1. The Petitioner is described in the Amended Petition as an adult Kenyan citizen who brings this Petition pursuant to Articles 22 and 258 of the Constitution in the public interest and for the enforcement of constitutional rights and principles of governance.
2. The 1st Respondent is described as the Nyamira County Assembly, being the legislative arm of the Nyamira County Government, exercising legislative and oversight functions over the County Executive and other entities within the County Government framework, and having capacity to sue and be sued.
3. The 2nd Respondent is described as the Clerk of the Nyamira County Assembly, being the administrative head of the 1st Respondent and an officer with capacity to sue and be sued.
4. The 3rd Respondent is described as the Speaker of the Nyamira County Assembly and the presiding officer of the Assembly.
5. The 4th Respondent is described as the Nyamira County Assembly Service Board, a body corporate responsible for providing services and facilities necessary for the efficient and effective functioning of the County Assembly, and having capacity to sue and be sued.
6. The 5th Respondent is described as the Independent Electoral and Boundaries Commission, being the constitutional commission responsible for conducting or supervising referendums and elections to any elective body or office established under Article 88 of the Constitution.
7. The 1st and 2nd Interested Parties are described as adult Kenyan citizens of sound mind who were, at all material times, members of the County Assembly of Nyamira, the 1st Interested Party having been nominated and the 2nd Interested Party having been elected.
8. The Petitioner brings this Petition as a resident and voter within Nyamira County, asserting locus standi in the public interest pursuant to Articles 22 and 258 of the Constitution for the enforcement of constitutional rights and principles governing the management of public funds and the integrity of public office.
9. This matter was commenced by way of a Petition dated 20th November 2024 and subsequently amended on 30th January 2025. The Petition is expressed to be brought in the matter of alleged violation and infringement of rights and fundamental freedoms guaranteed under Articles 25, 27, 28, 33, 35, 41, 47, 48 and 50 of the Constitution, and in the matter of alleged contravention of the County Governments Act, the Fair Administrative Action Act, 2015 and the Public Finance Management Act, 2012. The Petition challenges, inter alia, the continued recognition, participation and remuneration of the 1st and 2nd Interested Parties as members of the Nyamira County Assembly notwithstanding judicial determinations nullifying their respective nomination and election.
10. The Petition, as amended, is grounded upon a series of factual and legal complaints which challenge the continued inclusion of the Interested Parties in the affairs and payroll of the Nyamira County Assembly following judicial determinations affecting their status.
11. It is pleaded that during the August 2022 general elections, the 1st Interested Party was nominated to represent the Orange Democratic Movement Party in the Nyamira County Assembly under the marginalized (youth) category, while the 2nd Interested Party was elected to represent Nyansiongo Ward in the same Assembly.
12. The Petitioner avers that the nomination of the 1st Interested Party was challenged in Mogeni v Independent Electoral and Boundaries Commission & 2 others [2023] KEHC 3193 (KLR), wherein the High Court, in a judgment delivered on 6th July 2023, allowed the appeal, found that the nominee was not qualified for nomination under the youth category, and declared the process leading to his gazettement illegal, null and void, with consequential orders for revocation and fresh nomination.
13. It is further pleaded that the election of the 2nd Interested Party was the subject of challenge in Keroka Principal Magistrate’s Court Election Petition No. E001 of 2022 (Mochumbe Jackson Mogusu & 2 Others v Nyaribo Dennis Kebaso & Others), where the trial court invalidated the election and ordered a fresh poll, which decision was subsequently the subject of appeal in Mogusu & another v Kebaso & 6 others [2023] KEHC 19688 (KLR), wherein the High Court, in a judgment delivered on 6th July 2023, dismissed the consolidated appeals and set aside the order on costs, directing that each party bears its own costs.
14. The Petitioner contends that despite the appellate determinations, the 2nd Respondent maintained the names of the 1st and 2nd Interested Parties in the payroll of the 1st Respondent to the detriment of the residents of Nyamira County.
15. The Petition proceeds on the basis that the continued inclusion of the Interested Parties in the payroll resulted in payment of salaries, remuneration and allowances that were not lawfully due, and that such payments, once made, could not be recovered, thereby exposing public funds to irrecoverable loss.
16. The Petitioner asserts that the protection of public funds is the responsibility of every state organ and person, and that there exists a constitutional duty to ensure compliance with the Constitution, including the provisions governing the management of public finances at the county level.
17. It is further pleaded that the continued participation of the Interested Parties in the activities of the County Assembly, notwithstanding the nullification of their respective positions, rendered the Assembly ungovernable and interfered with its lawful functioning, yet there existed no legal justification for such participation.
18. The Petitioner also contends that the Respondents acted in contravention of the County Governments Act and the Standing Orders governing the operations of the 1st Respondent, and that unless restrained by this Court, such conduct would result in duplication of roles and wastage of public resources.
19. The Petition invokes the constitutional guarantees of fair administrative action and fair hearing, contending that the impugned actions were inconsistent with Articles 47 and 50 of the Constitution.
20. It is further contended that unless the reliefs sought are granted, the substratum of the Petition will be rendered nugatory and the issues raised reduced to a mere academic exercise.
