REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CONSTITUTIONAL PETITION NO. 2 OF 2021
(CORAM: HON. CHARLES M. KARIUKI – J)
(Being an Application for Orders of Mandamus to compel the Independent Electoral and Boundaries Commission to implement the judgment of the High Court, in Constitutional Petition 2 of 2O21)
IN THE MATTER OF VIOLATION OF THE CONSTITUTION OF KEITYA. 2010
AND
IN THE MATTER OF: NDOINYO LOCATION OF KEIYAN DIVISION OF TRANSMARA WEST SUBCOUNTY - NAROK COUNTY
AND
IN THE MATTER OF: TRANSFER OF NAAROLONG SUBLOCATION IN NDOINYO DIVISION TO KERETO DIVISION OF TRANSMARA WEST SUB.COUNTY IN NAROK AND
IN THE MATTER OF: INFRINGEMENT OF THE PETITIONER’S RIGHTS AS RESIDENTS OF NAAROLONG SUB-LOCATION, NDOINYO LOCATION OF KEIYAN DIVISION OF TRANSMARA WEST SUBCOUNTY IN NAROK COUNTY
BETWEEN
SAMUEL MOMBOSI & 449 OTHERS …………………..PETITIONERS/APPLICANTS
VERSUS
CABINET SECRETARY, MINISTRY OF INTERIOR &
CO-ORDINATION OF NATIONAL GOVERNMENT……...1 ST RESPONDENT
THE ATTORNEY GENERAL……...……………………..2 ND RESPONDENT
TRANSMARA WEST SUB-COUNTY
COMMISSIONER ...............................……………..........3 RD RESPONDENT
ASSISTANT COUNTY COMMISSIONER
KEIYAN DIVISION…….......................................…..….4 TH RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ………………………………..………...5 TH RESPONDENT
N/B. THE APPLICATION IS NOT IN THE FILE. I HAVE UTILIZED WHAT IS IN THE SUBMISSIONS FOR THE APPLICATION SECTION)
RULING
03/07/2025
A. BACKGROUND
1) This ruling concerns the Petitioners’/Applicants’ Notice of Motion dated 17 th February 2026 seeking orders of mandamus against the Independent Electoral and Boundaries Commission (IEBC), the 5 th Respondent herein, to compel implementation of the judgment delivered by this Court on 3 rd October 2022 in Constitutional Petition No. 2 of 2021.
2) The Petition giving rise to the present application was instituted by Samuel Mombosi and 449 others, challenging the decision contained in Gazette Notice No. 2845 dated 21 st June 2017 by which Naarolong Sub-location of Ndoinyo Location was placed under Kereto Division. The Petitioners contended that the alteration of the administrative boundaries was undertaken without public participation and in violation of various constitutional provisions.
3) Upon hearing the Petition, this Court delivered judgment on 3 rd October 2022 and found that the relocation of Naarolong Sub-location from Keiyan Division to Kereto Division had been undertaken arbitrarily and without public participation, contrary to Article 10 of the Constitution. Consequently, the Court quashed that part of Gazette Notice No. 2845 dated 21 st June 2017 which effected the impugned administrative alteration and declared it unconstitutional, null and void.
4) Following the judgment, the Petitioners contend that the lawful administrative status of Naarolong Sub-location reverted to Keiyan Division. They further contend that despite the judgment, the area's electoral alignment has not been adjusted accordingly, thereby creating uncertainty and denying residents effective representation.
5) It is on that basis that the Petitioners have now moved the Court seeking orders of mandamus directed against the IEBC, arguing that the Commission is obligated to give practical effect to the judgment by aligning electoral structures with the restored administrative position .
B. THE APPLICATION
6) By a Notice of Motion dated 17 th February 2026, the Petitioners/Applicants seek orders of Mandamus compelling the 5 th Respondent, the Independent Electoral and Boundaries Commission, to implement the judgment delivered on 3 rd October 2022 in Constitutional Petition No. 2 of 2021.
7) The application is supported by the affidavit of Samuel Mombosi, who deposes that despite the judgment quashing the transfer of Naarolong Sub-location from Keiyan Division to Kereto Division, the IEBC has failed to take steps to align the electoral structures with the lawful administrative position established by the judgment.
8) The Applicants contend that the continued failure by the IEBC to act has rendered the judgment ineffective in practice, created uncertainty regarding electoral representation, and violated the constitutional rights of the residents of Naarolong Sub-location.
9) They therefore urge the Court to invoke its supervisory jurisdiction and issue an order of mandamus compelling the IEBC to perform what they describe as its constitutional duty of ensuring proper electoral representation consistent with the judgment of the Court.
C. THE RESPONSE
10) In his Replying Affidavit sworn on 3 rd February 2026, Douglas Bargorett, an advocate acting for the 5 th Respondent, the Independent Electoral and Boundaries Commission (IEBC), opposes the Petitioners’ application seeking orders of mandamus to compel the Commission to implement the judgment delivered on 3 rd October 2022 in Constitutional Petition No. 2 of 2021.
11) The deponent states that he has read and understood both the Notice of Motion dated 17 th February 2026 and the supporting affidavit sworn by Samuel Mombosi, as well as the judgment sought to be enforced. He deposes that at the outset it is important to clarify that the IEBC was not a party to the original constitutional petition and therefore had no involvement in the proceedings that culminated in the judgment of 3 rd October 2022.
12) The deponent explains that the IEBC is an independent constitutional commission established under Article 88 of the Constitution and that its mandate includes the conduct and supervision of elections as well as the delimitation of constituency and ward boundaries pursuant to Article 88(4)(c) of the Constitution. He distinguishes between administrative boundaries and political or electoral boundaries, asserting that the former fall within the jurisdiction of the Ministry of Interior and Coordination of National Government under the National Government Coordination Act and encompass administrative units such as sub-locations, locations, divisions, and sub-counties.
