JUDGMENT
A. Introduction
1. Before this Court for determination is the Notice of Motion dated 3rd November 2023 brought pursuant to Order 53 Rule 3 of the Civil Procedure Rules, Articles 47, 48 and 165 of the Constitution, and the Fair Administrative Action Act.
2. The Ex parte Applicant seeks orders of certiorari, prohibition and mandamus arising from the decision and recommendations of the Committee of Powers and Privileges of the County Assembly of Kisii, which were tabled, debated, adopted and implemented on 18th October 2023.
3. The Respondents filed a Preliminary Objection dated 22nd November 2023 challenging this Court’s jurisdiction and the competence of the proceedings.
B. The Preliminary Objection
Issues Raised
4. The Respondents contend that:
a) This Court lacks jurisdiction to interfere with the internal affairs of a County Assembly;
b) The Application offends Sections 10 and 11 of the County Assemblies Powers and Privileges Act;
c) The doctrine of separation of powers bars judicial intervention; and
d) The Applicant failed to exhaust internal dispute resolution mechanisms under the Standing Orders.
5. I have carefully considered the Motion, the Preliminary Objection and the submissions of learned counsel.
C. Determination on the Preliminary Objection
6. A preliminary objection must raise a pure point of law capable of disposing of the matter without recourse to evidence. This principle was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
7. The gravamen of the Applicant’s complaint is not merely the internal workings of the County Assembly, but the legality, constitutionality, procedural fairness and statutory compliance of the impugned process and decision.
8. Article 165(3)(d) of the Constitution expressly vests this Court with jurisdiction to determine whether anything done under the authority of the Constitution or any law is inconsistent with, or in contravention of, the Constitution.
9. In the case of Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.The Supreme Court in Speaker of the Senate & another v Attorney General & 4 others affirmed that while courts respect parliamentary procedures, they will intervene where constitutional violations are demonstrated.
10. Likewise, in Judicial Service Commission v Speaker of the National Assembly & 4 others; Commission on Administrative Justice (Amicus Curiae); Law Society of Kenya (Interested Party) [2014] KEHC 7493 (KLR)Court held that separation of powers does not shield unconstitutional conduct from judicial scrutiny.
On exhaustion, Section 9(4) of the Fair Administrative Action Act allows exemption where internal mechanisms are ineffective, unavailable, biased, or where the matter raises pure constitutional questions. In Egal Mohamed Osman vs. Inspector General of Police & 3 Others [2015] eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, in which the Ugandan Supreme Court stated as follows regarding the rules of natural justice: “It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. Allegations of breach of statutory timelines and denial of fair hearing fall squarely within this exception.
D. The Substantive Motion
Issues for Determination
13. The issues arising are:
a)Whether the proceedings meet the threshold of judicial review proceedings .
b) Whether the impugned proceedings violated statutory timelines;
c) Whether the Applicant was accorded procedural fairness;
d) Whether the sanctions imposed were lawful and reasonable;
e) Whether the Applicant is entitled to the reliefs sought;
f) Who should bear costs.
E.Threshold for judicial review
14. The parameters of judicial review were articulated in Pastoli v Kabale District Local Government Council & Others, where the Court held that illegality, irrationality and procedural impropriety are the pillars of judicial review.
14. With the advent of the 2010 Constitution, the Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others recognized that Article 47 has expanded the scope of judicial review to include aspects of merit review.
Statutory Timelines and Illegality
15. Section 15(5) of the County Assemblies Powers and Privileges Act mandates that inquiries by the Committee be concluded within fourteen (14) days of receipt of the complaint.
16. The evidence shows that although the Applicant received the complaint on 11th September 2023 and responded on 12th September 2023, the Committee’s report was dated 17th October 2023 and tabled on 18th October 2023. The process spanned approximately seventy-two (72) days.
17. Where a statute prescribes a specific procedure and timeline, it must be strictly complied with. In Speaker of the National Assembly v James Njenga Karume, 1992 KECA 42 (KLR) the Court emphasized that statutory procedures must be followed.
18. Proceedings conducted outside the prescribed timelines are unlawful and void.
F. Procedural Fairness and Article 47
20. Article 47 guarantees the right to lawful, reasonable and procedurally fair administrative action.
21. The Applicant demonstrated that:
• The report was tabled, debated, adopted and implemented on the same day;
• Members were not furnished with the report in advance;
• The Applicant was denied adequate time to respond.
22. In Judicial Service Commission vs. Mbalu Mutava & Another [2015] eKLR, Civil Appeal 52 of 2014 it held that: “Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
23. A person against whom there is a complaint must be given a just and fair hearing. General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs. Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 that: “If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.” 37. In Ridge vs. Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows: “Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void. The report herein was adopted on the same day that it was presented against Section 15 (6) of the County Assemblies Powers and Privileges Act which provides that - (6)The Committee of Powers and Privileges shall, within fourteen days of the conclusion of an inquiry, table its findings in the relevant county assembly together with such recommendations as it considers appropriate. The said timelines were put in place for a good reason. The applicant was not issued with the report for perusal before presentation to the assembly
24. The haste with which the report was processed violated Article 47 of the Constitution.
G. Unlawful Sanctions and Irrationality
25. The Applicant was suspended for “one calendar month.”Standing Order 107 provides for suspension in terms of specific sitting days — four, eight or twenty-eight sitting days — not a calendar month.
