' Background
On 13th February 2024, the Kisii County Assembly received a notice seeking the removal of Hon. Dr. Robert Onsare Monda from office as Deputy Governor of Kisii County through impeachment. The grounds cited for his removal included gross violation of the Constitution and other laws, abuse of office, gross misconduct, and the commission of crimes under national law.
Following the initiation of the impeachment process, several constitutional Petitions were filed in different courts challenging the legality of the proceedings. The first was Nyamira Constitutional Petition No. 2 of 2024 (formerly Kisii High Court Petition No. 2 of 2024), filed by Dr. Monda himself on 26th February 2024. This was followed by Nyamira Constitutional Petition No. 3 of 2024 (formerly Nairobi High Court Petition No. E159 of 2024), filed by Vincent Marita Omao on 21st March 2024, and Nyamira Constitutional Petition No. 4 of 2024 (originally filed as Machakos Petition No. E007 of 2024, later Nairobi Constitutional Petition No. 10 of 2024) by Purity Moraa Kirera on 1 st April 2024. Another Petition, Nairobi Constitutional Petition No. E003 of 2024 filed by Jared Mairura Ratemo, was later withdrawn after interim conservatory orders were issued by Hon. Justice Olel.
In order to streamline the proceedings, Honourable Justice E. Ogolla, Presiding Judge of the High Court, directed that all the Petitions be consolidated and heard by this Court. A hearing was subsequently held on 25th and 26th September 2024, during which parties’ counsel highlighted their submissions. Judgment was initially scheduled for delivery on notice, and a Judgment Notice was thereafter issued for 3 rd April 2025.
However, on the date set for the delivery of the Judgment, Mr. Ochieng Oginga, counsel for the 4 th Respondent, informed the Court that a fresh Application had been filed under Certificate of Urgency on 1 st April 2025 by the 3 rd Petitioner, Purity Moraa Kirera. This Ruling therefore pertains specifically to the said Application by the 3rd Petitioner.
THE APPLICATION
On 1 st April 2025, the 3rd Petitioner, Purity Moraa Kirera , filed an Application seeking orders to set aside or review the Senate’s impeachment decision against the former Deputy Governor of Kisii County, Hon. Dr. Robert Onsare Monda , on the basis of newly discovered and material evidence. The Application also sought to reopen the matter and allow the introduction of new evidence contained in an affidavit sworn by Dennis Mokaya Misati , who had earlier testified against the Deputy Governor during the impeachment proceedings. The Applicant claimed the impeachment process was tainted by procedural irregularities, including witness coercion, fabrication of evidence, and political manipulation, particularly by the 4 th Respondent, the Governor of Kisii County.
Dr. Monda (1 st Petitioner) filed Grounds in support of the Application where he contended that the new evidence revealed political interference and abuse of office by the Governor, including bribery and coercion of key witnesses. It was argued that the Senate''s decision was compromised, thus violating Dr. Monda’s rights under Articles 47 and 50 of the Constitution, and that the High Court had supervisory jurisdiction under Article 165(6) and (7) to review unlawful decisions by public bodies. The Petitioners urged the Court to reopen the case, admit the fresh evidence, set aside the impeachment decision, and grant constitutional redress including injunctive and compensatory reliefs.
In opposition to the Application, the 1 st and 2 nd Respondents (through the Senate Deputy Clerk) argued that the Application was legally untenable, as it sought to reopen and re-evaluate impeachment proceedings that are constitutionally required to be conducted by the County Assembly and Senate. They submitted that the court''s jurisdiction is limited to constitutional violations and cannot extend to reassessing factual evidence or credibility of witnesses presented before the Senate. They further contended that the impeachment was not based solely on Dennis Misati’s testimony and that the Application amounts to an abuse of court process that is intended to delay the judgment.
The 4th Respondent (Governor of Kisii County), through affidavits by Earnest Osoro and Justine Siocha , maintained that the Application is scandalous, defective, and amounted to the Court usurping legislative and investigative mandates. They emphasized that perjury, being a criminal offence under Section 114 of the Penal Code, was under police investigation (OB No. 25/06/04/25), and added that the Court could not draw conclusions on guilt or rely on such allegations in the absence of a formal trial. It was further submitted that reopening the matter would bypass constitutional procedures, and that Prayer (3) of the Application sought a final order through an interlocutory motion, and further, that the delay in filing the affidavit raised concerns of abuse and tactical delay.
The 5th Respondent (County Assembly of Kisii), through the Clerk, Jacob Onkeo , also opposed the Application, arguing that the Court lacked jurisdiction to determine criminal matters or revisit factual determinations made by legislative bodies during impeachment. He noted that the impeachment process was governed by clear procedures, which included opportunities for the Petitioner to challenge testimony. He questioned the credibility of the affidavit by Dennis Misati, citing discrepancies in signatures and unexplained delays in its presentation. He concluded that the Application was a veiled attempt to amend the Petition through improper means and delay the judgment set for 3rd April 2025.
Counsel for the 3 rd Petitioner argued that the High Court has constitutional authority to safeguard due process, citing Martin Nyaga Wambora vs. Speaker of the County Assembly of Embu [2014] eKLR . They emphasized that the new evidence was central, not discoverable earlier, and demonstrated violations of Articles 47 and 50 of the Constitution. The 1 st Petitioner’s Counsel added that the Court had power to review or reopen proceedings under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Conversely, the Respondents argued that reopening proceedings at this late stage lacked legal basis. They cited the case of Susan Wavinya Mutavi vs. Isaac Njoroge [2020] eKLR among other authorities to support the position that courts should not intrude into legislative impeachment roles unless constitutional breaches are clearly established. They further emphasized that impeachment was a political process and not subject to strict evidentiary rules, and that no criminal conviction had been made regarding the alleged perjury.
