Background
1 Contending that his removal from office as the Speaker of the 2nd Respondent was unconstitutional and unlawful, the Petitioner initiated these proceedings, vide a constitutional petition dated 12 February 2025, seeking declaratory and injunctive orders against the Respondents.
2 Contemporaneously with the filing of the petition, the Petitioner filed a Notice of Motion Application dated 12th February 2025, seeking the following orders;
i. THAT the Application be certified urgent and service thereof be dispensed with in the first instance.
ii. THAT, pending the hearing and determination of the Petition filed herein, the Honourable Court be pleased to grant a conservatory order restraining the Respondents from holding any election for the position of the Speaker of the County Assembly of Taita Taveta.
iii. Pending the hearing and determination of the Petition, the Honourable Court be pleased to grant the Applicant a conservatory order restraining the Respondent from holding any election for the position of Speaker of the County Assembly of Taita Taveta.
iv. THAT pending the hearing and determination of this Petition, the Honourable Court be pleased to grant the Applicant a conservatory order in the nature of a mandatory injunction order for the payment of the Petitioner’s monthly salaries and all such withheld salaries be released to the Applicant, with a further order that the Applicant be paid his monthly salary as and when the same falls due.
v. THAT the costs of the application be costs in the cause.
3 The application is anchored on the grounds set out on the face thereof and the supporting affidavit sworn by the Petitioner/Applicant on 12th February 2025.
4 The Respondents resisted the Application through the Replying Affidavit, sworn by Gadiel M. Maganga, the Clerk of the 2nd Respondent, on 21st February 2025.
5 By a Notice of Motion Application dated 19th February 2025, the Respondents seek;
i. The Court be pleased to strike out the Notice of Motion Application dated 12th February 2025 together with the Petition filed herein by the Petitioner for want of jurisdiction.
ii. Costs of the Application be awarded to the Defendant/Applicant.
6 The Application is premised on the grounds obtaining on the face thereof and the supporting affidavit sworn by Mr. Gadiel M Maganga on 19th February 2025.
7 The Petitioner opposed the Respondents’ application on the grounds of opposition dated 27th February 2025.
8 Considering that the Respondents’ application raises a jurisdictional issue, with concurrence of Counsel for the parties, this Court directed that the two applications be canvassed contemporaneously, and by way of written submissions. However, it is imperative to note that on 6 March 2025, Counsel for the Parties were allowed to highlight their respective submissions.
9 Bearing in mind the golden principle set out in the case of Owners of Motor Vessel “Lilian S’’ v – Caltex Oil [Kenya] Ltd [1989] eKLR, on the impact of lack of jurisdiction of a Court over a matter before it, I will deliberately, first consider the Respondents’ application, and only move to consider the Petitioner’s if the Respondents’ fail.
The Respondents’ Application
10 The Respondents state that the Petitioner initially filed a petition before the Employment and Labour Relations Court at Mombasa, ELRC Petition No. E008 of 2024, Wisdom Mwamburi Kazungu Vs The Clerk County Assembly of Taita Taveta & Others.
11 Contemporaneously with the petition, he filed a Notice of Motion Application wherein he sought orders that;
a. The Court does grant a conservatory order staying and or suspending the resolution to remove the Petitioner from the office of the Speaker.
b. The Court does grant conservatory orders restraining the Respondents from holding elections of any person to the position of Speaker.
c. An order to issue restraining the Respondents from denying the Petitioner access to his office and benefits.
12 The petition was dismissed on 9th July 2024, for being an abuse of the Court process.
13 The Respondents further state that, meanwhile, the Petitioner had filed in the High Court of Mombasa, HCCCHR Petition No. E035 of 2024, Wisdom Kazangu vs The County Assembly of Taita Taveta & Others, which was subsequently transferred to the High Court Voi for hearing and determination.
14 The High Court of Voi heard the parties and issued an interim conservatory order on July 5, 2024. On 11th July 2024, it referred the Petitioner back to the Employment and Labour Relations Court at Mombasa.