13) According to the deponent, the dispute that formed the subject of Constitutional Petition No. 2 of 2021 concerned Gazette Notice No. 2845 dated 21 st June 2017, which related to the placement of Naarolong Sub-location under Kereto Division. He avers that the impugned Gazette Notice was issued by the Ministry responsible for Interior Affairs and not by the IEBC. Consequently, the Commission neither authored nor participated in the impugned decision and is therefore a stranger to the Gazette Notice. He contends that any consequences flowing from the Gazette Notice cannot be enforced against the IEBC.
14) The deponent further states that the role of the IEBC in matters relating to boundaries is strictly limited to the delimitation of electoral units, namely constituencies and wards, under Articles 88(4)(c) and 89 of the Constitution. In carrying out that mandate, the Commission is guided by the criteria set out in Article 89(5) of the Constitution, including population quota, geographical features, urban centres, community of interest, historical, economic, and cultural ties, and means of communication. He maintains that these constitutional provisions do not confer any authority upon the Commission to establish, alter, or delimit administrative boundaries.
15) It is further deposed that the IEBC has absolutely no role in the establishment, creation, or alteration of administrative units and that the National Government Coordination Act does not confer any responsibilities upon the Commission. The deponent therefore contends that the Petitioners have misconceived the application by seeking to compel the IEBC to enforce a judgment concerning matters over which it has neither jurisdiction nor statutory responsibility.
16) In support of the distinction between administrative and electoral boundaries, the deponent refers to several judicial decisions. He cites Sebastian Kaaria M’Itonga & 4 Others v The Hon. Attorney General & 8 Others, Meru High Court Constitutional Petition No. E031 of 2024, where the court reportedly recognised that administrative and electoral boundaries are governed by different legal frameworks and administered by different authorities. He also refers to Mbira Sime & 10 Others v The Hon. Attorney General & 3 Others, Isiolo High Court Constitutional Petition No. E002 of 2024 , where the court is said to have held that administrative boundaries and electoral boundaries are distinct and do not intersect.
17) The deponent further relies on the decision of the Supreme Court in Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 Others, Supreme Court Petition No. 21 (E023) of 2020, which he states settled the legal position that administrative boundaries are distinct from electoral boundaries and that, in delimiting electoral units, the IEBC is not bound by existing administrative boundaries.
18) Based on the foregoing, the deponent asserts that the Petitioners have wrongly joined the IEBC in the enforcement proceedings. He maintains that the Commission lacks the constitutional and statutory mandate necessary to implement the orders sought and therefore cannot lawfully be compelled to undertake actions relating to administrative boundaries. He consequently prays that the application be dismissed with costs.
D. DIRECTIONS OF THE COURT
19) The application was canvassed by way of written submissions. The petitioners/applicants and the 5 th Respondent have filed. the 1 st , 2 nd , 3 rd , and 4 th Respondents have not filed.
E. SUBMISSIONS
i. Petitioners/Applicants Submissions
20) The Petitioners/Applicants submit that the Notice of Motion dated 17 th February 2026 seeks the enforcement of the judgment delivered by the High Court on 3 rd October 2022 in Constitutional Petition No. 2 of 2021 through the issuance of an order of mandamus against the Independent Electoral and Boundaries Commission (IEBC). They contend that despite the court having declared unconstitutional and quashed the portion of Gazette Notice No. 2845 of 21 st June 2017 that transferred Naarolong Sub-location from Keiyan Division to Kereto Division, the IEBC has failed to take the necessary steps to align the electoral structures with the restored administrative position, thereby frustrating the implementation of the judgment and undermining the rights of residents of Naarolong Sub-location.
21) The Applicants argue that the position taken by the IEBC in its Replying Affidavit is legally untenable. They further point out an apparent inconsistency in the affidavit, noting that it was sworn on 3 rd February 2026, before the filing of the Notice of Motion dated 17 th February 2026, thereby raising questions as to whether it was specifically directed at the application before the court.
22) On the issue of whether the IEBC can be compelled to implement the judgment despite not having been a party to the original proceedings, the Applicants submit that the law governing orders of mandamus is clear. They rely on Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, where the Court of Appeal held that an order of mandamus issues to compel the performance of a public duty imposed by statute where the public body has failed to discharge that duty to the detriment of a person who has a legal right to expect its performance. The Applicants contend that the duty sought to be enforced arises not from participation in the original petition but from the constitutional and statutory responsibilities vested in the IEBC.
23) The Applicants further rely on Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where the High Court emphasised that courts retain jurisdiction to ensure compliance with their judgments and that successful litigants should not be left with barren decrees incapable of enforcement. According to the Applicants, the court in that case underscored the constitutional obligation of public officers to give effect to court decisions. It warned against conduct that would render judicial determinations ineffective. They submit that the IEBC’s continued inaction has effectively rendered the judgment of 3 rd October 2022 nugatory.
24) Regarding the distinction drawn by the IEBC between administrative boundaries and electoral boundaries, the Applicants submit that while such a distinction exists in law, it cannot be applied rigidly. They argue that electoral units are necessarily derived from and informed by administrative units and that the lawful administrative placement of a sub-location inevitably affects electoral representation. Consequently, once the court restored Naarolong Sub-location to Keiyan Division, the IEBC became obligated to ensure that electoral structures reflect that legal position.
25) In support of this argument, the Applicants rely on Kituo Cha Sheria & 10 Others v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR, where the court emphasized that the IEBC, in exercising its constitutional mandate, must ensure that electoral structures are rational, functional, and capable of promoting effective representation. The Applicants submit that refusing to align electoral structures with a binding court judgment would create administrative inconsistency, electoral confusion, and potential disenfranchisement, while at the same time undermining the effectiveness of the court’s decision.
26) On whether the orders of mandamus should issue, the Applicants again rely on Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR , arguing that the requirements for mandamus have been fully satisfied. They submit that the IEBC has a clear constitutional duty under Articles 88 and 89 of the Constitution to oversee electoral boundaries and ensure effective representation; that it has failed and refused to perform that duty despite being notified of the judgment; and that there exists no alternative effective remedy capable of securing compliance. They therefore contend that mandamus is the appropriate remedy to compel the IEBC to perform its public duty.
