'
The petition
1. Before this court is a petition dated 28th March 2025. The petitioner is challenging the legality of the intended removal of the 1st interested party from office by the respondents. He seeks various declaratory, injunctive and compensatory reliefs on account of violation of the interested party’s constitutional rights. The petition is is anchored on grounds in the body of the petition and supported by an affidavit of even date.
2. The gist of the petition is that since the the interested party was elected as Speaker, Machakos County Assembly, she has faced consistent frustration in discharge of her duties by the respondents.
3. It is deponed that the 3rd and 4th respondents have violated Article 10 of the Constitution and the rights of the 2nd respondent and interested party to fair treatment and independence under the law.
4. It is the petitioner’s case that the respondent’s actions are partial and otherwise motivated by political considerations. It is averred that the sum total of the actions of the respondents are illegal and contrary to the Constitution and the County Government Act.
5. The petition is opposed by the respondents.
The respondents
1st & 2nd respondents’ response
6. The 1st and 2nd respondents oppose this petition through their replying affidavit dated 3rd June 2025sworn by the 1st respondent in his capacity as the clerk to the 2nd respondent. It is deponed that this petition does not meet the threshold of a constitutional petition set out in the case of Anarita Karimi Njeru v Republic (1979) KECA 12 (KLR).
7. It is deponed that this court lacks jurisdiction to entertain this matter at this stage to the extent that it is being called to intervene in the process of the removal of the interested party which is a process constitutionally committed to the 2nd respondent in furtherance of its constitutional mandate. Therefore, it is the 1st and 2nd respondent’s case that this court ought to exercise restraint in line with the doctrine of institutional comity and separation of powers.
8. It is deponed that the petitioner has made a raft of allegations against the respondents bereft of any cogent evidence thereof. Further, that the 1st and 2nd respondents have neither frustrated the interested party in any manner nor are they under the influence or control of the 3rd respondent as alleged by the petitioner.
9. It is deponed that the petitioner has failed to adduce any evidence of the alleged violations of his rights and the rights of the interested party.
10. It is sworn that if the reliefs sought by the petitioner are granted, they are likely to hamstring the exercise of the legislative authority by the 2nd respondent and are also patently unconstitutional.
3rd and 4th respondents’ response
11. The 3rd and 4th respondent responded to the petition through an affidavit sworn by the County Secretary of the 4th respondent. It is deponed that this petition is in bad faith, is unmerited and should be dismissed in limine. That it is a settled principle of law that the court should not, contrary to what the petitioner seeks, interfere with the deliberative stages of an Assembly and only exercise a review mandate once the final decision has been made.
12. It is deponed that the issues raised by the petitioner can equally be canvassed on the floor of the Assembly at the point of debating the impeachment motion.
13. It is averred that the present proceedings are premature, violate the principles and doctrines of separation of powers. That this petition does not meet the threshold as enunciated in the case of Anarita Karimi Njeru v Republic (No. 1) (1978) KLR 154 and as emphasized in Mumo Matemu v Trusted Society for Human Rights Alliance & Others [2013] eKLR because it does not raise or state with any reasonable degree of precision the specific provisions of the Constitution of Kenya, 2010 which are alleged to be violated or threatened, neither does it provide sufficient detail of the manner of alleged violations or threatened violations.
14. It is the 3rd and 4th respondent’s case that court process can only be invoked after the County Assembly has performed its functions. That the issues raised by the petitioner can equally be canvassed on the floor of the assembly at the point of debating the impeachment motion and that the present proceedings are premature and violate the doctrine of separation of powers.
Parties’ submissions
15. This petition was canvassed through written submission. The petitioner’s written submissions are dated 16th June 2025, the 1st and 2nd respondents’ written submissions in opposition are dated 2nd June 2025, and the 3rd and 4th respondents’ written submissions in opposition are dated 17th June 2025. The interested party did not participate or file any pleadings despite service.
Petitioner’s submissions
16. The petitioner identifies five issues for determination namely; (i) whether the attempted impeachment and related actions violate constitutional provisions on separation of powers, independence of the Assembly, and due process protection for removal of a speaker, (ii)whether the intended removal of the Speaker is unlawful, actuated by extraneous considerations and contrary to constitutional and statutory safeguards, (iii) whether the rights and legitimate expectations of the petitioner, the interested party, and members of the County Assembly have been violated (iv) whether this court should interfere with the 2nd respondent’s internal processes under the circumstances that gave rise to the petition herein and (v) whether the petitioner and interested party are entitled to remedies sought herein.
17. On the first issue, it is submitted that courts are not precluded from intervening where actions threatened or undertaken violate constitutional rights, fundamental freedoms, or are orchestrated through an abuse of power. The Court of Appeal decision in Speaker of National Assembly v Hon. James Njenga Karume [1992] eKLR is relied on in this regard.
