'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. E024 OF 2025
IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 24, 27, 28, 38, 47, 50, 73, 174, 175, 177, 178, 185, 196, 232, AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONERS
AND
IN THE MATTER OF THE UNCONSTITUTIONAL SUSPENSION OF DULY ELECTED MEMBERS OF THE COUNTY ASSEMBLY FROM THE COUNTY ASSEMBLY CHAMBERS AND FROM DISCHARGING THEIR CONSTITUTIONAL DUTIES
AND
IN THE MATTER OF THE UNCONSTITUTIONAL REMOVAL OF DULY ELECTED MEMBERS FROM THE VARIOUS COMMITTEES OF THE COUNTY ASSEMBLY OF MACHAKOS
AND
IN THE MATTER OF BREACH OF STANDING ORDERS NUMBERS 103, 104, 105, 106, 107, 108 AND 156 OF THE MACHAKOS COUNTY ASSEMBLY STANDING ORDERS
BETWEEN
HON. STEPHEN NZUE MWANTHI………………………………......….1ST PETITIONER
HON. NICHOLAS KITAVI NZIOKA……………………………......……2ND PETITIONER
HON. FELIX MUTUNGA NGUI………………………………………......3RD PETITIONER
HON. RAPHAEL LUCKY NZAU…………………………………….....….4TH PETITIONER
HON. CATHERINE KYEE………………………………….....……….….5TH PETITIONER
HON. CATHERINE MUIA……………………………...................….….6TH PETITIONER
HON ANASTACIA MUTEVU……………………………..................….7TH PETITIONER
HON. HELLEN NDETI……………………….....................…....……….8TH PETITIONER
HON. CONSTANCE MBULA………………………………………..……9TH PETITIONER
HON. MERCY NJAGI………………………………………………..…..10TH PETITIONER
HON. PAUL MWANZIA……………………………………….………....11TH PETITIONER
HON. JUSTUS MUTUKU………………………………………....…....…12TH PETITIONER
HON. PHOEBE KOKI…………………………………………………….13TH PETITIONER
HON. MARY NTHENYA……………………………..….….…………...14TH PETITIONER
-VERSUS-
THE SPEAKER, COUNTY ASSEMBLY OF MACHAKOS……………..1ST RESPONDENT
THE CLERK, COUNTY ASSEMBLY OF MACHAKOS………………..2ND RESPONDENT
AS CONSOLIDATED WITH
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. E018 OF 2025
IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 24, 27, 28, 38, 47, 50, 73, 174, 175, 185, 196, 232, AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONERS
AND
IN THE MATTER OF THE UNCONSTITUTIONAL BARRING OF DULY ELECTED MEMBERS OF COUNTY ASSEMBLY FROM ACCESSING COUNTY ASSEMBLY CHAMBERS AND DISCHARGING THEIR CONSTITUTIONAL DUTIES
BETWEEN
1. HON.NICHOLAS KITAVI NZIOKA
2. HON.STEPHEN NZUE MWANTHI
3. HON JUDAS MBILI NDAWA
4. HON. FELIX MUTUNGA NGUI
5. HON. RAPHAEL LUCKY NZAU
6. HON. CHARLES MBUVA
7. HON. PHOEBE KOKI MAWA
8. HON. ANNA NTHENYA NDILO
9. HON. CATHERINE KYEE
(All suing as elected Members of the County Assembly of Machakos, in their individual and representative capacities on behalf of their respective
electorates)……….....................................................................PETITIONERS
VERSUS
THE SPEAKER OF THE COUNTY ASSEMBLY OF MACHAKOS .…..1ST RESPONDENT
THE CLERK OF THE COUNTY ASSEMBLY OF MACHAKOS.….….2ND RESPONDENT
RULING
Introduction
1. This ruling is on the 1st Respondent’s notice of Preliminary Objection dated 16th of June 2025 raised to the Petitioners’ Petition and the Notice of Motion dated 11th June 2025. The objection is grounded upon the following grounds:
a) THAT the legal mechanisms available for redress of the Petitioner’s claim have not been exhausted as per Standing Order 106A of the County Assembly of Machakos Standing Orders.
b) THAT this court therefore lacks jurisdiction to hear and determine the Petition and Application on the Applicants/Petitioners.
2. The notice of Preliminary Objection was raised following the Petitioners’ notice of motion application dated 11/06/2025 basically seeking for orders that pending the hearing and determination of the Constitutional Petition herein, a conservatory order be issued restraining the Respondents, jointly and severally, from enforcing or purporting to enforce any directives written, verbal or otherwise issued to exclude or suspend the Petitioners from the Assembly or its operations, and from taking any adverse or retaliatory action against the Petitioners in relation to their constitutional role in initiating or supporting the pending removal process against the Speaker and for this court to issue such further or other orders as it may deem just and appropriate in the circumstances to safeguard the Petitioners'' constitutional rights and preserve the integrity of the County Assembly and its operations.
Factual Matrix.
3. The facts giving rise to this matter as far as I can distil them from the pleadings herein are that the Petitioners are Honourable members of the County Assembly of Machakos whereas the Respondents are the Speaker and Clerk respectively of the County Assembly of Mombasa. According to the Petitioners, the 1st Respondent, the Speaker of the County Assembly of Machakos has, without any lawful cause, due process, or justification, barred the Petitioners from accessing the Assembly and discharging their constitutional functions.
4. That the said actions are retaliatory, having been taken after the Petitioners filed a removal Petition against the Speaker, a matter still pending and unresolved.
5. On their part. the Respondents claim that on 10th June 2025, chaos broke out in the County Assembly Chambers of Machakos as the Speaker attempted to deliver official communication from the Chair. The Petitioners, who are Members of the said County Assembly, became rowdy, shouted down the proceedings, rushed towards the Speaker''s dais, and attempted to seize the Mace, a sacred symbol of the Assembly''s authority.