In a nutshell, while the Petitioners sought intervention on grounds of fairness and newly discovered evidence, the Respondents maintained that the Application is fatally defective, jurisdictionally unsound, and driven by ulterior motives to delay proceedings and undermine the constitutional impeachment process.
ISSUES FOR DETERMINATION
Having considered the Application dated 1 st April 2025, the supporting affidavit, grounds in support, responses, affidavits in opposition, and rival submissions, the Court identified the following key issues for determination: -
Whether this Court has jurisdiction to review or set aside an impeachment decision of the Senate on grounds of newly discovered evidence.
Whether the new evidence presented by the 3rd Petitioner warrants the reopening of the Petition and re-evaluation of the impeachment process.
Whether the Application meets the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
Whether the prayers sought are merited, including the setting aside of the impeachment and the admission of new evidence.
Analysis and Determination
1. Jurisdiction of the Court
It is trite, on account of a litany of decisions, that a court cannot act without jurisdiction. A court of law must first satisfy itself that it has the power to hear and determine the merits of the matter before it. In the famous case of Owners of the Motor Vessel “Lillians” vs. Caltex Oil Kenya Limited [1989] KLR 1 , Nyarangi J.A. held thus:-
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[See also the US Supreme Court’s decision in of McDonald vs. Mabee, 243 US 90,91 (1915)]
The gist of this Application is that there is fresh and compelling evidence, in the nature of a newly sworn affidavit by one of the key witnesses, Dennis Mokaya Misati, in the impeachment case against the former Deputy Governor, Dr. Monda. According to the Applicant this calls for the Court to vacate the said impeachment decision, set aside its judgment and reopen the impeachment proceedings for a fresh hearing. In other words, Counsel for the Applicant and the 1 st Petitioner have invoked this Court’s jurisdiction by calling upon it to assume jurisdiction and deliberate over a matter that has already been heard and determined on its merits by the two legislative Houses, the County Assembly of Kisii and the Senate, on account of new and compelling evidence.
As a preliminary issue, while this Court appreciates that it exists to perform and ensure the dispensation of justice and adherence to the Rule of Law and recognizing that both the Constitution and statute vest the power to provide checks and balances over the constitutionality and legality of a decision made by a public body, it nonetheless must give due deference in doing so, to the principle of separation of powers. There is a myriad of decisions which have addressed the principle of separation of powers and delimited the High Court’s inherent jurisdiction particularly on constitutional matters to a certain extent.
The Constitutional Court of South Africa in the case of Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11 held that:-
“The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings. This principle is not simply an abstract notion; it is reflected in the very structure of our government. The structure of the provisions entrusting and separating powers between the legislative, executive and judicial branches reflects the concept of separation of powers. The principle ‘has important consequences for the way in which and the institutions by which power can be exercised…….
But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled’. Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations. This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’. Section 167(4)(e), in particular, entrusts this Court with the power to ensure that Parliament fulfils its constitutional obligations. This section gives meaning to the supremacy clause, which requires that ‘the obligations imposed by [the Constitution] must be fulfilled’. It would therefore require clear language of the Constitution to deprive this Court of its jurisdiction to enforce the Constitution.”
Similarly, in the Re Matter of the Interim Independent Electoral Commission Advisory Opinion No. 2 of 2011 the Supreme Court stated as follows: -
“The effect of the constitution''s detailed provision for the rule of law in the process of governance, is that the legality of executive or administrative actions is to be determined by the courts, which are independent of the executive branch. The essence of separation of powers, in this context, is that in the totality of governance-powers is shared out among different organs of government, and that these organs play mutually-countervailing roles. In this set-up, it is to be recognized that none of the several government organs functions in splendid isolation.”
Additionally, in the case of Judicial Service Commission vs. Speaker of the National Assembly & 8 Others [2014] eKLR, the Supreme Court also the emphasized the significance of the principle of separation of powers but clearly established a link between the application of judicial authority over the other duties carried out by other arms of the government. It held thus:-
“The Constitution disperses powers among various constitutional organs. Where it is alleged that any of these organs has failed to act in accordance with the Constitution, then the Courts are empowered by article 165 (3)(d)(ii) to determine whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution.”
The import of the above judicial precedents is that the High Court is undoubtedly not precluded or excluded from interrogating or re-examining the impeachment proceedings by a County Assembly and the Senate. It must do so because it is the only means by which it can be adequately demonstrated that the said process was conducted in accordance with the set legal dictates.
I note that the County Assembly under Section 33 of the County Government Act is the first port of call on matters impeachment, particularly of a Deputy Governor, as in the present case. That is to say that any resolutions passed by the County Assembly will crystalize into the proceedings before the Senate which will deliberate on the veracity or lack thereof of the evidence adduced before it to determine if even one charge has been proved against the subject of the impeachment proceedings. In other words, the County Assembly and the Senate are the trial chambers/‘courts’. In the case of Mwangi wa Iria & 2 Others vs. Speaker Murang’a County Assembly & 3 Others (2015) eKLR , it was held that the senate was the impeachment court. Onguto J held thus:
“I take cognisance of the fact that the Senate is truly, what I may call, the Impeachment Court. The Senate is expected not only to investigate the nexus of the allegations to the 1st Petitioner. The Senate must also interrogate the entire process as it scurried through the County assembly. I have seen no law that restrains the Senate from returning a verdict that the process was not conducted as detailed under the Constitution or any law for that matter. Pray, the Senate rises to the occasion and is practical and realistic in its investigations.”