27) The Applicants further submit that the continued failure to implement the judgment violates several constitutional rights and principles. They contend that the inaction undermines the national values and principles of governance under Article 10, infringes the right to fair administrative action under Article 47, and threatens the political rights of residents guaranteed under Article 38, particularly the right to effective representation. They argue that residents of Naarolong Sub-location remain uncertain regarding their proper electoral and administrative alignment, exposing them to the risk of disenfranchisement and administrative confusion.
28) In further support of the need for enforcement, the Applicants once again cite Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where the court warned that failure by public authorities to comply with court orders erodes public confidence in the administration of justice and undermines the rule of law.
29) The Applicants therefore conclude that the IEBC has misconstrued the application by concentrating on the source of the original administrative decision rather than its constitutional obligation to give practical effect to a valid and binding judgment of the court. They submit that the existence of a valid judgment, the failure by the IEBC to act, the absence of any justification for that failure, and the continuing prejudice suffered by residents of Naarolong Sub-location have all been demonstrated. Consequently, they urge the court to allow the application, issue an order of mandamus compelling the IEBC to implement the judgment of 3 October 2022, and award the Petitioners' costs of the application.
ii. 5 th Respondent’s submissions.
30) The 5 th Respondent, the Independent Electoral and Boundaries Commission (IEBC), opposes the Petitioners’ Notice of Motion seeking orders of mandamus to compel it to implement the judgment delivered on 3 rd October 2022 in Constitutional Petition No. 2 of 2021. The Commission submits that it was not a party to the original petition and was improperly joined in the proceedings after judgment, solely for enforcement purposes. Nevertheless, without prejudice to that position, the IEBC argues that the application is misconceived both in law and fact because it seeks to compel the Commission to undertake actions that neither arise from the judgment nor fall within its constitutional mandate.
31) On the first issue, namely whether a party may lawfully seek enforcement of orders that were neither expressly granted nor reasonably implied from the judgment, the IEBC submits that the Petitioners are attempting to enforce a non-existent order. According to the Commission, the judgment of 3 rd October 2022 was merely declared unconstitutional. It quashed the part of Gazette Notice No. 2845 of 21st June 2017 that relocated Naarolong Sub-location of Ndoinyo Location from Keiyan Division to Kereto Division. The court found that the relocation had been undertaken arbitrarily and without public participation, contrary to Article 10 of the Constitution. The Commission emphasises that the judgment did not contain any order directing the transfer of Naarolong Sub-location to Keiyan Ward or requiring the IEBC to alter electoral boundaries.
32) The 5 th Respondent submits that a proper reading of the judgment alongside the pleadings demonstrates that the reliefs sought by the Petitioners were limited to declarations concerning the legality of the administrative relocation of Naarolong Sub-location and the quashing of the impugned Gazette Notice. Consequently, the present attempt to effect implementation by transferring the area to Keiyan Ward introduces a completely new issue that was neither pleaded nor adjudicated upon. The Commission contends that parties are bound by their pleadings and that courts are similarly constrained to determine only the issues placed before them. In support of this proposition, the IEBC relies on the decision of the Supreme Court in Parliament of Kenya & the Attorney General v Okiya Omtatah Okoiti, Judicial Service Commission and Katiba Institute, Supreme Court Petition Nos. E016 and E017 of 2025 (Consolidated), where the Court reaffirmed the principle that parties are bound by their pleadings and that courts ought not grant relief outside the matters presented for determination.
33) The Commission therefore argues that the Petitioners are seeking enforcement of orders that do not exist within the judgment and are inviting the Court to engage in speculation and a fishing expedition. It submits that the application is an abuse of the court process because it seeks to create obligations that were never imposed by the judgment itself.
34) On the second issue, namely whether the IEBC has any constitutional or statutory mandate in the creation or alteration of administrative units, the Commission submits that its mandate is strictly confined to the delimitation of constituencies and county assembly wards under Articles 88(4)(c) and 89 of the Constitution. The Commission relies on Article 88(4)(c), which expressly provides that IEBC is responwards and the delimitation of constituencies and wards, and argues that the Constitution does not confer upon it any authority over administrative units such as sub-locations, locations, divisions, or districts.
35) The IEBC further submits that Article 89(5) of the Constitution sets out the criteria to be considered when delimiting electoral units, namely geographical features and urban centres, community of interest, historical, economic, and cultural ties, and means of communication. According to the Commission, administrative boundaries are not among the factors listed in Article 89(5); therefore, there is no constitutional requirement that electoral boundaries conform to administrative boundaries.
36) In support of this argument, the Commission places considerable reliance on Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 Others, Supreme Court Petition No. 21 (E023) of 2020. The Supreme Court held that electoral units and administrative units are distinct legal concepts created through different constitutional and statutory processes. The Court observed that Article 89 of the Constitution governs electoral boundaries. At the same time, administrative units are established under Section 14 of the National Government Coordination Act by the Cabinet Secretary responsible for the Interior. The Supreme Court further stated that electoral units need not conform to administrative units and that the creation of administrative units does not influence or affect constituency boundaries. According to the Commission, this decision conclusively settles the legal position that IEBC has no role in the creation, variation, or implementation of administrative boundaries.
37) The Commission also relies on Section 14 of the National Government Coordination Act, which empowers the Cabinet Secretary, with the approval of the President and by notice in the Gazette, to establish national government service delivery coordination units. It submits that the same authority that created the administrative units is vested with the power to alter or revoke them and that any enforcement of the judgment concerning administrative boundaries should therefore be directed at the Cabinet Secretary responsible for the Interior rather than the IEBC.
38) The 5 th Respondent further submits that the electoral boundaries currently in force were established during the 2012 delimitation exercise and published in Legal Notice No. 14 of 6 March 2012, namely the National Assembly Constituencies and County Assembly Wards Order, 2012. Any challenge to those boundaries was litigated through numerous petitions and judicial review proceedings, including Nairobi High Court Petition No. 91 of 2012 and Nairobi High Court Judicial Review Miscellaneous Application No. 94 of 2012, after which any court-ordered adjustments were duly implemented. The Commission argues that the judgment in Constitutional Petition No. 2 of 2021 did not alter any electoral boundaries and therefore cannot serve as a basis for amending the electoral units established under Legal Notice No. 14 of 2012.
