Introduction
1. By a notice of motion application dated 6 th July, 2026 filed under certificate of urgency, the Petitioner/applicant sought the following orders: -
1. THAT pending the hearing and determination of this Application, a conservatory order be and is hereby issued restraining the 1 st and 2 nd Respondents, while serving as the Speaker of the National Assembly and the Speaker of the Senate respectively, from using, invoking, relying upon or benefiting from the authority, prestige, dignity, influence or incidents of their constitutional offices in the organisation, promotion, endorsement, leadership or conduct of organized partisan political campaigns in support of or opposition to any political party, political coalition or political candidate.
2. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued restraining the 1 st and 2 nd Respondents from appearing at organised partisan political campaign events in their official capacities as Speaker of the National Assembly and Speaker of the Senate, or from being advertised, introduced, presented or represented at such events by reference to their constitutional offices.
3. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued restraining the 1 st and 2 nd Respondents from using parliamentary facilities, parliamentary staff, parliamentary communication platforms, official transport, official security assigned by virtue of their constitutional offices, parliamentary finances or any other public resources attached to the Offices of Speaker for purposes of partisan political mobilization or election campaigning.
4. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued directing the 1st and 2nd Respondents to discharge the functions of the Offices of Speaker of the National Assembly and Speaker of the Senate in a manner consistent with Articles 10, 73, 75, 94, 95, 96 and 232 of the Constitution so as to preserve public confidence in the institutional independence, impartiality, dignity and integrity of Parliament.
5. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued preserving the objects and purposes of the Conflict of Interest Act, 2023 by restraining the 1st and 2 nd Respondents from engaging in conduct that gives rise to an actual, potential or perceived conflict between their constitutional duties as Speakers of Parliament and organised partisan political campaign activities.
6. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to direct the 3rd and 4th Respondents to preserve and secure all complaints, reports, investigations, correspondence, advisory opinions, electronic records, videos, photographs, social media publications, statements, recordings and any other materials relating to the conduct complained of in this Petition and, where required by the Court, to produce the same.
7. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to issue an order directing the 3rd and 4th Respondents to take such lawful measures as are necessary within their respective constitutional and statutory mandates to ensure compliance with the Constitution, the Leadership and Integrity Act, the Public Officer Ethics Act and the Conflict of Interest Act in relation to the conduct complained of herein.
8. THAT this Honourable Court be pleased to direct that this Petition be heard and determined on a priority basis owing to the continuing nature of the alleged constitutional violations, the public importance of the issues raised and the proximity of the country's electoral cycle.
9. THAT the costs of this Application be provided for.
10. THAT this Honourable Court be pleased to grant such further, consequential or other conservatory, supervisory or preservatory orders as it may deem just, fit and expedient for the preservation of the Constitution, the rule of law, the institutional independence of Parliament and the public interest.
4. Upon a preliminary consideration of the application, the court certified the matter as urgent, considered it exparte considered in the first instance, issued interim conservatory orders and directed that the matter be mentioned on 16 th July, 2026 to confirm compliance with directions and for further directions on the hearing.
Petitioner’s Case
5. The application is supported the affidavit of KHALID HUSSEIN sworn on even date and the grounds on the face of the application. The petitioner was represented by the law firm of IM Mutiso & Co Advocates.
6. He asserted the Petition concerns the continued participation of the 1 st and 2 nd Respondents, while serving as the Speakers of the National Assembly and the Senate respectively, in organised partisan political campaign activities in support of the re-election of the incumbent President and the political coalition presently forming the Government.
7. Further he asserts that the Petition raises fundamental constitutional questions regarding the compatibility of such conduct with the constitutional responsibilities, fiduciary obligations and standards of leadership and integrity imposed upon holders of the constitutional Offices of Speaker under Chapters Six and Eight of the Constitution.
8. The petitioner avers that the conduct complained of in the Petition discloses an arguable and substantial constitutional question as to whether the active participation of the Respondents in organised partisan political campaigns while serving as the constitutional heads of Parliament is consistent with those constitutional obligations.
9. The petitioner further avers that unless this Honourable Court grants the conservatory orders sought, the impugned conduct is likely to continue and intensify as the country approaches the 2027 General Election, thereby occasioning continuing constitutional prejudice, undermining public confidence in Parliament as an independent arm of Government and risking rendering the Petition nugatory before its final determination.
10. The petitioner avers that he has a factual account of the conduct complained of, supported by contemporaneous media reports, electronic evidence, photographs, video recordings and other documentary material as annexed in his affidavit.
11. The petitioner contends that the 1 st Respondent is the duly elected Speaker of the National Assembly established under Articles 93, 94 and 95 of the Constitution and is entrusted with the constitutional responsibility of presiding over the National Assembly and safeguarding its institutional independence, dignity and impartiality.
12. He further contends that virtue of Article 260 of the Constitution, the 1 st Respondent is a State Officer and consequently a Public Officer whose authority is held in trust for the people of Kenya and whose conduct must at all times conform to the Constitution. Despite him occupying the constitutional officer he has numerous occasions, actively participated in organised partisan political mobilisation and campaign activities in support of the re-election of the incumbent President and the Kenya Kwanza Coalition.
13. The petitioner avers that on or about 3rd July 2026, the 1 st Respondent led and addressed a major political rally held in Eldoret, Uasin Gishu County, popularly referred to as the "Tutam Rally", at which senior leaders of the Kenya Kwanza Coalition publicly mobilised support for the re-election of President William Ruto in the forthcoming General Election.
