has violated the provisions of Articles1, 10 (2) (a) and (c),104(2), 261(5). It is their position that, the Fifth Schedule of the Constitution required this enactment by 27 th August 2012 and that Parliament’s prompt amendment of MCAs in 2020 demonstrates capacity but reveals self-preservation for MPs. They therefore urge the court to order enactment of the relevant legislation within of 90 days and issue an order for structural interdict to enable supervision/implementation. Reliance is placed on the cases of in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) (s. Afr.) and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] KEHC 7074 (KLR).
49. Concerning violation of Articles 27, 38 and 47 of the Constitution, the petitioners submit that the respondents’ actions create unequal treatment. That while MCAs can be recalled under the amended laws, MPs cannot despite both performing legislative and oversight roles. This, in their view, discriminates between county and constituency electors, thereby denying equal benefit of the law.
50. The petitioners argue that the right to recall is integral to political participation under Article 38(c), allowing citizens to champion caused by removing non- performing leaders. That the inaction by the respondents stifle this, breaching participation, hindering political choices and frustrating sovereignty. They further submit that the 1 st respondent’s refusal and Parliament’s delay are administrative actions that are not expeditious, efficient, lawful or reasonable and therefore a breach of Article 47 of the Constitution.
51. Citing the decisions in CREAW ; August (ZACC); Ndii case ; Doctors for Life and State of Kerala & Anor v N.M. Thomas & Others 1976 AIR 490, 1976 SCR (1) 906 , the petitioners maintain that Article 104 (1) of the Constitution is self-executing. They argue that the 1 st respondent has issued guidelines for by-elections and voter education under Article 88(4); that it similarly can, for MPs. Additionally, that the 1 st respondent ‘s regulatory powers under Article 88 (4) (j)-(k) do allow development of guidelines for recalls by adapting grounds for recall of MCAs under section 27 of the County Governments Act 2012.
52. The petitioners rely on Article 23(3) (a) and the decision in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR ) and urge that the remedies and orders sought be granted.
The 1 st respondent’s submissions
53. The 1 st respondent relies on the Black’s Law Dictionary (12 th Edition); Thomas Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the State of the American Union 62 (2 nd ed. 1871) and Wyatt-Shaw T, “The Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution: ‘They Mean Something” (1994) 15 Public Land and Resources Law Review 8 for the contention that Article 104 (1) is not self-executing.
54. The 1 st respondent submits that the petitioner’s reliance on Ndii & Others v Attorney General & others ( supra)is misplaced and that the Court’s finding that the absence of legislation does not always render a provision inoperative was made in the context of a referendum. That the court still acknowledged the necessity for additional legislation.
55. The 1 st respondent submits that the contrast with its duty in the recall of MCAs is instructive. That it can and does process such recalls because Parliament has discharged its legislative duty and as such, it can proceed with the recall as provided for under sections 27, 28 and 29 of the County Governments Act, thus, demonstrative of its readiness to act when a lawful foundation exists.
56. The 1 st respondent denies violating Articles 1, 2, 3, 10, 27, 38 and 47 of the Constitution. On the contrary it submits that it has upheld the supremacy of the Constitution and the rule of law under Articles 2(2) and 10 of the Constitution. Crafting or devising recall grounds and procedures as suggested by the petitioners, it argues, would be to exercise a legislative authority which it does not possess.
57. Regarding violation of Articles 27 and 38, the 1 st respondent submits that, the fact that MCAs can be recalled while MPs cannot, is not its creation but that it is the direct and regrettable consequence of Parliament’s selective amendment of legislation. As for Article 47, it submits that an administrative action cannot be fair or lawful if it is ultra vires. It relies on the cases of Centre for Rights, Education and Awareness (CREW) & Another v the Speaker of the National Assembly and 2 others and Municipal Council of Mombasa v Republic & Umoja Consultants Ltd , Civil Appeal NO. 185 of 2001.