6. The Speaker was forced to exit the chambers under threat. In the process, the sergeant-at-arms was physically injured. The Speaker documented this account in her Replying Affidavit at paragraphs 1 6—21 and annexed Hansard records and security communications marked AK2 and AK6.
7. It is alleged that these events constituted clear gross misconduct, and the Speaker lawfully invoked Standing Orders 103—106 to suspend the members for twenty-eight (28) sitting days. The suspension was limited to those who had disrupted House proceedings. It was not connected in any way to the leadership wrangles or purported motions for her removal.
Directions
8. The two consolidated Petitions herein came up for directions and the Preliminary Objection under determination dated 16/06/2025 filed by the 1st Respondent was directed to be heard first. Parties were then directed to file and exchange their respective submissions on the Preliminary Objection. Both parties complied by filing their submissions.
1st Respondent’s Case
9. The 1st Respondent, Hon. Anne Kiusya, Speaker of the County Assembly of Machakos has cited the decision in the famous case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on the locus classicus of what merits as a preliminary objection, where the court observed thus;
“…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
10. The 1st Respondent submits that, that point of law, is what she has raised as the locus standi of the Petitioners herein, and subsequently, which birthed the contention as to the jurisdiction of this Honourable Court to hear and determine the matter before it.
11. The 1st Respondent, based her Preliminary Objection on the Petitioners’ inability to exhaust legal mechanism available to them under the standing Order number 106A of the Machakos County Assembly, in seeking redress over the claims set out in their Petition and application herein.
12. The 1st Respondent contends that failing to do so, the Petitioners lack locus standi to prosecute their petition and application herein before this court, and their petition, its rosiness notwithstanding, should suffer the singular fate of being completely dismissed and costs awarded the 1st Respondent herein.
13. The 1st Respondent has placed reliance on the Supreme Court decision in Hassan Ali Joho & another v Suleiman Said Shabal & 2 Others SCK Petition No 10 of 2013 [2014] eKLR where it was held that: -
“…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
14. The 1st Respondent submits that the locus standi, is the purest point of law that can be, as coupled up with Jurisdiction, and without either, the court ought to immediately down its tools and make not a further step, as was held in the celebrated case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment). Where the locus standi of a party is contested for want of exhaustion of local remedies available in seeking redress, as provided for by Standing Order 106A of the Machakos County Assembly Standing orders, the same is and should be taunted as being repugnant to the progressiveness of Article 159 of the Constitution of Kenya, and subsequently struck out. That is the fate fit fir the Petitioners’ Petition and application dated the 12th of June 2025.
15. The 1st Respondent submits that the Petitions and applications by the Petitioners herein are bad in law and should subsequently be dismissed and costs awarded to the 1st Respondent
2nd Respondent’s Case
16. The 2nd Respondent being the Clerk of the County Assembly of Machakos and Administrative head of Assembly operations, fully associates himself with and supports the Preliminary Objection and adopts the grounds set out therein. The 2nd Respondent further relies on the Replying Affidavit sworn by the 1st Respondent, Hon. Anne Kiusya, Speaker of the Assembly, which outlines the factual basis justifying the disciplinary measures taken on 10th June 2025.
17. According to the 2nd Respondent, the Petitioners have improperly invoked this Court''s jurisdiction without exhausting internal dispute resolution processes. Their approach undermines the autonomy of the County Assembly and amounts to forum shopping in the face of clear institutional remedies.
18. The 2nd Respondent submits that by failing to invoke and exhaust the internal statutory remedies, the Petitioners have rendered their Petition premature and incompetent. This court, in the absence of exhaustion and in the face of no exceptional grounds, lacks jurisdiction to entertain the matter.
19. The 2nd Respondent further submits that the Petitioners'' failure to disclose their own misconduct and the fact that internal remedies existed constitutes material non-disclosure. They did not place before the court the Hansard or security reports that captured the chaotic events of 10th June 2025, nor did they disclose that the Senate endorsed the 1st Respondent''s actions. This misrepresentation justifies striking out the Petitions and applications herein with costs.
20. On the other hand, the Petitioners in both Petitions have opposed the preliminary objection.
The case of the Petitioners in Petition E018 of 2025
21. These Petitioners submit that the Preliminary Objection is both legally and factually misconceived. It fails to meet the legal threshold of a valid Preliminary Objection and seeks to defeat a Petition that raises serious and justiciable constitutional questions concerning the arbitrary exclusion of elected representatives from the County Assembly without notice, hearing, or lawful process.
22. That the Petition raises substantial questions of law that directly implicate Constitutional provisions, including Articles 10, 27, 28, 38, 47, 50, 73, and 196, which safeguard political rights, human dignity, fair administrative action, due process, and accountability in governance.
23. That the Petitioners’ exclusion from the Assembly chambers was not the result of lawful disciplinary proceedings under the Standing Orders but was rather executed unilaterally by the Speaker, without motion, vote, complaint, or referral to the relevant committee.
24. These Petitioners claim that the actions amount to a constructive expulsion that disenfranchised the Petitioners’ constituents and undermined representative democracy. They therefore call upon this Court to protect constitutional values and to assert its supervisory jurisdiction under Articles 23, and 165 of the Constitution. The Petitioners placed reliance on the Mukisa Biscuit Case (Supra).
25. Guided by the Mukisa Biscuit case, these Petitioners submitted that the Preliminary Objection raised by the 1st Respondent is entangled with contested and disputed matters of fact, including whether the internal disciplinary mechanism under Standing Order 106A was applicable, whether it was triggered, whether the Petitioners had access to it, and whether it provided an adequate and effective remedy. Each of these questions requires an examination of the Speaker’s conduct, the nature of communication to the Petitioners, the procedural steps taken or omitted, and the actual content of the Standing Orders in light of the Constitution. These are not issues that can be resolved as pure points of law without delving into evidence.