14. He further avers that at the said rally, the 1 st Respondent publicly addressed supporters, defended the record of the incumbent administration and urged continued political support for President Ruto and the Kenya Kwanza Coalition, in which the said event was widely reported by national television stations, print media, online publications and digital media platforms.
15. Petitioner's concern arises from the fact that the authority, prestige and constitutional stature of the Office of Speaker are repeatedly invoked and publicly associated with these partisan political activities. In that he believes that such conduct gives rise to serious constitutional questions regarding the institutional independence, impartiality and perceived neutrality of the Office of Speaker and justifies the intervention of this Honourable Court pending the determination of the accompanying Petition.
16. The petitioner contends that the 2 nd Respondent, Hon. Amason Jeffah Kingi, is the duly elected Speaker of the Senate established under Articles 93 and 96 of the Constitution and is entrusted with the constitutional responsibility of presiding over the Senate and safeguarding its institutional independence, dignity and impartiality.
17. Petitioner further contends that by virtue of Article 260 of the Constitution, the 2 nd Respondent is a State Officer and consequently a Public Officer whose authority is exercised on behalf of the people of Kenya and is subject to the Constitution, the national values and principles of governance and the standards of leadership and integrity.
18. That the Petitioner has observed that, while serving as Speaker of the Senate, the 2 nd Respondent has actively participated in organised partisan political mobilisation and campaign activities in support of the re-election of the incumbent President and the Kenya Kwanza Coalition.
19. Petitioner's complaints is not directed at the 2 nd Respondent's personal political opinions or political association, but at the continued use, projection and association of the constitutional Office of Speaker of the Senate with organized partisan political campaigns.
20. Petitioner avers that on diverse occasions during the year 2026, the 2 nd Respondent publicly attended, addressed and participated in political rallies organised by leaders of the Kenya Kwanza Coalition in which support was openly solicited for the incumbent President and his re-election campaign.
21. Petitioner further avers that the public events attended by the 2 nd Respondent were political mobilisation meetings held within the Coast Region, including meetings in Mombasa County, where he appeared alongside senior political leaders of the Kenya Kwanza Coalition and publicly addressed supporters in his capacity as Speaker of the Senate.
22. Petitioner avers that the participation of both the 1 st and 2 nd Respondents in organized partisan political mobilization has occurred openly, repeatedly and consistently while they continue to hold the constitutional Offices of Speaker of the National Assembly and Speaker of the Senate respectively.
1 st Respondent’s Replying Affidavit
23. The 1 st Respondent file a replying affidavit under protest, in response to both the application and petition, sworn by one Samuel Njoroge, C.B.S, clerk of the National Assembly, on 15 th July 2026.
24. The deponent deposed that though the petition has been described as one filed in the public interest, it is evident from its tenor, timing and reliefs sought that it is intended to vex the 1 st respondent, it is frivolous and an abuse of the court process. The deponent further deposes that the petitioner is not acting in good faith as required in public interest matters and therefore lacks locus standi to institute the proceedings.
25. The 1 st respondent urged the court to find that it lacks jurisdiction and dismiss both the petition and the motion with costs.
2 nd Respondent’s Notice of Preliminary Objection
26. The 2 nd respondent responded to the application and the petition through a replying affidavit sworn by Mohamed Ali, the Deputy to the Clerk of the Senate sworn on 15 th July, 2026.
27. In addition to the replying affidavit, the 2 nd respondent filed a notice of preliminary objection dated 15 th July 2026 raising the following grounds:
1. This petition is premature and not ripe for hearing by the High Court as the Petitioner has not exhausted the legal fora available to address the matters raised in the Petition before approaching this High Court for the orders sought therein.
2. The Petitioners have not complied with the requirements of Section 11 (1) (c) and (e) and Section 13 (2) (c)of the Ethics and Anti-Corruption Commission Act, enacted pursuant to Article 79 of the Constitution, which provides that the Ethics and Anti-Corruption Commission is the body with the power to receive complaints on the breach of the code of ethics by State of public officers, recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct, and to conduct investigations on a complaint made by any person touching on Chapter 6 of the Constitution.
3. Article 88 (4) (e) of the Constitution and Section (4) (e) of the Independent Electoral and Boundaries Commission Act grant the Independent Electoral and Boundaries Commission the mandate over the settlement of electoral disputes.
4. Section 21(1) of the Election Campaign Financing Act provides for dispute resolution by providing that any person may lodge a complaint with the Independent Electoral and Boundaries Commission alleging that a breach of the Act has been committed.
5. Section 14 of the Election Offences Act provides that the Independent Electoral and Boundaries Commission shall have the power to investigate whether public resources have been used for election purposes by providing as follows:
"(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office."
6. It is trite law that where the law provides a mechanism for dispute resolution, that mechanism must first be invoked and exhausted before this Honourable Court's jurisdiction can be properly invoked.
7. The Public Officer Ethics Act was repealed by Parliament and therefore cannot properly form the basis of any legal action as the Act is no longer in force.
8. The present proceedings are therefore premature as the Petitioner is seeking the intervention of this Honourable Court without first invoking and exhausting the mechanisms provided for under the Constitution, the Ethics and Anti-Corruption Commission Act and the Independent Electoral and Boundaries Commission Act.
28. The 2 nd respondent avers that the petition is premature and not ripe for hearing by this Honourable Court, as the petitioner had not exhausted the legal for a available to address the matter raised in the petition before approaching the High Court.