15 The transferred petition became Mombasa ELRC No E009 of 2024. Subsequently, the parties addressed the Court on the issue of jurisdiction. After hearing them, the Court held that it was without jurisdiction, as it was functus officio. As a result, the matter was transferred back to the High Court at Voi for hearing and determination.
16 Before the Voi High Court, the Respondents raised an objection on the question of jurisdiction, and the court ruled that it lacked jurisdiction to entertain the petition, striking out the entire petition.
17 Subsequent to the ruling, the Petitioner filed a Notice of Appeal, expressing the intention to challenge the verdict. On the basis of the notice of motion, the Petitioner approached the court (the High Court) for a conservatory order. The Judge temporarily suspended the election of a Speaker that had been slated for January 28, 2025, for 30 days to enable the Petitioner to exercise his right of appeal. Additionally, the Judge granted an injunctive order for 30 days, to enable the Petitioner to move the Court of Appeal for a stay pending appeal under Rule 5 (2) (b) of the Court of Appeal Rules.
18 The Employment and Labour Relations Court’s orders that it was functus officio Petition E009 of 2024, and in E008 of 2024, have not been reviewed, set aside, varied or appealed against. They thus remain binding on the parties.
19 The Respondents argue that, having invoked the appellate jurisdiction, the Petitioner cannot at the same time, invoke this court’s jurisdiction. He cannot be in two separate and distinct forums simultaneously.
20 The Petitioner’s petition herein contravenes the doctrine of constitutional avoidance. The Petitioner has fashioned an employment claim as a constitutional petition.
The Petitioner’s Opposition
21 The Petitioner states that the relationship between the Speaker and the County Assembly is akin to an employer-employee relationship, with the Speaker serving as an administrative head of the County Assembly. Therefore, removing a County Assembly Speaker constitutes a termination of employment through a quasi-judicial process, entitling the Employment and Labour Relations Court as the proper forum to determine any dispute arising out of the termination, as in the instant case.
22 The present petition introduces a fresh claim for the Petitioner’s unpaid salaries following the unlawful impeachment, which occurred after the initial petition was filed.
23 The High Court at Voi struck out the previous petition for lack of jurisdiction; as such, there was no substantive determination of the issues on the merits made. Therefore, the doctrine of res judicata is inapplicable to this matter.
24 To strike out the petition herein, as sought by the Respondents, would amount to doing so on a technicality, thereby defeating the principles of access to justice under Article 48 of the Constitution of Kenya, 2010.
25 The Petitioner states that the Respondents’ application is a tactical manoeuvre to avoid accountability for their actions and, if allowed, would lead to a miscarriage of justice.
26 Lastly, the Notice of Appeal in HCCHRPET NO. E008 of 2024 has since been withdrawn.
The Respondents’ Submissions on the Application dated 19th February, 2025.
27 The Respondents’ Counsel, Mr. Nyange, submits that this Court lacks jurisdiction to entertain the Petitioner’s Petition and his Notice of Motion application. That being so, it should down its tools and proceed no further. To buttress the submission, he cites the Court of Appeal holding in the case of Owners of Motor Vessel ‘Lilian S’ v Caltex Oil [Kenya] Ltd [1989] KLR, thus;
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.
28 Where legislation has provided a remedy and prescribed a clear procedure for redressing a particular grievance, a litigant cannot invoke the Constitution's provisions for redressing such a grievance. The Court will not determine a constitutional issue when a matter can be adequately decided based on enacted statutes and legislation. To support this submission, Counsel cites the decision in Speaker of the National Assembly v Karume [2008] KLR 425, and the Communication Commission of Kenya & Others v Royal Media Services Limited & 5 Others [2014] eKLR.
29 The doctrine of constitutional avoidance militates against the petitioner’s petition. He is alleging breach of contract of employment through a constitutional petition, thus raising the question whether this Court has jurisdiction to entertain a Constitutional Petition alleging breach of an employment contract.