18. It is the petitioner’s case that this case is fit for urgent court protection because the constitutional and statutory infractions complained of are ongoing, and irreparable harm would result if intervention awaits a fait accompli. The Supreme Court decision in Justus Kariuki Mate v. Martin Nyaga Wambora [2017] eKLR is cited for this assertion.
19. It is submitted that the respondents’ conduct of withholding funds, intimidating members, and seeking to unduly influence Assembly decisions is in direct contravention of the separation of powers, a foundational tenet of Kenya''s constitutional framework elaborated in Trusted Society of Human Rights Alliance v. Attorney General & 2 others [2012] eKLR, which emphasized that each arm of government must operate free from unlawful interference by another.
20. On the second issue, it is submitted that the intended impeachment is a by-product of executive interference and political retribution following lawful assembly business which displeased the 3rd and 4th respondents. The decision in Martin Nyaga Wambora v. County Assembly of Embu & 37 others [2014] eKLR where the High Court underscored that any process for removal must strictly comply with the law and not be an instrument for political vendetta is relied on in this regard.
21. The petitioner submits that due process should be followed in the removal of the speaker and urges the court to be guided by the findings in Meru County Public Service Board v Clerk County Assembly, Meru & 2 others [2019] eKLR and Martin Nyaga Wambora & 3 others v. Speaker of the Senate & 6 others, Civil Appeal No. 21 of 2014[2014] eKLR.
22. On the third issue, the petitioner’s case is that the respondents, in handling the impeachment process, have grossly violated the interested party and 2nd respondent’s rights under the Constitution of Kenya, County Government Act, 2012 and the County Assembly of Machakos Standing Orders.
23. It is submitted that withholding funds for six months violates Section 8(c) and (f) of the County Governments Act, along with Articles 185 and 226 of the Constitution.
24. The petitioner contends that the 3rd and 4th respondents have violated the principle of separation of powers by interfering with the operations of the 2nd respondent contrary to Articles 10, 174, 175, 176, 185 and 232 of the Constitution.
25. On the 4th issue, it is the petitioner’s case that the respondents acted with a disregard for due diligence in the execution of their duties and responsibilities. It is urged that the petitioner has exhausted all other available avenues and has been compelled to seek redress through this court, thus, the petitioner and the interested party have properly sought the intervention of this court to protect her constitutional rights.
26. It is submitted that even in light of the doctrine of separation of powers, this court cannot passively observe an imminent or apparent violation of the constitution, the County Governments Act, and the Standing Orders of the County Assembly of Machakos. The decision in Jayne Mati & Another vs. Attorney General and Another - Nairobi Petition No. 108 of 2011 [2011] eKLR is relied on to bolster this submission.
27. It is submitted that Article 23(3) and 165(3) of the Constitution of Kenya, 2010 grants this court the jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights notwithstanding the doctrine of pre-emption. The decision in Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR) is cited to reinforce this argument.
28. On the last issue, the petitioner urges the court to take into consideration the ruling that the court delivered in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) and grant the petitioner the reliefs sought.
Respondents’ submissions
1st and 2nd respondents’ submissions
29. The 1st and 2nd respondents distill four issues for determination by the court; a) whether this court has jurisdiction to determine this petition, b) whether this petition meets the threshold for a constitutional petition, c) whether the petitioner’s and interested party’s rights have been infringed and d) what reliefs if any should the court grant.
30. On whether this honourable court has jurisdiction to determine this petition, it is urged that that this petition is primarily about the process for the intended impeachment of the interested party as can be discerned from the conservatory orders sought and granted by this court, staying the impugned process and the final reliefs sought by the petitioner in effect seeking the quashing of the impeachment process.
31. It is submitted that this court is bound by the various authorities from the Supreme Court under the doctrine of stare decisis, which decisions clearly require courts to exercise restraint and allow impeachment proceedings to reach to their logical conclusion before the legislative bodies seized of those proceedings. The decisions in Justus Kariuki Mate & Another v. Martin Nyaga Wambora & Another [2017] eKLR and Gachagua v. The Speaker of the National Assembly & Others [2024] KEHC 12876 are relied on to buttress this assertion.
32. On the second issue, it is contended that the petitioner makes serious allegations relating to the impugned Notice of intention to move a motion for the removal of the interested party, with no substantiation or evidence in support thereof or any coherent explanation of how the petitioner’s or the interested party’s rights have been violated contrary to the dicta in Mumo Matemu Vs Trusted Society of Human Rights Alliance & Others, CACA 290 of 2012 [2012] eKLR.
33. It is submitted that the petitioner alleges violations of the interested party’s rights by the respondents but offers no cogent evidence in support thereof, rendering the petition as primarily premised on hearsay.