21. In the premises, the Petitioner seeks the following reliefs:
1) A declaration that the process of maintaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent was unconstitutional, illegal, null and void;
2) An order directing the 2nd Respondent to remove the 1st and 2nd Interested Parties from the payroll of the 1st Respondent;
3) An order of prohibition restraining the 2nd Respondent from maintaining the 1st Interested Party in the payroll unless nomination is conducted in strict compliance with the Constitution and the law;
4) An order of prohibition restraining the 2nd Respondent from maintaining the 2nd Interested Party in the payroll until fresh elections are conducted in Nyansiongo Ward in strict adherence of the Constitution, the County Governments Act and other relevant laws;
5) An order directing the 2nd Respondent to surcharge the 1st and 2nd Interested Parties the salaries and personal emoluments earned from 06th July 2023 until full settlement;
6) In the alternative to prayer (e), an order that the 2nd Respondent, Duke Onyari, be held liable for unlawful payment of salaries and personal emoluments to the 1st and 2nd Interested Parties;
7) A permanent injunction restraining the Respondents from admitting the 1st and 2nd Interested Parties into the payroll of the 1st Respondent;
8) An order by way of mandamus compelling the 2nd Respondent to degazette the 1st and 2nd Interested Parties as nominated and elected Members of County Assembly respectively;
9) Costs of the Petition;
10) Any other relief that this Court may deem just and appropriate.
22. The 1st and 4th Respondents oppose the Petition through the Replying Affidavit of Duke S. Onyari, the Clerk of the Nyamira County Assembly, sworn on 10th December 2025, contending that the Petition is misconceived in fact and law and discloses no constitutional violation attributable to them.
23. It is their case that the Clerk of the County Assembly is not the officer responsible for the disbursement of salaries and allowances, and that any liability for alleged unlawful payments cannot be attributed to that office.
24. They further contend that they were not parties to the election petitions and appeals that culminated in the nullification of the Interested Parties’ positions, and that implementation of such decisions is subject to statutory processes, including formal notification under the Elections Act.
25. The 1st and 4th Respondents attribute any delay in implementation to procedural and institutional constraints, including delays in communication, the absence of a duly constituted electoral commission at the material time, and operational challenges affecting the relevant institutions.
26. It is further their position that the issues raised in the Petition have since been overtaken by events, the nomination of the 1st Interested Party having been revoked by Gazette Notice dated 26th August 2025 and subsequently replaced on 24th September 2025, while the seat of the 2nd Interested Party was declared vacant on 08th August 2025, followed by a by-election held on 27th November 2025 and the gazettement of a new member on 01st December 2025.
27. The 5th Respondent opposes the Petition through the Replying Affidavit of Chrispine Owiye, OGW, sworn on 17th September 2025, and maintains that it acted at all times within its constitutional and statutory mandate. It is deponed that following the 2022 General Election, the 2nd Interested Party was elected as Member of County Assembly for Nyansiongo Ward, as reflected in a Gazette Notice published on 24th August 2022. The deponent avers that the election of the 2nd Interested Party was subsequently challenged in Keroka Principal Magistrate’s Court Election Petition No. E001 of 2022 (Mochumbe Jackson Mogusu & 2 Others v Nyaribo Dennis Kebaso & 2 Others), wherein the court, in a judgment delivered on 15th February 2023, invalidated the election and directed the 5th Respondent to conduct a fresh election for Nyansiongo Ward.
28. It is further deponed that the said decision was the subject of appeal in Nyamira High Court Election Petition Appeal Nos. E006 and E007 of 2023 (Consolidated), and that in a judgment delivered on 6th July 2023, the High Court dismissed the appeals and upheld the decision of the trial court, save as to costs.
29. With respect to the 1st Interested Party, the 5th Respondent avers that the nomination was challenged in Nyamira High Court Election Petition Appeal No. E004 of 2023, wherein the Court declared the nomination and gazettement unlawful, illegal, null and void, and directed that the same be revoked and a fresh nomination undertaken.
30. It is deponed that, in compliance with the said judgment, the 5th Respondent revoked the nomination of the 1st Interested Party through a Gazette Notice dated 26th August 2025.
31. The 5th Respondent further avers that it, together with the relevant political party, commenced the process of reallocating the seat in accordance with the court’s directions.
32. It is therefore the 5th Respondent’s position that it fully complied with all lawful court orders arising from the election petitions and appeals, and that no constitutional violation can be attributed to it.
33. On that basis, the 5th Respondent contends that the Petition discloses no cause of action against it and urges the Court to dismiss it with costs.
34. The 1st Interested Party opposes the Petition through his Response to the Amended Petition dated 28th November 2025, wherein he denies each and every allegation contained in the Petition save for those expressly admitted. He admits that he was nominated to the Nyamira County Assembly to represent the Orange Democratic Movement Party but avers that the election petitions and appeals referenced by the Petitioner were dismissed, and denies that his name has been maintained in the payroll, putting the Petitioner to strict proof.
35. The 1st Interested Party further avers that the Court has since pronounced itself on his status and maintains that he is no longer representing any person in the Nyamira County Assembly. He states that the seat was declared vacant on 08th July 2025, following communication by the 3rd Respondent vide a letter dated 16th June 2025, and that his nomination was revoked and he was duly degazetted through a Kenya Gazette Notice published on 26th August 2025, thereby bringing his tenure to an end.
36. The 1st Interested Party denies the remaining allegations in the Petition and contends that the same are untrue and unsupported, and further avers that the Petition is incompetent, devoid of legal justification, and an afterthought intended to advance mischief without any legal basis. He maintains that the Petitioner has not established any entitlement to the reliefs sought and urges the Court to dismiss the Petition with costs.
37. The Petition was canvassed by way of written submissions. The parties’ submissions, though advanced from differing perspectives, coalesce around a number of discernible issues which may conveniently be considered in sequence.
38. Prominent among these is the question concerning the legal effect attendant upon the nullification of an election or nomination. The Petitioner, in submissions dated 02nd April 2026, anchors his argument on the supremacy of judicial determinations and the immediate legal consequences flowing from nullification. It is submitted that once a court of competent jurisdiction nullifies an election or nomination, the legal foundation upon which the office is held is extinguished forthwith. In support of this proposition, reliance is placed on Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 for the principle that a void act is a nullity and every proceeding founded on it is incurably defective, and on Raila Odinga & Another v IEBC & 2 Others [2017] eKLR to reinforce the argument that an election that does not comply with constitutional and legal standards cannot confer a lawful mandate. The Petitioner further invokes Teachers Service Commission v KNUT [2015] eKLR to submit that court orders are binding and must be complied with unconditionally and cannot be subordinated to administrative convenience or bureaucratic delay. On that basis, it is contended that certification and gazettement are merely consequential administrative acts that cannot sustain an otherwise invalid office.