39) The IEBC maintains that the Petitioners have confused administrative boundaries with electoral boundaries and have erroneously assumed that an administrative adjustment automatically requires a corresponding electoral adjustment. The Commission contends that such an assumption is contrary to the Constitution, the National Government Coordination Act, and the binding authority of the Supreme Court in Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 Others.
40) In conclusion, the 5th Respondent submits that although the Petitioners are entitled to seek enforcement of the judgment, they have pursued enforcement against the wrong party. The dispute concerns an administrative boundary created by the Ministry of Interior, not an electoral boundary within the IEBC's mandate. The Commission argues that even if an order of mandamus were issued against it, such an order would be incapable of implementation because the IEBC lacks constitutional and statutory authority over sub-locations, locations, divisions, and other administrative units. Accordingly, the Court would be acting in vain by granting the orders sought.
41) The 5 th Respondent therefore urges the Court to find that the Petitioners are seeking to enforce orders that were neither expressly granted nor implied in the judgment, to hold that the IEBC has no constitutional or statutory role in the creation or alteration of administrative boundaries, to find that the Commission was wrongly joined in the proceedings, and consequently to dismiss the application with costs.
F. ISSUES FOR DETERMINATION
42) Having considered the application, the response thereto, and the parties’ submissions, the following issues arise for determination:
i. Whether the judgment delivered on 3 rd October 2022 imposed any obligation upon the IEBC capable of enforcement through an order of mandamus.
ii. Whether the IEBC has a constitutional or statutory mandate to create, alter, implement, or align administrative boundaries.
iii. Whether the Applicants have satisfied the legal requirements for the grant of an order of mandamus.
iv. What orders should issue as to costs?
G. ANALYSIS AND DETERMINATION.
i. Whether the judgment delivered on 3 rd October 2022 imposed any obligation upon the IEBC capable of enforcement through an order of mandamus
43) An order of mandamus is a public law remedy that compels the performance of a statutory or public duty where a public authority has failed, refused, or neglected to perform that duty.
44) The locus classicus on the principles governing mandamus remains Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, where the Court of Appeal held:
“An order of mandamus is of a most extensive remedial nature and is, in form, a command issuing from the High Court directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is like a public duty.”
45) It follows, therefore, that before mandamus can issue, there must exist a clear legal duty imposed upon the person or body against whom the order is sought.
46) The starting point is therefore the judgment delivered by this Court on 3 rd October 2022. The operative part of that judgment declared unconstitutional and quashed that part of Gazette Notice No. 2845 dated 21 st June 2017, which relocated Naarolong Sub-location from Keiyan Division to Kereto Division.
47) A careful reading of the judgment reveals that the Court dealt exclusively with the legality of an administrative boundary alteration undertaken by the Ministry responsible for Interior Affairs. The Court neither considered nor determined any question concerning ward boundaries, constituency boundaries, or electoral delimitation.
48) More importantly, the Court did not issue any order directed at the IEBC requiring it to alter, review, amend, or realign electoral boundaries.
49) The relief now sought by the Applicants, namely the transfer of Naarolong Sub-location to Keiyan Ward or the realignment of electoral structures, does not appear anywhere in the judgment.
50) The Supreme Court in Parliament of Kenya & The Attorney General v Okiya Omtatah Okoiti, Judicial Service Commission & Katiba Institute, Supreme Court Petition Nos. E016 and E017 of 2025 (Consolidated) reaffirmed the long-established principle that parties are bound by their pleadings and that courts are equally bound to determine only the issues presented before them.
51) The present application effectively seeks to introduce a new question regarding electoral boundaries which formed part of the original Petition, nor constituted part of the judgment delivered by the Court.
52) In my view, the Applicants are attempting to enforce a consequence which was neither expressly ordered nor necessarily implied by the judgment.
53) A court cannot enforce what it never ordered.
54) Consequently, I find that the judgment of 3 rd October 2022 imposed no obligation upon the IEBC capable of enforcement through an order of mandamus.
ii. Whether the IEBC has a constitutional or statutory mandate to create, alter, implement, or align administrative boundaries
55) The constitutional mandate of the IEBC is clearly set out under Article 88(4) of the Constitution.
56) Article 88(4)(c) provides that the Commission is responsible for:
“The delimitation of constituencies and wards.”
57) Similarly, Article 89 of the Constitution prescribes the principles and criteria applicable to the delimitation of electoral units.
58) The Constitution does not confer upon the IEBC any mandate relating to the creation, alteration, administration, or implementation of administrative units such as sub-locations, locations, divisions, or sub-counties.
59) Administrative units are established under Section 14 of the National Government Coordination Act, No. 1 of 2013, which provides:
“The Cabinet Secretary may, with the approval of the President and by notice in the Gazette, establish national government service delivery coordination units.”
60) The statutory responsibility for the creation and alteration of administrative units, therefore, lies with the Cabinet Secretary responsible for Interior Affairs and not with the IEBC.
61) The distinction between administrative boundaries and electoral boundaries was conclusively addressed by the Supreme Court in Member of Parliament Balambala Constituency v Abdi & 7 others [2023] KESC 35 (KLR)
62) The Supreme Court stated:
“We are therefore in agreement with the appellant’s submission that administrative units are different from electoral units in relation to the manner in which they are created.”
63) The Court further observed:
“We say so, having found that the creation of administrative units does not influence or affect constituency boundaries.”
64) These pronouncements are binding upon this Court under Article 163(7) of the Constitution.
65) The Supreme Court therefore settled two important principles: first, administrative units and electoral units are distinct legal concepts; and secondly, the creation or alteration of administrative units does not automatically affect electoral boundaries.