34. On the third issue, it is the 1st and 2nd respondent’s case that no evidence has been provided to support the claim of violation of rights. The court is urged to apply the dicta in Attorney General v W.O.1 Samuel Chege Gitau & 283 Others (Civil Appeal E093 of 2021) in this regard.
35. On the last issue, it is submitted that the petitioner has failed to prove any violations of his or the interested party’s rights and is therefore undeserving of the reliefs sought. The 1st and 2nd respondents rely on section 107 of the Evidence Act and the Supreme Court decision in Kiluwa Limited & Another v Business Liaison Company Limited & 3 Others (Petition 14 of 2017) to reinforce this assertion.
3rd and 4th respondents’ submissions
36. The 3rd and 4th respondents consider that two issues lie for this court’s determination. Namely, whether petition discloses a constitutional cause of action warranting intervention by this court, and whether the petition herein is ripe to be determined by this court.
37. On the first issue, it is contended that this petition does not with specificity delineate which and what constitutional rights of the interested party have been infringed. It is urged that it is a well settled principle in the Annarita Karimi case that any constitutional petition must disclose with specificity the constitutional provision contravened how they are contravened so as to allow the respondent understand what he or she is responding to.
38. It is submitted that the 2nd and 4th respondents are different from each other and not susceptible to any authority or control. It is contended that the petitioner has not disclosed how the alleged frustrations in the operations of the interested party interfered with constitutional and statutory roles of the 2nd respondent and the averments as contained in the petition remain hypothetical and an academic exercise which this court is urged not entertain.
39. On the second issue, it is submitted that the petition is premature and invokes the doctrine of ripeness and should be dismissed in limine. It is contended that the petition is non-justiciable at this point in time since the issues raised by the petitioner can equally be canvassed on the floor of the Assembly at the point of debating the impeachment motion.
40. It is urged that petitioner is inviting the court to interfere with and intervene in deliberative stages of an Assembly''s proceedings even before a decision is made by the Assembly contrary to the doctrine of separation of powers.
41. The decisions in County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated))[2021] KEHC 304 (KLR) High Court in Nairobi Constitutional Petition No. 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020]eKLR, Court of Appeal in National Assembly of Kenya & another v Institute for Social Accountability & 6 others Nairobi Civil Appeal 92 of 2015 [2017] eKLR, and Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR, are cited to assert that this matter offends the ripeness doctrine and should therefore be dismissed.
Analysis and determination
42. After a perusal of the pleadings and written submissions from the parties, the preliminary issue that emerges is whether this court has jurisdiction to entertain this petition. It is only upon the Court’s affirmation of its jurisdiction that it can proceed to the substance of the petition to determine whether, if at all, and the extent of violation of the bill of rights as set out in the petitioner.
43. Largely, the petitioner is arguing that there are ongoing constitutional and statutory infractions by the respondents. It is his case that that the 3rd and 4th respondents have violated the principle of separation of powers by interfering with the operations of the 2nd respondent contrary to Articles 10, 174, 175, 176, 185 and 232 of the Constitution. Thus, the petitioner argues that Article 23(3) and 165(3) of the Constitution of Kenya, 2010 grants this court the jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights notwithstanding the doctrine of separation of powers.
44. On the other hand, the Respondents argue that this petition is brought in bad faith, is without merit, and should be dismissed at the preliminary stage. They contend that this Court lacks jurisdiction to entertain the petition at this point, as it does not disclose a constitutional cause of action warranting the Court’s intervention. Additionally, they assert that the petition offends the doctrines of ripeness and stare decisis, which bind this Court. In the same breadth, they urge that the petition does not disclose, with specificity the alleged violation, no evidence having been adduced to support the claim. They rely on the Annarita Karimi Njeri Case to buttress this argument.
45. A court must not entertain any matter if it lacks jurisdiction. This is because jurisdiction is the authority given to a court to hear and determine disputes before it, of which jurisdiction is granted by the Constitution, statute or both. This principle was firmly established in the Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) decision and the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR.
46. The jurisdiction of this court is provided for under Article 165 (3) of the Constitution. Among other powers, it grants the High Court the jurisdiction, to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
47. Additionally, Article 23(1) of the Constitution empowers the High Court, in accordance with Article 165, to hear and determine applications seeking redress for the denial, violation, infringement, or threat to rights and fundamental freedoms under the Bill of Rights. Article 165(6) further grants the High Court supervisory jurisdiction “over subordinate courts and over any person or body exercising judicial or quasi-judicial functions.”
48. The Supreme Court has, in various decisions, clarified the circumstances under which it is appropriate for courts to intervene in processes that fall within the mandate of other arms of government. In Judicial Service Commission v Speaker of the National Assembly & 4 others; Commission on Administrative Justice (Amicus Curiae); Law Society of Kenya (Interested Party) [2014] KEHC 7493 (KLR), the Supreme Court observed at paragraph 120 as follows:
“We fully acknowledge the need for the Court to exercise restraint in dealing with matters vested in the other arms of government by the Constitution.”