39. In contrast, the 1st and 4th Respondents together with the 2nd Interested Party, in submissions dated 05th March 2026, argue that the legal consequences of nullification are not self-executing and must be operationalised through the statutory framework established under section 86(1) of the Elections Act. It is submitted that certification and notification by the election court are not mere formalities but integral steps in giving legal effect to the judgment, and that in their absence, the process of declaring a vacancy and effecting replacement cannot lawfully commence. To contextualise the delay in implementation, they rely on Moenga & 2 others v Nyamora & 7 others; Nyabaro & another (Interested Parties) [2025] KEHC 7765 (KLR) to demonstrate the institutional challenges that affected the Nyamira County Assembly, including leadership disputes and administrative paralysis. The 05th Respondent, in submissions dated 06th February 2026, while not directly contesting the doctrine of nullity, supports the position that implementation of court decisions must occur within the constitutional and statutory framework governing electoral processes and maintains that all steps taken were within its mandate.
40. Closely related is the question whether the Interested Parties lawfully continued in office following nullification. The Petitioner maintains that upon nullification, the Interested Parties ceased, in law, to be members of the County Assembly and could not lawfully continue to occupy office or discharge its functions, relying on the same authorities of Macfoy v United Africa Co. Ltd and Raila Odinga & Another v IEBC & 2 Others (supra).
41. The 1st Interested Party, in submissions dated 05th March 2026, contests that position and argues that cessation of office is dependent upon compliance with statutory processes, including certification, notification, and gazettement, and that any delay in removal cannot be equated to unlawful occupation. Similarly, the 1st and 4th Respondents together with the 2nd Interested Party submit that any continued presence in office was attributable to institutional and procedural constraints, again placing reliance on Moenga & 2 others v Nyamora & 7 others; Nyabaro & another (Interested Parties) (supra).
42. The 5th Respondent in submissions dated 06th February 2026 maintains that it acted within its mandate in revoking nomination and facilitating the processes leading to replacement, and that no illegality can be attributed to it.
43. The parties further address the allegation that the continued retention of the Interested Parties in the payroll after nullification resulted in unlawful payment of salaries and allowances, thereby occasioning loss of public funds. The Petitioner submits that such payments were unlawful and relies on Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR for the principle that public funds must be utilised strictly in accordance with the law and that any unauthorised expenditure is unconstitutional. The Petitioner further invokes section 112 of the Evidence Act to argue that payroll records are within the exclusive control of the Respondents, and that failure to produce such records entitles the Court to draw an adverse inference. The 1st Interested Party disputes the allegation and submits that no evidence has been placed before the Court to demonstrate continued receipt of salaries or allowances after nullification, and that the burden of proof lies upon the Petitioner. The 1st and 4th Respondents together with the 2nd Interested Party similarly contend that the Petitioner has failed to discharge the evidential burden required to establish unlawful expenditure or liability.
44. It is also contended that the Petition does not meet the constitutional threshold required for the enforcement of fundamental rights and freedoms. The 5th Respondent, and the 1st Interested Party, in submissions dated 05th March 2026, submit that the Petition fails to meet that threshold, both relying on Anarita Karimi Njeru v Republic (1979) eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR for the requirement that constitutional violations be pleaded with reasonable precision and supported by a proper factual foundation. The 1st Interested Party further relies on Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR) to argue that constitutional petitions must not be framed in general terms or used as substitutes for ordinary civil disputes where alternative remedies exist. The Petitioner, on the other hand, relies on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) to contend that the Petition meets the threshold. It is therefore evident that these authorities are relied upon by the Petitioner, the 5th Respondent, and the 1st Interested Party alike, albeit to advance opposing conclusions.
45. The 1st to 4th Respondents together with the 2nd Interested Party further submit that the Petition has been overtaken by events, on the basis that the 1st Interested Party was degazetted and replaced, and that a by-election was conducted in respect of the 2nd Interested Party’s seat, rendering the reliefs sought incapable of enforcement. The Petitioner, however, relies on Communications Commission of Kenya v Royal Media Services Ltd & 5 Others [2014] eKLR to submit that courts retain jurisdiction to determine issues of public importance even where intervening events have occurred. It is argued that the question of unlawful expenditure of public funds remains live and justiciable notwithstanding subsequent compliance. The 1st Interested Party aligns with the position that the matter has been overtaken by events, while the 5th Respondent maintains that the processes undertaken were within the law.
46. On liability, the Petitioner submits that liability attaches to the Respondents for permitting continued occupation of office and the resultant unlawful expenditure of public funds. The 1st to 4th Respondents together with the 2ndInterested Party dispute liability and submit that the 2nd Respondent, being the Clerk of the County Assembly, is not the accounting officer responsible for disbursement of salaries and allowances, relying on sections 19 and 20 of the County Assemblies Services Act. They further submit that the power to gazette or degazette members lies exclusively with the electoral body. The 1st Interested Party similarly disputes any liability, maintaining that no unlawful benefit has been demonstrated. The 5th Respondent maintains that its mandate is limited to functions expressly conferred by the Constitution and statute, that it acted within that mandate, and that no causal nexus has been established between its actions and the alleged violations, and that no liability can therefore attach.