66) The Applicants’ contention that the IEBC was obligated to align
[...truncated]
IN THE HIGH COURT OF KENYA AT KILGORIS
CONSTITUTIONAL PETITION NO. 2 OF 2021
(CORAM: HON. CHARLES M. KARIUKI – J)
(Being an Application for Orders of Mandamus to compel the Independent Electoral and Boundaries Commission to implement the judgment of the High Court, in Constitutional Petition 2 of 2O21)
IN THE MATTER OF VIOLATION OF THE CONSTITUTION OF KEITYA. 2010
AND
IN THE MATTER OF: NDOINYO LOCATION OF KEIYAN DIVISION OF TRANSMARA WEST SUBCOUNTY - NAROK COUNTY
AND
IN THE MATTER OF: TRANSFER OF NAAROLONG SUBLOCATION IN NDOINYO DIVISION TO KERETO DIVISION OF TRANSMARA WEST SUB.COUNTY IN NAROK AND
IN THE MATTER OF: INFRINGEMENT OF THE PETITIONER’S RIGHTS AS RESIDENTS OF NAAROLONG SUB-LOCATION, NDOINYO LOCATION OF KEIYAN DIVISION OF TRANSMARA WEST SUBCOUNTY IN NAROK COUNTY
BETWEEN
SAMUEL MOMBOSI & 449 OTHERS …………………..PETITIONERS/APPLICANTS
VERSUS
CABINET SECRETARY, MINISTRY OF INTERIOR &
CO-ORDINATION OF NATIONAL GOVERNMENT……...1 ST RESPONDENT
THE ATTORNEY GENERAL……...……………………..2 ND RESPONDENT
TRANSMARA WEST SUB-COUNTY
COMMISSIONER ...............................……………..........3 RD RESPONDENT
ASSISTANT COUNTY COMMISSIONER
KEIYAN DIVISION…….......................................…..….4 TH RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ………………………………..………...5 TH RESPONDENT
N/B. THE APPLICATION IS NOT IN THE FILE. I HAVE UTILIZED WHAT IS IN THE SUBMISSIONS FOR THE APPLICATION SECTION)
RULING
03/07/2025
A. BACKGROUND
1) This ruling concerns the Petitioners’/Applicants’ Notice of Motion dated 17 th February 2026 seeking orders of mandamus against the Independent Electoral and Boundaries Commission (IEBC), the 5 th Respondent herein, to compel implementation of the judgment delivered by this Court on 3 rd October 2022 in Constitutional Petition No. 2 of 2021.
2) The Petition giving rise to the present application was instituted by Samuel Mombosi and 449 others, challenging the decision contained in Gazette Notice No. 2845 dated 21 st June 2017 by which Naarolong Sub-location of Ndoinyo Location was placed under Kereto Division. The Petitioners contended that the alteration of the administrative boundaries was undertaken without public participation and in violation of various constitutional provisions.
3) Upon hearing the Petition, this Court delivered judgment on 3 rd October 2022 and found that the relocation of Naarolong Sub-location from Keiyan Division to Kereto Division had been undertaken arbitrarily and without public participation, contrary to Article 10 of the Constitution. Consequently, the Court quashed that part of Gazette Notice No. 2845 dated 21 st June 2017 which effected the impugned administrative alteration and declared it unconstitutional, null and void.
4) Following the judgment, the Petitioners contend that the lawful administrative status of Naarolong Sub-location reverted to Keiyan Division. They further contend that despite the judgment, the area's electoral alignment has not been adjusted accordingly, thereby creating uncertainty and denying residents effective representation.
5) It is on that basis that the Petitioners have now moved the Court seeking orders of mandamus directed against the IEBC, arguing that the Commission is obligated to give practical effect to the judgment by aligning electoral structures with the restored administrative position .
B. THE APPLICATION
6) By a Notice of Motion dated 17 th February 2026, the Petitioners/Applicants seek orders of Mandamus compelling the 5 th Respondent, the Independent Electoral and Boundaries Commission, to implement the judgment delivered on 3 rd October 2022 in Constitutional Petition No. 2 of 2021.
7) The application is supported by the affidavit of Samuel Mombosi, who deposes that despite the judgment quashing the transfer of Naarolong Sub-location from Keiyan Division to Kereto Division, the IEBC has failed to take steps to align the electoral structures with the lawful administrative position established by the judgment.
8) The Applicants contend that the continued failure by the IEBC to act has rendered the judgment ineffective in practice, created uncertainty regarding electoral representation, and violated the constitutional rights of the residents of Naarolong Sub-location.
9) They therefore urge the Court to invoke its supervisory jurisdiction and issue an order of mandamus compelling the IEBC to perform what they describe as its constitutional duty of ensuring proper electoral representation consistent with the judgment of the Court.
C. THE RESPONSE
10) In his Replying Affidavit sworn on 3 rd February 2026, Douglas Bargorett, an advocate acting for the 5 th Respondent, the Independent Electoral and Boundaries Commission (IEBC), opposes the Petitioners’ application seeking orders of mandamus to compel the Commission to implement the judgment delivered on 3 rd October 2022 in Constitutional Petition No. 2 of 2021.
11) The deponent states that he has read and understood both the Notice of Motion dated 17 th February 2026 and the supporting affidavit sworn by Samuel Mombosi, as well as the judgment sought to be enforced. He deposes that at the outset it is important to clarify that the IEBC was not a party to the original constitutional petition and therefore had no involvement in the proceedings that culminated in the judgment of 3 rd October 2022.
12) The deponent explains that the IEBC is an independent constitutional commission established under Article 88 of the Constitution and that its mandate includes the conduct and supervision of elections as well as the delimitation of constituency and ward boundaries pursuant to Article 88(4)(c) of the Constitution. He distinguishes between administrative boundaries and political or electoral boundaries, asserting that the former fall within the jurisdiction of the Ministry of Interior and Coordination of National Government under the National Government Coordination Act and encompass administrative units such as sub-locations, locations, divisions, and sub-counties.