29. The 2 nd respondent’s in his replying affidavit sworn by Mohamed Ali on the application and petition dated 6 th July 2026, he avers that the evidence is inadmissible, that the petitioners relied on contents of newspaper reports and online publications, hearsay.
30. The 2 nd respondent avers that the petition is premature and not ripe for hearing as it has not exhausted the legal fora available to address the matters raised in the petition before approaching the High Court for Orders sought. That Article 79 of constitution provides for enactment of Ethics and Anti-Corruption Commission as a body which receive complaints on the breach of the code of ethics by State Public officers, recommend appropriate action to be taken against state offices or public officers alleged to have engaged in unethical conduct to conduct investigation on a comply made by any person touching on Chapter 6 of the Constitution. Thus its trite laws that where the provides a mechanism for dispute resolution that mechanism must be first be invoked and exhausted before this Honourable court’s jurisdiction can be properly invoked.
31. The 2 nd respondents further avers that the petitioner seeks unreasonably limit the speakers from enjoying their political rights without any constitutional or legal basis contrary to Article 23 of the Constitution, which he believes the speaker has the right to participate in apolitical party, participate in activities of the said political party and to campaign for a political party or cause has not bee limited under any law.
32. The 2 nd respondent contends that the speaker of a House of Parliament should not be politically active lacks constitutional basis. That the very path to the office of Speaker of a House of Parliament is a political road commencing with nomination by a political party.
33. The 2 nd respondent further contends that the Speaker of a House of Parliament is elected by members of Parliament and the members have power to remove the speak from office. In that there is no single complaint from the members of the Senate on the record before this Honourable Court that the Speaker’s political activities have interested with the performance of the functions of Speaker.
3 rd Respondent’s Response
34. The 3 rd respondent did not file any response.
4 th Respondent’s Grounds of Opposition
35. The 4 th respondent filed grounds of opposition in response to the Petition and Notice of Motion application both dated 6 th July 2026 raising the following grounds:
1. Pursuant to Article 79 of the Constitution, the 4 th Respondent is empowered under the Ethics & Anti-Corruption Commission Act, 2011 ("EACC Act") and the Anti-Corruption & Economic Crimes Act, 2003 ("ACECA"); to investigate the conduct of any person and/or body which in its opinion constitutes corruption or economic crime.
2. The Petitioner has not demonstrated to this Court that prior to the filing of this Petition that a report was lodged with the 4 th Respondent and has without any proper or justifiable reason failed or refused to investigate such complaints to warrant the issuance of the order sought to compel the 4 th Respondent to investigate the 1 st and 2 nd Respondents.
3. The Petitioner as against the 4 th Respondent is using this Honourable Court as the first port of call without approaching and using the available avenues exhaustively to address the allegations on the conduct of the 1 st and 2 nd Respondent as raised in the Petition and the Notice of Motion application in the first instance,
4. The Petitioner has not presented factual or substantial claim, controversy or dispute that has arisen between himself and the 4 th Respondent, which calls for adjudication before this Honourable Court.
5. No acts or omissions attributed to the 4 th Respondent, have been disclosed by the Petitioner which are in violation or are likely to be in violation of any part of the Constitution.
6. Granting the order sought against the 4th Respondent would contravene Article 249(2)(b) of the Constitution which guarantees the independence of Constitutional commissions and independent offices, and Section 28 of the Ethics and Anti-Corruption Commission Act, which further guarantees the independence of the 4th Respondent.
7. The Commission is mandated to report to the Office of the Director of Public Prosecution the results of any investigation and its recommendations in line with Section 35 of the Anti-Corruption and Economic Crimes Act, 2003 and therefore supervisory order Ci in the petition and orders 8 and 9 in the Notice of Motion application cannot be enforced as sought as against the 4th Respondent.
8. From the foregoing, the Petitioner has not made out a prima facie case to warrant issuing the orders sought against the 4 th Respondent.
9. The Petition is therefore premature and the orders sought are untenable and constitute an abuse.
5 th Respondent’s Preliminary Objection
36. The 5 th respondent (the Attorney General) filed a notice of preliminary objection dated 15 th July 2026 objecting to the constitutional competency of the Petition and the application dated 6 th July, 2026 on points of law to be determined on the following grounds:
1. The Petition and the Application militate against the doctrine of primacy in dispute resolution/alternative constitutional and statutory redress mechanism which ousts the jurisdiction of this Honourable Court to determine the subject matter of the proceedings herein.
2. Kenya has a rich legal framework governing leadership and integrity in public service (including among elected officers, being State officers), to wit: the Constitution, Leadership and Integrity Act, Public Officer Ethics Act, the Elections Act, the Political Parties Act, the Ethics and Anti-Corruption Commission Act, the Parliamentary Service Act, etc.
3. Under Article 79, the Constitution creates the Ethics and Anti- Corruption Commission to enforce the provisions on leadership and integrity. It commands the enactment of legislation on leadership and integrity, the Leadership and Integrity Act, 2012, which was enacted for the effective administration of chapter six of the Constitution.
4. In relation to the Attorney-General, there is no demonstrated constitutional infraction with regard to the exercise of the mandate of the Attorney-General under Article 156 of the Constitution, either in relation to being the legal representative of national government in court or proffering legal advice as and when appropriate.
37. The court will determine the preliminary objections first as they center on the court’s jurisdiction to hear the matter. Should the objections succeed, the court will cease jurisdiction and take no further step. If the preliminary objections fail, the court will proceed and determine the application on merits.