30 The Employment Act and Labour Relations Act govern the employer-employee relationship between the 2nd Respondent and the Petitioner. The two Statutes offer adequate remedy and orderly enforcement mechanisms.
31 It is further submitted that the issue for determination in this petition is whether the Petitioner’s employment was terminated unfairly, an issue that falls within the ambit of the Employment Act and other attendant legislation. The Petitioner is only allowed to approach the court through a constitutional petition when seeking to challenge the constitutionality of a statute. To buttress this point, reliance has been placed on the cases of Summayya Athmani Hassan v Paul Masinde Simidi & Others - Civil Appeal No. 195 of 2016, and East African Portland Cement Co Ltd v AG & Others - Industrial Court at Nairobi, Petition No. 9 of 2012.
32 The Petitioner is currently involved in two separate forums. He is in the Court of Appeal, as per a Notice of Appeal dated January 20, 2025, and equally before this court via the petition. The law prohibits the Petitioner from being in two [2] different forums over the same matter at the same time. The Court is urged to be persuaded by the holding in Sheila Kabole Mwabwa v Joshua Angelei & Others ELC No. 118 of 2025.
33 Although the Petitioner has indicated that they have withdrawn the Notice of Appeal, the Notice is insufficient. The petitioner must formally apply to the Court of Appeal for its determination of whether the Appeal by the Petitioner ought to be withdrawn, subject to costs.
34 It is worth noting that although a party has the right to withdraw a suit, the Court may decline to allow the withdrawal if, in its opinion, the action to withdraw is taken in a manner that amounts to an abuse of the Court's process or defeats the ends of justice. The Respondents place reliance on the case of Beijing Industrial Designing & Researching Institute v Lagoon Development Ltd, Malindi Civil Appeal No. 1 of 2015.
35 As there is a possibility that the Court of Appeal may make a finding that the High Court has jurisdiction over this matter, and that the matter be remitted back for hearing and determination, it is clear that the petitioner is inviting this court to make orders that possibly would conflict with those of the High Court.
36 The Court, having held ELRCPT No. E009 of 2024, that it was functus officio and declined to exercise jurisdiction, an order which hasn’t been set aside, varied, or appealed against by the petitioner, the Petitioner cannot come to this court to be heard for a third time. As such, this Court should hold that it doesn’t have jurisdiction to entertain the instant petition.
37 The law doesn’t envisage a situation where, after a previous Claim has been dismissed, the Plaintiff/Claimant or Petitioner files another Petition or suit over the same subject matter, the exact cause of action, and against the same defendant or Respondent. Such would amount to an abuse of the Court process. To support this submission, reliance has been placed on the case of Jackton Nyende Obuyu v Penina Mbithe Mbithi &Another [2019] eKLR, and Stephen Okero Oyugi v Law Society of Kenya & Sanjeev Khagram [ civil suit 482 of 2004] [2020] Kehc 8374 [klr][Civ][ 13th February 2020][ruling].
38 The Petition herein amounts to an abuse of the court process. The only proper approach was for the Petitioner to apply for the setting aside of the dismissal order and seek reinstatement, rather than filing the instant petition.
The Petitioner’s Submissions in Response to the Respondents' Application.
39 Counsel, Mr. Gikandi, submits that the Respondents’ argument that since the Court in Mombasa, ELRC Petition No. E009 OF 2024 found itself lacking jurisdiction as it was now functus officio; the instant Petition is res judicata, stands on quicksand. Section 7 of the Civil Procedure Act provides the ingredients necessary for a matter to be declared res judicata. Considering the circumstances surrounding this matter and those of the initial petitions, it isn’t difficult to conclude that the doctrine doesn’t apply. None of the previous petitions was determined on merit. The only issue addressed in all of them was jurisdiction, rather than the constitutional issues raised for determination.
40 Therefore, none of the substantive questions, including the constitutionality of the Respondent’s actions in unlawfully impeaching the petitioner from the office of the speaker and his right to fair administrative action, was ever determined.