Further, at paragraph 128 the Supreme Court stated that:
“We are bolstered in this finding by the decision of the Supreme Court in the matter of Speaker of the Senate and Another v The Hon. Attorney General and 3 others, Advisory Opinion Reference No. 2 of 2013. In that case, the respondents had argued that pursuant to the doctrine of separation of powers, the Judiciary had no legitimate business to intervene in matters falling within the legislative competence of Parliament. Further, that Parliament’s business was strictly conducted within its own standing orders which are recognised by the Constitution.
129. The Court recognised the legislative authority vested in Parliament by the Constitution, and said it would be reluctant to question Parliamentary procedures or workings, as long as they did not breach the Constitution. However, where a dispute arises which alleges violation of the Constitution, then judicial intervention would not be a violation of the doctrine of separation of powers as the Court would merely be performing its solemn duty under the Constitution.”
49. In the instant case, the petitioner alleges that the respondents have violated both the petitioner and interested party’s constitutional and statutory rights. After a thorough perusal of all the pleadings and affidavits set out before me in this matter, I note that the primary objective of this petition is to halt the intended impeachment of the Interested Party. I observe that the impeachment motion has not yet been debated or resolved by the 2nd Respondent, and no formal determination has been made on the matter. The Supreme Court has addressed similar issues concerning impeachment, and I will proceed to cite some of those decisions for reference.
50. In Speaker of the Senate & another v Attorney General & 4 others, Reference No 2 of 2013; [2013] eKLR, the Supreme Court cautioned against undue interference with running processes in other arms of Government. It pronounced itself at paragraph 61:
“This court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another” [emphasis supplied].”
51. Further, in Mate & another v Wambora & another [2017] KESC 1 (KLR) the Supreme Court stated at paragraph 63 :
“From the course of reasoning emerging from such cases, it is possible to formulate certain principles, as follows:
…
(c) the courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgment;
(d) for the due functioning of constitutional governance, the courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;”
Further, at paragraph 83 the Supreme Court stated:
“While bearing in mind such precious caution for sustaining judicial authority, we have addressed our minds to the uniqueness of the instant case, which is embodied in the express terms of a comprehensive, newly-formulated constitutional document: especially the fact that it bears express terms on the separation of powers. Interpretation of the Constitution calls for a delicate balance in the respective mandates of the different arms of government.”
52. In Sonko v County Assembly of Nairobi City & 11 others [2022] KESC 76 (KLR), the Supreme Court at paragraph 111 rendered itself thus:
“It has been emphasized in accordance with the principle of separation of powers that in considering applications to review decisions of the other branches of Government, “courts should strive to achieve a balance between their role as guardians of the Constitution and of the rule of law, including an obligation to respect what Parliament is constitutionally required to fulfill”. In other words, where the Constitution requires Parliament to determine a matter in the first place as part of its constitutional mandate, Parliament will have the discretion and power to regulate its own affairs and the courts will be slow to interfere with the exercise of that discretion.”
53. The decisions cited establish the principle that an impeachment process should be allowed to run its full course. Only after its conclusion may the Court consider any allegations of constitutional or legal violations arising from that process. In essence, the Supreme Court has held that where the Constitution assigns a process to another arm of government, the judiciary must allow that arm to undertake its mandate before intervening. The Court’s role is then to determine whether the actions taken under constitutional authority were consistent with or in violation of the Constitution.
54. In light of these binding decisions, I find that judicial intervention at this stage would contravene the doctrine of separation of powers. Therefore, despite the Petitioner’s concerns—and acknowledging that the Constitution empowers this Court to intervene where there is a threat to constitutional rights or freedoms—the precedent set by the Supreme Court, and which are binding to this court, requires this Court to exercise restraint in impeachment matters. Since the process in question has been committed to the 2nd Respondent, it must be allowed to proceed to its conclusion.
55. It is also important to emphasize that the Supreme Court has made it clear that in exercising its powers during an impeachment process, a County Assembly must act strictly within the bounds of the Constitution and the law. Any deviation from this would rightfully invite judicial scrutiny.
56. In addition, from the present case, it is my finding that there is no cogent evidence before me on this warranting this court’s intervention at this stage. It is unclear whether the petitioner is challenging the process or the substance and more so, no evidence has been adduced to support the allegations of violation. Issues of frustration meted on the interested party including the alleged withholding of funds, while mentioned, have not been demonstrated and I am unable to conclusively link it to the violations complained of. In my view, the interested party is better placed to articulate the violations of this nature as the primary grievant.
57. Accordingly, the petition dated 28th March 2025 is hereby dismissed. There shall be no order as to costs.
It is so ordered.
