PURITY MORAA KIRERA VS Senate AND SPEAKER OF THE SENATE AND 2 Others

RULING

1. The Petitioner herein, Purity Moraa Kirera, initially filed this Petition before Machakos High Court in HCCHRPET No. E007 of 2024 challenging the manner in which the impeachment proceedings against the 9^th Respondent, the Deputy Governor of Kisii County, were conducted before both the Kisii County Assembly and the Senate (1^st Respondent). 
2. The Petitioner seeks the following reliefs in the Petition: -
   • 1. A DECLARATION that the Notice issued on 13^th February, 2024 of intention to remove the 1^st Interested Party from office of the Deputy Governor, Kisii County by way of impeachment was defective and unlawful for want of compliance with Section 33(1) of the County Government Act, 2012 as read with Orders 60(1), 60(5) and 60(6) of the standing Orders of the County Assembly of Kisii.
     2. A DECLARATION that within the intendment of Section 87 of the County Government Act, 2012 as read with Article 10 and 196(1) of the Constitution of Kenya, 2010, a County Assembly must conduct a meaningful and qualitative public participation in all the wards of the county on any decision that leads to a motion to impeach a County Governor.< ></></></><><><>>> >> >> >> >> ></></><><><>>> >> >> >> >> >> ></></><><><>>> >> >> ></></><><><>>> >> >> ></></><><><>>> ></></><><><>></></><><><>></></><><><> ></></></><><><>></></></></></></><>>> >“>> >) ><><><><><><><>></></><><><>>>>>></></><><><>></></><><><>>>>> ></></><><><>></></><><><>>> >>></></><><><>></></><><><>>>>>></></><><><>></></><><><>></></><><><>></></></></></></></></><>><><><>>>></></><><><>>>></></><><><>>> >>></></><><><>></></><><><>>> ></></><><><>></></><><><>></></><><><>< >< >>> ></></><><><>></></><><><>></></><><><>>> >> >< >></></><><><>>> ></></><><><>>> ></></><><><>>>>>>>></></><><><>>>></></><><><>>> >> ></><><><><>></></><><><>></></><><><>></></></></><><><>>> >> ></></><><><>>>></></><><><>>>></></><><><>>>></></><><><>>> ></></><><><>></></><><><>>>></></><><><>>>></></><><><>>> ></></><><><>></></><><><>></></><>>> >> ><><><><><><><>></></><><><>></></><><><>></></><><><>></></></></></></></></><>>> ></><><><>“></></><><><>>> ></></><><><><><><><><><><>></></><><><>>> ></></><><><>>> ></></></></></></></></></><><>>> >> >> >> >> ><><><><><><><>></></><><><>>> ></></><><><>>> ></></><><><>></></></></></></></></><>> >, ><><><>>>></></><><><>>>></></><><><>>>>>>>></></><><><>></></><><><>></></><><><>></></><><><>></></><><><>></></><><><>></></><><><>></></><><><>></></><><><>></></></><><><>< >[></></><><><><><><>'></></><><><>></></><><><>></></></></></><><><><>></></><><><>></></><><><>></></></><><>></><><><>>> >> ></><><>> >> >> >>, ><>><><>>, >> >> ><><>>> >> ></><>>> >> ><>></> >> ><>>> >>, >> ><><><><><><><><><>></></><><><>></></><><><>></></><><><>>> >> ></></><><><>></></></></></></></></></></><>></><><>></><><>>> ><>></> ><>><>></> ></><><>>> >> ></><><>>> >> >> ><>></>><>></> ><>><>> </>><>>> >> ><>></> ><>></> >> ><>><>></>><>></> ><>>> >> >> >> >> >> >> ><>>>> >><>>>> > >>> > ><>>>>, >> >> > ></><><>>> ></><><>>> >>. </><>>> ><>></>><>></> ><>>> ><>></> ><>></> ><>></> ><>><>></> ></><><>></><><>><> </></>>> >> >> ><>>> >> ><>>> >> ></><><>>> ></><><>>> >> >> ><>>> >> ><>>> ><>>> >> >> ><>>> ><>></>><>>> >> ></><><>></><><>>> >‘>. <>>> >, >‘‘></><><>>> >>> ></><><><>></></><><>><>></>></><><><>“>>></></><>(> <>>>)</><><>>> ><>></> ><>></>, (>“>) >> >> ><>>> >> >> >> ><>><> ></>>>. ><>>> ><>>> >> ><>>> ><>></> >> >> ><>><>>> ><>>> >> ><>>> ><>><>><>><>> [> ></><><><>“></></><>(>[><><> </></>><> ></>)</><><>>> (><>><> >>, ><>>> >> ><>>> >> Application.