41 The doctrine of res judicata is rooted in the doctrine of finality. The initial matters having been struck out for want of jurisdiction, the Respondents cannot therefore, invoke the doctrine of res judicata. To support this submission, Counsel cites the decision in Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited [2005]eKLR as cited in the case of Moses Mbatia v Joseph Wamburu Kihara [2021]eKLR, where the Court stated;
“ Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to the suits that are dismissed on preliminary technical points. Res judicata bars a future suit only when the case is resolved based on facts and evidence of the case, or when the final judgment concerned the actual facts giving rise to the claim. For example, dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution, does not give rise to judgments on the merits and therefore does not trigger the plea of res judicata. The last issue, dismissal for want of prosecution, was the issue in Tee Gee Electrics and Plastics Company Limited v Kenya Industrial Estates Ltd [2005] KLR 97; LLR 6880. Here, the Court of Appeal was explicit that res judicata does not apply if the earlier suit was dismissed for want of prosecution as the same was not heard on the merits.
42 In Benjamin Koech v Baringo County Government, 2 others; Joseph C. Koech [Interested Party], the Court stated;
“In deference to the Court of Appeal decision in John Florence, supra, the Court would apply res judicata only in the clearest of cases. Not in this case. In this case, the Court further agrees that the question of procedure for removal of clerk of the County Assembly is of general public importance to all the 47 county assemblies of the Republic of Kenya and, consequently, there exists special circumstances to justify leaving the issue for hearing and determination by the Constitutional Court in accordance with Articles 165[3] and 258 of the Constitution.”
43 Counsel argued that it is now trite that the Employment and Labour Relations Court has jurisdiction to hear matters relating to the impeachment of a Speaker of the County Assembly. To buttress this Submission, reliance is placed on the decisions in the County Assembly of Kisumu& 6 others [2015] eKLR, and George Onyango Oloo v Kisumu County Assembly Service Board & another; O.C.S Kisumu Central Police Station & 2 others [interested parties] [Civil Appeal 008 of 2020] [2025] eKLR [ 21 February 2025] [Judgment].
Analysis and Determination
44 Undoubtedly, the Respondents attack the Petitioner’s petition on four preliminary grounds. I will hereunder consider them separately.
45 It isn’t in dispute that within the requisite period, the Petitioner filed a Notice of Appeal, expressing his intention to challenge the decision in the High Court Voi matter, wherein the Court had declined jurisdiction to handle the dispute between the Petitioner and the Respondents. Counsel for the Respondents argues that, having filed the Notice of Appeal, the Petitioner invoked the Court of Appeal's jurisdiction and would not correctly initiate and pursue the instant petition. He cannot legally be in two forums simultaneously.
46 But for the fact that the Notice of Appeal was expressed withdrawn by the Petitioner vide the Notice of withdrawal dated 24th February 2025, I would agree with Counsel’s argument, and hold that it is impermissible for a party to be allowed to ride two horses at a time, as that would amount to an abuse of the court process.
47 But for the view I hold on the effect of the Notice to Withdraw, as shall shortly hereinafter come out, I would agree with the import of the existence of an appeal, on further proceedings in the suit where the notice has been filed, as elucidated in the case cited of Sheila Kabole Mabwa v Joshua Anjelei & others Kitale ELC No 118 of 2015, thus;
“The application has been brought when the subject matter has been moved to the Court of Appeal. It is the one now seized of jurisdiction. As such, any application made after the delivery of the Judgment, where an appeal has been preferred, could at best have been filed before the Court of Appeal, where the subject matter is pending hearing and determination. This court is of the considered view that the application before it is improperly filed.