26. Moreover, it was submitted that the Court would be required to interpret whether a violation of Standing Orders occurred and whether the Petitioners’ constitutional rights were violated. These are not matters that can be resolved at a preliminary stage without a full hearing.
27. That the validity of the objection therefore depends on factual inquiry and legal interpretation. It does not raise a pure point of law as defined in Mukisa Biscuit and fails the test for a properly constituted preliminary objection.
28. This Court was thus asked to decline the invitation to determine substantive constitutional and evidentiary issues through a procedure intended only for clear-cut legal objections.
29. On the doctrine of exhaustion of remedies, it was submitted that the doctrine of exhaustion is a judicial principle that encourages litigants to utilize all available statutory and administrative remedies before seeking recourse to the courts. However, this doctrine is not absolute and is subject to well-recognized exceptions. Reliance was placed on the Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR which held that while the exhaustion principle is sound, it is not cast in stone. Where a remedy is unavailable, inadequate, or illusory, or where a public body has acted ultra vires, courts have a duty to intervene. The actions of the 1st Respondent in this matter were clearly ultra vires and therefore this court is properly seized of the matter.
30. It was asserted that in the present case, the 1st Respondent alleges that the Petitioners should have invoked Standing Order 106A, which purportedly provides an internal remedy. It is important to note that the first and second Petitioners are members of the powers and privileges committee and could not therefore adjudicate in their own case or in a matter in which they are an interested party.
31. Furthermore, with the suspension of the 1st and 2nd Petitioners, the powers and privileges committee would not have been properly constituted to consider any appeals.
32. There was no complaint tabled, no motion moved, no vote taken, and no referral made to the Committee on Powers and Privileges. The Speaker acted unilaterally and without due process. There was therefore no procedure in place capable of being exhausted.
33. Moreover, the Petitioners were summarily barred from accessing the Assembly premises without being heard, without written reasons, and without any procedural safeguards under the Standing Orders. This amounts to a procedural ambush, not a disciplinary process.
34. That even if Standing Order 106A were theoretically applicable, it does not offer an adequate or effective remedy in a case such as this, where serious violation of constitutional rights and duties are alleged. Exhaustion does not apply where the underlying conduct is blatantly unlawful or where the forum lacks authority to address constitutional violations.
35. These Petitioners submitted that the High Court has consistently held that its jurisdiction under Article 165 of the Constitution cannot be ousted by reference to subordinate legislative procedures such as Standing Orders.
36. That Article 159(2)(d) of the Constitution enjoins courts to do justice without undue regard to procedural technicalities. Where elected officials are barred from office in violation of the Constitution and Standing Orders, this Court must intervene substantively to safeguard public interest and constitutional integrity.
37. The Petitioners allege that they were not given an opportunity to trigger or exhaust any remedy. No such remedy was ever placed before them. They were locked out of the Assembly without lawful cause. To now claim that they should have exhausted a non-existent or inaccessible procedure is legally untenable and fundamentally unjust.
38. It is argued that the Petition raises substantial constitutional questions that fall squarely within the jurisdiction of the High Court as set out under Article 165(3)(b) and (d) of the Constitution of Kenya. These provisions empower this Court to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened, and to hear and determine questions involving the interpretation of the Constitution.
39. The Petitioners assert that the actions of the 1st Respondent, in arbitrarily barring them from the Assembly, violated their rights under Articles 10 (national values and principles), 27 (equality and non-discrimination), 28 (dignity), 38 (political rights), 47 (fair administrative action), 50 (fair hearing), 73 (leadership and integrity), and 196 (Public participation and county assembly powers, privileges and immunities).
40. It is contended that these are matters that cannot be addressed by reference to Standing Orders alone, or by internal mechanisms that lack constitutional authority to adjudicate on fundamental rights. The question before this Court is not merely whether a Standing Order was followed or violated—it is whether elected public officials were excluded from performing their constitutional mandate in a manner that undermines the democratic fabric of the Constitution.
41. That Standing Orders of a County Assembly, while useful for regulating internal procedure, are subordinate instruments. They cannot be interpreted in a manner that limits or excludes constitutional rights, nor can they oust the jurisdiction of the High Court to address violations thereof. Article 2(1) of the Constitution declares the Constitution as the supreme law of the land, and Article 2(4) nullifies any law, including customary or procedural rules, that is inconsistent with the Constitution.
42. It is submitted that it would therefore be contrary to the letter and spirit of the Constitution to allow internal Assembly procedures to shield acts that are alleged to be unconstitutional. It is the Court''s role to serve as the guardian of the Constitution and to provide a remedy whenever public power is exercised in a manner that violates constitutional rights or principles.
43. That the Preliminary Objection also fails to consider the practical implications and the balance of convenience, both of which favour a full hearing of the Petition on its merits. The Petitioners submit that they are elected representatives of the people of Machakos County, and their continued exclusion from the Assembly directly affects the representation of their constituents and undermines the principle of devolution and participatory governance under Article 174.
44. The Petitioners submit that if the actions of the Respondents, if left unexamined by the Court, would create a dangerous precedent where Speakers or other administrative officers of legislative bodies could, through arbitrary fiat, lock out elected members without recourse, accountability, or justification. Such conduct, left unchecked, would erode public trust in the rule of law in the governance of public institutions.
45. That the overriding objective of the Constitution, as articulated in Articles 159, 10, and 259, is to foster a governance system that is transparent, accountable, just, and participatory. It would be a perversion of justice for this Court to decline jurisdiction merely on the basis of a technical objection that lacks factual support and seeks to shield alleged abuse of office.
46. The interests of justice therefore require that the Preliminary Objection be dismissed and that the substantive Petition proceed to hearing so that the serious constitutional issues raised may be fully ventilated and adjudicated on their merits.