13) According to the deponent, the dispute that formed the subject of Constitutional Petition No. 2 of 2021 concerned Gazette Notice No. 2845 dated 21 st June 2017, which related to the placement of Naarolong Sub-location under Kereto Division. He avers that the impugned Gazette Notice was issued by the Ministry responsible for Interior Affairs and not by the IEBC. Consequently, the Commission neither authored nor participated in the impugned decision and is therefore a stranger to the Gazette Notice. He contends that any consequences flowing from the Gazette Notice cannot be enforced against the IEBC.
14) The deponent further states that the role of the IEBC in matters relating to boundaries is strictly limited to the delimitation of electoral units, namely constituencies and wards, under Articles 88(4)(c) and 89 of the Constitution. In carrying out that mandate, the Commission is guided by the criteria set out in Article 89(5) of the Constitution, including population quota, geographical features, urban centres, community of interest, historical, economic, and cultural ties, and means of communication. He maintains that these constitutional provisions do not confer any authority upon the Commission to establish, alter, or delimit administrative boundaries.
15) It is further deposed that the IEBC has absolutely no role in the establishment, creation, or alteration of administrative units and that the National Government Coordination Act does not confer any responsibilities upon the Commission. The deponent therefore contends that the Petitioners have misconceived the application by seeking to compel the IEBC to enforce a judgment concerning matters over which it has neither jurisdiction nor statutory responsibility.
16) In support of the distinction between administrative and electoral boundaries, the deponent refers to several judicial decisions. He cites Sebastian Kaaria M’Itonga & 4 Others v The Hon. Attorney General & 8 Others, Meru High Court Constitutional Petition No. E031 of 2024, where the court reportedly recognised that administrative and electoral boundaries are governed by different legal frameworks and administered by different authorities. He also refers to Mbira Sime & 10 Others v The Hon. Attorney General & 3 Others, Isiolo High Court Constitutional Petition No. E002 of 2024 , where the court is said to have held that administrative boundaries and electoral boundaries are distinct and do not intersect.
17) The deponent further relies on the decision of the Supreme Court in Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 Others, Supreme Court Petition No. 21 (E023) of 2020, which he states settled the legal position that administrative boundaries are distinct from electoral boundaries and that, in delimiting electoral units, the IEBC is not bound by existing administrative boundaries.
18) Based on the foregoing, the deponent asserts that the Petitioners have wrongly joined the IEBC in the enforcement proceedings. He maintains that the Commission lacks the constitutional and statutory mandate necessary to implement the orders sought and therefore cannot lawfully be compelled to undertake actions relating to administrative boundaries. He consequently prays that the application be dismissed with costs.
D. DIRECTIONS OF THE COURT
19) The application was canvassed by way of written submissions. The petitioners/applicants and the 5 th Respondent have filed. the 1 st , 2 nd , 3 rd , and 4 th Respondents have not filed.
E. SUBMISSIONS
i. Petitioners/Applicants Submissions
20) The Petitioners/Applicants submit that the Notice of Motion dated 17 th February 2026 seeks the enforcement of the judgment delivered by the High Court on 3 rd October 2022 in Constitutional Petition No. 2 of 2021 through the issuance of an order of mandamus against the Independent Electoral and Boundaries Commission (IEBC). They contend that despite the court having declared unconstitutional and quashed the portion of Gazette Notice No. 2845 of 21 st June 2017 that transferred Naarolong Sub-location from Keiyan Division to Kereto Division, the IEBC has failed to take the necessary steps to align the electoral structures with the restored administrative position, thereby frustrating the implementation of the judgment and undermining the rights of residents of Naarolong Sub-location.
21) The Applicants argue that the position taken by the IEBC in its Replying Affidavit is legally untenable. They further point out an apparent inconsistency in the affidavit, noting that it was sworn on 3 rd February 2026, before the filing of the Notice of Motion dated 17 th February 2026, thereby raising questions as to whether it was specifically directed at the application before the court.
22) On the issue of whether the IEBC can be compelled to implement the judgment despite not having been a party to the original proceedings, the Applicants submit that the law governing orders of mandamus is clear. They rely on Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, where the Court of Appeal held that an order of mandamus issues to compel the performance of a public duty imposed by statute where the public body has failed to discharge that duty to the detriment of a person who has a legal right to expect its performance. The Applicants contend that the duty sought to be enforced arises not from participation in the original petition but from the constitutional and statutory responsibilities vested in the IEBC.
23) The Applicants further rely on Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where the High Court emphasised that courts retain jurisdiction to ensure compliance with their judgments and that successful litigants should not be left with barren decrees incapable of enforcement. According to the Applicants, the court in that case underscored the constitutional obligation of public officers to give effect to court decisions. It warned against conduct that would render judicial determinations ineffective. They submit that the IEBC’s continued inaction has effectively rendered the judgment of 3 rd October 2022 nugatory.
24) Regarding the distinction drawn by the IEBC between administrative boundaries and electoral boundaries, the Applicants submit that while such a distinction exists in law, it cannot be applied rigidly. They argue that electoral units are necessarily derived from and informed by administrative units and that the lawful administrative placement of a sub-location inevitably affects electoral representation. Consequently, once the court restored Naarolong Sub-location to Keiyan Division, the IEBC became obligated to ensure that electoral structures reflect that legal position.
25) In support of this argument, the Applicants rely on Kituo Cha Sheria & 10 Others v Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR, where the court emphasized that the IEBC, in exercising its constitutional mandate, must ensure that electoral structures are rational, functional, and capable of promoting effective representation. The Applicants submit that refusing to align electoral structures with a binding court judgment would create administrative inconsistency, electoral confusion, and potential disenfranchisement, while at the same time undermining the effectiveness of the court’s decision.
26) On whether the orders of mandamus should issue, the Applicants again rely on Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR , arguing that the requirements for mandamus have been fully satisfied. They submit that the IEBC has a clear constitutional duty under Articles 88 and 89 of the Constitution to oversee electoral boundaries and ensure effective representation; that it has failed and refused to perform that duty despite being notified of the judgment; and that there exists no alternative effective remedy capable of securing compliance. They therefore contend that mandamus is the appropriate remedy to compel the IEBC to perform its public duty.