To my mind, the import of the above precedent and based on the fact that it is at the County Assembly where evidence is first presented against a person intended for impeachment and the said evidence forwarded to the Senate upon the County Assembly reaching a resolution, then the County Assembly may be synonymous in its duty to the trial court while the Senate may be considered as a first appellate court. This is because the latter has the opportunity to call for fresh evidence in the furtherance of justice to satisfy itself that the Resolutions passed by the County Assembly are valid and merited. Indeed, the Senate may opt to overturn the impeachment of a Governor or Deputy Governor where it finds insufficiency in the evidence presented.
Having laid out the process and steps to be undertaken in an impeachment, it is my determination that not only can the High Court not consider the merits of an impeachment matter, it must warn and restrain itself where it is being called upon to overturn an impeachment decision, based on the veracity of evidence adduced before the two Houses and not on the procedure employed in arriving at an impeachment decision as is its due mandate by the law.
In other words, the powers and privileges vested on the legislative arms of the government are to consider, evaluate and re-evaluate evidence presented for impeachment of a Deputy Governor on the one hand, while the High Court’s duty on the other hand is not to sweepingly or extensively entertain and hear any or fresh evidence adduced before it but to consider the process undertaken and whether it meets the threshold set in law.
I hasten to add that, a party who has been impeached by the County Assembly and Senate cannot present any evidence before the High Court. What is to be presented for scrutiny before the High Court is evidence already adduced in the two Houses so that the Court can evaluate the procedure followed in arriving at the impeachment decision. In simple terms, the High Court is merely expected to consider the legality of the process adopted in arriving at the impeachment decision. It must only be to this extent, and no more, that the High Court can act.
Case law is replete with decisions that make a clear distinction between the powers and privileges of various arms of government and draws examples from comparative jurisprudence in distinctively setting out the role of the legislature and that of the courts in impeachment proceedings. In the case of Mate & Another vs. Wambora & Another (Petition 32 of 2014) [2017] KESC 1 (KLR) (Civ) (15 December 2017), the learned Judges cited two authorities that shielded the legislative conduct as follows: -
“70. In Canada (House of Commons) v. Vaid , [2005] 1 S.C.R. 667; 2005 SCC 30, the Canadian Supreme Court thus observed, with respect to Parliamentary privileges:-
“Within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts. A finding that a particular area of parliamentary activity is covered by privilege therefore has very significant legal consequences for Members who claim to be injured by parliamentary conduct.”
The Court observed further as follows:
“[I]t was a good principle that the Courts and Parliament strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament.”
72…… Harvey v. New Brunswick (Attorney General) , [1996] 2 S.C.R. 876. The appellant who had been expelled from the Legislature, on account of having been convicted of an election offence, challenged the requirement that he should vacate his seat. The Supreme Court of Canada, in dismissing the appeal, thus held:-
“The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature.
“Expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. It is clear that had the New Brunswick legislature simply expelled the appellant, that decision would fall squarely within its parliamentary privilege and the courts would have no power to review it.”
(Emphasis supplied)
It follows then that this Court has no jurisdiction to consider any fresh evidence, much less evaluate any evidence already tendered in respect of the 1 st Petitioner’s impeachment proceedings. The Court’s only sacrosanct duty is to be the guardian of the impeachment process to prevent abuse of power and to prevent what may be loosely termed as politically-motivated impeachments. The notion by the Applicant’s counsel in their submissions that the Court could re-open the matter by allowing the Petitioners to adduce new evidence is untenable in law. This is because, not only is the Court not the trial court in impeachment proceedings and therefore precluded from evaluating evidence, there were fundamental issues raised that implied criminality on the part of one of the witnesses. This was evidently a matter which this Court cannot determine for the very reason that it neither the Constitution nor Statute permitted it as a Constitutional Court to consider.
I have also considered the provisions of the Civil Procedure Rules and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules referred to by the Applicant with respect to the amendment of pleadings where there has been an error that must be corrected. In this case, there was no error in any of the pleadings. What was being challenged was the truthfulness of the evidence from the key witness which has allegedly been recanted. I find that the allegations of fraud and coercion/witness intimidation were fundamental issues that cannot not be casually pleaded in an affidavit and then simply equated to a mere error in pleadings thereby justifying an amendment of the pleadings under the above cited Rules. In essence, I find no justification in re-opening of the case for taking fresh evidence.
But even if this Court were to be have jurisdiction over the matter, I note that the issue of perjury carries with itself grave consequences as it entails pure deception under oath. While the said key witness may have pleaded issues of coercion and intimidation, it is my finding that such a grave allegation and the apparent concession of committing perjury by the said key witness is not a matter that can be interrogated by this Court or casually referenced as the basis for allowing the re-opening of the impeachment proceedings. I state so because, firstly the criminal act of perjury would require scrutiny and determination in a court of law where evidence is adduced and the culpability of the perpetrator determined. Without this, the Court cannot hop onto the bandwagon of the allegations of fraud, intimidation and coercion where such issues have not been subjected to a trial process and even then, were it to do so, it would be acting ultra vires the powers and duties stipulated of it as a constitutional court.
It cannot be gainsaid that in matters impeachment, the High Court is neither a trial court nor a first appellate court. It can therefore not subject evidence adduced at the County Assembly and the Senate to a fresh analysis for purposes of arriving at its own decision or even to determine questions of law as would be expected of a second appellate court. I reiterate that the singular duty vested on the High Court in matters impeachment as already stated is the constitutionality and legality of the impeachment process. The import of this is that this Court should only address issues of procedural propriety in accordance with the Constitution and Statute and not substantive issues that formed the basis of the impeachment charges which were already deliberated upon and determined in the two Houses.