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The petition
1. Before this court is a petition dated 28th March 2025. The petitioner is challenging the legality of the intended removal of the 1st interested party from office by the respondents. He seeks various declaratory, injunctive and compensatory reliefs on account of violation of the interested party’s constitutional rights. The petition is is anchored on grounds in the body of the petition and supported by an affidavit of even date.
2. The gist of the petition is that since the the interested party was elected as Speaker, Machakos County Assembly, she has faced consistent frustration in discharge of her duties by the respondents.
3. It is deponed that the 3rd and 4th respondents have violated Article 10 of the Constitution and the rights of the 2nd respondent and interested party to fair treatment and independence under the law.
4. It is the petitioner’s case that the respondent’s actions are partial and otherwise motivated by political considerations. It is averred that the sum total of the actions of the respondents are illegal and contrary to the Constitution and the County Government Act.
5. The petition is opposed by the respondents.
The respondents
1st & 2nd respondents’ response
6. The 1st and 2nd respondents oppose this petition through their replying affidavit dated 3rd June 2025sworn by the 1st respondent in his capacity as the clerk to the 2nd respondent. It is deponed that this petition does not meet the threshold of a constitutional petition set out in the case of Anarita Karimi Njeru v Republic (1979) KECA 12 (KLR).
7. It is deponed that this court lacks jurisdiction to entertain this matter at this stage to the extent that it is being called to intervene in the process of the removal of the interested party which is a process constitutionally committed to the 2nd respondent in furtherance of its constitutional mandate. Therefore, it is the 1st and 2nd respondent’s case that this court ought to exercise restraint in line with the doctrine of institutional comity and separation of powers.
8. It is deponed that the petitioner has made a raft of allegations against the respondents bereft of any cogent evidence thereof. Further, that the 1st and 2nd respondents have neither frustrated the interested party in any manner nor are they under the influence or control of the 3rd respondent as alleged by the petitioner.
9. It is deponed that the petitioner has failed to adduce any evidence of the alleged violations of his rights and the rights of the interested party.
10. It is sworn that if the reliefs sought by the petitioner are granted, they are likely to hamstring the exercise of the legislative authority by the 2nd respondent and are also patently unconstitutional.
3rd and 4th respondents’ response
11. The 3rd and 4th respondent responded to the petition through an affidavit sworn by the County Secretary of the 4th respondent. It is deponed that this petition is in bad faith, is unmerited and should be dismissed in limine. That it is a settled principle of law that the court should not, contrary to what the petitioner seeks, interfere with the deliberative stages of an Assembly and only exercise a review mandate once the final decision has been made.
12. It is deponed that the issues raised by the petitioner can equally be canvassed on the floor of the Assembly at the point of debating the impeachment motion.
13. It is averred that the present proceedings are premature, violate the principles and doctrines of separation of powers. That this petition does not meet the threshold as enunciated in the case of Anarita Karimi Njeru v Republic (No. 1) (1978) KLR 154 and as emphasized in Mumo Matemu v Trusted Society for Human Rights Alliance & Others [2013] eKLR because it does not raise or state with any reasonable degree of precision the specific provisions of the Constitution of Kenya, 2010 which are alleged to be violated or threatened, neither does it provide sufficient detail of the manner of alleged violations or threatened violations.
14. It is the 3rd and 4th respondent’s case that court process can only be invoked after the County Assembly has performed its functions. That the issues raised by the petitioner can equally be canvassed on the floor of the assembly at the point of debating the impeachment motion and that the present proceedings are premature and violate the doctrine of separation of powers.
Parties’ submissions
15. This petition was canvassed through written submission. The petitioner’s written submissions are dated 16th June 2025, the 1st and 2nd respondents’ written submissions in opposition are dated 2nd June 2025, and the 3rd and 4th respondents’ written submissions in opposition are dated 17th June 2025. The interested party did not participate or file any pleadings despite service.
Petitioner’s submissions
16. The petitioner identifies five issues for determination namely; (i) whether the attempted impeachment and related actions violate constitutional provisions on separation of powers, independence of the Assembly, and due process protection for removal of a speaker, (ii)whether the intended removal of the Speaker is unlawful, actuated by extraneous considerations and contrary to constitutional and statutory safeguards, (iii) whether the rights and legitimate expectations of the petitioner, the interested party, and members of the County Assembly have been violated (iv) whether this court should interfere with the 2nd respondent’s internal processes under the circumstances that gave rise to the petition herein and (v) whether the petitioner and interested party are entitled to remedies sought herein.
17. On the first issue, it is submitted that courts are not precluded from intervening where actions threatened or undertaken violate constitutional rights, fundamental freedoms, or are orchestrated through an abuse of power. The Court of Appeal decision in Speaker of National Assembly v Hon. James Njenga Karume [1992] eKLR is relied on in this regard.