The claim naturally follows the subject, and jurisdiction does likewise. In essence, once a court is seized of jurisdiction over a certain subject, that divests all other jurisdictions until that subject moves legally to any such other judicial body as provided by law. And once the subject moves to that other judicial body properly authorized to handle it, the next body legally assumes jurisdiction over the subject, thereby causing the previous forum to experience momentary suspension of its jurisdiction. It is momentary in the sense that there is a possibility that once done with the subject, the second forum, for instance, the Court of Appeal, may refer the subject back to the former. In that case, the former forum once more assumes jurisdiction over the subject. This means that as long as the matter is legally before one forum for adjudication, other forums can only watch and wait for the decision of the forum with currency in the subject. In this case, the subject is in the hands of the Court of Appeal, at the moment……………..”
48 The Respondents’ Counsel submits that the notice of withdrawal never takes effect until the Petitioner moves the Court for orders, marking the Notice of Appeal as withdrawn. With great respect, this argument has no legal foundation. It is ignorant of the provisions of section 81 of the Appellate Jurisdiction Act, which provides;
“A party that has lodged a notice of appeal may withdraw the notice of appeal by notice in writing to all parties who have been served. The costs of the withdrawal shall be borne by the party withdrawing the notice of appeal.”
49 Two clear things emerge from this provision: first, the Notice of Appeal is deemed withdrawn by operation of law immediately upon the notice of withdrawal being filed and served on all relevant parties; second, costs accrue automatically in favour of the other party.
50 I assume that the Respondents’ Counsel’s argument is a product of his failure to appreciate the two different situations contemplated under Section 81, mentioned above, and Section 83 of the Appellate Jurisdiction Act, Chapter 9.
51 I now turn to address the question: Does the doctrine of constitutional avoidance apply in this case? The doctrine tends to be invoked when a party claims relief on constitutional grounds and also asserts a right to relief under a statute or regulations. The doctrine dictates that the Court will not pass upon a constitutional question if there is also some other ground upon which the case may be disposed of.
52 The Supreme Court of Kenya in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, stated;
“256. The Appellants are seeking to invoke the “principle of avoidance,” also known as constitutional avoidance. The principle of avoidance entails that the court will not determine a constitutional issue when a matter may be properly decided on another basis…………….”
53 The Supreme Court of India, in Re Application by Bashadur [1986] LRC [Cost.] expressed itself, thus;
“The Courts have said time and again that where infringement of rights is alleged, which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not the constitution. This case highlights the un-wisdom of not ignoring that advice…..”
54 The Constitutional Court of Zimbabwe in Chewira & others v Minister of Justice, Legal and Parliamentary Affairs & others held;
“As we have already seen, in the normal run of things, courts are generally loath to determine a constitutional issue in the face of alternative remedies. In that event, they would skirt and avoid the constitutional issue and resort to the available alternative remedies.
55 I have carefully considered the Respondents’ Counsel’s submissions on this aspect, constitutional avoidance, and how he thinks it applies to the instant matter in light of the authorities he has cited. Considering the facts wholly, I am of the view that Counsel has given the petition a very narrow perspective, leading to his argument that the matter primarily revolves around an alleged violation of the Petitioner’s Constitutional right under Article 41 of the Constitution of Kenya, a right which, in the persuasive judicial precedents cited, would appropriately be determined in an ordinary claim, as a statutory question, as the right is deemed embodied in the provisions of the Employment Act, 2007.
56 In my view, for one not to be off the mark in their conclusion regarding the applicability of the doctrine of constitutional avoidance on a matter, it is crucial to consider the facts with keenness and depth alongside the constitutional and statutory provisions upon which the Petition in issue is anchored.
57 I have carefully considered the facts of the instant petition and the Articles of the Constitution cited and relied upon by the Petitioner and conclude that the petition is significantly an Article 47 matter, as read together with the stipulations of the Fair Administrative Actions Act. It isn’t primarily an Article 41 one.
58 Having in mind what the right to fair administrative actions entails, the stipulations of the Fair Administrative Actions Act [sections 4, 8, 9, and 11], and Article 22 and 23 of the Constitution, and the forestated [para 57] finding, I hold that the Petitioner correctly approached this Court. The doctrine of constitutional avoidance doesn’t militate against it.