27) The Applicants further submit that the continued failure to implement the judgment violates several constitutional rights and principles. They contend that the inaction undermines the national values and principles of governance under Article 10, infringes the right to fair administrative action under Article 47, and threatens the political rights of residents guaranteed under Article 38, particularly the right to effective representation. They argue that residents of Naarolong Sub-location remain uncertain regarding their proper electoral and administrative alignment, exposing them to the risk of disenfranchisement and administrative confusion.
28) In further support of the need for enforcement, the Applicants once again cite Republic v Attorney General & Another ex parte James Alfred Koroso [2013] eKLR, where the court warned that failure by public authorities to comply with court orders erodes public confidence in the administration of justice and undermines the rule of law.
29) The Applicants therefore conclude that the IEBC has misconstrued the application by concentrating on the source of the original administrative decision rather than its constitutional obligation to give practical effect to a valid and binding judgment of the court. They submit that the existence of a valid judgment, the failure by the IEBC to act, the absence of any justification for that failure, and the continuing prejudice suffered by residents of Naarolong Sub-location have all been demonstrated. Consequently, they urge the court to allow the application, issue an order of mandamus compelling the IEBC to implement the judgment of 3 October 2022, and award the Petitioners' costs of the application.
ii. 5 th Respondent’s submissions.
30) The 5 th Respondent, the Independent Electoral and Boundaries Commission (IEBC), opposes the Petitioners’ Notice of Motion seeking orders of mandamus to compel it to implement the judgment delivered on 3 rd October 2022 in Constitutional Petition No. 2 of 2021. The Commission submits that it was not a party to the original petition and was improperly joined in the proceedings after judgment, solely for enforcement purposes. Nevertheless, without prejudice to that position, the IEBC argues that the application is misconceived both in law and fact because it seeks to compel the Commission to undertake actions that neither arise from the judgment nor fall within its constitutional mandate.
31) On the first issue, namely whether a party may lawfully seek enforcement of orders that were neither expressly granted nor reasonably implied from the judgment, the IEBC submits that the Petitioners are attempting to enforce a non-existent order. According to the Commission, the judgment of 3 rd October 2022 was merely declared unconstitutional. It quashed the part of Gazette Notice No. 2845 of 21st June 2017 that relocated Naarolong Sub-location of Ndoinyo Location from Keiyan Division to Kereto Division. The court found that the relocation had been undertaken arbitrarily and without public participation, contrary to Article 10 of the Constitution. The Commission emphasises that the judgment did not contain any order directing the transfer of Naarolong Sub-location to Keiyan Ward or requiring the IEBC to alter electoral boundaries.
32) The 5 th Respondent submits that a proper reading of the judgment alongside the pleadings demonstrates that the reliefs sought by the Petitioners were limited to declarations concerning the legality of the administrative relocation of Naarolong Sub-location and the quashing of the impugned Gazette Notice. Consequently, the present attempt to effect implementation by transferring the area to Keiyan Ward introduces a completely new issue that was neither pleaded nor adjudicated upon. The Commission contends that parties are bound by their pleadings and that courts are similarly constrained to determine only the issues placed before them. In support of this proposition, the IEBC relies on the decision of the Supreme Court in Parliament of Kenya & the Attorney General v Okiya Omtatah Okoiti, Judicial Service Commission and Katiba Institute, Supreme Court Petition Nos. E016 and E017 of 2025 (Consolidated), where the Court reaffirmed the principle that parties are bound by their pleadings and that courts ought not grant relief outside the matters presented for determination.
33) The Commission therefore argues that the Petitioners are seeking enforcement of orders that do not exist within the judgment and are inviting the Court to engage in speculation and a fishing expedition. It submits that the application is an abuse of the court process because it seeks to create obligations that were never imposed by the judgment itself.
34) On the second issue, namely whether the IEBC has any constitutional or statutory mandate in the creation or alteration of administrative units, the Commission submits that its mandate is strictly confined to the delimitation of constituencies and county assembly wards under Articles 88(4)(c) and 89 of the Constitution. The Commission relies on Article 88(4)(c), which expressly provides that IEBC is responwards and the delimitation of constituencies and wards, and argues that the Constitution does not confer upon it any authority over administrative units such as sub-locations, locations, divisions, or districts.
35) The IEBC further submits that Article 89(5) of the Constitution sets out the criteria to be considered when delimiting electoral units, namely geographical features and urban centres, community of interest, historical, economic, and cultural ties, and means of communication. According to the Commission, administrative boundaries are not among the factors listed in Article 89(5); therefore, there is no constitutional requirement that electoral boundaries conform to administrative boundaries.
36) In support of this argument, the Commission places considerable reliance on Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 Others, Supreme Court Petition No. 21 (E023) of 2020. The Supreme Court held that electoral units and administrative units are distinct legal concepts created through different constitutional and statutory processes. The Court observed that Article 89 of the Constitution governs electoral boundaries. At the same time, administrative units are established under Section 14 of the National Government Coordination Act by the Cabinet Secretary responsible for the Interior. The Supreme Court further stated that electoral units need not conform to administrative units and that the creation of administrative units does not influence or affect constituency boundaries. According to the Commission, this decision conclusively settles the legal position that IEBC has no role in the creation, variation, or implementation of administrative boundaries.
37) The Commission also relies on Section 14 of the National Government Coordination Act, which empowers the Cabinet Secretary, with the approval of the President and by notice in the Gazette, to establish national government service delivery coordination units. It submits that the same authority that created the administrative units is vested with the power to alter or revoke them and that any enforcement of the judgment concerning administrative boundaries should therefore be directed at the Cabinet Secretary responsible for the Interior rather than the IEBC.
38) The 5 th Respondent further submits that the electoral boundaries currently in force were established during the 2012 delimitation exercise and published in Legal Notice No. 14 of 6 March 2012, namely the National Assembly Constituencies and County Assembly Wards Order, 2012. Any challenge to those boundaries was litigated through numerous petitions and judicial review proceedings, including Nairobi High Court Petition No. 91 of 2012 and Nairobi High Court Judicial Review Miscellaneous Application No. 94 of 2012, after which any court-ordered adjustments were duly implemented. The Commission argues that the judgment in Constitutional Petition No. 2 of 2021 did not alter any electoral boundaries and therefore cannot serve as a basis for amending the electoral units established under Legal Notice No. 14 of 2012.