38. The parties tendered submissions on the preliminary objections. The 2 nd respondent submitted that the petition is premature and not ripe for hearing by this court. That the petitioner has not exhausted the legal for available to address the matters raised in the petition before approaching the High Court for the orders sought therein.
39. The 2 nd respondent further submitted that Article 79 of the Constitution provides for the enactment of the Ethics and Anti-Corruption Commission through legislation of the Ethics and Anti-Corruption Commission Act.
40. That under Section 11(1)(c) and (e) and section 13 (2) (c) of the Ethics and Anti-Corruption Commissions Act, the Ethics and Anti-Corruption Commission (EACC) is the body with the power to receive complaints on the breach of the code of ethics by State and Public officers, recommend appropriate action to be taken against State or public officers alleged to have engaged in unethical conduct and to conduct investigations on a complaint made by any person touching on Chapter 6 of the Constitution.
41. The 2 nd respondent further submitted that Article 88(4) (e) of the Constitution and Section 4 of the Independent Electoral and Boundaries Commission Act grant the IEBC the mandate over the settlement of electoral disputes. That Section 21 (1) of the Election Campaign Financing Act provides for dispute resolution by providing that any person may lodge a complaint with the IEBC alleging that a breach of the Act has been committed.
42. The 2 nd respondent further submitted that Section 14 of the Election Offences Act provides that the Independent Electoral and Boundaries Commission shall have the power to investigate whether public resources have been used for election purposes by providing as follows:
"(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office"
43. The 2 nd respondent further submitted that it is trite law that where the law provides a mechanism for dispute resolution, that mechanism must first be invoked and exhausted before this Honourable Court's jurisdiction can be properly invoked.
44. The 2 nd respondent submitted that Petitioner has not demonstrated to this Honourable Court that it has lodged any complaint before the IEBC or the EACC on the conduct of the 1st and 2nd Respondent and their public and participation in politics. Without such evidence being tendered before this Court, the Petition is premature and this Honourable Court lacks jurisdiction to entertain it.
45. The 2 nd respondent further argued that the petitioner by filing this petition without first raising the issues herein with the EACC which has jurisdiction to deal with complaints against State Officers in respect of adherence to the provision of Chapter Six of the Constitution of Kenya is attempting to avoid the mandatory provisions of Article 79 of the Constitution which states as follows:
Legislation to establish the Ethics and Anti-Corruption Commission
79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.
46. The 4 th Respondent relied on their grounds of opposition dated 8 th July 2026. They submitted that the petitioner had not established a prima facie case against the 4 th respondent, that the petitioner was at liberty to lodge complaints with the 4 th respondent against the 1 st and 2 nd respondents but had not done so. That the EACC Act provides clear procedures for redress of grievances but which the petitioner had bypassed. The 4 th respondent took the position that the statutory procedure should be strictly adhered to before a party can move to file a petition before the High Court. That no order was required to compel the 4 th respondent to perform its constitutional duty and all the petitioner needed to do was lodge a formal complaint with the 4 th respondent.
47. The 4 th respondent argued that this court is not the first port of call and that the petitioner is inviting the court to direct an independent commission against the spirit of Article 249 (2) (b). The 4 th respondent therefore urged the court to decline the invitation to interfere with the operations of an independent commission.
48. The 5 th respondent urged the court not to take up jurisdiction and instead have the matter referred to the EACC. The 5 th respondent submitted that courts have previously held that the first opportunity has to be given to the relevant bodies. That the court must consider the nature of the dispute; whether there is an alternative mechanism for resolution of the dispute and whether the alternative mechanism is adequate and effective.
49. The 5 th respondent submitted that the EACC is the first port of call when it comes to matters contravention of Chapter 6 of the Constitution as well as the Leadership and Integrity Act. That the EACC has the powers and status of a constitutional commission and under Article 249(2), is only subject to the constitution and the law. It was further submitted that under Article 252 (1) (a) of the constitution, the EACC has power to conduct investigations on its own motion or upon a complaint.
50. The 5 th respondent further submitted that Part IV of the Leadership and Integrity Act establishes various mechanisms for enforcement such as disciplinary proceedings against a state officer under Section 41; lodging of complaints under Section 42; and, referral for civil and criminal proceedings under Section 43. That the EACC has vast enforcement powers and that the petitioner has not demonstrated that he moved the EACC before approaching this court. The 5 th respondent therefore urged the court to decline to take up jurisdiction and instead strike out the petition.
51. The petitioner submitted that the Grounds of Opposition and Preliminary Objections filed by the 2 nd , 4 th and 5 th Respondents are without legal foundation and ought to be dismissed with costs. That under Article 22 of the constitution, any person can move the court for enforcement of the bill of rights and that Article 165 (3) of the Constitution clothes the court with jurisdiction to hear and determine the matter. That the petition is anchored on the principles under articles 10, 73, 75, 76 and 77 of the constitution.
52. The petitioner further submitted that the petition brings out the question of separation of powers, an issue that the 3 rd and 4 th respondents cannot deal with. The petitioner therefore urged the court to dismiss the preliminary objections.
Analysis and Determination
53. From the record, I discern the following issues for determination:
a) Whether the preliminary objections are sustainable under the law.
b) Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute.