58. The 1 st respondent argues that while it has regulatory powers under Article 88 (4) (i) –(k), these powers are delegated and subsidiary allowing it to make regulations on campaign finance, codes of co
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E484 OF 2025
BETWEEN
NEWTON MUGAMBI BOORE………………………………..1 ST PETITIONER
DENNIS MWAKI CHABARI…………………………………..2 ND PETITIONER
MORRIS MAWIRA……………………………………………..3 RD PETITIONER
AGNES MWENDE JUSTUS……………………………………4 TH PETITIONER
SETH MARK KINOTI………………………………………….5 TH PETITIONER
CHRISTINE KANANA KITHINJI…………………………….6 TH PETITIONER
AND
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC)……………………………………………………..…….1 ST RESPONDENT
ATTORNEY GENERAL………………………………………2 ND RESPONDENT
NATIONAL ASSEMBLY OF KENYA………………………3 RD RESPONDENT
AND
SENATE OF KENYA…………………………………1 ST INTERESTED PARTY
LAW SOCIETY OF KENYA………………………...2 ND INTERESTED PARTY
KATIBA INSTITUTE………………………………...3 RD INTERESTED PARTY
JUDGMENT
Background
1. Article 104 of the Constitution stipulates that the electorate under Articles 97 and 98 have the right to recall the Members of Parliament (MPs) representing their constituency before the end of the term of the relevant House of Parliament. Under the said Article, Parliament is mandated to enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.
2. The Elections Act, 2011 (Elections Act) initially provided a framework for recall of MPs under sections 45, 46, 47 and 48 stipulating grounds such as violation of Chapter Six of the Constitution, mismanagement of public resources or conviction of an offence under the Elections Act.
3. On 14 th July 2017 in Katiba Institute & Another v Attorney General & Another [2017 eKLR (Katiba Judgment), the High Court declared sections 45 (2), (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act as well as sections 28(1) (b) (ii) and (c) of the County Government’s Act unconstitutional for imposing discriminatory and overly restrictive conditions. That decision has not been overturned by a superior court.
4. Following the Katiba Judgment, Parliament amended the County Governments Act 2012 in 2020 to provide a workable recall mechanism for Members of County Assemblies (MCAs) but failed to enact one for MPs.
5. By a letter dated 21 st August 2024, the petitioners wrote to the 1 st respondent IEBC inquiring on the modalities and procedures for recalling the Senator for Tharaka Nithi County. The 1 st respondent responded through letter dated 9 th September 2024 indicating that it could not recall MPs on the premise that it was not fully constituted and the absence of an enabling legislation following the Katiba Judgment.
6. Upon reconstitution of the 1 st respondent’s IEBC Commissioners, on 23 rd July 2025 the petitioners again wrote another letter to the 1 st respondent inquiring about the process and modalities of recall of Senator for Tharaka Nithi County. On 30 th July 2025, the 1 st respondent issued a public statement reiterating its earlier position.
The Petition
7. Aggrieved by the response received from the IEBC, the petitioners filed petition dated 1 st August 2025 challenging the 1 st respondent’s said communication and/or response. The petition is brought pursuant to Articles 1, 2, 3, 10, 22, 23, 104, 165, 258 and 261(5) of the Constitution and is supported by the affidavits of Newton Mugambi Boore sworn on 1 st August 2025 and 5 th September 2025 and written submissions dated 8 th September 2025,
The petitioners’ case
8. The petitioners aver that the implication of declaring the aforementioned sections of the Elections Act unconstitutional in the Katiba Judgment was to curtail rather than facilitate Kenyan citizens to hold their legislators accountable. They are of the view that recall is the most effective tool for oversighting MPs and that in failing to enact a law to facilitate recall, the legislators do not want to be oversighted.
9. The petitioners contend that the issues raised herein are not idle as there have been recent public outcry by electorates to recall some MPs such as Nairobi Woman Representative Esther Passaris among others and that therefore, the 1 st respondent’s inaction stifle this democratic process.
10. The petitioners urge the court to consider the decision in Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR ) and the provisions of Articles 20 (3) and (4), 88, 259(1) and 260 and the Fifth Schedule (Article 261(1) and (5) of the Constitution in determining this matter.
11. The petitioners contend that the 1 st and the 3 rd respondents’ inactions violate the provisions of Articles 1, 2(1), 3(1), 10 (2) (a), 27 (1), 38, 47 and 104 of the Constitution. They further urge the court to find that the 1 st respondent can adapt the provisions of sections 47 of the Elections Act and section 27-29 of the County Governments Act, 2012 to process the recalls in the interim. That it can also put in place interim administrative measures to effectuate the right.