The case of the Petitioners in Petition E024 of 2025
47. These petitioners submit that Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 as;
“…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”
48. Further, and as aptly enumerated in the infamous case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1”, Nyarangi J. held that: -
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
49. It is argued that whereas the Respondents content that this court has no jurisdiction, it is these Petitioners’ submission that this Court has the requisite jurisdiction, moved as a Constitutional Court to answer and give remedies for constitutional questions where there is clear breach and violation of the Petitioners Constitutional rights as enumerated in the pleadings filed.
50. The Petitioners submit that this court has jurisdiction to entertain the Petitions because their constitutional rights have been infringed upon and continue to be infringed by the Respondents. They refer to Article 22 of the Constitution provides for the enforcement of bill of Rights where individuals acting in the interest of a group or class of persons have the right to institute court proceedings for a claim that their right or fundamental freedom in the Bill of Rights has been violated or are under threat. In upholding and enforcing the Bill of Rights, Article 23 grants this court the unfettered jurisdiction to hear and determine applications/suits seeking for redress of violation or threats to rights or fundamental freedoms enshrined in the Bill of Rights.
51. On first exhausting the procedure under Standing Order 106A of the County Assembly Standing Orders, these Petitioners submit that the Petition relates to the infringement of Articles 10, 27, 28, 38, 47, 50, 73, 174, 175, 185 and 196 of the Constitution. The orders sought are orders that only the court with jurisdiction under Article 23 of the Constitution can issue. The only avenue for redress of such infringement is the mandated court under the Constitution and not the Committee as urged by the Respondents. Jurisdiction stems from the law. The law does not confer the Committee the jurisdiction to hear and determine matters relating to violation of the constitution.
52. Reliance is placed on West Kenya Sugar Co. Limited v Busia Sugar Industries Limited & 2 others [2017] eKLR, where Mukunya J, while addressing a similar objection that challenged the ELC Jurisdiction vis a vis the NEMA Tribunal vide a constitutional petition where the Petitioner had alleged violations of his rights under the Constitution, it was held that the mandate given to the NET under Section 129 of EMCA is limited in the scope of matters it can handle on appeal, and rendered itself thus:
“This argument that the court has no jurisdiction is based on a misunderstanding of the matter before this court. What is before the court is a constitutional petition in which the petitioner has alleged several violations of his rights enshrined in the Constitution. The National Environment Tribunal does not have mandate to deal with constitutional violations relating to the environment. That is the preserve of this Court. A look at the mandate given to the National Environment Tribunal under 5 section 129 of EMCA aforesaid shows a limited scope of the matters it can handle on appeal. They particularly deal with license and licensing...This court was established by Article 162(2)(b) of the Constitution of Kenya 2010. One of its mandates therein is to determine the environment and the use and occupation of and title to land. The issues herein deal with the environment use and occupation of land…”
53. Further reliance was placed on the holding in the Supreme Court of Kenya Petition E007 of 2023 Nicholus Abidha v Attorney General & 7 Others; National Environmental Complaints Committee & 5 Others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR), where the court was clear on the jurisdiction to entertain and determine a multifaceted petition of the nature and form of the current petitions filed before this honorable court when it held as follows;
“[100] In addressing the conundrum placed before us, we must remind ourselves that, what is in dispute before this Court is the applicability of these provisions to the appellant’s claim and not the true meaning of the provisions of either EMCA or the Energy Act. This is because the provisions of EMCA or the Energy Act do not expressly oust the jurisdiction of the ELC in respect of the procedure for the determination of disputes that involve the management of the environment or issues of petroleum and energy. In the ordinary course of events, the ELC still has original jurisdiction over the matters that are handled by NEMA, unless such jurisdiction is specifically and expressly ousted in a constitutionally compliant manner. The same holds true for proceedings under the Energy Act.
[105] We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief.
[107] Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism.”
54. That this decision of the supreme court has been relied on severally by this Court as it did in Nzomo (Suing on his own behalf and on behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Ltd & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 1572 (KLR) (14 March 2024) (Ruling) where Justice Omollo in dismissing a similar preliminary objection as the one currently before this court held as follows:
“25. In light of the foregoing finding in the case of Abidha Nicholas supra on jurisdiction, the question then is whether this petition raises any constitutional issues. The Respondents submitted that paragraphs 44 – 56 of the petition which raises administrative issues which have nothing to do with breach of constitutional rights. I have perused the petition and note for instance that paragraphs 55, 56 and 58 raises the issue of destruction of indigenous trees (harm to the environment). Paragraph 61 pleads breach of rights under article 184 of the Constitution and a breach of the right to public participation under article 10. Whether or not there is merit in the alleged breaches can only be determined during the hearing of the petition.
26. Consequently, I draw the conclusion that both the application and the two sets of the Preliminary Objection are not merited as the two applicable statutes (EMCA No. 3 of 1999 and PLUPA No. 13 of 2019) do not oust the jurisdiction of the court where the claim based on alleged breaches of constitutional rights. Secondly, the Petition is not res judicata as there is no merit decision in place. They are all dismissed with costs.