Whether the preliminary objections are sustainable under the law
54. The validity of any preliminary objection is measured against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.
55. In the case of Mukisa Biscuit Manufacturing Co. Ltd -Vs- West End Distributors Ltd (1969) E.A 696 where Law J at Page 700 stated as follows: -
“So far as I am aware, 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 sui. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by
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1. By a notice of motion application dated 6 th July, 2026 filed under certificate of urgency, the Petitioner/applicant sought the following orders: -
1. THAT pending the hearing and determination of this Application, a conservatory order be and is hereby issued restraining the 1 st and 2 nd Respondents, while serving as the Speaker of the National Assembly and the Speaker of the Senate respectively, from using, invoking, relying upon or benefiting from the authority, prestige, dignity, influence or incidents of their constitutional offices in the organisation, promotion, endorsement, leadership or conduct of organized partisan political campaigns in support of or opposition to any political party, political coalition or political candidate.
2. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued restraining the 1 st and 2 nd Respondents from appearing at organised partisan political campaign events in their official capacities as Speaker of the National Assembly and Speaker of the Senate, or from being advertised, introduced, presented or represented at such events by reference to their constitutional offices.
3. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued restraining the 1 st and 2 nd Respondents from using parliamentary facilities, parliamentary staff, parliamentary communication platforms, official transport, official security assigned by virtue of their constitutional offices, parliamentary finances or any other public resources attached to the Offices of Speaker for purposes of partisan political mobilization or election campaigning.
4. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued directing the 1st and 2nd Respondents to discharge the functions of the Offices of Speaker of the National Assembly and Speaker of the Senate in a manner consistent with Articles 10, 73, 75, 94, 95, 96 and 232 of the Constitution so as to preserve public confidence in the institutional independence, impartiality, dignity and integrity of Parliament.
5. THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued preserving the objects and purposes of the Conflict of Interest Act, 2023 by restraining the 1st and 2 nd Respondents from engaging in conduct that gives rise to an actual, potential or perceived conflict between their constitutional duties as Speakers of Parliament and organised partisan political campaign activities.
6. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to direct the 3rd and 4th Respondents to preserve and secure all complaints, reports, investigations, correspondence, advisory opinions, electronic records, videos, photographs, social media publications, statements, recordings and any other materials relating to the conduct complained of in this Petition and, where required by the Court, to produce the same.
7. THAT pending the hearing and determination of this Petition, this Honourable Court be pleased to issue an order directing the 3rd and 4th Respondents to take such lawful measures as are necessary within their respective constitutional and statutory mandates to ensure compliance with the Constitution, the Leadership and Integrity Act, the Public Officer Ethics Act and the Conflict of Interest Act in relation to the conduct complained of herein.
8. THAT this Honourable Court be pleased to direct that this Petition be heard and determined on a priority basis owing to the continuing nature of the alleged constitutional violations, the public importance of the issues raised and the proximity of the country's electoral cycle.
9. THAT the costs of this Application be provided for.
10. THAT this Honourable Court be pleased to grant such further, consequential or other conservatory, supervisory or preservatory orders as it may deem just, fit and expedient for the preservation of the Constitution, the rule of law, the institutional independence of Parliament and the public interest.
4. Upon a preliminary consideration of the application, the court certified the matter as urgent, considered it exparte considered in the first instance, issued interim conservatory orders and directed that the matter be mentioned on 16 th July, 2026 to confirm compliance with directions and for further directions on the hearing.
Petitioner’s Case
5. The application is supported the affidavit of KHALID HUSSEIN sworn on even date and the grounds on the face of the application. The petitioner was represented by the law firm of IM Mutiso & Co Advocates.
6. He asserted the Petition concerns the continued participation of the 1 st and 2 nd Respondents, while serving as the Speakers of the National Assembly and the Senate respectively, in organised partisan political campaign activities in support of the re-election of the incumbent President and the political coalition presently forming the Government.
7. Further he asserts that the Petition raises fundamental constitutional questions regarding the compatibility of such conduct with the constitutional responsibilities, fiduciary obligations and standards of leadership and integrity imposed upon holders of the constitutional Offices of Speaker under Chapters Six and Eight of the Constitution.
8. The petitioner avers that the conduct complained of in the Petition discloses an arguable and substantial constitutional question as to whether the active participation of the Respondents in organised partisan political campaigns while serving as the constitutional heads of Parliament is consistent with those constitutional obligations.
9. The petitioner further avers that unless this Honourable Court grants the conservatory orders sought, the impugned conduct is likely to continue and intensify as the country approaches the 2027 General Election, thereby occasioning continuing constitutional prejudice, undermining public confidence in Parliament as an independent arm of Government and risking rendering the Petition nugatory before its final determination.
10. The petitioner avers that he has a factual account of the conduct complained of, supported by contemporaneous media reports, electronic evidence, photographs, video recordings and other documentary material as annexed in his affidavit.
11. The petitioner contends that the 1 st Respondent is the duly elected Speaker of the National Assembly established under Articles 93, 94 and 95 of the Constitution and is entrusted with the constitutional responsibility of presiding over the National Assembly and safeguarding its institutional independence, dignity and impartiality.
12. He further contends that virtue of Article 260 of the Constitution, the 1 st Respondent is a State Officer and consequently a Public Officer whose authority is held in trust for the people of Kenya and whose conduct must at all times conform to the Constitution. Despite him occupying the constitutional officer he has numerous occasions, actively participated in organised partisan political mobilisation and campaign activities in support of the re-election of the incumbent President and the Kenya Kwanza Coalition.
13. The petitioner avers that on or about 3rd July 2026, the 1 st Respondent led and addressed a major political rally held in Eldoret, Uasin Gishu County, popularly referred to as the "Tutam Rally", at which senior leaders of the Kenya Kwanza Coalition publicly mobilised support for the re-election of President William Ruto in the forthcoming General Election.