18. It is the petitioner’s case that this case is fit for urgent court protection because the constitutional and statutory infractions complained of are ongoing, and irreparable harm would result if intervention awaits a fait accompli. The Supreme Court decision in Justus Kariuki Mate v. Martin Nyaga Wambora [2017] eKLR is cited for this assertion.
19. It is submitted that the respondents’ conduct of withholding funds, intimidating members, and seeking to unduly influence Assembly decisions is in direct contravention of the separation of powers, a foundational tenet of Kenya''s constitutional framework elaborated in Trusted Society of Human Rights Alliance v. Attorney General & 2 others [2012] eKLR, which emphasized that each arm of government must operate free from unlawful interference by another.
20. On the second issue, it is submitted that the intended impeachment is a by-product of executive interference and political retribution following lawful assembly business which displeased the 3rd and 4th respondents. The decision in Martin Nyaga Wambora v. County Assembly of Embu & 37 others [2014] eKLR where the High Court underscored that any process for removal must strictly comply with the law and not be an instrument for political vendetta is relied on in this regard.
21. The petitioner submits that due process should be followed in the removal of the speaker and urges the court to be guided by the findings in Meru County Public Service Board v Clerk County Assembly, Meru & 2 others [2019] eKLR and Martin Nyaga Wambora & 3 others v. Speaker of the Senate & 6 others, Civil Appeal No. 21 of 2014[2014] eKLR.
22. On the third issue, the petitioner’s case is that the respondents, in handling the impeachment process, have grossly violated the interested party and 2nd respondent’s rights under the Constitution of Kenya, County Government Act, 2012 and the County Assembly of Machakos Standing Orders.
23. It is submitted that withholding funds for six months violates Section 8(c) and (f) of the County Governments Act, along with Articles 185 and 226 of the Constitution.
24. The petitioner contends that the 3rd and 4th respondents have violated the principle of separation of powers by interfering with the operations of the 2nd respondent contrary to Articles 10, 174, 175, 176, 185 and 232 of the Constitution.
25. On the 4th issue, it is the petitioner’s case that the respondents acted with a disregard for due diligence in the execution of their duties and responsibilities. It is urged that the petitioner has exhausted all other available avenues and has been compelled to seek redress through this court, thus, the petitioner and the interested party have properly sought the intervention of this court to protect her constitutional rights.
26. It is submitted that even in light of the doctrine of separation of powers, this court cannot passively observe an imminent or apparent violation of the constitution, the County Governments Act, and the Standing Orders of the County Assembly of Machakos. The decision in Jayne Mati & Another vs. Attorney General and Another - Nairobi Petition No. 108 of 2011 [2011] eKLR is relied on to bolster this submission.
27. It is submitted that Article 23(3) and 165(3) of the Constitution of Kenya, 2010 grants this court the jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights notwithstanding the doctrine of pre-emption. The decision in Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR) is cited to reinforce this argument.
28. On the last issue, the petitioner urges the court to take into consideration the ruling that the court delivered in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) and grant the petitioner the reliefs sought.
Respondents’ submissions
1st and 2nd respondents’ submissions
29. The 1st and 2nd respondents distill four issues for determination by the court; a) whether this court has jurisdiction to determine this petition, b) whether this petition meets the threshold for a constitutional petition, c) whether the petitioner’s and interested party’s rights have been infringed and d) what reliefs if any should the court grant.
30. On whether this honourable court has jurisdiction to determine this petition, it is urged that that this petition is primarily about the process for the intended impeachment of the interested party as can be discerned from the conservatory orders sought and granted by this court, staying the impugned process and the final reliefs sought by the petitioner in effect seeking the quashing of the impeachment process.
31. It is submitted that this court is bound by the various authorities from the Supreme Court under the doctrine of stare decisis, which decisions clearly require courts to exercise restraint and allow impeachment proceedings to reach to their logical conclusion before the legislative bodies seized of those proceedings. The decisions in Justus Kariuki Mate & Another v. Martin Nyaga Wambora & Another [2017] eKLR and Gachagua v. The Speaker of the National Assembly & Others [2024] KEHC 12876 are relied on to buttress this assertion.
32. On the second issue, it is contended that the petitioner makes serious allegations relating to the impugned Notice of intention to move a motion for the removal of the interested party, with no substantiation or evidence in support thereof or any coherent explanation of how the petitioner’s or the interested party’s rights have been violated contrary to the dicta in Mumo Matemu Vs Trusted Society of Human Rights Alliance & Others, CACA 290 of 2012 [2012] eKLR.
33. It is submitted that the petitioner alleges violations of the interested party’s rights by the respondents but offers no cogent evidence in support thereof, rendering the petition as primarily premised on hearsay.