     Conservatory Orders (the 1^st Application).

     1. The Petitioner and the 9^th Respondent argued that a prima facie case has been made for the granting of the conservatory orders so as to preserve the substratum of the Petition and enable the court determine the legality of the impeachment process. They cited Article 23 of the Constitution which grants the Court the mandate to issue conservatory orders. They maintained that the Petition will be rendered nugatory unless the conservatory orders are granted and that no party will be prejudiced by the conservatory orders. 
     2. The 1^st, 2^nd and 4^th Respondents, on the other hand, submitted that a party seeking conservatory orders must not only demonstrate that he has a prima facie case with a likelihood of success but that there is real danger that he will suffer prejudice unless the court grants the conservatory orders. They argued that the 1^st Application does not meet the threshold for the granting of conservatory orders.
     3. The Supreme Court outlined the principles governing the granting of  conservatory orders in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others (supra) as follows:-

     “[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.

     [87] The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:

     (i) the appeal or intended appeal is arguable and not frivolous; and that

     (ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.

     [88] These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:

     (iii) that it is in the public interest that the order of stay be granted.

     [89] This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.”

     1. Similarly, in Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR the same principles were summarized as follows: -

     “ (a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.

     (b)  Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and

     (c) The public interest must be considered before grant of a conservatory order.”

     1. My attention is drawn to the use of the term ‘and’ in the above cited decision which connotes that the parameters set for the granting of conservatory orders are to be considered conjunctively and not disjunctively. This means that the failure to satisfy one parameter leads to the collapse of the entire Application for failure to meet the threshold set for the granting of conservatory orders.
     2. The question which arises is whether the 1^st Application meets the threshold set for the granting of conservatory orders. The first parameter entails the establishment of a prima facie case. What constitutes a prima facie case was discussed in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 as follows: -

     “…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.”

     1. The import of the above decision is that the Court is required to satisfy itself that the suit, whose subject matter an Applicant seeks to preserve through a conservatory order, raises arguable/triable issues that are not frivolous. In this regard, it matters not whether the suit in question will  at the end be successful. In David Ndii & others vs. Attorney General & others [2021] eKLR, the Court weighed in on this issue as follows: -

     “45.  The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and in this case, arguable constitutional issues.” (emphasis added)

     1. A perusal of the Petition reveals that the Petitioner challenges the manner in which the impeachment process was conducted both at the County Assembly and the Senate. The Petitioner highlighted several procedural and constitutional improprieties in the impeachment process, which in my considered view, raise triable/arguable questions of law. I find that the Applicant/Petitioner has established that she has a prima facie case against the Respondents thus satisfying the first condition for the granting of a conservatory order.
     2. Turning to the second parameter, on whether the Petition will be rendered nugatory if a conservatory order is not granted, I have considered the parties’ rival arguments over this issue. The Applicant’s case was that the substratum of the Petition will be rendered nugatory if the 1^st Respondent’s decision is allowed to take effect. The 1^st, 2^nd and 4^th Respondents were however of the view that no irreparable loss will be occasioned to the Applicant if the conservatory orders are not granted.
     3. This court is alive of the fact that as a Constitutional Court, it is bound by constitutional edicts. One of the principles that underpin our democracy is the principle of separation of powers. In Mumo Matemu vs. Trusted Society of Human Rights Alliance & 2 Others, Civil Appeal No 290 of 2012, [2013] eKLR the Court of Appeal held thus:-

     “[Separation of powers] must mean that the courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the Executive sufficient latitude to implement legislative intent. Yet, as the respondents also concede, the Courts have an interpretive role – including the last word in determining the constitutionality of all governmental actions...” [emphasis added].