25. The sanction imposed is therefore unknown to the Standing Orders and Section 17 of the Act. In CHIEF CONSTANBLE OF NORTH WALES v EVANS [1982] WLR 115 at p 1173, it was held that
“The court will not, however, on a judicial review application act as a “Court of Appeal” from the body concerned, nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within the body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is to see that the lawful authority is not abused by unfair treatment’’. Also in In NAIROBI HIGH COURT MISC CIVIL APPLICATION NO. 1769 OF 2004 R v MINISTRY OF PLANNING & ANOTHER ex-parte PROFESSOR MWANGI KIMENYI, this court stated as follows:-
“So where a body uses its power in a manifestly unreasonable manner, acted in bad faith, refused to take relevant factors into account in reaching its decision or based its decision on irrelevant factors, the court would intervene on the ground that the body has in each case abused its power. The reason why the court has to intervene is because there is a presumption that where Parliament gave a body statutory power to act, it could be implied that Parliament intended it to act in a particular way.
26. In performing their duties ,public bodies must act within the of the law.The sanction was ultra vires, irrational and unlawful.
I. Disposition
27. Having considered the pleadings, evidence and submissions, this Court finds that the Notice of Motion dated 3rd November 2023 is meritorious.
J. Orders
28. Accordingly, the Court issues the following orders:
a) An order of Certiorari is hereby issued quashing the report and recommendations of the Committee of Powers and Privileges of the County Assembly of Kisii tabled, debated and adopted on 18th October 2023.
b) An order of Prohibition is hereby issued restraining the Respondents from implementing or enforcing the said report and recommendations.
c) An order of Mandamus is hereby issued compelling the Respondents to supply the Ex parte Applicant with the impugned report and all related documents
e) Costs of the Application shall be borne by the Respondents.
T. A. ODERA
JUDGE
20.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF MISS OMUSI HOLDING BRIEF FOR MR OCHOKI FOR THE EXPARTE APPLICANT & CA ;KIPCHIRCHIR
A. Introduction
1. Before this Court for determination is the Notice of Motion dated 3rd November 2023 brought pursuant to Order 53 Rule 3 of the Civil Procedure Rules, Articles 47, 48 and 165 of the Constitution, and the Fair Administrative Action Act.
2. The Ex parte Applicant seeks orders of certiorari, prohibition and mandamus arising from the decision and recommendations of the Committee of Powers and Privileges of the County Assembly of Kisii, which were tabled, debated, adopted and implemented on 18th October 2023.
3. The Respondents filed a Preliminary Objection dated 22nd November 2023 challenging this Court’s jurisdiction and the competence of the proceedings.
B. The Preliminary Objection
Issues Raised
4. The Respondents contend that:
a) This Court lacks jurisdiction to interfere with the internal affairs of a County Assembly;
b) The Application offends Sections 10 and 11 of the County Assemblies Powers and Privileges Act;
c) The doctrine of separation of powers bars judicial intervention; and
d) The Applicant failed to exhaust internal dispute resolution mechanisms under the Standing Orders.
5. I have carefully considered the Motion, the Preliminary Objection and the submissions of learned counsel.
C. Determination on the Preliminary Objection
6. A preliminary objection must raise a pure point of law capable of disposing of the matter without recourse to evidence. This principle was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
7. The gravamen of the Applicant’s complaint is not merely the internal workings of the County Assembly, but the legality, constitutionality, procedural fairness and statutory compliance of the impugned process and decision.
8. Article 165(3)(d) of the Constitution expressly vests this Court with jurisdiction to determine whether anything done under the authority of the Constitution or any law is inconsistent with, or in contravention of, the Constitution.
9. In the case of Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.The Supreme Court in Speaker of the Senate & another v Attorney General & 4 others affirmed that while courts respect parliamentary procedures, they will intervene where constitutional violations are demonstrated.
10. Likewise, in Judicial Service Commission v Speaker of the National Assembly & 4 others; Commission on Administrative Justice (Amicus Curiae); Law Society of Kenya (Interested Party) [2014] KEHC 7493 (KLR)Court held that separation of powers does not shield unconstitutional conduct from judicial scrutiny.
On exhaustion, Section 9(4) of the Fair Administrative Action Act allows exemption where internal mechanisms are ineffective, unavailable, biased, or where the matter raises pure constitutional questions. In Egal Mohamed Osman vs. Inspector General of Police & 3 Others [2015] eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, in which the Ugandan Supreme Court stated as follows regarding the rules of natural justice: “It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. Allegations of breach of statutory timelines and denial of fair hearing fall squarely within this exception.