34. On the third issue, it is the 1st and 2nd respondent’s case that no evidence has been provided to support the claim of violation of rights. The court is urged to apply the dicta in Attorney General v W.O.1 Samuel Chege Gitau & 283 Others (Civil Appeal E093 of 2021) in this regard.
35. On the last issue, it is submitted that the petitioner has failed to prove any violations of his or the interested party’s rights and is therefore undeserving of the reliefs sought. The 1st and 2nd respondents rely on section 107 of the Evidence Act and the Supreme Court decision in Kiluwa Limited & Another v Business Liaison Company Limited & 3 Others (Petition 14 of 2017) to reinforce this assertion.
3rd and 4th respondents’ submissions
36. The 3rd and 4th respondents consider that two issues lie for this court’s determination. Namely, whether petition discloses a constitutional cause of action warranting intervention by this court, and whether the petition herein is ripe to be determined by this court.
37. On the first issue, it is contended that this petition does not with specificity delineate which and what constitutional rights of the interested party have been infringed. It is urged that it is a well settled principle in the Annarita Karimi case that any constitutional petition must disclose with specificity the constitutional provision contravened how they are contravened so as to allow the respondent understand what he or she is responding to.
38. It is submitted that the 2nd and 4th respondents are different from each other and not susceptible to any authority or control. It is contended that the petitioner has not disclosed how the alleged frustrations in the operations of the interested party interfered with constitutional and statutory roles of the 2nd respondent and the averments as contained in the petition remain hypothetical and an academic exercise which this court is urged not entertain.
39. On the second issue, it is submitted that the petition is premature and invokes the doctrine of ripeness and should be dismissed in limine. It is contended that the petition is non-justiciable at this point in time since the issues raised by the petitioner can equally be canvassed on the floor of the Assembly at the point of debating the impeachment motion.
40. It is urged that petitioner is inviting the court to interfere with and intervene in deliberative stages of an Assembly''s proceedings even before a decision is made by the Assembly contrary to the doctrine of separation of powers.
41. The decisions in County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated))[2021] KEHC 304 (KLR) High Court in Nairobi Constitutional Petition No. 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020]eKLR, Court of Appeal in National Assembly of Kenya & another v Institute for Social Accountability & 6 others Nairobi Civil Appeal 92 of 2015 [2017] eKLR, and Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR, are cited to assert that this matter offends the ripeness doctrine and should therefore be dismissed.
Analysis and determination
42. After a perusal of the pleadings and written submissions from the parties, the preliminary issue that emerges is whether this court has jurisdiction to entertain this petition. It is only upon the Court’s affirmation of its jurisdiction that it can proceed to the substance of the petition to determine whether, if at all, and the extent of violation of the bill of rights as set out in the petitioner.
43. Largely, the petitioner is arguing that there are ongoing constitutional and statutory infractions by the respondents. It is his case that that the 3rd and 4th respondents have violated the principle of separation of powers by interfering with the operations of the 2nd respondent contrary to Articles 10, 174, 175, 176, 185 and 232 of the Constitution. Thus, the petitioner argues that Article 23(3) and 165(3) of the Constitution of Kenya, 2010 grants this court the jurisdiction to hear and determine an application for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights notwithstanding the doctrine of separation of powers.
44. On the other hand, the Respondents argue that this petition is brought in bad faith, is without merit, and should be dismissed at the preliminary stage. They contend that this Court lacks jurisdiction to entertain the petition at this point, as it does not disclose a constitutional cause of action warranting the Court’s intervention. Additionally, they assert that the petition offends the doctrines of ripeness and stare decisis, which bind this Court. In the same breadth, they urge that the petition does not disclose, with specificity the alleged violation, no evidence having been adduced to support the claim. They rely on the Annarita Karimi Njeri Case to buttress this argument.
45. A court must not entertain any matter if it lacks jurisdiction. This is because jurisdiction is the authority given to a court to hear and determine disputes before it, of which jurisdiction is granted by the Constitution, statute or both. This principle was firmly established in the Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) decision and the Supreme Court decision in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012] eKLR.
46. The jurisdiction of this court is provided for under Article 165 (3) of the Constitution. Among other powers, it grants the High Court the jurisdiction, to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
47. Additionally, Article 23(1) of the Constitution empowers the High Court, in accordance with Article 165, to hear and determine applications seeking redress for the denial, violation, infringement, or threat to rights and fundamental freedoms under the Bill of Rights. Article 165(6) further grants the High Court supervisory jurisdiction “over subordinate courts and over any person or body exercising judicial or quasi-judicial functions.”
48. The Supreme Court has, in various decisions, clarified the circumstances under which it is appropriate for courts to intervene in processes that fall within the mandate of other arms of government. In Judicial Service Commission v Speaker of the National Assembly & 4 others; Commission on Administrative Justice (Amicus Curiae); Law Society of Kenya (Interested Party) [2014] KEHC 7493 (KLR), the Supreme Court observed at paragraph 120 as follows:
“We fully acknowledge the need for the Court to exercise restraint in dealing with matters vested in the other arms of government by the Constitution.”