47. Finally, on the issue of costs, all parties rely on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR for the principle that costs follow the event, subject to the discretion of the Court. The 1st to 4th Respondents together with the 2nd Interested Party further rely on Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383 and Re Ebuneiri Waisswa Kafuko, Kampala HCMA No. 81 of 1993 cited in Pet No 466 of 2014 Republic vs Kenya National Highway Authority & Others, Ex parte Kanyingi Wahome to emphasise that costs are discretionary and that a successful party should not be denied costs absent misconduct. The Petitioner urges that costs be awarded in its favour, while the 1st Interested Party, the 1st to 4th Respondents together with the 2nd Interested Party, and the 5th Respondent urge the Court to exercise its discretion otherwise.
Issues for determination
48. Having considered the Amended Petition, the responses thereto, the rival submissions by the parties, and the specific reliefs sought, the issues that arise for determination are as follows:
1) Whether the Amended Petition meets the constitutional threshold for a constitutional petition, including the requirement of precision in pleading and evidentiary sufficiency;
2) Whether the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took immediate legal effect, or was contingent upon certification, notification and other statutory processes under the Elections Act;
3) Whether, following such nullification, the continued inclusion of the 1st and 2nd Interested Parties in the payroll of the 1st Respondent, and their participation in the affairs of the Nyamira County Assembly, was unconstitutional, illegal and unlawful;
4) Whether any salaries, allowances and/or other emoluments were paid to the 1st and 2nd Interested Parties after nullification, and if so, whether such payments constituted unlawful expenditure of public funds and are recoverable by way of surcharge;
5) Whether the 2nd Respondent is the proper party against whom the orders sought, including removal from payroll, prohibition, mandamus for degazettement, and/or personal liability, can issue, having regard to the statutory mandate of that office;
6) Whether the Petitioner has established a basis for the grant of the declaratory, prohibitory and mandatory orders sought, including removal from payroll and restraining further inclusion of the Interested Parties therein;
7) Whether the Petitioner has established a basis for the grant of a permanent injunction restraining the Respondents from admitting or retaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent;
8) Whether the Petition has been overtaken by events in light of the subsequent degazettement, declaration of vacancies, and replacement of the Interested Parties;
9) What orders should issue, including on costs.
49. The first issue for determination is whether the Amended Petition meets the constitutional threshold required of a constitutional petition. The applicable principles are settled. In Anarita Karimi Njeru v Republic (supra), and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra), the courts held that a party alleging violation of constitutional rights must set out, with reasonable precision, the provisions said to be infringed and the manner of such infringement, and must present a clear factual foundation capable of sustaining constitutional adjudication.
50. The 1st Interested Party and the 5th Respondent contend that the Petition falls short of that threshold. They argue that it is vague and omnibus, that it cites numerous constitutional provisions without particularizing the alleged violations, and that it is unsupported by evidence, particularly in relation to the allegation that the Interested Parties continued to receive salaries after nullification. On that basis, they urge that the Petition does not disclose a sustainable constitutional claim.
51. The Petitioner, on the other hand, maintains that the Petition clearly identifies the impugned conduct, namely the continued recognition, participation and remuneration of the 1st and 2nd Interested Parties as members of the Nyamira County Assembly notwithstanding judicial determinations nullifying their respective nomination and election. It is further contended that this conduct is linked to constitutional principles relating to governance, the rule of law and public finance, and that the factual basis is sufficiently set out to warrant constitutional intervention.
52. Upon consideration of the Amended Petition, this Court is satisfied that the gravamen of the complaint is clearly discernible. The Petition is anchored on a specific factual matrix, namely that despite the nullification of the nomination and election of the Interested Parties, they continued to be retained in office and in the payroll of the 1st Respondent, thereby occasioning expenditure of public funds without lawful authority.
53. That complaint is directly linked to identifiable constitutional principles, particularly those governing the rule of law, accountability in public office, and the lawful use of public resources. Although multiple constitutional provisions are cited, the substance of the claim is neither vague nor speculative, and the issues in controversy are capable of clear identification.
54. As regards the contention that the Petition is unsupported by evidence, that argument properly goes to the merits rather than to the competency of the Petition. At this stage, the question is whether a justiciable constitutional issue has been disclosed. The evidentiary burden, including the production of payroll records, falls for consideration upon evaluation of the evidence, and in any event such records lie within the custody of the Respondents.
55. In the premises, the Court is satisfied that the Amended Petition meets the constitutional threshold. It sets out with sufficient clarity the impugned conduct, the constitutional principles implicated, and the nature of the alleged violation, and therefore discloses a proper basis for constitutional adjudication.
56. Accordingly, the Court finds that the Amended Petition is competent and properly before it.
57. The second issue for determination is whether the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took immediate legal effect, or whether it was contingent upon certification, notification and other statutory processes under the Elections Act.
58. The Petitioner’s case is that once a court of competent jurisdiction nullifies an election or nomination, the legal foundation upon which the office is held is extinguished immediately, and any continued recognition of such office thereafter is unlawful. It is contended that the subsequent processes of certification, notification or gazettement are merely administrative steps which cannot confer validity upon an otherwise nullified office.
59. The Respondents, on the other hand, contend that the implementation of such nullification is dependent upon compliance with statutory procedures, particularly certification and notification under section 86(1) of the Elections Act. It is their position that in the absence of such certification, the process of declaring a vacancy and effecting replacement cannot lawfully be undertaken, and that any delay in implementation must be viewed within that statutory framework.
60. It is not in dispute that the nomination of the 1st Interested Party and the election of the 2nd Interested Party were both nullified through judicial proceedings, culminating in the determination of the respective appeals on 06th July 2023. The question is therefore not whether nullification occurred, but when its legal effect crystallised.
61. This Court is of the considered view that a clear distinction must be drawn between the legal effect of a judicial determination and the administrative steps necessary for its implementation.