In this case, by calling on this Court to exercise its jurisdiction under Article 159 of the Constitution, the Applicant has not only placed this Court in a precarious position, where instead of allowing it to hear and determine questions of procedural propriety over the impeachment proceedings both at the Senate and the County Assembly; she is also demanding that the Court arrogates itself with the powers of trial court and in the manner of a trial court, consider Mr. Misati’s recanted evidence and determine his culpability on the self-confessed perjury.
While it cannot be overstated that the Constitution of Kenya, under Article 165(6) and (7) , confers upon the High Court supervisory jurisdiction over subordinate courts and persons or bodies exercising quasi-judicial functions, including the Senate and County Assemblies courts emphasized in the decisions in Mwangi wa Iria & 2 Others vs. Speaker, Murang’a County Assembly & 3 Others [2015] eKLR and Mike Mbuvi Sonko v Clerk, Nairobi City County Assembly & Others [2022] KESC 26 (KLR) , that the Court''s role in impeachment matters is not to sit as an appellate body over the Senate or County Assemblies, but rather to ensure that the process followed constitutional and statutory requirements.
It is therefore my finding that this court has limited jurisdiction to interrogate the constitutionality, legality, and procedural fairness of the impeachment process, and not to re-evaluate the merits of the charges or the credibility of witnesses as if sitting on appeal.
2. The Nature and Weight of the New Evidence
The 3rd Petitioner has relied on an affidavit sworn by one Dennis Mokaya Misati , a key witness in the impeachment process, who now recants his earlier testimony, alleging coercion and fabrication of evidence. While such allegations are grave and, if proven, would raise concerns about due process and fairness, it is undisputed that this Court is not the proper forum to make a determination on the veracity or criminal implications of perjury.
I have also considered the grounds enumerated in the Applicant’s supporting affidavit in which she averred inter alia that that it was in the best interests of justice that the judgment be reviewed and/or set aside to avoid a miscarriage of justice. My take on this ground is that this Court is yet to deliver a judgment over the main Petitions which were consolidated in this matter. Therefore, to make a prayer in this regard is not only misguided but is also akin to putting the cart before the horse by pre-empting an outcome that is yet to be made. In any case, this Court cannot review a judgment it is yet to deliver as alluded to by the Applicant in her sworn affidavit.
My take is that the moment the Court is called upon to determine whether certain evidence whether fresh or not is so important and compelling as to warrant a re-evaluation or re-opening of the proceedings, that would be tantamount to sitting on appeal over the decision of the two Houses or at the very least, usurping the mandate vested by the Constitution and Statute on the legislative bodies in matters impeachment. I find that the issue of the impugned affidavit is more substantive in nature as opposed to procedural and therefore outside the scope/ambit of this Court’s jurisdiction. I also find that since the 1 st Petitioner was impeached based on the four main grounds supported by evidence other than Dennis Misati’s sworn and recanted affidavit, then the same cannot be a basis for re-opening the entire proceedings over the said recanted evidence,
As held in Republic vs. Chief Magistrate Milimani & Another Ex parte Tusker Mattresses Ltd [2013] eKLR , and reiterated in Susan Wavinya Mutavi vs. Isaac Njoroge & Another [2020] eKLR , a constitutional court cannot arrogate to itself the jurisdiction to investigate or determine criminal guilt. That mandate lies with investigative and prosecutorial agencies. I note that in this case, the issue of perjury has already been reported and is under active police investigation (OB No. 25/06/04/25). I find that until such investigation is concluded and a determination made by the appropriate criminal forum, this Court cannot rely on untested allegations to overturn a constitutionally sanctioned process.
3. On Whether the Application Meets the Threshold for Review
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provide for review on grounds of:
discovery of new and important matter or evidence;
mistake or error apparent on the face of the record; or
for any other sufficient reason.
In order to succeed under the above provisions, the applicant must demonstrate that the evidence:
was not within their knowledge at the time of hearing,
could not be produced despite due diligence, and
is material enough to influence the outcome of the decision.
In the present case, I note that the affidavit by Dennis Misati is dated 4th March 2025 but was only filed on 1st April 2025 , a day before the date for the delivery of the judgment. No satisfactory explanation has been given for this delay. Moreover, the impeachment decision was not premised solely on Dennis Misati’s testimony, as the Respondents have established that the process involved multiple witnesses and grounds of removal.
Furthermore, the Supreme Court in Speaker of the Senate & Another vs, Attorney General & 4 Others [2013] eKLR emphasized that impeachment is a political process where courts may only intervene where there is a clear violation of constitutional procedures or rights and not to re-evaluate evidence or interfere with legislative discretion unless there is a clear abuse.
4. Whether the Reliefs Sought Can be Granted
Prayer (3) of the Application seeks a final order , which is to set aside the Senate decision, through an interlocutory motion. I find that such a prayer is impermissible and can only be granted after a full hearing and upon evaluation of all the evidence and arguments. Granting it at this stage would amount to prematurely disposing of the substantive Petition.
Similarly, Prayer (4) seeks a reopening of the entire Petition to allow fresh evidence. While Rule 18 of the Mutunga Rules (Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013) allows amendment and introduction of new evidence before judgment, this must be done in a structured and procedurally sound manner. Here, the Court finds the timing, content, and method of presentation of the new evidence to be problematic and
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On 13th February 2024, the Kisii County Assembly received a notice seeking the removal of Hon. Dr. Robert Onsare Monda from office as Deputy Governor of Kisii County through impeachment. The grounds cited for his removal included gross violation of the Constitution and other laws, abuse of office, gross misconduct, and the commission of crimes under national law.