55. It is submitted that in a similar instance, a 3-judge bench in East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 3 others; Law Society of Kenya & 5 Others (Interested Parties)(Environment and Planning Petition E001 of 2024) which relied on the mentioned Supreme Court decision in the case of Nicolas Abidha held as follows:
“Flowing from the exposition of the Supreme Court in the Nicholus case (supra), the following can safely be said to be the prevailing general law on the jurisdiction of the ELC in the context of the issue before us:
a. Section 129 and 130 of the EMCA does not vest in the NET jurisdiction to entertain claims relating to violation or threatened violation of the Constitution.
b. The right to access the court for redress of alleged constitutional violations should
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. E024 OF 2025
IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 24, 27, 28, 38, 47, 50, 73, 174, 175, 177, 178, 185, 196, 232, AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONERS
AND
IN THE MATTER OF THE UNCONSTITUTIONAL SUSPENSION OF DULY ELECTED MEMBERS OF THE COUNTY ASSEMBLY FROM THE COUNTY ASSEMBLY CHAMBERS AND FROM DISCHARGING THEIR CONSTITUTIONAL DUTIES
AND
IN THE MATTER OF THE UNCONSTITUTIONAL REMOVAL OF DULY ELECTED MEMBERS FROM THE VARIOUS COMMITTEES OF THE COUNTY ASSEMBLY OF MACHAKOS
AND
IN THE MATTER OF BREACH OF STANDING ORDERS NUMBERS 103, 104, 105, 106, 107, 108 AND 156 OF THE MACHAKOS COUNTY ASSEMBLY STANDING ORDERS
BETWEEN
HON. STEPHEN NZUE MWANTHI………………………………......….1ST PETITIONER
HON. NICHOLAS KITAVI NZIOKA……………………………......……2ND PETITIONER
HON. FELIX MUTUNGA NGUI………………………………………......3RD PETITIONER
HON. RAPHAEL LUCKY NZAU…………………………………….....….4TH PETITIONER
HON. CATHERINE KYEE………………………………….....……….….5TH PETITIONER
HON. CATHERINE MUIA……………………………...................….….6TH PETITIONER
HON ANASTACIA MUTEVU……………………………..................….7TH PETITIONER
HON. HELLEN NDETI……………………….....................…....……….8TH PETITIONER
HON. CONSTANCE MBULA………………………………………..……9TH PETITIONER
HON. MERCY NJAGI………………………………………………..…..10TH PETITIONER
HON. PAUL MWANZIA……………………………………….………....11TH PETITIONER
HON. JUSTUS MUTUKU………………………………………....…....…12TH PETITIONER
HON. PHOEBE KOKI…………………………………………………….13TH PETITIONER
HON. MARY NTHENYA……………………………..….….…………...14TH PETITIONER
-VERSUS-
THE SPEAKER, COUNTY ASSEMBLY OF MACHAKOS……………..1ST RESPONDENT
THE CLERK, COUNTY ASSEMBLY OF MACHAKOS………………..2ND RESPONDENT
AS CONSOLIDATED WITH
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. E018 OF 2025
IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 24, 27, 28, 38, 47, 50, 73, 174, 175, 185, 196, 232, AND 259 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE PETITIONERS
AND
IN THE MATTER OF THE UNCONSTITUTIONAL BARRING OF DULY ELECTED MEMBERS OF COUNTY ASSEMBLY FROM ACCESSING COUNTY ASSEMBLY CHAMBERS AND DISCHARGING THEIR CONSTITUTIONAL DUTIES
BETWEEN
1. HON.NICHOLAS KITAVI NZIOKA
2. HON.STEPHEN NZUE MWANTHI
3. HON JUDAS MBILI NDAWA
4. HON. FELIX MUTUNGA NGUI
5. HON. RAPHAEL LUCKY NZAU
6. HON. CHARLES MBUVA
7. HON. PHOEBE KOKI MAWA
8. HON. ANNA NTHENYA NDILO
9. HON. CATHERINE KYEE
(All suing as elected Members of the County Assembly of Machakos, in their individual and representative capacities on behalf of their respective
electorates)……….....................................................................PETITIONERS
VERSUS
THE SPEAKER OF THE COUNTY ASSEMBLY OF MACHAKOS .…..1ST RESPONDENT
THE CLERK OF THE COUNTY ASSEMBLY OF MACHAKOS.….….2ND RESPONDENT
RULING
Introduction
1. This ruling is on the 1st Respondent’s notice of Preliminary Objection dated 16th of June 2025 raised to the Petitioners’ Petition and the Notice of Motion dated 11th June 2025. The objection is grounded upon the following grounds:
a) THAT the legal mechanisms available for redress of the Petitioner’s claim have not been exhausted as per Standing Order 106A of the County Assembly of Machakos Standing Orders.
b) THAT this court therefore lacks jurisdiction to hear and determine the Petition and Application on the Applicants/Petitioners.
2. The notice of Preliminary Objection was raised following the Petitioners’ notice of motion application dated 11/06/2025 basically seeking for orders that pending the hearing and determination of the Constitutional Petition herein, a conservatory order be issued restraining the Respondents, jointly and severally, from enforcing or purporting to enforce any directives written, verbal or otherwise issued to exclude or suspend the Petitioners from the Assembly or its operations, and from taking any adverse or retaliatory action against the Petitioners in relation to their constitutional role in initiating or supporting the pending removal process against the Speaker and for this court to issue such further or other orders as it may deem just and appropriate in the circumstances to safeguard the Petitioners'' constitutional rights and preserve the integrity of the County Assembly and its operations.
Factual Matrix.
3. The facts giving rise to this matter as far as I can distil them from the pleadings herein are that the Petitioners are Honourable members of the County Assembly of Machakos whereas the Respondents are the Speaker and Clerk respectively of the County Assembly of Mombasa. According to the Petitioners, the 1st Respondent, the Speaker of the County Assembly of Machakos has, without any lawful cause, due process, or justification, barred the Petitioners from accessing the Assembly and discharging their constitutional functions.
4. That the said actions are retaliatory, having been taken after the Petitioners filed a removal Petition against the Speaker, a matter still pending and unresolved.
5. On their part. the Respondents claim that on 10th June 2025, chaos broke out in the County Assembly Chambers of Machakos as the Speaker attempted to deliver official communication from the Chair. The Petitioners, who are Members of the said County Assembly, became rowdy, shouted down the proceedings, rushed towards the Speaker''s dais, and attempted to seize the Mace, a sacred symbol of the Assembly''s authority.