62. A judgment of a competent court takes effect upon delivery, unless stayed or set aside on appeal. Where an appeal is preferred, the operative legal position is determined upon conclusion of the app
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2. The 1st Respondent is described as the Nyamira County Assembly, being the legislative arm of the Nyamira County Government, exercising legislative and oversight functions over the County Executive and other entities within the County Government framework, and having capacity to sue and be sued.
3. The 2nd Respondent is described as the Clerk of the Nyamira County Assembly, being the administrative head of the 1st Respondent and an officer with capacity to sue and be sued.
4. The 3rd Respondent is described as the Speaker of the Nyamira County Assembly and the presiding officer of the Assembly.
5. The 4th Respondent is described as the Nyamira County Assembly Service Board, a body corporate responsible for providing services and facilities necessary for the efficient and effective functioning of the County Assembly, and having capacity to sue and be sued.
6. The 5th Respondent is described as the Independent Electoral and Boundaries Commission, being the constitutional commission responsible for conducting or supervising referendums and elections to any elective body or office established under Article 88 of the Constitution.
7. The 1st and 2nd Interested Parties are described as adult Kenyan citizens of sound mind who were, at all material times, members of the County Assembly of Nyamira, the 1st Interested Party having been nominated and the 2nd Interested Party having been elected.
8. The Petitioner brings this Petition as a resident and voter within Nyamira County, asserting locus standi in the public interest pursuant to Articles 22 and 258 of the Constitution for the enforcement of constitutional rights and principles governing the management of public funds and the integrity of public office.
9. This matter was commenced by way of a Petition dated 20th November 2024 and subsequently amended on 30th January 2025. The Petition is expressed to be brought in the matter of alleged violation and infringement of rights and fundamental freedoms guaranteed under Articles 25, 27, 28, 33, 35, 41, 47, 48 and 50 of the Constitution, and in the matter of alleged contravention of the County Governments Act, the Fair Administrative Action Act, 2015 and the Public Finance Management Act, 2012. The Petition challenges, inter alia, the continued recognition, participation and remuneration of the 1st and 2nd Interested Parties as members of the Nyamira County Assembly notwithstanding judicial determinations nullifying their respective nomination and election.
10. The Petition, as amended, is grounded upon a series of factual and legal complaints which challenge the continued inclusion of the Interested Parties in the affairs and payroll of the Nyamira County Assembly following judicial determinations affecting their status.
11. It is pleaded that during the August 2022 general elections, the 1st Interested Party was nominated to represent the Orange Democratic Movement Party in the Nyamira County Assembly under the marginalized (youth) category, while the 2nd Interested Party was elected to represent Nyansiongo Ward in the same Assembly.
12. The Petitioner avers that the nomination of the 1st Interested Party was challenged in Mogeni v Independent Electoral and Boundaries Commission & 2 others [2023] KEHC 3193 (KLR), wherein the High Court, in a judgment delivered on 6th July 2023, allowed the appeal, found that the nominee was not qualified for nomination under the youth category, and declared the process leading to his gazettement illegal, null and void, with consequential orders for revocation and fresh nomination.
13. It is further pleaded that the election of the 2nd Interested Party was the subject of challenge in Keroka Principal Magistrate’s Court Election Petition No. E001 of 2022 (Mochumbe Jackson Mogusu & 2 Others v Nyaribo Dennis Kebaso & Others), where the trial court invalidated the election and ordered a fresh poll, which decision was subsequently the subject of appeal in Mogusu & another v Kebaso & 6 others [2023] KEHC 19688 (KLR), wherein the High Court, in a judgment delivered on 6th July 2023, dismissed the consolidated appeals and set aside the order on costs, directing that each party bears its own costs.
14. The Petitioner contends that despite the appellate determinations, the 2nd Respondent maintained the names of the 1st and 2nd Interested Parties in the payroll of the 1st Respondent to the detriment of the residents of Nyamira County.
15. The Petition proceeds on the basis that the continued inclusion of the Interested Parties in the payroll resulted in payment of salaries, remuneration and allowances that were not lawfully due, and that such payments, once made, could not be recovered, thereby exposing public funds to irrecoverable loss.
16. The Petitioner asserts that the protection of public funds is the responsibility of every state organ and person, and that there exists a constitutional duty to ensure compliance with the Constitution, including the provisions governing the management of public finances at the county level.
17. It is further pleaded that the continued participation of the Interested Parties in the activities of the County Assembly, notwithstanding the nullification of their respective positions, rendered the Assembly ungovernable and interfered with its lawful functioning, yet there existed no legal justification for such participation.
18. The Petitioner also contends that the Respondents acted in contravention of the County Governments Act and the Standing Orders governing the operations of the 1st Respondent, and that unless restrained by this Court, such conduct would result in duplication of roles and wastage of public resources.
19. The Petition invokes the constitutional guarantees of fair administrative action and fair hearing, contending that the impugned actions were inconsistent with Articles 47 and 50 of the Constitution.
20. It is further contended that unless the reliefs sought are granted, the substratum of the Petition will be rendered nugatory and the issues raised reduced to a mere academic exercise.
21. In the premises, the Petitioner seeks the following reliefs:
1) A declaration that the process of maintaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent was unconstitutional, illegal, null and void;
2) An order directing the 2nd Respondent to remove the 1st and 2nd Interested Parties from the payroll of the 1st Respondent;
3) An order of prohibition restraining the 2nd Respondent from maintaining the 1st Interested Party in the payroll unless nomination is conducted in strict compliance with the Constitution and the law;
4) An order of prohibition restraining the 2nd Respondent from maintaining the 2nd Interested Party in the payroll until fresh elections are conducted in Nyansiongo Ward in strict adherence of the Constitution, the County Governments Act and other relevant laws;
5) An order directing the 2nd Respondent to surcharge the 1st and 2nd Interested Parties the salaries and personal emoluments earned from 06th July 2023 until full settlement;
6) In the alternative to prayer (e), an order that the 2nd Respondent, Duke Onyari, be held liable for unlawful payment of salaries and personal emoluments to the 1st and 2nd Interested Parties;
7) A permanent injunction restraining the Respondents from admitting the 1st and 2nd Interested Parties into the payroll of the 1st Respondent;
8) An order by way of mandamus compelling the 2nd Respondent to degazette the 1st and 2nd Interested Parties as nominated and elected Members of County Assembly respectively;
9) Costs of the Petition;
10) Any other relief that this Court may deem just and appropriate.