D. The Substantive Motion
Issues for Determination
13. The issues arising are:
a)Whether the proceedings meet the threshold of judicial review proceedings .
b) Whether the impugned proceedings violated statutory timelines;
c) Whether the Applicant was accorded procedural fairness;
d) Whether the sanctions imposed were lawful and reasonable;
e) Whether the Applicant is entitled to the reliefs sought;
f) Who should bear costs.
E.Threshold for judicial review
14. The parameters of judicial review were articulated in Pastoli v Kabale District Local Government Council & Others, where the Court held that illegality, irrationality and procedural impropriety are the pillars of judicial review.
14. With the advent of the 2010 Constitution, the Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others recognized that Article 47 has expanded the scope of judicial review to include aspects of merit review.
Statutory Timelines and Illegality
15. Section 15(5) of the County Assemblies Powers and Privileges Act mandates that inquiries by the Committee be concluded within fourteen (14) days of receipt of the complaint.
16. The evidence shows that although the Applicant received the complaint on 11th September 2023 and responded on 12th September 2023, the Committee’s report was dated 17th October 2023 and tabled on 18th October 2023. The process spanned approximately seventy-two (72) days.
17. Where a statute prescribes a specific procedure and timeline, it must be strictly complied with. In Speaker of the National Assembly v James Njenga Karume, 1992 KECA 42 (KLR) the Court emphasized that statutory procedures must be followed.
18. Proceedings conducted outside the prescribed timelines are unlawful and void.
F. Procedural Fairness and Article 47
20. Article 47 guarantees the right to lawful, reasonable and procedurally fair administrative action.
21. The Applicant demonstrated that:
• The report was tabled, debated, adopted and implemented on the same day;
• Members were not furnished with the report in advance;
• The Applicant was denied adequate time to respond.
22. In Judicial Service Commission vs. Mbalu Mutava & Another [2015] eKLR, Civil Appeal 52 of 2014 it held that: “Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
23. A person against whom there is a complaint must be given a just and fair hearing. General Medical Council vs. Spackman [1943] 2 All ER 337 cited with approval in R vs. Vice Chancellor JKUAT Misc. Appl. No. 30 of 2007 that: “If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.” 37. In Ridge vs. Baldwin [1963] 2 All ER 66 at 81, Lord Reid expressed himself as follows: “Time and again in the cases I have cited it has been stated that a decision given without the principles of natural justice is void. The report herein was adopted on the same day that it was presented against Section 15 (6) of the County Assemblies Powers and Privileges Act which provides that - (6)The Committee of Powers and Privileges shall, within fourteen days of the conclusion of an inquiry, table its findings in the relevant county assembly together with such recommendations as it considers appropriate. The said timelines were put in place for a good reason. The applicant was not issued with the report for perusal before presentation to the assembly
24. The haste with which the report was processed violated Article 47 of the Constitution.
G. Unlawful Sanctions and Irrationality
25. The Applicant was suspended for “one calendar month.”Standing Order 107 provides for suspension in terms of specific sitting days — four, eight or twenty-eight sitting days — not a calendar month.
25. The sanction imposed is therefore unknown to the Standing Orders and Section 17 of the Act. In CHIEF CONSTANBLE OF NORTH WALES v EVANS [1982] WLR 115 at p 1173, it was held that
“The court will not, however, on a judicial review application act as a “Court of Appeal” from the body concerned, nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within the body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is to see that the lawful authority is not abused by unfair treatment’’. Also in In NAIROBI HIGH COURT MISC CIVIL APPLICATION NO. 1769 OF 2004 R v MINISTRY OF PLANNING & ANOTHER ex-parte PROFESSOR MWANGI KIMENYI, this court stated as follows:-
“So where a body uses its power in a manifestly unreasonable manner, acted in bad faith, refused to take relevant factors into account in reaching its decision or based its decision on irrelevant factors, the court would intervene on the ground that the body has in each case abused its power. The reason why the court has to intervene is because there is a presumption that where Parliament gave a body statutory power to act, it could be implied that Parliament intended it to act in a particular way.
26. In performing their duties ,public bodies must act within the of the law.The sanction was ultra vires, irrational and unlawful.
I. Disposition
27. Having considered the pleadings, evidence and submissions, this Court finds that the Notice of Motion dated 3rd November 2023 is meritorious.
J. Orders
28. Accordingly, the Court issues the following orders:
a) An order of Certiorari is hereby issued quashing the report and recommendations of the Committee of Powers and Privileges of the County Assembly of Kisii tabled, debated and adopted on 18th October 2023.
b) An order of Prohibition is hereby issued restraining the Respondents from implementing or enforcing the said report and recommendations.
c) An order of Mandamus is hereby issued compelling the Respondents to supply the Ex parte Applicant with the impugned report and all related documents
e) Costs of the Application shall be borne by the Respondents.
T. A. ODERA
JUDGE
20.2.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF MISS OMUSI HOLDING BRIEF FOR MR OCHOKI FOR THE EXPARTE APPLICANT & CA ;KIPCHIRCHIR