6. The Speaker was forced to exit the chambers under threat. In the process, the sergeant-at-arms was physically injured. The Speaker documented this account in her Replying Affidavit at paragraphs 1 6—21 and annexed Hansard records and security communications marked AK2 and AK6.
7. It is alleged that these events constituted clear gross misconduct, and the Speaker lawfully invoked Standing Orders 103—106 to suspend the members for twenty-eight (28) sitting days. The suspension was limited to those who had disrupted House proceedings. It was not connected in any way to the leadership wrangles or purported motions for her removal.
Directions
8. The two consolidated Petitions herein came up for directions and the Preliminary Objection under determination dated 16/06/2025 filed by the 1st Respondent was directed to be heard first. Parties were then directed to file and exchange their respective submissions on the Preliminary Objection. Both parties complied by filing their submissions.
1st Respondent’s Case
9. The 1st Respondent, Hon. Anne Kiusya, Speaker of the County Assembly of Machakos has cited the decision in the famous case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 on the locus classicus of what merits as a preliminary objection, where the court observed thus;
“…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
10. The 1st Respondent submits that, that point of law, is what she has raised as the locus standi of the Petitioners herein, and subsequently, which birthed the contention as to the jurisdiction of this Honourable Court to hear and determine the matter before it.
11. The 1st Respondent, based her Preliminary Objection on the Petitioners’ inability to exhaust legal mechanism available to them under the standing Order number 106A of the Machakos County Assembly, in seeking redress over the claims set out in their Petition and application herein.
12. The 1st Respondent contends that failing to do so, the Petitioners lack locus standi to prosecute their petition and application herein before this court, and their petition, its rosiness notwithstanding, should suffer the singular fate of being completely dismissed and costs awarded the 1st Respondent herein.
13. The 1st Respondent has placed reliance on the Supreme Court decision in Hassan Ali Joho & another v Suleiman Said Shabal & 2 Others SCK Petition No 10 of 2013 [2014] eKLR where it was held that: -
“…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
14. The 1st Respondent submits that the locus standi, is the purest point of law that can be, as coupled up with Jurisdiction, and without either, the court ought to immediately down its tools and make not a further step, as was held in the celebrated case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment). Where the locus standi of a party is contested for want of exhaustion of local remedies available in seeking redress, as provided for by Standing Order 106A of the Machakos County Assembly Standing orders, the same is and should be taunted as being repugnant to the progressiveness of Article 159 of the Constitution of Kenya, and subsequently struck out. That is the fate fit fir the Petitioners’ Petition and application dated the 12th of June 2025.
15. The 1st Respondent submits that the Petitions and applications by the Petitioners herein are bad in law and should subsequently be dismissed and costs awarded to the 1st Respondent
2nd Respondent’s Case
16. The 2nd Respondent being the Clerk of the County Assembly of Machakos and Administrative head of Assembly operations, fully associates himself with and supports the Preliminary Objection and adopts the grounds set out therein. The 2nd Respondent further relies on the Replying Affidavit sworn by the 1st Respondent, Hon. Anne Kiusya, Speaker of the Assembly, which outlines the factual basis justifying the disciplinary measures taken on 10th June 2025.
17. According to the 2nd Respondent, the Petitioners have improperly invoked this Court''s jurisdiction without exhausting internal dispute resolution processes. Their approach undermines the autonomy of the County Assembly and amounts to forum shopping in the face of clear institutional remedies.
18. The 2nd Respondent submits that by failing to invoke and exhaust the internal statutory remedies, the Petitioners have rendered their Petition premature and incompetent. This court, in the absence of exhaustion and in the face of no exceptional grounds, lacks jurisdiction to entertain the matter.
19. The 2nd Respondent further submits that the Petitioners'' failure to disclose their own misconduct and the fact that internal remedies existed constitutes material non-disclosure. They did not place before the court the Hansard or security reports that captured the chaotic events of 10th June 2025, nor did they disclose that the Senate endorsed the 1st Respondent''s actions. This misrepresentation justifies striking out the Petitions and applications herein with costs.
20. On the other hand, the Petitioners in both Petitions have opposed the preliminary objection.
The case of the Petitioners in Petition E018 of 2025
21. These Petitioners submit that the Preliminary Objection is both legally and factually misconceived. It fails to meet the legal threshold of a valid Preliminary Objection and seeks to defeat a Petition that raises serious and justiciable constitutional questions concerning the arbitrary exclusion of elected representatives from the County Assembly without notice, hearing, or lawful process.
22. That the Petition raises substantial questions of law that directly implicate Constitutional provisions, including Articles 10, 27, 28, 38, 47, 50, 73, and 196, which safeguard political rights, human dignity, fair administrative action, due process, and accountability in governance.
23. That the Petitioners’ exclusion from the Assembly chambers was not the result of lawful disciplinary proceedings under the Standing Orders but was rather executed unilaterally by the Speaker, without motion, vote, complaint, or referral to the relevant committee.
24. These Petitioners claim that the actions amount to a constructive expulsion that disenfranchised the Petitioners’ constituents and undermined representative democracy. They therefore call upon this Court to protect constitutional values and to assert its supervisory jurisdiction under Articles 23, and 165 of the Constitution. The Petitioners placed reliance on the Mukisa Biscuit Case (Supra).
25. Guided by the Mukisa Biscuit case, these Petitioners submitted that the Preliminary Objection raised by the 1st Respondent is entangled with contested and disputed matters of fact, including whether the internal disciplinary mechanism under Standing Order 106A was applicable, whether it was triggered, whether the Petitioners had access to it, and whether it provided an adequate and effective remedy. Each of these questions requires an examination of the Speaker’s conduct, the nature of communication to the Petitioners, the procedural steps taken or omitted, and the actual content of the Standing Orders in light of the Constitution. These are not issues that can be resolved as pure points of law without delving into evidence.