22. The 1st and 4th Respondents oppose the Petition through the Replying Affidavit of Duke S. Onyari, the Clerk of the Nyamira County Assembly, sworn on 10th December 2025, contending that the Petition is misconceived in fact and law and discloses no constitutional violation attributable to them.
23. It is their case that the Clerk of the County Assembly is not the officer responsible for the disbursement of salaries and allowances, and that any liability for alleged unlawful payments cannot be attributed to that office.
24. They further contend that they were not parties to the election petitions and appeals that culminated in the nullification of the Interested Parties’ positions, and that implementation of such decisions is subject to statutory processes, including formal notification under the Elections Act.
25. The 1st and 4th Respondents attribute any delay in implementation to procedural and institutional constraints, including delays in communication, the absence of a duly constituted electoral commission at the material time, and operational challenges affecting the relevant institutions.
26. It is further their position that the issues raised in the Petition have since been overtaken by events, the nomination of the 1st Interested Party having been revoked by Gazette Notice dated 26th August 2025 and subsequently replaced on 24th September 2025, while the seat of the 2nd Interested Party was declared vacant on 08th August 2025, followed by a by-election held on 27th November 2025 and the gazettement of a new member on 01st December 2025.
27. The 5th Respondent opposes the Petition through the Replying Affidavit of Chrispine Owiye, OGW, sworn on 17th September 2025, and maintains that it acted at all times within its constitutional and statutory mandate. It is deponed that following the 2022 General Election, the 2nd Interested Party was elected as Member of County Assembly for Nyansiongo Ward, as reflected in a Gazette Notice published on 24th August 2022. The deponent avers that the election of the 2nd Interested Party was subsequently challenged in Keroka Principal Magistrate’s Court Election Petition No. E001 of 2022 (Mochumbe Jackson Mogusu & 2 Others v Nyaribo Dennis Kebaso & 2 Others), wherein the court, in a judgment delivered on 15th February 2023, invalidated the election and directed the 5th Respondent to conduct a fresh election for Nyansiongo Ward.
28. It is further deponed that the said decision was the subject of appeal in Nyamira High Court Election Petition Appeal Nos. E006 and E007 of 2023 (Consolidated), and that in a judgment delivered on 6th July 2023, the High Court dismissed the appeals and upheld the decision of the trial court, save as to costs.
29. With respect to the 1st Interested Party, the 5th Respondent avers that the nomination was challenged in Nyamira High Court Election Petition Appeal No. E004 of 2023, wherein the Court declared the nomination and gazettement unlawful, illegal, null and void, and directed that the same be revoked and a fresh nomination undertaken.
30. It is deponed that, in compliance with the said judgment, the 5th Respondent revoked the nomination of the 1st Interested Party through a Gazette Notice dated 26th August 2025.
31. The 5th Respondent further avers that it, together with the relevant political party, commenced the process of reallocating the seat in accordance with the court’s directions.
32. It is therefore the 5th Respondent’s position that it fully complied with all lawful court orders arising from the election petitions and appeals, and that no constitutional violation can be attributed to it.
33. On that basis, the 5th Respondent contends that the Petition discloses no cause of action against it and urges the Court to dismiss it with costs.
34. The 1st Interested Party opposes the Petition through his Response to the Amended Petition dated 28th November 2025, wherein he denies each and every allegation contained in the Petition save for those expressly admitted. He admits that he was nominated to the Nyamira County Assembly to represent the Orange Democratic Movement Party but avers that the election petitions and appeals referenced by the Petitioner were dismissed, and denies that his name has been maintained in the payroll, putting the Petitioner to strict proof.
35. The 1st Interested Party further avers that the Court has since pronounced itself on his status and maintains that he is no longer representing any person in the Nyamira County Assembly. He states that the seat was declared vacant on 08th July 2025, following communication by the 3rd Respondent vide a letter dated 16th June 2025, and that his nomination was revoked and he was duly degazetted through a Kenya Gazette Notice published on 26th August 2025, thereby bringing his tenure to an end.
36. The 1st Interested Party denies the remaining allegations in the Petition and contends that the same are untrue and unsupported, and further avers that the Petition is incompetent, devoid of legal justification, and an afterthought intended to advance mischief without any legal basis. He maintains that the Petitioner has not established any entitlement to the reliefs sought and urges the Court to dismiss the Petition with costs.
37. The Petition was canvassed by way of written submissions. The parties’ submissions, though advanced from differing perspectives, coalesce around a number of discernible issues which may conveniently be considered in sequence.
38. Prominent among these is the question concerning the legal effect attendant upon the nullification of an election or nomination. The Petitioner, in submissions dated 02nd April 2026, anchors his argument on the supremacy of judicial determinations and the immediate legal consequences flowing from nullification. It is submitted that once a court of competent jurisdiction nullifies an election or nomination, the legal foundation upon which the office is held is extinguished forthwith. In support of this proposition, reliance is placed on Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 for the principle that a void act is a nullity and every proceeding founded on it is incurably defective, and on Raila Odinga & Another v IEBC & 2 Others [2017] eKLR to reinforce the argument that an election that does not comply with constitutional and legal standards cannot confer a lawful mandate. The Petitioner further invokes Teachers Service Commission v KNUT [2015] eKLR to submit that court orders are binding and must be complied with unconditionally and cannot be subordinated to administrative convenience or bureaucratic delay. On that basis, it is contended that certification and gazettement are merely consequential administrative acts that cannot sustain an otherwise invalid office.