12. The petitioners therefore seek the following reliefs:
i. A declaration that the 1 st respondent’s refusal to process applications and requests for recall of Members of Parliament, is unconstitutional and violates Articles 1, 2, 3, 10, 20 and 104 of the Constitution.
ii. A declaration that the 3 rd respondent’s failure to enact legislation to provide for the grounds and procedures for the recall of Members of Parliament, as mandated by Article 104(2), is a breach of Articles 1, 2, 3, 10, 20 and 104 of the Constitution.
iii. A declaration that the conduct of the 1 st and 3 rd respondents has and continue to violate Articles 27, 38 and 47 of the Bill of Rights.
iv. An order of Mandamus compelling the 1 st respondent to facilitate the processing of recall petitions for Members of Parliament, pending the enactment of enabling legislation, using surviving provisions of the Elections Act, 2011 and the model provided by the County Government’s Act, 2012 and the provisions applicable to recall of Members of County Assembly.
v. An order of Mandamus compelling the 3 rd respondent to enact legislation, within 90 days, to provide for the grounds and procedures for recall of Members or Parliament in compliance with Article 104(2) of the Constitution.
vi. A conservatory order restraining the 1 st respondent from declining to process any recall petitions submitted by the electorate pending the determination of this petition or the enactment of enabling legislation.
vii. A declaration that the right to recall under Article 104(1) is a self-executing constitutional right that does not require enabling legislation to be exercised, and that the 1 st respondent has a duty to facilitate its exercise.
viii. Costs of this petition to be borne by the respondents.
The response by the 1 st respondent-the Independent Electoral and Boundaries Commission-IEBC
13. The 1 st respondent opposed the petition through replying affidavit sworn on 15 th August 2025 by Chrispine Owiye. It urges that by dint of Article 88 (4) of the Constitution, its role is limited to implementation. That it cannot therefore create substantive recall procedure or grounds without a law enacted by Parliament under Article 104(2), without violating Articles 94(1) and (5) of the Constitution.
14. The 1 st respondent asserts that Article 104(1) of the Constitution is not self-executing because under clause (2), Parliament is mandated to enact legislation prescribing the grounds and procedures on the exercise of the right of recall and that the absence of such legislation renders the said right inoperative in practical terms.
15. According to the 1 st respondent, this does amount to the non-existence of the right; rather, it underscores that its constitutional mandate is limited by the doctrine of separation of powers. Consequently, its position on its media update on 30 th July 2025 regarding its inability to effect a recall, constitutes a lawful acknowledgement of the prevailing legislative lacuna.
16. The 1 st respondent contends that the court’s holding at paragraph 601 of the decision in Ndii & Others v Attorney General & Others [2021] KEHC 9746 (KLR) is only applicable to provisions that are self-executing. It further asserts that its actions were undertaken in a transparent and lawful manner; it publicly communicated its inability to process recall petitions for MPs due to the legal vacuum which aligns with the dictates of Articles 2(2), 10 ad 35 of the Constitution.
17. The 1 st respondent states that since the Katiba Judgment, it has submitted Comments to both Chambers of Parliament for review of sections 45 (2), (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act. That in 2021/2022, it submitted Memorandum to the 3 rd respondent urging Parliament to enact provisions for Recall of MPs to mirror those of Recall of MCAs under sections 27, 28 and 29 of the County Governments Act, to operationalize the provisions of Article 104 (2) of the Constitution but that those proposed amendments never materialized because the life of the 12 th Parliament ended before the Bill could be passed by both Chambers of Parliament.
18. It avers that subsequently, Senate invited the 1 st respondent to submit Memorandum on the Elections (Amendment) Bill, 2024 that emanated from NADCO recommendations and that in its submission, it again urged its earlier position and that these same submissions were made in April 2025 before the 3 rd respondent’s House Committee.
19. The 1 st respondent accordingly urges that this challenge must not therefore be seen as a deliberate act on its part in denying any recall rights but rather, as the actions of a law conscious institution caught at the cross-roads of intending to implement its mandate where the legislative foundations and procedures thereof are non-existence.