Further, at paragraph 128 the Supreme Court stated that:
“We are bolstered in this finding by the decision of the Supreme Court in the matter of Speaker of the Senate and Another v The Hon. Attorney General and 3 others, Advisory Opinion Reference No. 2 of 2013. In that case, the respondents had argued that pursuant to the doctrine of separation of powers, the Judiciary had no legitimate business to intervene in matters falling within the legislative competence of Parliament. Further, that Parliament’s business was strictly conducted within its own standing orders which are recognised by the Constitution.
129. The Court recognised the legislative authority vested in Parliament by the Constitution, and said it would be reluctant to question Parliamentary procedures or workings, as long as they did not breach the Constitution. However, where a dispute arises which alleges violation of the Constitution, then judicial intervention would not be a violation of the doctrine of separation of powers as the Court would merely be performing its solemn duty under the Constitution.”
49. In the instant case, the petitioner alleges that the respondents have violated both the petitioner and interested party’s constitutional and statutory rights. After a thorough perusal of all the pleadings and affidavits set out before me in this matter, I note that the primary objective of this petition is to halt the intended impeachment of the Interested Party. I observe that the impeachment motion has not yet been debated or resolved by the 2nd Respondent, and no formal determination has been made on the matter. The Supreme Court has addressed similar issues concerning impeachment, and I will proceed to cite some of those decisions for reference.
50. In Speaker of the Senate & another v Attorney General & 4 others, Reference No 2 of 2013; [2013] eKLR, the Supreme Court cautioned against undue interference with running processes in other arms of Government. It pronounced itself at paragraph 61:
“This court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another” [emphasis supplied].”
51. Further, in Mate & another v Wambora & another [2017] KESC 1 (KLR) the Supreme Court stated at paragraph 63 :
“From the course of reasoning emerging from such cases, it is possible to formulate certain principles, as follows:
…
(c) the courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgment;
(d) for the due functioning of constitutional governance, the courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;”
Further, at paragraph 83 the Supreme Court stated:
“While bearing in mind such precious caution for sustaining judicial authority, we have addressed our minds to the uniqueness of the instant case, which is embodied in the express terms of a comprehensive, newly-formulated constitutional document: especially the fact that it bears express terms on the separation of powers. Interpretation of the Constitution calls for a delicate balance in the respective mandates of the different arms of government.”
52. In Sonko v County Assembly of Nairobi City & 11 others [2022] KESC 76 (KLR), the Supreme Court at paragraph 111 rendered itself thus:
“It has been emphasized in accordance with the principle of separation of powers that in considering applications to review decisions of the other branches of Government, “courts should strive to achieve a balance between their role as guardians of the Constitution and of the rule of law, including an obligation to respect what Parliament is constitutionally required to fulfill”. In other words, where the Constitution requires Parliament to determine a matter in the first place as part of its constitutional mandate, Parliament will have the discretion and power to regulate its own affairs and the courts will be slow to interfere with the exercise of that discretion.”
53. The decisions cited establish the principle that an impeachment process should be allowed to run its full course. Only after its conclusion may the Court consider any allegations of constitutional or legal violations arising from that process. In essence, the Supreme Court has held that where the Constitution assigns a process to another arm of government, the judiciary must allow that arm to undertake its mandate before intervening. The Court’s role is then to determine whether the actions taken under constitutional authority were consistent with or in violation of the Constitution.
54. In light of these binding decisions, I find that judicial intervention at this stage would contravene the doctrine of separation of powers. Therefore, despite the Petitioner’s concerns—and acknowledging that the Constitution empowers this Court to intervene where there is a threat to constitutional rights or freedoms—the precedent set by the Supreme Court, and which are binding to this court, requires this Court to exercise restraint in impeachment matters. Since the process in question has been committed to the 2nd Respondent, it must be allowed to proceed to its conclusion.
55. It is also important to emphasize that the Supreme Court has made it clear that in exercising its powers during an impeachment process, a County Assembly must act strictly within the bounds of the Constitution and the law. Any deviation from this would rightfully invite judicial scrutiny.
56. In addition, from the present case, it is my finding that there is no cogent evidence before me on this warranting this court’s intervention at this stage. It is unclear whether the petitioner is challenging the process or the substance and more so, no evidence has been adduced to support the allegations of violation. Issues of frustration meted on the interested party including the alleged withholding of funds, while mentioned, have not been demonstrated and I am unable to conclusively link it to the violations complained of. In my view, the interested party is better placed to articulate the violations of this nature as the primary grievant.
57. Accordingly, the petition dated 28th March 2025 is hereby dismissed. There shall be no order as to costs.
It is so ordered.
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