39. In contrast, the 1st and 4th Respondents together with the 2nd Interested Party, in submissions dated 05th March 2026, argue that the legal consequences of nullification are not self-executing and must be operationalised through the statutory framework established under section 86(1) of the Elections Act. It is submitted that certification and notification by the election court are not mere formalities but integral steps in giving legal effect to the judgment, and that in their absence, the process of declaring a vacancy and effecting replacement cannot lawfully commence. To contextualise the delay in implementation, they rely on Moenga & 2 others v Nyamora & 7 others; Nyabaro & another (Interested Parties) [2025] KEHC 7765 (KLR) to demonstrate the institutional challenges that affected the Nyamira County Assembly, including leadership disputes and administrative paralysis. The 05th Respondent, in submissions dated 06th February 2026, while not directly contesting the doctrine of nullity, supports the position that implementation of court decisions must occur within the constitutional and statutory framework governing electoral processes and maintains that all steps taken were within its mandate.
40. Closely related is the question whether the Interested Parties lawfully continued in office following nullification. The Petitioner maintains that upon nullification, the Interested Parties ceased, in law, to be members of the County Assembly and could not lawfully continue to occupy office or discharge its functions, relying on the same authorities of Macfoy v United Africa Co. Ltd and Raila Odinga & Another v IEBC & 2 Others (supra).
41. The 1st Interested Party, in submissions dated 05th March 2026, contests that position and argues that cessation of office is dependent upon compliance with statutory processes, including certification, notification, and gazettement, and that any delay in removal cannot be equated to unlawful occupation. Similarly, the 1st and 4th Respondents together with the 2nd Interested Party submit that any continued presence in office was attributable to institutional and procedural constraints, again placing reliance on Moenga & 2 others v Nyamora & 7 others; Nyabaro & another (Interested Parties) (supra).
42. The 5th Respondent in submissions dated 06th February 2026 maintains that it acted within its mandate in revoking nomination and facilitating the processes leading to replacement, and that no illegality can be attributed to it.
43. The parties further address the allegation that the continued retention of the Interested Parties in the payroll after nullification resulted in unlawful payment of salaries and allowances, thereby occasioning loss of public funds. The Petitioner submits that such payments were unlawful and relies on Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR for the principle that public funds must be utilised strictly in accordance with the law and that any unauthorised expenditure is unconstitutional. The Petitioner further invokes section 112 of the Evidence Act to argue that payroll records are within the exclusive control of the Respondents, and that failure to produce such records entitles the Court to draw an adverse inference. The 1st Interested Party disputes the allegation and submits that no evidence has been placed before the Court to demonstrate continued receipt of salaries or allowances after nullification, and that the burden of proof lies upon the Petitioner. The 1st and 4th Respondents together with the 2nd Interested Party similarly contend that the Petitioner has failed to discharge the evidential burden required to establish unlawful expenditure or liability.
44. It is also contended that the Petition does not meet the constitutional threshold required for the enforcement of fundamental rights and freedoms. The 5th Respondent, and the 1st Interested Party, in submissions dated 05th March 2026, submit that the Petition fails to meet that threshold, both relying on Anarita Karimi Njeru v Republic (1979) eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR for the requirement that constitutional violations be pleaded with reasonable precision and supported by a proper factual foundation. The 1st Interested Party further relies on Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR) to argue that constitutional petitions must not be framed in general terms or used as substitutes for ordinary civil disputes where alternative remedies exist. The Petitioner, on the other hand, relies on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) to contend that the Petition meets the threshold. It is therefore evident that these authorities are relied upon by the Petitioner, the 5th Respondent, and the 1st Interested Party alike, albeit to advance opposing conclusions.
45. The 1st to 4th Respondents together with the 2nd Interested Party further submit that the Petition has been overtaken by events, on the basis that the 1st Interested Party was degazetted and replaced, and that a by-election was conducted in respect of the 2nd Interested Party’s seat, rendering the reliefs sought incapable of enforcement. The Petitioner, however, relies on Communications Commission of Kenya v Royal Media Services Ltd & 5 Others [2014] eKLR to submit that courts retain jurisdiction to determine issues of public importance even where intervening events have occurred. It is argued that the question of unlawful expenditure of public funds remains live and justiciable notwithstanding subsequent compliance. The 1st Interested Party aligns with the position that the matter has been overtaken by events, while the 5th Respondent maintains that the processes undertaken were within the law.
46. On liability, the Petitioner submits that liability attaches to the Respondents for permitting continued occupation of office and the resultant unlawful expenditure of public funds. The 1st to 4th Respondents together with the 2ndInterested Party dispute liability and submit that the 2nd Respondent, being the Clerk of the County Assembly, is not the accounting officer responsible for disbursement of salaries and allowances, relying on sections 19 and 20 of the County Assemblies Services Act. They further submit that the power to gazette or degazette members lies exclusively with the electoral body. The 1st Interested Party similarly disputes any liability, maintaining that no unlawful benefit has been demonstrated. The 5th Respondent maintains that its mandate is limited to functions expressly conferred by the Constitution and statute, that it acted within that mandate, and that no causal nexus has been established between its actions and the alleged violations, and that no liability can therefore attach.