Following the initiation of the impeachment process, several constitutional Petitions were filed in different courts challenging the legality of the proceedings. The first was Nyamira Constitutional Petition No. 2 of 2024 (formerly Kisii High Court Petition No. 2 of 2024), filed by Dr. Monda himself on 26th February 2024. This was followed by Nyamira Constitutional Petition No. 3 of 2024 (formerly Nairobi High Court Petition No. E159 of 2024), filed by Vincent Marita Omao on 21st March 2024, and Nyamira Constitutional Petition No. 4 of 2024 (originally filed as Machakos Petition No. E007 of 2024, later Nairobi Constitutional Petition No. 10 of 2024) by Purity Moraa Kirera on 1 st April 2024. Another Petition, Nairobi Constitutional Petition No. E003 of 2024 filed by Jared Mairura Ratemo, was later withdrawn after interim conservatory orders were issued by Hon. Justice Olel.
In order to streamline the proceedings, Honourable Justice E. Ogolla, Presiding Judge of the High Court, directed that all the Petitions be consolidated and heard by this Court. A hearing was subsequently held on 25th and 26th September 2024, during which parties’ counsel highlighted their submissions. Judgment was initially scheduled for delivery on notice, and a Judgment Notice was thereafter issued for 3 rd April 2025.
However, on the date set for the delivery of the Judgment, Mr. Ochieng Oginga, counsel for the 4 th Respondent, informed the Court that a fresh Application had been filed under Certificate of Urgency on 1 st April 2025 by the 3 rd Petitioner, Purity Moraa Kirera. This Ruling therefore pertains specifically to the said Application by the 3rd Petitioner.
THE APPLICATION
On 1 st April 2025, the 3rd Petitioner, Purity Moraa Kirera , filed an Application seeking orders to set aside or review the Senate’s impeachment decision against the former Deputy Governor of Kisii County, Hon. Dr. Robert Onsare Monda , on the basis of newly discovered and material evidence. The Application also sought to reopen the matter and allow the introduction of new evidence contained in an affidavit sworn by Dennis Mokaya Misati , who had earlier testified against the Deputy Governor during the impeachment proceedings. The Applicant claimed the impeachment process was tainted by procedural irregularities, including witness coercion, fabrication of evidence, and political manipulation, particularly by the 4 th Respondent, the Governor of Kisii County.
Dr. Monda (1 st Petitioner) filed Grounds in support of the Application where he contended that the new evidence revealed political interference and abuse of office by the Governor, including bribery and coercion of key witnesses. It was argued that the Senate''s decision was compromised, thus violating Dr. Monda’s rights under Articles 47 and 50 of the Constitution, and that the High Court had supervisory jurisdiction under Article 165(6) and (7) to review unlawful decisions by public bodies. The Petitioners urged the Court to reopen the case, admit the fresh evidence, set aside the impeachment decision, and grant constitutional redress including injunctive and compensatory reliefs.
In opposition to the Application, the 1 st and 2 nd Respondents (through the Senate Deputy Clerk) argued that the Application was legally untenable, as it sought to reopen and re-evaluate impeachment proceedings that are constitutionally required to be conducted by the County Assembly and Senate. They submitted that the court''s jurisdiction is limited to constitutional violations and cannot extend to reassessing factual evidence or credibility of witnesses presented before the Senate. They further contended that the impeachment was not based solely on Dennis Misati’s testimony and that the Application amounts to an abuse of court process that is intended to delay the judgment.
The 4th Respondent (Governor of Kisii County), through affidavits by Earnest Osoro and Justine Siocha , maintained that the Application is scandalous, defective, and amounted to the Court usurping legislative and investigative mandates. They emphasized that perjury, being a criminal offence under Section 114 of the Penal Code, was under police investigation (OB No. 25/06/04/25), and added that the Court could not draw conclusions on guilt or rely on such allegations in the absence of a formal trial. It was further submitted that reopening the matter would bypass constitutional procedures, and that Prayer (3) of the Application sought a final order through an interlocutory motion, and further, that the delay in filing the affidavit raised concerns of abuse and tactical delay.
The 5th Respondent (County Assembly of Kisii), through the Clerk, Jacob Onkeo , also opposed the Application, arguing that the Court lacked jurisdiction to determine criminal matters or revisit factual determinations made by legislative bodies during impeachment. He noted that the impeachment process was governed by clear procedures, which included opportunities for the Petitioner to challenge testimony. He questioned the credibility of the affidavit by Dennis Misati, citing discrepancies in signatures and unexplained delays in its presentation. He concluded that the Application was a veiled attempt to amend the Petition through improper means and delay the judgment set for 3rd April 2025.
Counsel for the 3 rd Petitioner argued that the High Court has constitutional authority to safeguard due process, citing Martin Nyaga Wambora vs. Speaker of the County Assembly of Embu [2014] eKLR . They emphasized that the new evidence was central, not discoverable earlier, and demonstrated violations of Articles 47 and 50 of the Constitution. The 1 st Petitioner’s Counsel added that the Court had power to review or reopen proceedings under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Conversely, the Respondents argued that reopening proceedings at this late stage lacked legal basis. They cited the case of Susan Wavinya Mutavi vs. Isaac Njoroge [2020] eKLR among other authorities to support the position that courts should not intrude into legislative impeachment roles unless constitutional breaches are clearly established. They further emphasized that impeachment was a political process and not subject to strict evidentiary rules, and that no criminal conviction had been made regarding the alleged perjury.