59 This Court has not lost sight of the fact that the Petition alleges a violation of national values and principles of governance, which, in my view, is a vital issue for determination in this matter.
60 The Respondents contend that the petition was filed in defiance of what the law expected of the Petitioner after the High Court of Voi declined jurisdiction. The only avenue available to him was to file an application for review or to set aside the dismissal order in Petition ERLC No. 8 of 2024. I am not persuaded that the contention is founded. In my understanding, the Petitioner was not obligated by law to employ the suggested procedure.
61 If an analogy may be drawn, just like a plaintiff whose suit has been dismissed for want of prosecution can file a fresh suit, unless the filing is time-barred, a Petitioner in the circumstances of the instant petition would file a fresh petition, as the Petitioner herein did, unimpededly.
62 Lastly, there is no dispute that Justice Mbaru held in Petition No. 009 of 2024 that the Court was functus officio. Considering that the High Court subsequently held that it lacked jurisdiction to entertain and pronounce itself on the petition on the merits, a position supported by the Respondents, I am not convinced that the functus officio principle, which pertains to the finality of court decisions, applies in this case.
63 After the High Court declined jurisdiction, the Petitioner correctly moved the Employment and Labour Relations Court, which was seized with the jurisdiction to adjudicate his grievance.
64 By reason of the foregoing premises, I find the Respondents’ application lacking merit. It is hereby dismissed with costs.
The Petitioner’s Application
65 I now turn to consider the Petitioner's application. The Application is premised on the following grounds;
a) By virtue of his position as Speaker, at all material times, he was the Chairperson of the 2nd Respondent’s Service Board, Business Committee, Speaker’s Panel, and the Appointment Committee.
b) By a Notice dated 1st July 2024, addressed to the 2nd Respondent and the Committee members, the Petitioner convened the House Business Committee for 2nd July 2024 to propose and approve the business of the 2nd Respondent, ahead of the 2nd Respondent’s recess, which was to commence on 4th July 2024.
c) However, the 2nd Respondent and the House Business Committee members did not honour the Petitioner’s invitation. Instead, the 4th Respondent, a nominated member of the 2nd Respondent, chaired a parallel session ostensibly to lobby for the Petitioner’s ouster from office.
d) On 2nd July 2024, the Petitioner received documents purporting to have originated from the 1st Respondent, indicating that the members of the 1st Respondent, led by the 4th Respondent, had issued a Notice of Motion for his removal from office.
e) The Notice of Motion was signed by the 4th Respondent and supported by members, most of whom have disowned it, and some of whose names had been deleted.
f) Additionally, the petitioner received a letter dated July 2, 2024, purportedly originating from the 2nd Respondent, requiring him to appear before the members of the 1st Respondent on July 3, 2024, at 8:30 am to respond to the allegations made against him in the Notice.
g) Under the Constitution of Kenya, the County Governments Act, and the 1st Respondent’s Standing Orders, in the event that a notice of motion for the removal of the Speaker is presented to the 2nd Respondent, he is required to notify the Speaker to respond in writing within seven days, setting out the grounds of opposition, and thereafter, afford the Speaker the right to appear and be represented before the Assembly during investigations.
h) The notice of motion was deficient of particulars contemplated under the law, was moved by an unqualified member, and was not supported by the required number of members.
i) The time allocated to him was short and inadequate to allow him to respond in writing and obtain the legal representation as required under the County Government Act.
j) He learnt through social media that, by a session convened on 3rd July 2024, the 1st Respondent purported to pass a resolution to terminate the petitioner’s employment with the 1st Respondent, without affording him a fair administrative process, a fair hearing, and an opportunity to respond to the allegations. His Counsel’s bid for redress with the 1st Respondent didn’t yield fruit.
k) At the time the alleged decision to impeach him was being made, the Petitioner was admitted to the Hospital, suffering health complications. The 1st, 2nd, and 4th Respondents were informed of this but inhumanely proceeded with the impeachment process.
l) There is a threat of violating the Constitution if the Respondents proceed to gazette a vacancy in the Petitioner’s office or elect a replacement.