14. He further avers that at the said rally, the 1 st Respondent publicly addressed supporters, defended the record of the incumbent administration and urged continued political support for President Ruto and the Kenya Kwanza Coalition, in which the said event was widely reported by national television stations, print media, online publications and digital media platforms.
15. Petitioner's concern arises from the fact that the authority, prestige and constitutional stature of the Office of Speaker are repeatedly invoked and publicly associated with these partisan political activities. In that he believes that such conduct gives rise to serious constitutional questions regarding the institutional independence, impartiality and perceived neutrality of the Office of Speaker and justifies the intervention of this Honourable Court pending the determination of the accompanying Petition.
16. The petitioner contends that the 2 nd Respondent, Hon. Amason Jeffah Kingi, is the duly elected Speaker of the Senate established under Articles 93 and 96 of the Constitution and is entrusted with the constitutional responsibility of presiding over the Senate and safeguarding its institutional independence, dignity and impartiality.
17. Petitioner further contends that by virtue of Article 260 of the Constitution, the 2 nd Respondent is a State Officer and consequently a Public Officer whose authority is exercised on behalf of the people of Kenya and is subject to the Constitution, the national values and principles of governance and the standards of leadership and integrity.
18. That the Petitioner has observed that, while serving as Speaker of the Senate, the 2 nd Respondent has actively participated in organised partisan political mobilisation and campaign activities in support of the re-election of the incumbent President and the Kenya Kwanza Coalition.
19. Petitioner's complaints is not directed at the 2 nd Respondent's personal political opinions or political association, but at the continued use, projection and association of the constitutional Office of Speaker of the Senate with organized partisan political campaigns.
20. Petitioner avers that on diverse occasions during the year 2026, the 2 nd Respondent publicly attended, addressed and participated in political rallies organised by leaders of the Kenya Kwanza Coalition in which support was openly solicited for the incumbent President and his re-election campaign.
21. Petitioner further avers that the public events attended by the 2 nd Respondent were political mobilisation meetings held within the Coast Region, including meetings in Mombasa County, where he appeared alongside senior political leaders of the Kenya Kwanza Coalition and publicly addressed supporters in his capacity as Speaker of the Senate.
22. Petitioner avers that the participation of both the 1 st and 2 nd Respondents in organized partisan political mobilization has occurred openly, repeatedly and consistently while they continue to hold the constitutional Offices of Speaker of the National Assembly and Speaker of the Senate respectively.
1 st Respondent’s Replying Affidavit
23. The 1 st Respondent file a replying affidavit under protest, in response to both the application and petition, sworn by one Samuel Njoroge, C.B.S, clerk of the National Assembly, on 15 th July 2026.
24. The deponent deposed that though the petition has been described as one filed in the public interest, it is evident from its tenor, timing and reliefs sought that it is intended to vex the 1 st respondent, it is frivolous and an abuse of the court process. The deponent further deposes that the petitioner is not acting in good faith as required in public interest matters and therefore lacks locus standi to institute the proceedings.
25. The 1 st respondent urged the court to find that it lacks jurisdiction and dismiss both the petition and the motion with costs.
2 nd Respondent’s Notice of Preliminary Objection
26. The 2 nd respondent responded to the application and the petition through a replying affidavit sworn by Mohamed Ali, the Deputy to the Clerk of the Senate sworn on 15 th July, 2026.
27. In addition to the replying affidavit, the 2 nd respondent filed a notice of preliminary objection dated 15 th July 2026 raising the following grounds:
1. This petition is premature and not ripe for hearing by the High Court as the Petitioner has not exhausted the legal fora available to address the matters raised in the Petition before approaching this High Court for the orders sought therein.
2. The Petitioners have not complied with the requirements of Section 11 (1) (c) and (e) and Section 13 (2) (c)of the Ethics and Anti-Corruption Commission Act, enacted pursuant to Article 79 of the Constitution, which provides that the Ethics and Anti-Corruption Commission is the body with the power to receive complaints on the breach of the code of ethics by State of public officers, recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct, and to conduct investigations on a complaint made by any person touching on Chapter 6 of the Constitution.
3. Article 88 (4) (e) of the Constitution and Section (4) (e) of the Independent Electoral and Boundaries Commission Act grant the Independent Electoral and Boundaries Commission the mandate over the settlement of electoral disputes.
4. Section 21(1) of the Election Campaign Financing Act provides for dispute resolution by providing that any person may lodge a complaint with the Independent Electoral and Boundaries Commission alleging that a breach of the Act has been committed.
5. Section 14 of the Election Offences Act provides that the Independent Electoral and Boundaries Commission shall have the power to investigate whether public resources have been used for election purposes by providing as follows:
"(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office."
6. It is trite law that where the law provides a mechanism for dispute resolution, that mechanism must first be invoked and exhausted before this Honourable Court's jurisdiction can be properly invoked.
7. The Public Officer Ethics Act was repealed by Parliament and therefore cannot properly form the basis of any legal action as the Act is no longer in force.
8. The present proceedings are therefore premature as the Petitioner is seeking the intervention of this Honourable Court without first invoking and exhausting the mechanisms provided for under the Constitution, the Ethics and Anti-Corruption Commission Act and the Independent Electoral and Boundaries Commission Act.
28. The 2 nd respondent avers that the petition is premature and not ripe for hearing by this Honourable Court, as the petitioner had not exhausted the legal for a available to address the matter raised in the petition before approaching the High Court.