In a nutshell, while the Petitioners sought intervention on grounds of fairness and newly discovered evidence, the Respondents maintained that the Application is fatally defective, jurisdictionally unsound, and driven by ulterior motives to delay proceedings and undermine the constitutional impeachment process.
ISSUES FOR DETERMINATION
Having considered the Application dated 1 st April 2025, the supporting affidavit, grounds in support, responses, affidavits in opposition, and rival submissions, the Court identified the following key issues for determination: -
Whether this Court has jurisdiction to review or set aside an impeachment decision of the Senate on grounds of newly discovered evidence.
Whether the new evidence presented by the 3rd Petitioner warrants the reopening of the Petition and re-evaluation of the impeachment process.
Whether the Application meets the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
Whether the prayers sought are merited, including the setting aside of the impeachment and the admission of new evidence.
Analysis and Determination
1. Jurisdiction of the Court
It is trite, on account of a litany of decisions, that a court cannot act without jurisdiction. A court of law must first satisfy itself that it has the power to hear and determine the merits of the matter before it. In the famous case of Owners of the Motor Vessel “Lillians” vs. Caltex Oil Kenya Limited [1989] KLR 1 , Nyarangi J.A. held thus:-
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[See also the US Supreme Court’s decision in of McDonald vs. Mabee, 243 US 90,91 (1915)]
The gist of this Application is that there is fresh and compelling evidence, in the nature of a newly sworn affidavit by one of the key witnesses, Dennis Mokaya Misati, in the impeachment case against the former Deputy Governor, Dr. Monda. According to the Applicant this calls for the Court to vacate the said impeachment decision, set aside its judgment and reopen the impeachment proceedings for a fresh hearing. In other words, Counsel for the Applicant and the 1 st Petitioner have invoked this Court’s jurisdiction by calling upon it to assume jurisdiction and deliberate over a matter that has already been heard and determined on its merits by the two legislative Houses, the County Assembly of Kisii and the Senate, on account of new and compelling evidence.
As a preliminary issue, while this Court appreciates that it exists to perform and ensure the dispensation of justice and adherence to the Rule of Law and recognizing that both the Constitution and statute vest the power to provide checks and balances over the constitutionality and legality of a decision made by a public body, it nonetheless must give due deference in doing so, to the principle of separation of powers. There is a myriad of decisions which have addressed the principle of separation of powers and delimited the High Court’s inherent jurisdiction particularly on constitutional matters to a certain extent.
The Constitutional Court of South Africa in the case of Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11 held that:-
“The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings. This principle is not simply an abstract notion; it is reflected in the very structure of our government. The structure of the provisions entrusting and separating powers between the legislative, executive and judicial branches reflects the concept of separation of powers. The principle ‘has important consequences for the way in which and the institutions by which power can be exercised…….
But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled’. Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations. This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’. Section 167(4)(e), in particular, entrusts this Court with the power to ensure that Parliament fulfils its constitutional obligations. This section gives meaning to the supremacy clause, which requires that ‘the obligations imposed by [the Constitution] must be fulfilled’. It would therefore require clear language of the Constitution to deprive this Court of its jurisdiction to enforce the Constitution.”
Similarly, in the Re Matter of the Interim Independent Electoral Commission Advisory Opinion No. 2 of 2011 the Supreme Court stated as follows: -
“The effect of the constitution''s detailed provision for the rule of law in the process of governance, is that the legality of executive or administrative actions is to be determined by the courts, which are independent of the executive branch. The essence of separation of powers, in this context, is that in the totality of governance-powers is shared out among different organs of government, and that these organs play mutually-countervailing roles. In this set-up, it is to be recognized that none of the several government organs functions in splendid isolation.”
Additionally, in the case of Judicial Service Commission vs. Speaker of the National Assembly & 8 Others [2014] eKLR, the Supreme Court also the emphasized the significance of the principle of separation of powers but clearly established a link between the application of judicial authority over the other duties carried out by other arms of the government. It held thus:-
“The Constitution disperses powers among various constitutional organs. Where it is alleged that any of these organs has failed to act in accordance with the Constitution, then the Courts are empowered by article 165 (3)(d)(ii) to determine whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution.”
The import of the above judicial precedents is that the High Court is undoubtedly not precluded or excluded from interrogating or re-examining the impeachment proceedings by a County Assembly and the Senate. It must do so because it is the only means by which it can be adequately demonstrated that the said process was conducted in accordance with the set legal dictates.
I note that the County Assembly under Section 33 of the County Government Act is the first port of call on matters impeachment, particularly of a Deputy Governor, as in the present case. That is to say that any resolutions passed by the County Assembly will crystalize into the proceedings before the Senate which will deliberate on the veracity or lack thereof of the evidence adduced before it to determine if even one charge has been proved against the subject of the impeachment proceedings. In other words, the County Assembly and the Senate are the trial chambers/‘courts’. In the case of Mwangi wa Iria & 2 Others vs. Speaker Murang’a County Assembly & 3 Others (2015) eKLR , it was held that the senate was the impeachment court. Onguto J held thus:
“I take cognisance of the fact that the Senate is truly, what I may call, the Impeachment Court. The Senate is expected not only to investigate the nexus of the allegations to the 1st Petitioner. The Senate must also interrogate the entire process as it scurried through the County assembly. I have seen no law that restrains the Senate from returning a verdict that the process was not conducted as detailed under the Constitution or any law for that matter. Pray, the Senate rises to the occasion and is practical and realistic in its investigations.”
