The Petitioner filed the Petition dated 20 th November 2024 and amended Petition dated 30 th January 2025 seeking the following orders: -
A DECLARATION that the process followed by the 2 nd Respondent in maintaining the 1 st and 2 nd Interested Parties in the 1 st Respondent’s payroll was unconstitutional, illegal, unlawful and thus null and void.
An ORDER directing the 2 nd Respondent to remove the 1 st and 2 nd Interested Parties from the 1 st Respondent’s Payroll.
An ORDER of prohibition do issue restraining the 2 nd Respondent from maintaining the 1 st Interested party in the 1 st Respondent’s payroll unless the nomination of the 1 st Interested is done in strict adherence of the Constitution, the County Governments Act and other necessary relevant law.
An ORDER of prohibition do issue restraining the 2 nd Respondent from maintaining the 2 nd Interested Party in the 1 st Respondent’s payroll until fresh elections are conducted in Nyansiongo Ward in strict adherence of the Constitution, the County Governments Act, Election Act and other necessary relevant law.
An ORDER directing the 2 nd Respondent to surcharge the 1 st and 2 nd Interested Parties the Salaries, Personal emoluments earned from 6 th July 2023 until full settlement.
In the alternative of prayer (e) hereinabove, the 2 nd Respondent, Duke Onyari be held liable for unlawful payment of salaries and personal emoluments to the 1 st and 2 nd Interested parties.
A permanent injunction, restraining the Respondents either by themselves, agents, servants and/or employees from admitting the 1 st and 2 nd Respondents into the payroll of the 1 st Respondent.
An ORDER be issued by way of Mandamus compelling the 2 nd Respondent to degazette the 1 st and 2 nd Interested Parties as nominated MCA and Nyansiongo ward MCA respectively.
An order awarding costs of the Petition to the Petitioner.
Any other or further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner’s fundamental rights and freedoms.
Concurrently with the Petition, the Petitioner filed an Application seeking, inter alia, orders of injunction restraining the 1 st and 2 nd Respondents from drawing salaries and holding the offices that they currently hold.
The 1 st – 4 th Respondents and 2 nd Interested Party opposed the Petition and Application through a Notice of Preliminary Objection (PO) dated 4 th February 2025 which is the subject of this Ruling. The PO is based on the following grounds: -
The instant Petition does not comply with the doctrine of the holy trinity of constitutional petitions and the threshold enunciated in the celebrate (sic) case of Anarita Karimi Njeru vs. the Republic (1976-1980) KLR 1272 and reiterated by the Court of Appeal in Mumo Matemu vs. Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice and Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists and the Kenyan Human Rights Commission, Civil Appeal 290 of 2012 (2013) KECA 445 (KLR) in that, the Petition does not: -
Indicate any constitutional provisions violated by the 1 st to 4 th Respondents and 2 nd Interested Party.
The manner in which the 1 st to 4 th Respondents and 2 nd Interested Party have violated any constitutional provisions.
The Petition does not indicate under which provision of the Constitution the jurisdiction of the High Court has been invoked.
The PO was canvassed by way of written submissions which I have considered.
The 1 st to 4 th Respondents and 2 nd Interested Party’s Submissions
The Respondents and Interested Party submitted that the Petitioner did not indicate any provisions of the Constitution that had been violated contrary to the provisions of Rule 10(1) of the Constitution of Kenya Rules which prescribes the format of a constitutional petition. Reference was made to the decision in the case of Anarita Karimi Njeru vs. Republic (1979) eKLR where the court outlined the legal threshold to be met in a constitutional petition.
It was submitted that since the Petition involves the alleged breach of constitutional provisions and rights, it should have set out, with a reasonable degree of precision, the constitutional provisions under which the High Court’s jurisdiction is invoked.
The 5 th Respondent’s Submissions
The 5 th Respondent submitted that the Petitioner did not demonstrate, with certainty, how the Petitioner’s rights were violated or provide particulars of the allegations and the manner of infringement. Reference was made to the case of Anarita Karimi (supra) and Kiambu County Tenants Welfare Association vs. Attorney General and Another [2017] eKLR for the proposition that a party seeking redress in a constitutional petition must not only state the provisions of the Constitution that are allegedly infringed but must also demonstrate the manner, the nature and the extent of that infringement and the injuries suffered. It was the 5 th Respondent’s case that the present petition does not meet the threshold set in constitutional petitions.
The 2 nd Interested Party adopted the 1 st – 5 th Respondents’ submissions.
The Petitioner’s Submissions
The Petitioner submitted that a cursory glance at the amended Petition shows that the Petitioner has clearly set out the legal provisions on which the Petition is founded at paragraphs 8 – 24 thereof and the facts in support at paragraphs 1-21. It was submitted that the Respondents failed to discharge their constitutional mandates thereby giving rise to gross abuse of the Constitution as the Interested Parties continue to hold offices despite the existence of valid judgments showing that they were not legitimately nominated to the said positions.
It was the Petitioner’s case that he has set out, with precision, the manner in which the Respondents had infringed the constitutional rights of the constituents of Nyamira County.