     1. While this Court appreciates that one of its functions is to ensure that the other arms of the government adhere to the Constitution, it is also alive to the fact that it must at all times be careful not to exercise its discretion whimsically or intervene in the matters involving other arms of the government, to wit, the legislature, in a manner that may go against constitutional principles such as the doctrine of separation of powers.  The extent of the court’s intervention in legislative process was discussed in Speaker of the Senate & Another vs. Attorney General & 4 Others, Reference No. 2 of 2013; [2013] eKLR where the Supreme Court held:-

     “60. It makes practical sense that the scope for the Court’s intervention in the course of a running legislative process, should be left to the discretion of the Court, exercised on the basis of the exigency of each case. The relevant considerations may be factors such as: the likelihood of the resulting statute being valid or invalid; the harm that may be occasioned by an invalid statute; the prospects of securing remedy, where invalidity is the outcome; the risk that may attend a possible violation of the Constitution.

     62. This Court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another” [emphases added].

     1. In Mate & another vs. Wambora & another (Petition 32 of 2014) [2017] KESC 1 (KLR) (Civ) (15 December 2017), the Supreme Court formulated principles to guide courts in determining whether or not to interfere with the processes undertaken by other arms of the government and held thus: - 

     “63. From the course of reasoning emerging from such cases, it is possible to formulate certain principles, as follows:

     (a) each arm of Government has an obligation to recognize the independence of other arms of Government;

     (b) each arm of Government is under duty to refrain from directing another Organ on how to exercise its mandate;

     (c) the Courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgment;

     (d) for the due functioning of constitutional governance, the Courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;

     (e) in the performance of the respective functions, every arm of Government is subject to the law.” [emphases added].

     1. In the instant case, I note that the impugned impeachment process has already gone full circle, has been concluded and a final resolution made, by the Senate, to impeach the 9^th Respondent as at the time the instant Petition was filed. It is instructive to note that the impeachment proceeded despite spirited attempts, by the 9^th Respondent, to stop the process through applications made in the similar petitions that are still pending before the various courts.
     2. The question which arises is if this court can issue orders whose effect will be to stay the decision, by the Senate, to impeach the 9^th Respondent pending the hearing and determination of the Petition. My finding is that, since the Senate has already made a resolution, the court must exercise restraint and limit its intervention in the impeachment to hearing the merits of the petition. I further find that issuing conservatory orders to stay the Senate’s decision will be akin to directing or interfering with another organ/arm of government in the exercise of its mandate.
     3. The other pertinent question is whether the instant petition will be rendered nugatory or worthless if the orders sought in the 1^st Application are not granted?
     4. The answer to the above question is to the negative. I find the Applicant’s claim that the Petition will be nugatory to be misconceived and unfounded. My finding is informed by three main reasons; firstly, the Applicant’s Petition is still pending hearing and it is therefore possible that the court may after hearing the Petition arrive at the finding that the impeachment process was flawed. In such an eventuality, the court may grant the Petitioner, and indeed the 9^th Respondent, various remedies including compensation for wrongful removal and/or reinstatement. I find guidance in the decision in Mohamed & 6 others vs. County Assembly of Wajir & 9 others (Constitutional Petition E009 & E017 of 2021 (Consolidated)) [2022] KEHC 169 (KLR) (hereinafter “the Wajir Case”) where the court ordered for the reinstatement of the Governor who had gone through the entire impeachment process up to the Senate. The court rendered itself thus: -

     “As appropriate consequential relief, an order of mandatory injunction is granted against the 8^th respondent Ahmed Ali Mukhkar, compelling him to handover and restore the office of the Governor of the County of Wajir to the 7^th petitioner, Amb. Mohammed Abdi Mohammud.”