M) The orders sought in this application are necessary to prevent the petition from being rendered an academic exercise, should it be successful.
The Respondents’ Response.
66 The Respondents vehemently oppose the application on the prime grounds that;
a) The petitioner was impeached in conformity with the relevant provisions of the law. All the necessary and relevant legal processes were adhered to. The moment he was impeached, he ceased to be an employee of the 2nd Respondent and is therefore not entitled to any salary.
b) In Petition E008 of 2024, the Petitioner sought interim relief to bar his impeachment, but the court declined the relief after hearing the parties. Asking the Court to grant the same reliefs that it declined to give is an abuse of the court process.
c) Sufficient notice was given to the Petitioner, who pretended to be unwell and hospitalised instead of attending the impeachment motion. It is important to note that the affidavit in support of his application was executed before a Commissioner for Oaths, at the same time when he allegedly was in hospital. This renders his assertion, as well as that of his Counsel to the Assembly, dishonest.
d) No law prohibits the 1st Respondent from issuing a Gazette calling for a special sitting to elect a substantive speaker.
e) The Assembly has been forced to conduct its business without a substantive Speaker for more than six months. The legislative arm of the County of Taita Taveta is crippled as a result in the discharge of its functions.
f) The law doesn’t envision one holding of a public office in an acting capacity for more than six months. Granting the order sought would suspend the operation of the Constitution, particularly Articles 178 and 185 thereof.
g) The Petitioner/ Applicant is making orders in anticipation, something impermissible under the law.
h) In the event elections are held, no prejudice shall be suffered by the Petitioner that cannot be compensated by way of damages. Sight should not be lost of the fact that he has claimed for salary withheld.
i) The balance of convenience tilts in favour of allowing the elections to proceed as and when they shall be called. The Petitioner is not barred from seeking re-election.
j) The Petitioner’s Application has not met the threshold for the grant of the conservatory and mandatory injunction orders sought.
Analysis and Determination
67 Before I delve further into considering whether the Petitioner is deserving of the orders sought in his notice of motion application, it becomes imperative to point out at the onset, that I am cognisant of the legal position that in an application, like the applicant’s, I am not interrogating the merits of the petition, but whether the Petitioner/ Applicant has established a prima facie case to attract an interim conservatory order. Order necessary for preservation of the substratum of the petition.
68 Elaborating on the principle, the Court in the case of the Law Society of Kenya v Office of the Attorney General & another; Judicial Service Commission [Interested Party] [2020] eKLR, cited by Counsel for the Petitioner, stated;
“I am alive to the fact that the Court is not supposed to examine the merits of the petition but has to consider whether the Petitioner has established a prima facie case to warrant interim orders of protection, in order to secure the substratum of the suit and not to render the petition herein nugatory and become a mere academic exercise.”
69 I have carefully analysed the facts set out in the grounds in support of the application, both on the face of the application and the supporting affidavit, and the replying affidavit, and conclude that this Court must be very careful in the manner to couch its determination on the instant application, to obviate the risk of being seen as having a predetermined mind. Prudence demands a brief determination, and that the parties bear the brevity.
70 The principles that the Court must consider when approached to determine whether a party is entitled to an interim conservatory order are now trite. In the case of Board of Management Uhuru Secondary School v City Director and 2 others [2013] eKLR, cited by Counsel for the Respondents, the Court set out the principles, thus;
a) The Applicant must demonstrate an arguable prima facie case with a likelihood of success and show that they are likely to suffer prejudice in the absence of the conservatory orders.
b) Whether the grant or denial of conservatory relief will promote the constitutional values and objectives of freedom as outlined in the Bill of Rights.
c) Whether if an interim conservatory order is not granted, the Petition or its substratum will be rendered nugatory.
d) Whether the public interest will be served or prejudiced by the decision to grant or deny a conservatory order.