26. Moreover, it was submitted that the Court would be required to interpret whether a violation of Standing Orders occurred and whether the Petitioners’ constitutional rights were violated. These are not matters that can be resolved at a preliminary stage without a full hearing.
27. That the validity of the objection therefore depends on factual inquiry and legal interpretation. It does not raise a pure point of law as defined in Mukisa Biscuit and fails the test for a properly constituted preliminary objection.
28. This Court was thus asked to decline the invitation to determine substantive constitutional and evidentiary issues through a procedure intended only for clear-cut legal objections.
29. On the doctrine of exhaustion of remedies, it was submitted that the doctrine of exhaustion is a judicial principle that encourages litigants to utilize all available statutory and administrative remedies before seeking recourse to the courts. However, this doctrine is not absolute and is subject to well-recognized exceptions. Reliance was placed on the Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR which held that while the exhaustion principle is sound, it is not cast in stone. Where a remedy is unavailable, inadequate, or illusory, or where a public body has acted ultra vires, courts have a duty to intervene. The actions of the 1st Respondent in this matter were clearly ultra vires and therefore this court is properly seized of the matter.
30. It was asserted that in the present case, the 1st Respondent alleges that the Petitioners should have invoked Standing Order 106A, which purportedly provides an internal remedy. It is important to note that the first and second Petitioners are members of the powers and privileges committee and could not therefore adjudicate in their own case or in a matter in which they are an interested party.
31. Furthermore, with the suspension of the 1st and 2nd Petitioners, the powers and privileges committee would not have been properly constituted to consider any appeals.
32. There was no complaint tabled, no motion moved, no vote taken, and no referral made to the Committee on Powers and Privileges. The Speaker acted unilaterally and without due process. There was therefore no procedure in place capable of being exhausted.
33. Moreover, the Petitioners were summarily barred from accessing the Assembly premises without being heard, without written reasons, and without any procedural safeguards under the Standing Orders. This amounts to a procedural ambush, not a disciplinary process.
34. That even if Standing Order 106A were theoretically applicable, it does not offer an adequate or effective remedy in a case such as this, where serious violation of constitutional rights and duties are alleged. Exhaustion does not apply where the underlying conduct is blatantly unlawful or where the forum lacks authority to address constitutional violations.
35. These Petitioners submitted that the High Court has consistently held that its jurisdiction under Article 165 of the Constitution cannot be ousted by reference to subordinate legislative procedures such as Standing Orders.
36. That Article 159(2)(d) of the Constitution enjoins courts to do justice without undue regard to procedural technicalities. Where elected officials are barred from office in violation of the Constitution and Standing Orders, this Court must intervene substantively to safeguard public interest and constitutional integrity.
37. The Petitioners allege that they were not given an opportunity to trigger or exhaust any remedy. No such remedy was ever placed before them. They were locked out of the Assembly without lawful cause. To now claim that they should have exhausted a non-existent or inaccessible procedure is legally untenable and fundamentally unjust.
38. It is argued that the Petition raises substantial constitutional questions that fall squarely within the jurisdiction of the High Court as set out under Article 165(3)(b) and (d) of the Constitution of Kenya. These provisions empower this Court to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened, and to hear and determine questions involving the interpretation of the Constitution.
39. The Petitioners assert that the actions of the 1st Respondent, in arbitrarily barring them from the Assembly, violated their rights under Articles 10 (national values and principles), 27 (equality and non-discrimination), 28 (dignity), 38 (political rights), 47 (fair administrative action), 50 (fair hearing), 73 (leadership and integrity), and 196 (Public participation and county assembly powers, privileges and immunities).
40. It is contended that these are matters that cannot be addressed by reference to Standing Orders alone, or by internal mechanisms that lack constitutional authority to adjudicate on fundamental rights. The question before this Court is not merely whether a Standing Order was followed or violated—it is whether elected public officials were excluded from performing their constitutional mandate in a manner that undermines the democratic fabric of the Constitution.
41. That Standing Orders of a County Assembly, while useful for regulating internal procedure, are subordinate instruments. They cannot be interpreted in a manner that limits or excludes constitutional rights, nor can they oust the jurisdiction of the High Court to address violations thereof. Article 2(1) of the Constitution declares the Constitution as the supreme law of the land, and Article 2(4) nullifies any law, including customary or procedural rules, that is inconsistent with the Constitution.
42. It is submitted that it would therefore be contrary to the letter and spirit of the Constitution to allow internal Assembly procedures to shield acts that are alleged to be unconstitutional. It is the Court''s role to serve as the guardian of the Constitution and to provide a remedy whenever public power is exercised in a manner that violates constitutional rights or principles.
43. That the Preliminary Objection also fails to consider the practical implications and the balance of convenience, both of which favour a full hearing of the Petition on its merits. The Petitioners submit that they are elected representatives of the people of Machakos County, and their continued exclusion from the Assembly directly affects the representation of their constituents and undermines the principle of devolution and participatory governance under Article 174.
44. The Petitioners submit that if the actions of the Respondents, if left unexamined by the Court, would create a dangerous precedent where Speakers or other administrative officers of legislative bodies could, through arbitrary fiat, lock out elected members without recourse, accountability, or justification. Such conduct, left unchecked, would erode public trust in the rule of law in the governance of public institutions.
45. That the overriding objective of the Constitution, as articulated in Articles 159, 10, and 259, is to foster a governance system that is transparent, accountable, just, and participatory. It would be a perversion of justice for this Court to decline jurisdiction merely on the basis of a technical objection that lacks factual support and seeks to shield alleged abuse of office.
46. The interests of justice therefore require that the Preliminary Objection be dismissed and that the substantive Petition proceed to hearing so that the serious constitutional issues raised may be fully ventilated and adjudicated on their merits.