29. The 2 nd respondent’s in his replying affidavit sworn by Mohamed Ali on the application and petition dated 6 th July 2026, he avers that the evidence is inadmissible, that the petitioners relied on contents of newspaper reports and online publications, hearsay.
30. The 2 nd respondent avers that the petition is premature and not ripe for hearing as it has not exhausted the legal fora available to address the matters raised in the petition before approaching the High Court for Orders sought. That Article 79 of constitution provides for enactment of Ethics and Anti-Corruption Commission as a body which receive complaints on the breach of the code of ethics by State Public officers, recommend appropriate action to be taken against state offices or public officers alleged to have engaged in unethical conduct to conduct investigation on a comply made by any person touching on Chapter 6 of the Constitution. Thus its trite laws that where the provides a mechanism for dispute resolution that mechanism must be first be invoked and exhausted before this Honourable court’s jurisdiction can be properly invoked.
31. The 2 nd respondents further avers that the petitioner seeks unreasonably limit the speakers from enjoying their political rights without any constitutional or legal basis contrary to Article 23 of the Constitution, which he believes the speaker has the right to participate in apolitical party, participate in activities of the said political party and to campaign for a political party or cause has not bee limited under any law.
32. The 2 nd respondent contends that the speaker of a House of Parliament should not be politically active lacks constitutional basis. That the very path to the office of Speaker of a House of Parliament is a political road commencing with nomination by a political party.
33. The 2 nd respondent further contends that the Speaker of a House of Parliament is elected by members of Parliament and the members have power to remove the speak from office. In that there is no single complaint from the members of the Senate on the record before this Honourable Court that the Speaker’s political activities have interested with the performance of the functions of Speaker.
3 rd Respondent’s Response
34. The 3 rd respondent did not file any response.
4 th Respondent’s Grounds of Opposition
35. The 4 th respondent filed grounds of opposition in response to the Petition and Notice of Motion application both dated 6 th July 2026 raising the following grounds:
1. Pursuant to Article 79 of the Constitution, the 4 th Respondent is empowered under the Ethics & Anti-Corruption Commission Act, 2011 ("EACC Act") and the Anti-Corruption & Economic Crimes Act, 2003 ("ACECA"); to investigate the conduct of any person and/or body which in its opinion constitutes corruption or economic crime.
2. The Petitioner has not demonstrated to this Court that prior to the filing of this Petition that a report was lodged with the 4 th Respondent and has without any proper or justifiable reason failed or refused to investigate such complaints to warrant the issuance of the order sought to compel the 4 th Respondent to investigate the 1 st and 2 nd Respondents.
3. The Petitioner as against the 4 th Respondent is using this Honourable Court as the first port of call without approaching and using the available avenues exhaustively to address the allegations on the conduct of the 1 st and 2 nd Respondent as raised in the Petition and the Notice of Motion application in the first instance,
4. The Petitioner has not presented factual or substantial claim, controversy or dispute that has arisen between himself and the 4 th Respondent, which calls for adjudication before this Honourable Court.
5. No acts or omissions attributed to the 4 th Respondent, have been disclosed by the Petitioner which are in violation or are likely to be in violation of any part of the Constitution.
6. Granting the order sought against the 4th Respondent would contravene Article 249(2)(b) of the Constitution which guarantees the independence of Constitutional commissions and independent offices, and Section 28 of the Ethics and Anti-Corruption Commission Act, which further guarantees the independence of the 4th Respondent.
7. The Commission is mandated to report to the Office of the Director of Public Prosecution the results of any investigation and its recommendations in line with Section 35 of the Anti-Corruption and Economic Crimes Act, 2003 and therefore supervisory order Ci in the petition and orders 8 and 9 in the Notice of Motion application cannot be enforced as sought as against the 4th Respondent.
8. From the foregoing, the Petitioner has not made out a prima facie case to warrant issuing the orders sought against the 4 th Respondent.
9. The Petition is therefore premature and the orders sought are untenable and constitute an abuse.
5 th Respondent’s Preliminary Objection
36. The 5 th respondent (the Attorney General) filed a notice of preliminary objection dated 15 th July 2026 objecting to the constitutional competency of the Petition and the application dated 6 th July, 2026 on points of law to be determined on the following grounds:
1. The Petition and the Application militate against the doctrine of primacy in dispute resolution/alternative constitutional and statutory redress mechanism which ousts the jurisdiction of this Honourable Court to determine the subject matter of the proceedings herein.
2. Kenya has a rich legal framework governing leadership and integrity in public service (including among elected officers, being State officers), to wit: the Constitution, Leadership and Integrity Act, Public Officer Ethics Act, the Elections Act, the Political Parties Act, the Ethics and Anti-Corruption Commission Act, the Parliamentary Service Act, etc.
3. Under Article 79, the Constitution creates the Ethics and Anti- Corruption Commission to enforce the provisions on leadership and integrity. It commands the enactment of legislation on leadership and integrity, the Leadership and Integrity Act, 2012, which was enacted for the effective administration of chapter six of the Constitution.
4. In relation to the Attorney-General, there is no demonstrated constitutional infraction with regard to the exercise of the mandate of the Attorney-General under Article 156 of the Constitution, either in relation to being the legal representative of national government in court or proffering legal advice as and when appropriate.
37. The court will determine the preliminary objections first as they center on the court’s jurisdiction to hear the matter. Should the objections succeed, the court will cease jurisdiction and take no further step. If the preliminary objections fail, the court will proceed and determine the application on merits.