To my mind, the import of the above precedent and based on the fact that it is at the County Assembly where evidence is first presented against a person intended for impeachment and the said evidence forwarded to the Senate upon the County Assembly reaching a resolution, then the County Assembly may be synonymous in its duty to the trial court while the Senate may be considered as a first appellate court. This is because the latter has the opportunity to call for fresh evidence in the furtherance of justice to satisfy itself that the Resolutions passed by the County Assembly are valid and merited. Indeed, the Senate may opt to overturn the impeachment of a Governor or Deputy Governor where it finds insufficiency in the evidence presented.
Having laid out the process and steps to be undertaken in an impeachment, it is my determination that not only can the High Court not consider the merits of an impeachment matter, it must warn and restrain itself where it is being called upon to overturn an impeachment decision, based on the veracity of evidence adduced before the two Houses and not on the procedure employed in arriving at an impeachment decision as is its due mandate by the law.
In other words, the powers and privileges vested on the legislative arms of the government are to consider, evaluate and re-evaluate evidence presented for impeachment of a Deputy Governor on the one hand, while the High Court’s duty on the other hand is not to sweepingly or extensively entertain and hear any or fresh evidence adduced before it but to consider the process undertaken and whether it meets the threshold set in law.
I hasten to add that, a party who has been impeached by the County Assembly and Senate cannot present any evidence before the High Court. What is to be presented for scrutiny before the High Court is evidence already adduced in the two Houses so that the Court can evaluate the procedure followed in arriving at the impeachment decision. In simple terms, the High Court is merely expected to consider the legality of the process adopted in arriving at the impeachment decision. It must only be to this extent, and no more, that the High Court can act.
Case law is replete with decisions that make a clear distinction between the powers and privileges of various arms of government and draws examples from comparative jurisprudence in distinctively setting out the role of the legislature and that of the courts in impeachment proceedings. In the case of Mate & Another vs. Wambora & Another (Petition 32 of 2014) [2017] KESC 1 (KLR) (Civ) (15 December 2017), the learned Judges cited two authorities that shielded the legislative conduct as follows: -
“70. In Canada (House of Commons) v. Vaid , [2005] 1 S.C.R. 667; 2005 SCC 30, the Canadian Supreme Court thus observed, with respect to Parliamentary privileges:-
“Within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts. A finding that a particular area of parliamentary activity is covered by privilege therefore has very significant legal consequences for Members who claim to be injured by parliamentary conduct.”
The Court observed further as follows:
“[I]t was a good principle that the Courts and Parliament strive to respect each other’s role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament.”
72…… Harvey v. New Brunswick (Attorney General) , [1996] 2 S.C.R. 876. The appellant who had been expelled from the Legislature, on account of having been convicted of an election offence, challenged the requirement that he should vacate his seat. The Supreme Court of Canada, in dismissing the appeal, thus held:-
“The courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature.
“Expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. It is clear that had the New Brunswick legislature simply expelled the appellant, that decision would fall squarely within its parliamentary privilege and the courts would have no power to review it.”
(Emphasis supplied)
It follows then that this Court has no jurisdiction to consider any fresh evidence, much less evaluate any evidence already tendered in respect of the 1 st Petitioner’s impeachment proceedings. The Court’s only sacrosanct duty is to be the guardian of the impeachment process to prevent abuse of power and to prevent what may be loosely termed as politically-motivated impeachments. The notion by the Applicant’s counsel in their submissions that the Court could re-open the matter by allowing the Petitioners to adduce new evidence is untenable in law. This is because, not only is the Court not the trial court in impeachment proceedings and therefore precluded from evaluating evidence, there were fundamental issues raised that implied criminality on the part of one of the witnesses. This was evidently a matter which this Court cannot determine for the very reason that it neither the Constitution nor Statute permitted it as a Constitutional Court to consider.
I have also considered the provisions of the Civil Procedure Rules and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules referred to by the Applicant with respect to the amendment of pleadings where there has been an error that must be corrected. In this case, there was no error in any of the pleadings. What was being challenged was the truthfulness of the evidence from the key witness which has allegedly been recanted. I find that the allegations of fraud and coercion/witness intimidation were fundamental issues that cannot not be casually pleaded in an affidavit and then simply equated to a mere error in pleadings thereby justifying an amendment of the pleadings under the above cited Rules. In essence, I find no justification in re-opening of the case for taking fresh evidence.
But even if this Court were to be have jurisdiction over the matter, I note that the issue of perjury carries with itself grave consequences as it entails pure deception under oath. While the said key witness may have pleaded issues of coercion and intimidation, it is my finding that such a grave allegation and the apparent concession of committing perjury by the said key witness is not a matter that can be interrogated by this Court or casually referenced as the basis for allowing the re-opening of the impeachment proceedings. I state so because, firstly the criminal act of perjury would require scrutiny and determination in a court of law where evidence is adduced and the culpability of the perpetrator determined. Without this, the Court cannot hop onto the bandwagon of the allegations of fraud, intimidation and coercion where such issues have not been subjected to a trial process and even then, were it to do so, it would be acting ultra vires the powers and duties stipulated of it as a constitutional court.
It cannot be gainsaid that in matters impeachment, the High Court is neither a trial court nor a first appellate court. It can therefore not subject evidence adduced at the County Assembly and the Senate to a fresh analysis for purposes of arriving at its own decision or even to determine questions of law as would be expected of a second appellate court. I reiterate that the singular duty vested on the High Court in matters impeachment as already stated is the constitutionality and legality of the impeachment process. The import of this is that this Court should only address issues of procedural propriety in accordance with the Constitution and Statute and not substantive issues that formed the basis of the impeachment charges which were already deliberated upon and determined in the two Houses.