The case of the Petitioners in Petition E024 of 2025
47. These petitioners submit that Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 as;
“…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”
48. Further, and as aptly enumerated in the infamous case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1”, Nyarangi J. held that: -
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
49. It is argued that whereas the Respondents content that this court has no jurisdiction, it is these Petitioners’ submission that this Court has the requisite jurisdiction, moved as a Constitutional Court to answer and give remedies for constitutional questions where there is clear breach and violation of the Petitioners Constitutional rights as enumerated in the pleadings filed.
50. The Petitioners submit that this court has jurisdiction to entertain the Petitions because their constitutional rights have been infringed upon and continue to be infringed by the Respondents. They refer to Article 22 of the Constitution provides for the enforcement of bill of Rights where individuals acting in the interest of a group or class of persons have the right to institute court proceedings for a claim that their right or fundamental freedom in the Bill of Rights has been violated or are under threat. In upholding and enforcing the Bill of Rights, Article 23 grants this court the unfettered jurisdiction to hear and determine applications/suits seeking for redress of violation or threats to rights or fundamental freedoms enshrined in the Bill of Rights.
51. On first exhausting the procedure under Standing Order 106A of the County Assembly Standing Orders, these Petitioners submit that the Petition relates to the infringement of Articles 10, 27, 28, 38, 47, 50, 73, 174, 175, 185 and 196 of the Constitution. The orders sought are orders that only the court with jurisdiction under Article 23 of the Constitution can issue. The only avenue for redress of such infringement is the mandated court under the Constitution and not the Committee as urged by the Respondents. Jurisdiction stems from the law. The law does not confer the Committee the jurisdiction to hear and determine matters relating to violation of the constitution.
52. Reliance is placed on West Kenya Sugar Co. Limited v Busia Sugar Industries Limited & 2 others [2017] eKLR, where Mukunya J, while addressing a similar objection that challenged the ELC Jurisdiction vis a vis the NEMA Tribunal vide a constitutional petition where the Petitioner had alleged violations of his rights under the Constitution, it was held that the mandate given to the NET under Section 129 of EMCA is limited in the scope of matters it can handle on appeal, and rendered itself thus:
“This argument that the court has no jurisdiction is based on a misunderstanding of the matter before this court. What is before the court is a constitutional petition in which the petitioner has alleged several violations of his rights enshrined in the Constitution. The National Environment Tribunal does not have mandate to deal with constitutional violations relating to the environment. That is the preserve of this Court. A look at the mandate given to the National Environment Tribunal under 5 section 129 of EMCA aforesaid shows a limited scope of the matters it can handle on appeal. They particularly deal with license and licensing...This court was established by Article 162(2)(b) of the Constitution of Kenya 2010. One of its mandates therein is to determine the environment and the use and occupation of and title to land. The issues herein deal with the environment use and occupation of land…”
53. Further reliance was placed on the holding in the Supreme Court of Kenya Petition E007 of 2023 Nicholus Abidha v Attorney General & 7 Others; National Environmental Complaints Committee & 5 Others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR), where the court was clear on the jurisdiction to entertain and determine a multifaceted petition of the nature and form of the current petitions filed before this honorable court when it held as follows;
“[100] In addressing the conundrum placed before us, we must remind ourselves that, what is in dispute before this Court is the applicability of these provisions to the appellant’s claim and not the true meaning of the provisions of either EMCA or the Energy Act. This is because the provisions of EMCA or the Energy Act do not expressly oust the jurisdiction of the ELC in respect of the procedure for the determination of disputes that involve the management of the environment or issues of petroleum and energy. In the ordinary course of events, the ELC still has original jurisdiction over the matters that are handled by NEMA, unless such jurisdiction is specifically and expressly ousted in a constitutionally compliant manner. The same holds true for proceedings under the Energy Act.
[105] We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief.
[107] Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism.”
54. That this decision of the supreme court has been relied on severally by this Court as it did in Nzomo (Suing on his own behalf and on behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Ltd & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 1572 (KLR) (14 March 2024) (Ruling) where Justice Omollo in dismissing a similar preliminary objection as the one currently before this court held as follows:
“25. In light of the foregoing finding in the case of Abidha Nicholas supra on jurisdiction, the question then is whether this petition raises any constitutional issues. The Respondents submitted that paragraphs 44 – 56 of the petition which raises administrative issues which have nothing to do with breach of constitutional rights. I have perused the petition and note for instance that paragraphs 55, 56 and 58 raises the issue of destruction of indigenous trees (harm to the environment). Paragraph 61 pleads breach of rights under article 184 of the Constitution and a breach of the right to public participation under article 10. Whether or not there is merit in the alleged breaches can only be determined during the hearing of the petition.
26. Consequently, I draw the conclusion that both the application and the two sets of the Preliminary Objection are not merited as the two applicable statutes (EMCA No. 3 of 1999 and PLUPA No. 13 of 2019) do not oust the jurisdiction of the court where the claim based on alleged breaches of constitutional rights. Secondly, the Petition is not res judicata as there is no merit decision in place. They are all dismissed with costs.
55. It is submitted that in a similar instance, a 3-judge bench in East Africa Wildlife Society & 3 others v Kenya National Highways Authority & 3 others; Law Society of Kenya & 5 Others (Interested Parties)(Environment and Planning Petition E001 of 2024) which relied on the mentioned Supreme Court decision in the case of Nicolas Abidha held as follows:
“Flowing from the exposition of the Supreme Court in the Nicholus case (supra), the following can safely be said to be the prevailing general law on the jurisdiction of the ELC in the context of the issue before us:
a. Section 129 and 130 of the EMCA does not vest in the NET jurisdiction to entertain claims relating to violation or threatened violation of the Constitution.
b. The right to access the court for redress of alleged constitutional violations should
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