It was further submitted that the court can still determine a constitutional issue without compliance with the technical aspect of formal documentation as long as the court is able to make sense of the constitutional questions that are canvassed by the Petitioner. The Petitioner cited the provisions of Rules 10 (3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and the case of Michael Osundwa Sakwa vs. Chief Justice and President of the Supreme Court of Kenya & Another (2016) eKLR.
It was submitted that the Court’s jurisdiction was adequately set out under Article 165 of the Constitution . Issues for Determination
I find that the main issue for determination is whether the Preliminary Objection is merited.
The law governing preliminary objections was set out in locus classicus case of Mukisa Biscuits Manufacturing Ltd vs, West End Distributors (1969) EA 696 where the court discussed what constitutes a preliminary objection 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.
Sir Charles Newbold P. stated:-
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.”
The Supreme Court restated the same principles in the case of Hassan Ali Joho & another vs. 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.”
The principle that emerges from the above cited cases is that for a PO to succeed, the court must satisfy itself that the facts of the case are not contested and that the objection is purely on points of law.
In this case, I find that the issues raised by the Petitioner, to wit , that the Interested Parties hold offices and are drawing salaries in positions that the court declared illegal, are issues that can only be fully addressed during a full hearing and not in the PO. I find guidance in the decision in Oraro vs. Mbaja [2005] eKLR where it was held: -
“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”
I further find that the claim that the Petition does not meet the threshold set in the Anarita Karimi Njeru case (supra), on the basis that it does not outline the particulars of the constitutional provisions that are violated, cannot defeat the petition. Courts are, under Article 22 of the Constitution, expected to as much as possible sustain, hear and determine issues of constitutional violations whether or not the same have been set out in the prescribed manner. The said Article 22 of the Constitution stipulates: -
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—
the rights of standing provided for in clause (2) are fully facilitated;
formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
no fee may be charged for commencing the proceedings;
the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and…..
I further place reliance on the decision, by Odunga J. ( as he then was ) in Michael Osundwa Sakwa vs. Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR where it was held thus: -
“63. …..On the issue whether this Court can determine the Constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which proceedings may even be commenced on the basis of informal documentation. This is not to say that the Court ought to encourage and condone sloppy and carelessly drafted petitions. What it means is that:
‘the initial approach of the courts must now not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out. But the new approach is not to say that the new thinking totally uproots all well-established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice.’
(See Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission & 2 Others Civil Appeal (Application) No. 152 of 2009.)”
For the reasons that I have stated in this ruling, I find that the PO is not merited and I therefore dismiss it with orders that the costs of the PO shall abide the outcome of the Petition.
It is so ordered.
A DECLARATION that the process followed by the 2 nd Respondent in maintaining the 1 st and 2 nd Interested Parties in the 1 st Respondent’s payroll was unconstitutional, illegal, unlawful and thus null and void.
An ORDER directing the 2 nd Respondent to remove the 1 st and 2 nd Interested Parties from the 1 st Respondent’s Payroll.
An ORDER of prohibition do issue restraining the 2 nd Respondent from maintaining the 1 st Interested party in the 1 st Respondent’s payroll unless the nomination of the 1 st Interested is done in strict adherence of the Constitution, the County Governments Act and other necessary relevant law.
An ORDER of prohibition do issue restraining the 2 nd Respondent from maintaining the 2 nd Interested Party in the 1 st Respondent’s payroll until fresh elections are conducted in Nyansiongo Ward in strict adherence of the Constitution, the County Governments Act, Election Act and other necessary relevant law.
An ORDER directing the 2 nd Respondent to surcharge the 1 st and 2 nd Interested Parties the Salaries, Personal emoluments earned from 6 th July 2023 until full settlement.
In the alternative of prayer (e) hereinabove, the 2 nd Respondent, Duke Onyari be held liable for unlawful payment of salaries and personal emoluments to the 1 st and 2 nd Interested parties.
A permanent injunction, restraining the Respondents either by themselves, agents, servants and/or employees from admitting the 1 st and 2 nd Respondents into the payroll of the 1 st Respondent.
An ORDER be issued by way of Mandamus compelling the 2 nd Respondent to degazette the 1 st and 2 nd Interested Parties as nominated MCA and Nyansiongo ward MCA respectively.
An order awarding costs of the Petition to the Petitioner.
Any other or further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner’s fundamental rights and freedoms.
Concurrently with the Petition, the Petitioner filed an Application seeking, inter alia, orders of injunction restraining the 1 st and 2 nd Respondents from drawing salaries and holding the offices that they currently hold.
The 1 st – 4 th Respondents and 2 nd Interested Party opposed the Petition and Application through a Notice of Preliminary Objection (PO) dated 4 th February 2025 which is the subject of this Ruling. The PO is based on the following grounds: -
The instant Petition does not comply with the doctrine of the holy trinity of constitutional petitions and the threshold enunciated in the celebrate (sic) case of Anarita Karimi Njeru vs. the Republic (1976-1980) KLR 1272 and reiterated by the Court of Appeal in Mumo Matemu vs. Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice and Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists and the Kenyan Human Rights Commission, Civil Appeal 290 of 2012 (2013) KECA 445 (KLR) in that, the Petition does not: -
Indicate any constitutional provisions violated by the 1 st to 4 th Respondents and 2 nd Interested Party.