20. The 1 st respondent states that although the right of recall is expressly guaranteed under Article 104 of the Constitution, its realization is subject to specific procedures and grounds, the formulation of which lies exclusively within the legislative mandate of Parliament. That its role is confined to implementation of such procedures once duly enacted and that in the absence of the requisite legislation, it can only acknowledge the existence of the right but cannot, without acting unlawfully, usurp the legislative functions necessary to effectuate the right.
21. The 1 st respondent avers that the petitioner’s attempt to compel it to permit recall process in the absence of enabling legislation constitutes an illegality. It contends that the doctrine of necessity, or the proposition that the law may be breached owing to exigent circumstances, has been consistently disfavoured and rejected by the courts. It cites R v. Dudley & Stephens (1884) 14 QBD 273 and United States v. Bailey, 444 U.S. 394 (1980) where the Court held that a man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. The respondent argues that despite the necessity of the political rights and fair administrative action under Article 38 and 47 respectively, the same cannot compel it to act ultra vires.
22. The 1 st respondent avers that a proper constitutional remedy lies against the 3 rd respondent who under Article 261(1) and (5) of the Constitution, is mandated to initiate and enact the requisite legislative framework to give effect to Article 104 of the Constitution. It urges the court to take judicial notice that political and election related disputes are inherently emotive and must, therefore, be addressed with the highest degree of caution and strict adherence to the law.
23. The 1 st respondent urges this court to dismiss the petition and accord the 3 rd respondent an opportunity to pass the Elections (Amendment) Bill before the floor of the House which seeks to amend the provisions on recall of MPs. In the alternative, it seeks directions on the development of guidelines for Recall of MPs that mirror those of Recall of MCAs encapsulated under sections 27, 28 and 29 of the County Governments Act, Cap 265 with necessary modification and/or how to operationalise provisions of Article 104 of the Constitution.
The response by the 2 nd respondent-the Attorney General
24. The 2 nd respondent Attorney General opposed the petition through grounds of opposition dated 4 th September, 2025. It is contended that the petition has not demonstrated how the Attorney General has violated constitutional rights; that the AG has not been cited for any commission and/or omission and that there are no reliefs sought against the AG. The AG urges this Court to dismiss the petition with costs.
The response by the 3 rd respondent-The National Assembly
25. The 3 rd respondent, the National Assembly, opposed the petition through replying affidavit sworn on 5 th November 2025 by Samuel Njoroge, C.B. S. It contends that the petition is premature and in violation of the principle of separation of powers. That while the petitioners rely on the Katiba Judgment to fault it for failing to enact legislation to operationalize Article 104 the same is misleading because the legislative process to cure the mischief highlighted by the Court in the Katiba Judgment is underway; the court should not intervene.
26. According to the 3 rd respondent, the Elections (Amendment) (No.2) Bill (Senate Bill No. 29 of 2024) was passed by the Senate on 5 th December 2024 and transmitted to the National Assembly where it was read for a First Time on 13 th February 2025. Subsequently, the Bill was committed to the Departmental Committee on Justice and Legal Affairs pursuant to Standing Order 143(2) of the National Assembly Standing Orders for public participation.
27. The 3 rd respondent states that Clauses 25, 26 and 27 of the Bill seek to amend the provisions of sections 45, 46 (1) (b) (ii) and (c) and 48 of the Act that were declared unconstitutional. Further, that in line with the provisions of Article 118 (1) (b) of the Constitution and the National Assembly Standing Order 127 (3) and (4), the Clerk of the National Assembly placed an advertisement in the print media on 18 th and 19 th February, 2025 inviting the public to submit memoranda by way of written statements on the Bill on or before 5 th March 2025 at 5.00 p.m.
28. That the said Clerk further through letter Ref. NO. NA/DDC/JLAC/2025/017 dated 10 th April 2025 invited key stakeholders to submit views on the Bill and attend a public participation forum on 17 th April 2025. That the said forum was attended by the Kenya Law Reform Commission (KLRC), the Office of the Registrar of Political Parties (ORPP), Katiba Institute, the CRADLE and the Electoral Law and Governance Institute of Africa (ELGIA). That the Independent Electoral and Boundaries Commission (IEBC) appeared before the Committee on 22 nd April 2025.