In this case, by calling on this Court to exercise its jurisdiction under Article 159 of the Constitution, the Applicant has not only placed this Court in a precarious position, where instead of allowing it to hear and determine questions of procedural propriety over the impeachment proceedings both at the Senate and the County Assembly; she is also demanding that the Court arrogates itself with the powers of trial court and in the manner of a trial court, consider Mr. Misati’s recanted evidence and determine his culpability on the self-confessed perjury.
While it cannot be overstated that the Constitution of Kenya, under Article 165(6) and (7) , confers upon the High Court supervisory jurisdiction over subordinate courts and persons or bodies exercising quasi-judicial functions, including the Senate and County Assemblies courts emphasized in the decisions in Mwangi wa Iria & 2 Others vs. Speaker, Murang’a County Assembly & 3 Others [2015] eKLR and Mike Mbuvi Sonko v Clerk, Nairobi City County Assembly & Others [2022] KESC 26 (KLR) , that the Court''s role in impeachment matters is not to sit as an appellate body over the Senate or County Assemblies, but rather to ensure that the process followed constitutional and statutory requirements.
It is therefore my finding that this court has limited jurisdiction to interrogate the constitutionality, legality, and procedural fairness of the impeachment process, and not to re-evaluate the merits of the charges or the credibility of witnesses as if sitting on appeal.
2. The Nature and Weight of the New Evidence
The 3rd Petitioner has relied on an affidavit sworn by one Dennis Mokaya Misati , a key witness in the impeachment process, who now recants his earlier testimony, alleging coercion and fabrication of evidence. While such allegations are grave and, if proven, would raise concerns about due process and fairness, it is undisputed that this Court is not the proper forum to make a determination on the veracity or criminal implications of perjury.
I have also considered the grounds enumerated in the Applicant’s supporting affidavit in which she averred inter alia that that it was in the best interests of justice that the judgment be reviewed and/or set aside to avoid a miscarriage of justice. My take on this ground is that this Court is yet to deliver a judgment over the main Petitions which were consolidated in this matter. Therefore, to make a prayer in this regard is not only misguided but is also akin to putting the cart before the horse by pre-empting an outcome that is yet to be made. In any case, this Court cannot review a judgment it is yet to deliver as alluded to by the Applicant in her sworn affidavit.
My take is that the moment the Court is called upon to determine whether certain evidence whether fresh or not is so important and compelling as to warrant a re-evaluation or re-opening of the proceedings, that would be tantamount to sitting on appeal over the decision of the two Houses or at the very least, usurping the mandate vested by the Constitution and Statute on the legislative bodies in matters impeachment. I find that the issue of the impugned affidavit is more substantive in nature as opposed to procedural and therefore outside the scope/ambit of this Court’s jurisdiction. I also find that since the 1 st Petitioner was impeached based on the four main grounds supported by evidence other than Dennis Misati’s sworn and recanted affidavit, then the same cannot be a basis for re-opening the entire proceedings over the said recanted evidence,
As held in Republic vs. Chief Magistrate Milimani & Another Ex parte Tusker Mattresses Ltd [2013] eKLR , and reiterated in Susan Wavinya Mutavi vs. Isaac Njoroge & Another [2020] eKLR , a constitutional court cannot arrogate to itself the jurisdiction to investigate or determine criminal guilt. That mandate lies with investigative and prosecutorial agencies. I note that in this case, the issue of perjury has already been reported and is under active police investigation (OB No. 25/06/04/25). I find that until such investigation is concluded and a determination made by the appropriate criminal forum, this Court cannot rely on untested allegations to overturn a constitutionally sanctioned process.
3. On Whether the Application Meets the Threshold for Review
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provide for review on grounds of:
discovery of new and important matter or evidence;
mistake or error apparent on the face of the record; or
for any other sufficient reason.
In order to succeed under the above provisions, the applicant must demonstrate that the evidence:
was not within their knowledge at the time of hearing,
could not be produced despite due diligence, and
is material enough to influence the outcome of the decision.
In the present case, I note that the affidavit by Dennis Misati is dated 4th March 2025 but was only filed on 1st April 2025 , a day before the date for the delivery of the judgment. No satisfactory explanation has been given for this delay. Moreover, the impeachment decision was not premised solely on Dennis Misati’s testimony, as the Respondents have established that the process involved multiple witnesses and grounds of removal.
Furthermore, the Supreme Court in Speaker of the Senate & Another vs, Attorney General & 4 Others [2013] eKLR emphasized that impeachment is a political process where courts may only intervene where there is a clear violation of constitutional procedures or rights and not to re-evaluate evidence or interfere with legislative discretion unless there is a clear abuse.
4. Whether the Reliefs Sought Can be Granted
Prayer (3) of the Application seeks a final order , which is to set aside the Senate decision, through an interlocutory motion. I find that such a prayer is impermissible and can only be granted after a full hearing and upon evaluation of all the evidence and arguments. Granting it at this stage would amount to prematurely disposing of the substantive Petition.
Similarly, Prayer (4) seeks a reopening of the entire Petition to allow fresh evidence. While Rule 18 of the Mutunga Rules (Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice and Procedure Rules, 2013) allows amendment and introduction of new evidence before judgment, this must be done in a structured and procedurally sound manner. Here, the Court finds the timing, content, and method of presentation of the new evidence to be problematic and
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