The manner in which the 1 st to 4 th Respondents and 2 nd Interested Party have violated any constitutional provisions.
The Petition does not indicate under which provision of the Constitution the jurisdiction of the High Court has been invoked.
The PO was canvassed by way of written submissions which I have considered.
The 1 st to 4 th Respondents and 2 nd Interested Party’s Submissions
The Respondents and Interested Party submitted that the Petitioner did not indicate any provisions of the Constitution that had been violated contrary to the provisions of Rule 10(1) of the Constitution of Kenya Rules which prescribes the format of a constitutional petition. Reference was made to the decision in the case of Anarita Karimi Njeru vs. Republic (1979) eKLR where the court outlined the legal threshold to be met in a constitutional petition.
It was submitted that since the Petition involves the alleged breach of constitutional provisions and rights, it should have set out, with a reasonable degree of precision, the constitutional provisions under which the High Court’s jurisdiction is invoked.
The 5 th Respondent’s Submissions
The 5 th Respondent submitted that the Petitioner did not demonstrate, with certainty, how the Petitioner’s rights were violated or provide particulars of the allegations and the manner of infringement. Reference was made to the case of Anarita Karimi (supra) and Kiambu County Tenants Welfare Association vs. Attorney General and Another [2017] eKLR for the proposition that a party seeking redress in a constitutional petition must not only state the provisions of the Constitution that are allegedly infringed but must also demonstrate the manner, the nature and the extent of that infringement and the injuries suffered. It was the 5 th Respondent’s case that the present petition does not meet the threshold set in constitutional petitions.
The 2 nd Interested Party adopted the 1 st – 5 th Respondents’ submissions.
The Petitioner’s Submissions
The Petitioner submitted that a cursory glance at the amended Petition shows that the Petitioner has clearly set out the legal provisions on which the Petition is founded at paragraphs 8 – 24 thereof and the facts in support at paragraphs 1-21. It was submitted that the Respondents failed to discharge their constitutional mandates thereby giving rise to gross abuse of the Constitution as the Interested Parties continue to hold offices despite the existence of valid judgments showing that they were not legitimately nominated to the said positions.
It was the Petitioner’s case that he has set out, with precision, the manner in which the Respondents had infringed the constitutional rights of the constituents of Nyamira County.
It was further submitted that the court can still determine a constitutional issue without compliance with the technical aspect of formal documentation as long as the court is able to make sense of the constitutional questions that are canvassed by the Petitioner. The Petitioner cited the provisions of Rules 10 (3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and the case of Michael Osundwa Sakwa vs. Chief Justice and President of the Supreme Court of Kenya & Another (2016) eKLR.
It was submitted that the Court’s jurisdiction was adequately set out under Article 165 of the Constitution . Issues for Determination
I find that the main issue for determination is whether the Preliminary Objection is merited.
The law governing preliminary objections was set out in locus classicus case of Mukisa Biscuits Manufacturing Ltd vs, West End Distributors (1969) EA 696 where the court discussed what constitutes a preliminary objection 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.
Sir Charles Newbold P. stated:-
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.”
The Supreme Court restated the same principles in the case of Hassan Ali Joho & another vs. 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.”
The principle that emerges from the above cited cases is that for a PO to succeed, the court must satisfy itself that the facts of the case are not contested and that the objection is purely on points of law.
In this case, I find that the issues raised by the Petitioner, to wit , that the Interested Parties hold offices and are drawing salaries in positions that the court declared illegal, are issues that can only be fully addressed during a full hearing and not in the PO. I find guidance in the decision in Oraro vs. Mbaja [2005] eKLR where it was held: -
“I think the principle is abundantly clear. A preliminary objection as correctly understood is now well settled. It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.”
I further find that the claim that the Petition does not meet the threshold set in the Anarita Karimi Njeru case (supra), on the basis that it does not outline the particulars of the constitutional provisions that are violated, cannot defeat the petition. Courts are, under Article 22 of the Constitution, expected to as much as possible sustain, hear and determine issues of constitutional violations whether or not the same have been set out in the prescribed manner. The said Article 22 of the Constitution stipulates: -
(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—
the rights of standing provided for in clause (2) are fully facilitated;
formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
no fee may be charged for commencing the proceedings;
the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and…..
I further place reliance on the decision, by Odunga J. ( as he then was ) in Michael Osundwa Sakwa vs. Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR where it was held thus: -
“63. …..On the issue whether this Court can determine the Constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which proceedings may even be commenced on the basis of informal documentation. This is not to say that the Court ought to encourage and condone sloppy and carelessly drafted petitions. What it means is that:
‘the initial approach of the courts must now not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out. But the new approach is not to say that the new thinking totally uproots all well-established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice.’
(See Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission & 2 Others Civil Appeal (Application) No. 152 of 2009.)”
For the reasons that I have stated in this ruling, I find that the PO is not merited and I therefore dismiss it with orders that the costs of the PO shall abide the outcome of the Petition.
It is so ordered.