47. Finally, on the issue of costs, all parties rely on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR for the principle that costs follow the event, subject to the discretion of the Court. The 1st to 4th Respondents together with the 2nd Interested Party further rely on Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383 and Re Ebuneiri Waisswa Kafuko, Kampala HCMA No. 81 of 1993 cited in Pet No 466 of 2014 Republic vs Kenya National Highway Authority & Others, Ex parte Kanyingi Wahome to emphasise that costs are discretionary and that a successful party should not be denied costs absent misconduct. The Petitioner urges that costs be awarded in its favour, while the 1st Interested Party, the 1st to 4th Respondents together with the 2nd Interested Party, and the 5th Respondent urge the Court to exercise its discretion otherwise.
Issues for determination
48. Having considered the Amended Petition, the responses thereto, the rival submissions by the parties, and the specific reliefs sought, the issues that arise for determination are as follows:
1) Whether the Amended Petition meets the constitutional threshold for a constitutional petition, including the requirement of precision in pleading and evidentiary sufficiency;
2) Whether the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took immediate legal effect, or was contingent upon certification, notification and other statutory processes under the Elections Act;
3) Whether, following such nullification, the continued inclusion of the 1st and 2nd Interested Parties in the payroll of the 1st Respondent, and their participation in the affairs of the Nyamira County Assembly, was unconstitutional, illegal and unlawful;
4) Whether any salaries, allowances and/or other emoluments were paid to the 1st and 2nd Interested Parties after nullification, and if so, whether such payments constituted unlawful expenditure of public funds and are recoverable by way of surcharge;
5) Whether the 2nd Respondent is the proper party against whom the orders sought, including removal from payroll, prohibition, mandamus for degazettement, and/or personal liability, can issue, having regard to the statutory mandate of that office;
6) Whether the Petitioner has established a basis for the grant of the declaratory, prohibitory and mandatory orders sought, including removal from payroll and restraining further inclusion of the Interested Parties therein;
7) Whether the Petitioner has established a basis for the grant of a permanent injunction restraining the Respondents from admitting or retaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent;
8) Whether the Petition has been overtaken by events in light of the subsequent degazettement, declaration of vacancies, and replacement of the Interested Parties;
9) What orders should issue, including on costs.
49. The first issue for determination is whether the Amended Petition meets the constitutional threshold required of a constitutional petition. The applicable principles are settled. In Anarita Karimi Njeru v Republic (supra), and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra), the courts held that a party alleging violation of constitutional rights must set out, with reasonable precision, the provisions said to be infringed and the manner of such infringement, and must present a clear factual foundation capable of sustaining constitutional adjudication.
50. The 1st Interested Party and the 5th Respondent contend that the Petition falls short of that threshold. They argue that it is vague and omnibus, that it cites numerous constitutional provisions without particularizing the alleged violations, and that it is unsupported by evidence, particularly in relation to the allegation that the Interested Parties continued to receive salaries after nullification. On that basis, they urge that the Petition does not disclose a sustainable constitutional claim.
51. The Petitioner, on the other hand, maintains that the Petition clearly identifies the impugned conduct, namely the continued recognition, participation and remuneration of the 1st and 2nd Interested Parties as members of the Nyamira County Assembly notwithstanding judicial determinations nullifying their respective nomination and election. It is further contended that this conduct is linked to constitutional principles relating to governance, the rule of law and public finance, and that the factual basis is sufficiently set out to warrant constitutional intervention.
52. Upon consideration of the Amended Petition, this Court is satisfied that the gravamen of the complaint is clearly discernible. The Petition is anchored on a specific factual matrix, namely that despite the nullification of the nomination and election of the Interested Parties, they continued to be retained in office and in the payroll of the 1st Respondent, thereby occasioning expenditure of public funds without lawful authority.
53. That complaint is directly linked to identifiable constitutional principles, particularly those governing the rule of law, accountability in public office, and the lawful use of public resources. Although multiple constitutional provisions are cited, the substance of the claim is neither vague nor speculative, and the issues in controversy are capable of clear identification.
54. As regards the contention that the Petition is unsupported by evidence, that argument properly goes to the merits rather than to the competency of the Petition. At this stage, the question is whether a justiciable constitutional issue has been disclosed. The evidentiary burden, including the production of payroll records, falls for consideration upon evaluation of the evidence, and in any event such records lie within the custody of the Respondents.
55. In the premises, the Court is satisfied that the Amended Petition meets the constitutional threshold. It sets out with sufficient clarity the impugned conduct, the constitutional principles implicated, and the nature of the alleged violation, and therefore discloses a proper basis for constitutional adjudication.
56. Accordingly, the Court finds that the Amended Petition is competent and properly before it.
57. The second issue for determination is whether the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took immediate legal effect, or whether it was contingent upon certification, notification and other statutory processes under the Elections Act.
58. The Petitioner’s case is that once a court of competent jurisdiction nullifies an election or nomination, the legal foundation upon which the office is held is extinguished immediately, and any continued recognition of such office thereafter is unlawful. It is contended that the subsequent processes of certification, notification or gazettement are merely administrative steps which cannot confer validity upon an otherwise nullified office.
59. The Respondents, on the other hand, contend that the implementation of such nullification is dependent upon compliance with statutory procedures, particularly certification and notification under section 86(1) of the Elections Act. It is their position that in the absence of such certification, the process of declaring a vacancy and effecting replacement cannot lawfully be undertaken, and that any delay in implementation must be viewed within that statutory framework.
60. It is not in dispute that the nomination of the 1st Interested Party and the election of the 2nd Interested Party were both nullified through judicial proceedings, culminating in the determination of the respective appeals on 06th July 2023. The question is therefore not whether nullification occurred, but when its legal effect crystallised.
61. This Court is of the considered view that a clear distinction must be drawn between the legal effect of a judicial determination and the administrative steps necessary for its implementation.
62. A judgment of a competent court takes effect upon delivery, unless stayed or set aside on appeal. Where an appeal is preferred, the operative legal position is determined upon conclusion of the app
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