71 The Petitioner contends that he has established a prima facie case, with a high chance of success, whereas the Respondents hold otherwise. A prima facie case was defined, and I see it as such, in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, as;
“So, what is a prima facie case? I would say in civil cases, it is a case in which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
72 In Jan Bonde Nielsen Nguruman Limited & 2 others [2016] eKLR, the Court of Appeal stated that;
“We adopt that definition, save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected, which is directly threatened by an act sought to be restrained; the invasion of the right has to be material and substantive, and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini-trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Applicant need not establish title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance of probabilities, or as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more than not to ultimately succeed.”
73 As indicated hereinabove, the instant petition is essentially an Article 47 matter. Undoubtedly, the 2nd Respondent is required to faithfully abide by the stipulations of the Constitution, relevant statutory provisions, and its Standing Orders in the discharge of its functions.
74 Article 178[3] of the Constitution commanded Parliament to enact legislation providing for the election and removal from office of the speakers of county assemblies. Pursuant to the command, the procedure of removal of speakers of county assemblies was embodied in section 11 of the County Governments Act. It provides;
“1. A speaker of a county assembly may be removed from office by the county assembly through a resolution supported by not less than seventy five percent of all the members of the county assembly.
2. A notice of intention to move a motion for a resolution to remove the speaker shall be given in witting to the clerk of the county assembly, signed by at least one third of all the members of the county assembly stating the grounds for removal.
3. A motion for a resolution to remove the speaker shall be presided over by a member of the county assembly elected under section 9[4].
4. Before the debate and voting under subsection [3], the speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly.”
75 The Petitioner asserts that the 2nd Respondent’s Standing Orders set out the procedure for removing the speaker, under Standing Order 82[6].
76 I have carefully considered the Petitioner’s assertion that his impeachment was without adherence to the process set out both in statute [section 11 of the County Government Act], and its Standing orders [Order 86], and the Respondents’ almost general response to the allegations, even where the response required specificity, and conclude that the Petitioner has established a prima facie case with chances of success.
77 Public policy and interest require that all adhere to the stipulations of the Constitution, including the national values and principles of governance. Public interest abhors wilful violation of an individual's constitutional rights, including the right to the fair administrative action Act [Article 47], the right to a fair hearing [Article 50], and non-adherence to the rule of law [ Article 10]. Prima facie, the petitioner has demonstrated that there was wilful non-compliance with the statutory procedure, and a violation of the rights. This Court’s intervention is imperative.
78 Article 20 of the Constitution provides that in applying the Bill of Rights, the court shall: develop the law to the extent that it gives effect to a right or fundamental freedom; and adopt the interpretation that most favours the enforcement of a right or fundamental freedom. The Respondents assert that giving a conservatory order in this matter shall tantamount to suspending the Constitution. I see it differently. Agreeing with the Respondents in their argument, shall be tantamount to non-responsiveness to the command under Article 20.
79 I have carefully considered the prayer with respect to the payment of salary, and I note that the same prayer is among the substantive prayers in the petition. I am persuaded by the Respondents that it is a prayer that cannot be availed to the Petitioner at this juncture, without first hearing the petition.
80 By reason of the foregoing premises, the following orders commend themselves to this Court;
[a]. That none of the four grounds raised as the basis for the Respondents’ application dated 19th February 2025 has merit. Consequently, the application is dismissed with costs.
[b]. The Petitioner’s application dated 12th April 2025 meets the threshold for the grant of a conservatory order. Consequently, pending the hearing and determination of the petition herein, the Respondents are restrained from electing or appointing any person to the position and office of the speaker of the county assembly of Taita Taveta. To avoid doubt, whoever is currently acting as the speaker of the assembly shall continue to act until the petition is determined.
[c]. The prayer for continued payment of salary is hereby declined.
[d]. The petition shall be heard on a priority basis.
Read, signed, and delivered virtually in Mombasa on this 8th day of April, 2025.