29. The 3 rd respondent states that the Departmental Committee oN Justice and Legal Affairs received ten memoranda from Council of Governors (COG), the IEBC, Inter-Religious Council of Kenya (IRCK), KLRC, ORPP, The Law Society of Kenya (LSK), the Centre for Multiparty Democracy (CMD), the CRADLE, the (ELGIA) and the Architects Alliance (TAA).
30. The 3 rd respondent states that the Clerk of the National Assembly through letters REF. NO. NA/DDC/JLAC/2025/111 dated 9 th October 2025 also invited the petitioners herein through the firm of KMK Africa Advocates LLP, to appear before the Departmental Committee on Justice and Legal Affairs to give their views on the Bill. Consequently, that the Bill is alive before the House and the legislative process is at an active stage hence, the claim that the National Assembly has abdicated its mandate is baseless.
31. The 3 rd respondent urges that pursuant to Article 94(1) of the Constitution, this Court cannot direct Parliament in the manner of execution of its Constitutional mandate; that the Court can only make a declaration against actions of Parliament that violate the Constitution. That the order for mandamus to compel Parliament to enact the specific legislation prescribing grounds and procedures for recall of Members of Parliament therefore offends the principle of separation of powers. The 3 rd respondent asserts that a similar prayer was sought in the Katiba Judgment but was declined.
32. According to the 3 rd respondent, the petition is premature and non- justiciable under the doctrine of exhaustion of remedies because the petitioners have not utilized the dispute resolution mechanisms provided under Article 119 of the Constitution. It urges for the dismissal of the petition with costs.
The 1 st interested party- the Law Society of Kenya did not file any response to the petition
The response by the 2 nd interested party- the Senate of Kenya
33. The 2 nd interested party, the Senate, opposed the petition through replying affidavit sworn on 30 th September 2025 by Jeremiah Nyegenye, CBS. It cites the provisions of Articles 93(1), 96(1), 97, 98, 101, 102 and 103 of the Constitution that speak to among others, its establishment, mandate and vacation of office and asserts that it is bound by the provisions of Article 10 in carrying out its mandate.
34. The 2 nd interested party reiterates the facts regarding the enactment of the Elections Act, 2011; the challenge to sections 45, 46, 47 and 48 of the Elections Act and sections 27, 28 and 29 of the County Governments Act, 2012 in the Katiba Judgment and the outcome thereof and the amendments to the County Governments Act, 2012 through the County Governments (Amendment) Act, 2020-Act No. 11 of 2020.
35. The 2 nd interested party objects to the invitation to this court to borrow from the provisions of the County Governments Act, 2012 (amended) on the issue of recall of MPs. It argues that this is tantamount to inviting this court to read and/or impose words into the Elections Act, 2011 for purposes of enabling the recall provisions under Article 104 of the Constitution, which power this Court is devoid of as it cannot legislate.
36. The 2 nd interested party further urges that this court lacks the standing to legally direct Parliament on the way, shape or form of legislation to be enacted. That doing so would be an affront to separation of powers. It also asserts that in any event, on 5 th December 2024, the Senate considered and passed The Elections (Amendment) (No. 2) Bill, 2024 which seeks to amend the Elections Act; with Clauses 25 and 26 therein seeking to amend sections 45 and 46 of the Elections Act.
37. The 2 nd interested party states that the Amendment Bill was transmitted to the National Assembly for consideration and for public participation in line with Articles 10 and 118 of the Constitution. That therefore, any orders form this court would usurp the mandate of Parliament and cripple it from discharging lawful duties. It further states that the petitioners have neither utilized the dispute resolution mechanism envisaged under Article 119 of the Constitution and petitions to Parliament (Procedure) Act nor demonstrated how the Senate or Parliament has threatened/or violated the petitioners’ rights under the Constitution. It urges for the dismissal of petition with costs.
The 3 rd interested party did not file any response to the petition.