39) The IEBC maintains that the Petitioners have confused administrative boundaries with electoral boundaries and have erroneously assumed that an administrative adjustment automatically requires a corresponding electoral adjustment. The Commission contends that such an assumption is contrary to the Constitution, the National Government Coordination Act, and the binding authority of the Supreme Court in Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 Others.
40) In conclusion, the 5th Respondent submits that although the Petitioners are entitled to seek enforcement of the judgment, they have pursued enforcement against the wrong party. The dispute concerns an administrative boundary created by the Ministry of Interior, not an electoral boundary within the IEBC's mandate. The Commission argues that even if an order of mandamus were issued against it, such an order would be incapable of implementation because the IEBC lacks constitutional and statutory authority over sub-locations, locations, divisions, and other administrative units. Accordingly, the Court would be acting in vain by granting the orders sought.
41) The 5 th Respondent therefore urges the Court to find that the Petitioners are seeking to enforce orders that were neither expressly granted nor implied in the judgment, to hold that the IEBC has no constitutional or statutory role in the creation or alteration of administrative boundaries, to find that the Commission was wrongly joined in the proceedings, and consequently to dismiss the application with costs.
F. ISSUES FOR DETERMINATION
42) Having considered the application, the response thereto, and the parties’ submissions, the following issues arise for determination:
i. Whether the judgment delivered on 3 rd October 2022 imposed any obligation upon the IEBC capable of enforcement through an order of mandamus.
ii. Whether the IEBC has a constitutional or statutory mandate to create, alter, implement, or align administrative boundaries.
iii. Whether the Applicants have satisfied the legal requirements for the grant of an order of mandamus.
iv. What orders should issue as to costs?
G. ANALYSIS AND DETERMINATION.
i. Whether the judgment delivered on 3 rd October 2022 imposed any obligation upon the IEBC capable of enforcement through an order of mandamus
43) An order of mandamus is a public law remedy that compels the performance of a statutory or public duty where a public authority has failed, refused, or neglected to perform that duty.
44) The locus classicus on the principles governing mandamus remains Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR, where the Court of Appeal held:
“An order of mandamus is of a most extensive remedial nature and is, in form, a command issuing from the High Court directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is like a public duty.”
45) It follows, therefore, that before mandamus can issue, there must exist a clear legal duty imposed upon the person or body against whom the order is sought.
46) The starting point is therefore the judgment delivered by this Court on 3 rd October 2022. The operative part of that judgment declared unconstitutional and quashed that part of Gazette Notice No. 2845 dated 21 st June 2017, which relocated Naarolong Sub-location from Keiyan Division to Kereto Division.
47) A careful reading of the judgment reveals that the Court dealt exclusively with the legality of an administrative boundary alteration undertaken by the Ministry responsible for Interior Affairs. The Court neither considered nor determined any question concerning ward boundaries, constituency boundaries, or electoral delimitation.
48) More importantly, the Court did not issue any order directed at the IEBC requiring it to alter, review, amend, or realign electoral boundaries.
49) The relief now sought by the Applicants, namely the transfer of Naarolong Sub-location to Keiyan Ward or the realignment of electoral structures, does not appear anywhere in the judgment.
50) The Supreme Court in Parliament of Kenya & The Attorney General v Okiya Omtatah Okoiti, Judicial Service Commission & Katiba Institute, Supreme Court Petition Nos. E016 and E017 of 2025 (Consolidated) reaffirmed the long-established principle that parties are bound by their pleadings and that courts are equally bound to determine only the issues presented before them.
51) The present application effectively seeks to introduce a new question regarding electoral boundaries which formed part of the original Petition, nor constituted part of the judgment delivered by the Court.
52) In my view, the Applicants are attempting to enforce a consequence which was neither expressly ordered nor necessarily implied by the judgment.
53) A court cannot enforce what it never ordered.
54) Consequently, I find that the judgment of 3 rd October 2022 imposed no obligation upon the IEBC capable of enforcement through an order of mandamus.
ii. Whether the IEBC has a constitutional or statutory mandate to create, alter, implement, or align administrative boundaries
55) The constitutional mandate of the IEBC is clearly set out under Article 88(4) of the Constitution.
56) Article 88(4)(c) provides that the Commission is responsible for:
“The delimitation of constituencies and wards.”
57) Similarly, Article 89 of the Constitution prescribes the principles and criteria applicable to the delimitation of electoral units.
58) The Constitution does not confer upon the IEBC any mandate relating to the creation, alteration, administration, or implementation of administrative units such as sub-locations, locations, divisions, or sub-counties.
59) Administrative units are established under Section 14 of the National Government Coordination Act, No. 1 of 2013, which provides:
“The Cabinet Secretary may, with the approval of the President and by notice in the Gazette, establish national government service delivery coordination units.”
60) The statutory responsibility for the creation and alteration of administrative units, therefore, lies with the Cabinet Secretary responsible for Interior Affairs and not with the IEBC.
61) The distinction between administrative boundaries and electoral boundaries was conclusively addressed by the Supreme Court in Member of Parliament Balambala Constituency v Abdi & 7 others [2023] KESC 35 (KLR)
62) The Supreme Court stated:
“We are therefore in agreement with the appellant’s submission that administrative units are different from electoral units in relation to the manner in which they are created.”
63) The Court further observed:
“We say so, having found that the creation of administrative units does not influence or affect constituency boundaries.”
64) These pronouncements are binding upon this Court under Article 163(7) of the Constitution.
65) The Supreme Court therefore settled two important principles: first, administrative units and electoral units are distinct legal concepts; and secondly, the creation or alteration of administrative units does not automatically affect electoral boundaries.
66) The Applicants’ contention that the IEBC was obligated to align
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