38. The parties tendered submissions on the preliminary objections. The 2 nd respondent submitted that the petition is premature and not ripe for hearing by this court. That the petitioner has not exhausted the legal for available to address the matters raised in the petition before approaching the High Court for the orders sought therein.
39. The 2 nd respondent further submitted that Article 79 of the Constitution provides for the enactment of the Ethics and Anti-Corruption Commission through legislation of the Ethics and Anti-Corruption Commission Act.
40. That under Section 11(1)(c) and (e) and section 13 (2) (c) of the Ethics and Anti-Corruption Commissions Act, the Ethics and Anti-Corruption Commission (EACC) is the body with the power to receive complaints on the breach of the code of ethics by State and Public officers, recommend appropriate action to be taken against State or public officers alleged to have engaged in unethical conduct and to conduct investigations on a complaint made by any person touching on Chapter 6 of the Constitution.
41. The 2 nd respondent further submitted that Article 88(4) (e) of the Constitution and Section 4 of the Independent Electoral and Boundaries Commission Act grant the IEBC the mandate over the settlement of electoral disputes. That Section 21 (1) of the Election Campaign Financing Act provides for dispute resolution by providing that any person may lodge a complaint with the IEBC alleging that a breach of the Act has been committed.
42. The 2 nd respondent further submitted that Section 14 of the Election Offences Act provides that the Independent Electoral and Boundaries Commission shall have the power to investigate whether public resources have been used for election purposes by providing as follows:
"(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office"
43. The 2 nd respondent further submitted that it is trite law that where the law provides a mechanism for dispute resolution, that mechanism must first be invoked and exhausted before this Honourable Court's jurisdiction can be properly invoked.
44. The 2 nd respondent submitted that Petitioner has not demonstrated to this Honourable Court that it has lodged any complaint before the IEBC or the EACC on the conduct of the 1st and 2nd Respondent and their public and participation in politics. Without such evidence being tendered before this Court, the Petition is premature and this Honourable Court lacks jurisdiction to entertain it.
45. The 2 nd respondent further argued that the petitioner by filing this petition without first raising the issues herein with the EACC which has jurisdiction to deal with complaints against State Officers in respect of adherence to the provision of Chapter Six of the Constitution of Kenya is attempting to avoid the mandatory provisions of Article 79 of the Constitution which states as follows:
Legislation to establish the Ethics and Anti-Corruption Commission
79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.
46. The 4 th Respondent relied on their grounds of opposition dated 8 th July 2026. They submitted that the petitioner had not established a prima facie case against the 4 th respondent, that the petitioner was at liberty to lodge complaints with the 4 th respondent against the 1 st and 2 nd respondents but had not done so. That the EACC Act provides clear procedures for redress of grievances but which the petitioner had bypassed. The 4 th respondent took the position that the statutory procedure should be strictly adhered to before a party can move to file a petition before the High Court. That no order was required to compel the 4 th respondent to perform its constitutional duty and all the petitioner needed to do was lodge a formal complaint with the 4 th respondent.
47. The 4 th respondent argued that this court is not the first port of call and that the petitioner is inviting the court to direct an independent commission against the spirit of Article 249 (2) (b). The 4 th respondent therefore urged the court to decline the invitation to interfere with the operations of an independent commission.
48. The 5 th respondent urged the court not to take up jurisdiction and instead have the matter referred to the EACC. The 5 th respondent submitted that courts have previously held that the first opportunity has to be given to the relevant bodies. That the court must consider the nature of the dispute; whether there is an alternative mechanism for resolution of the dispute and whether the alternative mechanism is adequate and effective.
49. The 5 th respondent submitted that the EACC is the first port of call when it comes to matters contravention of Chapter 6 of the Constitution as well as the Leadership and Integrity Act. That the EACC has the powers and status of a constitutional commission and under Article 249(2), is only subject to the constitution and the law. It was further submitted that under Article 252 (1) (a) of the constitution, the EACC has power to conduct investigations on its own motion or upon a complaint.
50. The 5 th respondent further submitted that Part IV of the Leadership and Integrity Act establishes various mechanisms for enforcement such as disciplinary proceedings against a state officer under Section 41; lodging of complaints under Section 42; and, referral for civil and criminal proceedings under Section 43. That the EACC has vast enforcement powers and that the petitioner has not demonstrated that he moved the EACC before approaching this court. The 5 th respondent therefore urged the court to decline to take up jurisdiction and instead strike out the petition.
51. The petitioner submitted that the Grounds of Opposition and Preliminary Objections filed by the 2 nd , 4 th and 5 th Respondents are without legal foundation and ought to be dismissed with costs. That under Article 22 of the constitution, any person can move the court for enforcement of the bill of rights and that Article 165 (3) of the Constitution clothes the court with jurisdiction to hear and determine the matter. That the petition is anchored on the principles under articles 10, 73, 75, 76 and 77 of the constitution.
52. The petitioner further submitted that the petition brings out the question of separation of powers, an issue that the 3 rd and 4 th respondents cannot deal with. The petitioner therefore urged the court to dismiss the preliminary objections.
Analysis and Determination
53. From the record, I discern the following issues for determination:
a) Whether the preliminary objections are sustainable under the law.
b) Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute.
Whether the preliminary objections are sustainable under the law
54. The validity of any preliminary objection is measured against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.
55. In the case of Mukisa Biscuit Manufacturing Co. Ltd -Vs- West End Distributors Ltd (1969) E.A 696 where Law J at Page 700 stated as follows: -
“So far as I am aware, 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 sui. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by
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