The Petitioners’ supplementary affidavit
38. The petitioners filed a supplementary affidavit asserting that the constitutional commissions such as the 1 st respondent are not wholly or purely implementation bodies; that the 1 st respondent also plays regulatory /delegated legislative roles and monitoring roles under Article 88(4) (d), (i), (j) and (k) of the Constitution.
39. The petitioners urge that the duty to develop the law envisaged under Article 20(3) of the Constitution also binds the 1 st respondent. Further, that Article 10(1) anticipates interpretation of the law by implementing agencies and the 1 st respondent is therefore guilty of dereliction of duty. That contrary to the assertion that the 1 st respondent cannot create substantive recall procedures or grounds, the Constitution provides for the right of recall and sections 27 and 28 of the County Governments Act provide for grounds and procedures for recall of MCAs, which can be applied mutatis mutandis to recall of MPs.
40. The petitioners in addition, urge that the provisioning of the right of recall outside the Bill of Rights does not in any way diminish its importance or remove it from the interpretation matrix provided for in Articles 19-22 of the Constitution. They further urge that the 1 st respondent retains residual powers to promulgate regulations and provide guidance over and above its role of implementation so as to give effect to constitutional provisions, especially where the absence of a statutory framework has the effect of holding constitutional provisions in abeyance for an inordinate time.
41. The petitioners assert that Article 104 is self-executing in nature and can be exercised even in the absence of legislation as found in Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] eKLR . That any position that supposes a different interpretation of Ndii & others v Attorney General & others (supra) must also be contextually applied in the current matter.
42. According to the petitioners, the MCAs and Members of the national Assembly do the same work but only at different levels of government. That the provisions applicable to MCAs must therefore be similarly applied to Members of the National Assembly to cure the intentional violation of Article 27 by the 1 st respondent and the artificial lacuna created by the Members of the National Assembly. Further, that the 1 st respondent has not provided evidence of the Comments and or the Memorandum issued to Parliament or any efforts to have legislation enacted.
43. The petitioners are of the view that, taking efforts to effectuate the right of recall cannot amount to an illegality; that the determination of this petition does not prevent the 3 rd respondent from discharging legislative mandate and the Attorney General has been sued as the principal legal advisor of government as provided by Article 156 of the Constitution.
The Petitioners’ submissions
44. The petitioners’ submissions are dated 8 th September, 2025. They submit that Article 104(1) of the Constitution vests in the electorate a direct and inalienable right to recall MPs; that the right embodies the sovereignty of the people under Article 1 and pre-exists any statutory framework. They also assert that the said right is self-executing, hence the 1 st respondent’s refusal to process recalls petitions, citing the absence of legislation, violates Articles 1, 2(1), 3(1), 10, 88(4) and 104(1) of the Constitution.
45. To augment that position, the petitioners cite the Katiba Judgment; Centre for Rights Education & Awareness (CREAW) v Attorney General & Another [2015] eKLR; Mumo Matemu v Trusted Society [2013] eKLR; Ndii & others v Attorney General & others [2021] KEHC 9746 (KLR); August and Another v Electoral Commission and others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363A and Gachagua & 40 others v Speaker, National Assembly & 15 others [2024] KEHC 13473 (KLR).
46. The petitioners urge that Article 20(3) of the Constitution mandates courts and state organs to develop the law to enforce rights, adopting interpretations favouring enforcements. That the 1 st respondent must therefore interpret surviving provisions (such as the Elections Act section 47 on by-elections) and apply County Governments Act (sections 27-29) mutatis mutandis to exercise the recall of MPs.
47. The petitioners again reiterate their position that, the 1 st respondent has not provided proof of the submissions of memoranda or comments to Parliament; that the 1 st respondent retains quasi-legislative powers for interim measures; that Article 88 of the Constitution empowers it to act creatively within constitutional bounds to facilitate rights and that the 3 rd respondent’s delay in enacting the enabling legislation is not an excuse available to it for not effectuating the right of recall because, that duty is mandatory. They rely on Speaker of the Senate & Another v Hon. Attorney & Another &3 others Supt. CT. Advisory Opinion Reference No. 2 of 2013; Para 2013 [2013] eKLR (Re Senate) and August v Electoral Commission (supra).