     1. Taking a cue from the decision in the above cited case, I find that the instant application does not meet the threshold set for the granting of conservatory orders. I say so because the Petitioner has not demonstrated that there is danger that she will suffer prejudice if the orders sought are not granted.
     2. Secondly, it is trite impeachment of a Governor or his Deputy, is a legal process that is governed by the Constitution and the statute. It is to be noted that a decision on impeachment is made by a majority of the Members of the County Assembly and the Senate in their capacity and representatives of the electorate or the public.
     3. This court takes the view that an impeachment process can be likened to an election process where, for example, a Governor and his Deputy are elected by majority vote. Following such an election, the will of the majority voters prevails and is acted upon within the timelines set under law. This is done through the gazettement and swearing in of the duly elected Governor and his Deputy, within the set timelines, irrespective of the existence of a petition challenging. In other words, the outcome of an election cannot be stayed through a conservatory order. Suffice is to say that if, at the conclusion of the election petition challenging such an election, the election court finds that the electoral process was marred with irregularities, then the election will be nullified and the aggrieved party granted suitable remedies.
     4. In similar fashion, and as I have already stated in this ruling, if upon hearing the merits of the instant petition this court finds in favour of the Petitioner, then the 9^th Respondent will get appropriate remedies which may include reinstatement to his position of Deputy Governor as was held in the Wajir Case. I am therefore not persuaded that the instant petition will be rendered nugatory unless the conservatory orders sought in the 1^st Application are granted.
     5. Turning to the third parameter for the granting of conservatory orders which requires the court to consider public interest before granting a conservatory order, I find that the public interest in this matter tilts against the granting of the conservatory orders. I say so because it is the electorate or the people of Kisii County, through their elected duly elected representatives both at the County Assembly and the Senate, that considered the impeachment motion in accordance with the law and arrived at the majority decision to impeach the 9^th Respondent. As I have already stated in this ruling, the decision by the Senate can only be challenged during the substantive hearing of the Petition and not through the granting of conservatory orders. I further find that since the office of a Deputy Governor is a public office that does not belong to a specific individual, it follows that once the office holder is impeached, he has to give room to the next office holder unless and until such impeachment is overturned or nullified by an order of the court.
     6. I find that in the circumstances of this case, the rights/interest of the people of Kisii County, to be represented and served by a duly appointed Deputy Governor following the 9^th Respondent’s impeachment, far outweighs the prejudice, if any, that the Applicant herein will suffer if the orders sought in her application are not granted.
     7. In Re Speaker of the County Assembly of Embu [2018] eKLR the Supreme Court, issued an advisory opinion on the timelines for filling the vacancy in the office of a Deputy Governor and equated the procedure to that of the filling of the vacancy in the office of the Deputy President and held as follows: -

     “[59] The Constitution is explicit on the mode of filling the position of Deputy President. Article 149 thus provides:

     “(1) Within fourteen days after a vacancy in the office of Deputy President arises, the President shall nominate a person to fill the vacancy, and the National Assembly shall vote on the nomination within sixty days after receiving it.”

     [60]  We would adopt the observations of this Court in earlier advisory opinions, regarding the requisite approach to constitutional interpretation, in view of the provisions of Article 259 of the Constitution. Article 259 (3) provides that:

     “Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking…”

     [61] The foregoing principle calls for a reading of Article 182 of the Constitution alongside Article 149, which makes provision for the procedure and timelines for  filling a vacancy in the Office of the Deputy President. From the signal embodied in Article 149 of the Constitution, and in the absence of any applicable legislative provision, we hold that, where a vacancy occurs in the Office of the Deputy County Governor, the Governor shall within fourteen days, nominate a person to fill such vacancy. The County Assembly shall vote on the nomination within sixty days after receiving it. Where a vacancy occurs in both the offices of County Governor and Deputy County Governor at the same time, the office of the Deputy County Governor shall remain vacant until the election of a new Governor. The new Governor shall nominate a person to fill the vacancy within fourteen days after assuming office. The County Assembly shall vote on the nomination within sixty days after receiving it.  For the avoidance of doubt, we hereby state that this holding shall obtain in all circumstances pursuant to which the Office of the Deputy Governor may become vacant as contemplated by the Constitution, i.e death, resignation or impeachment.” [Emphasis added].

     1. Flowing from the above advisory opinion, I find that the moment the Senate made the resolution to impeach the 9^th Respondent, the office of the Deputy Governor immediately became vacant thus setting the stage for the filling of the vacancy within the stipulated timelines. My finding is that the public interest in this case supports compliance with the constitutional and statutory timelines set for the filling of the vacancy in the office of the Deputy Governor of Kisii County.

     Conclusion/Determination

     1. Having found that the 4^th Respondent has made out a case for the granting of the orders to vacate the exparte conservatory orders and having found that the 1^st Application does not meet all the parameters set for the granting of conservatory orders I make the following final orders: -
     2. The Application dated 1^st April 2024 is not merited and is hereby dismissed.
     3. The Application dated 4^th April 2024 is hereby is allowed.
     4. The ex-parte Orders issued on 4^th April 2024 are hereby vacated.
     5. The costs of the applications shall abide the outcome of the Petition.
     6. I urge the parties herein to comply with the directions issued for the filing of submissions on the main petition so as to expedite its hearing and determination.
     7. It is so ordered.

     Ruling dated, signed and delivered at Nyamira virtually via Microsoft Teams this 13^th day of June 2024.