48. The petitioners maintain that by failing to enact legislation to effectuate Article 104(1) of the Constitution, the 3 rd respondent has violated the provisions of Articles1, 10 (2) (a) and (c),104(2), 261(5). It is their position that, the Fifth Schedule of the Constitution required this enactment by 27 th August 2012 and that Parliament’s prompt amendment of MCAs in 2020 demonstrates capacity but reveals self-preservation for MPs. They therefore urge the court to order enactment of the relevant legislation within of 90 days and issue an order for structural interdict to enable supervision/implementation. Reliance is placed on the cases of in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) (s. Afr.) and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] KEHC 7074 (KLR).
49. Concerning violation of Articles 27, 38 and 47 of the Constitution, the petitioners submit that the respondents’ actions create unequal treatment. That while MCAs can be recalled under the amended laws, MPs cannot despite both performing legislative and oversight roles. This, in their view, discriminates between county and constituency electors, thereby denying equal benefit of the law.
50. The petitioners argue that the right to recall is integral to political participation under Article 38(c), allowing citizens to champion caused by removing non- performing leaders. That the inaction by the respondents stifle this, breaching participation, hindering political choices and frustrating sovereignty. They further submit that the 1 st respondent’s refusal and Parliament’s delay are administrative actions that are not expeditious, efficient, lawful or reasonable and therefore a breach of Article 47 of the Constitution.
51. Citing the decisions in CREAW ; August (ZACC); Ndii case ; Doctors for Life and State of Kerala & Anor v N.M. Thomas & Others 1976 AIR 490, 1976 SCR (1) 906 , the petitioners maintain that Article 104 (1) of the Constitution is self-executing. They argue that the 1 st respondent has issued guidelines for by-elections and voter education under Article 88(4); that it similarly can, for MPs. Additionally, that the 1 st respondent ‘s regulatory powers under Article 88 (4) (j)-(k) do allow development of guidelines for recalls by adapting grounds for recall of MCAs under section 27 of the County Governments Act 2012.
52. The petitioners rely on Article 23(3) (a) and the decision in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR ) and urge that the remedies and orders sought be granted.
The 1 st respondent’s submissions
53. The 1 st respondent relies on the Black’s Law Dictionary (12 th Edition); Thomas Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the State of the American Union 62 (2 nd ed. 1871) and Wyatt-Shaw T, “The Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution: ‘They Mean Something” (1994) 15 Public Land and Resources Law Review 8 for the contention that Article 104 (1) is not self-executing.
54. The 1 st respondent submits that the petitioner’s reliance on Ndii & Others v Attorney General & others ( supra)is misplaced and that the Court’s finding that the absence of legislation does not always render a provision inoperative was made in the context of a referendum. That the court still acknowledged the necessity for additional legislation.
55. The 1 st respondent submits that the contrast with its duty in the recall of MCAs is instructive. That it can and does process such recalls because Parliament has discharged its legislative duty and as such, it can proceed with the recall as provided for under sections 27, 28 and 29 of the County Governments Act, thus, demonstrative of its readiness to act when a lawful foundation exists.
56. The 1 st respondent denies violating Articles 1, 2, 3, 10, 27, 38 and 47 of the Constitution. On the contrary it submits that it has upheld the supremacy of the Constitution and the rule of law under Articles 2(2) and 10 of the Constitution. Crafting or devising recall grounds and procedures as suggested by the petitioners, it argues, would be to exercise a legislative authority which it does not possess.
57. Regarding violation of Articles 27 and 38, the 1 st respondent submits that, the fact that MCAs can be recalled while MPs cannot, is not its creation but that it is the direct and regrettable consequence of Parliament’s selective amendment of legislation. As for Article 47, it submits that an administrative action cannot be fair or lawful if it is ultra vires. It relies on the cases of Centre for Rights, Education and Awareness (CREW) & Another v the Speaker of the National Assembly and 2 others and Municipal Council of Mombasa v Republic & Umoja Consultants Ltd , Civil Appeal NO. 185 of 2001.
58. The 1 st respondent argues that while it has regulatory powers under Article 88 (4) (i) –(k), these powers are delegated and subsidiary allowing it to make regulations on campaign finance, codes of co
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