Wambora & 3 others v Speaker of the Senate & 6 others (Civil Appeal 21 of 2014) [2014] KECA 377 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that county assemblies and the Senate handle governor impeachments, but courts can still review them for constitutional compliance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the learned Judges err in law in holding that the County Assembly and the Senate (as opposed to the courts), were best placed to determine whether a motion for the removal of a Governor was in accordance with the Constitution?
- 2.Did the learned Judges err in law by failing to exercise their constitutional mandate under Article 165 (3) (d) (iii) and (iv) of the Constitution to determine whether the grounds for removal of the 1st appellant met the constitutional threshold under Article 181 of the Constitution?
- 3.Must there be a nexus between the allegations in the motion tabled in the County Assembly and the 1st appellant?
- 4.Was impeachment and removal of the 1st appellant as governor in accord with the Constitution and the County Governments Act?
Key legal issues
#Whether the County Assembly and the Senate, rather than the courts, are best placed to determine whether a motion for removal of a Governor accords with the Constitution
The High Court affirmed the trial court's holding but made it subject to the High Court's supervisory and interpretation jurisdiction under Article 165; removal is a hierarchical, sequential process in which courts have no role at initiation or hearing stages, but retain supervisory jurisdiction
Section 33 of the County Governments Act vests the mandate to initiate and consider a removal motion in the County Assembly and to hear charges in the Senate; courts have no role in these sequential steps. This accords with the core function test and separation of powers. However, the process is quasi-judicial, so the High Court's supervisory jurisdiction under Article 165(6) and its jurisdiction under Article 165(3)(d) remain available to examine procedure and constitutionality.
Whether the High Court has jurisdiction to determine whether the constitutional threshold for removal of a Governor has been proved
Yes - the learned Judges erred in failing to exercise their mandate under Article 165(3)(d)(ii) and (iii) and supervisory jurisdiction under Article 165(6) to determine whether the threshold was met and whether nexus existed
Article 181 and Section 33 are not ouster clauses. Removal is a thing done under the authority of the Constitution, so the High Court must determine whether it is inconsistent with or in contravention of the Constitution. In its supervisory role the court cannot replace the decision of the competent organ but can find fault with it, examining constitutionality, rationality and procedural impropriety. The political question doctrine cannot operate to oust this jurisdiction.
Whether collective responsibility suffices to remove a Governor, or whether nexus/personal wrongdoing is required
There must be a nexus between the alleged gross violation and the Governor's personal conduct, including intentional, brazen or willful gross violation; collective responsibility alone cannot ground removal, and the High Court erred in failing to determine nexus on the facts
Kenya's legal system is premised on individual and personal liability. Collective responsibility is a policy, governance and accountability concept, not a principle of personal culpability; it does not make a leader individually liable for all acts of subordinates. Having found that nexus must be proved, the High Court was duty-bound to determine on the facts whether nexus was established between the appellant and the alleged gross violation, under Article 165(3)(d)(ii).
The standard of proof and meaning of gross violation under Article 181
The standard is above balance of probability but below reasonable doubt; gross violation is undefined in the Constitution and must be assessed case by case, with the charge expressly alleging gross violation and giving particulars
The Constitution does not define gross violation. Not every violation is gross; the motion and charge must expressly use the words 'gross violation' and give particulars, by analogy with robbery with violence charges. Gross violation includes violation of Article 10 values, Chapter Six, or intentional and/or persistent violation of any Article of the Constitution or any other law. The High Court's criteria (serious, substantial and weighty allegations with nexus and precise particulars) were adopted.
Whether equal protection requires the same removal procedure for a Governor as for a President or Member of County Assembly
No - the offices are different and different treatment of different offices is itself equality; the difference in procedures does not vitiate the constitutional process for each office
Article 181 is in pari materia with Article 145, so 'gross violation' and 'gross misconduct' carry the same meaning in both, though facts may differ. However, the office of Governor differs from that of an MCA; Parliament has prescribed different procedures and thresholds. For MCAs the High Court must confirm grounds for recall, whereas for Governors the High Court's supervisory and interpretive jurisdiction ensures procedural and threshold compliance without prior confirmation.
Legal principles established
#- The removal of a Governor is a constitutional and political process, sui generis and quasi-judicial in nature, in which natural justice and fair administrative action must be observed
- Article 181 and Section 33 of the County Governments Act do not oust the supervisory and interpretation jurisdiction of the High Court; the political question doctrine cannot oust that jurisdiction
- Collective responsibility is a policy, governance and accountability concept, not a principle of personal liability; there must be a nexus between the alleged gross violation and the personal conduct of the Governor
- The standard of proof for removal of a Governor is above a balance of probability but below beyond reasonable doubt
- A motion to remove a Governor on gross violation must expressly allege gross violation and give specific particulars
- What constitutes gross violation is determined case by case and includes violation of Article 10 values and Chapter Six, or intentional and/or persistent violation of any Article of the Constitution or any other law
Court orders
#- 1.Save as expressly stated in the judgment, the judgment of the High Court dated 16th April 2014 is affirmed
- 2.Declaration that the learned Judges did not err in holding that the County Assembly and the Senate were best placed to determine whether a motion for removal of a Governor was in accordance with the Constitution, subject to the supervisory and interpretation jurisdiction of the High Court under Article 165
- 3.Declaration that the learned Judges erred in law by failing to exercise their constitutional mandate under Article 165 (3) (d), (ii) and (iii) to determine whether the purported removal of the 1st appellant was inconsistent with or in contravention of the Constitution
- 4.Declaration that the learned Judges erred by failing to exercise the supervisory jurisdiction under Article 165 (6) to determine whether the constitutional threshold for removal of the 1st appellant had been proved and whether there was any nexus between the allegations and the 1st appellant
- 5.Declaration that the political question doctrine and separation of powers cannot oust the jurisdiction of courts to interpret the Constitution or determine whether anything done under the authority of the Constitution or any law is consistent with it
- 6.Declaration that what constitutes gross violation of the Constitution is to be determined on a case by case basis, including violation of Article 10 values, Chapter Six, or intentional and/or persistent violation of any Article of the Constitution or any other law
- 7.The 5th and 6th respondents shall bear half the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kerugoya
- Petition No. 3 of 2014 consolidated with Petition No. 4 of 2014, Judicial Review No. 6 of 2014 & Misc. Applic. No. 4 of 2014
- Jurisdiction invoked
- First appeal under Article 164 of the Constitution; constitutional interpretation arising under Articles 165, 181 and 10 of the Constitution
- Consolidated with
- Petition No. 4 of 2014, Judicial Review No. 6 of 2014, Misc. Applic. No. 4 of 2014
Relief refused
#Orders in terms of prayers (c), (e) and (f) of the Amended Petition seeking nullification of the removal proceedings for failing the Article 181 threshold and a bar on removal under collective responsibility
The proceedings had already been declared null and void and quashed by the High Court and no appeal was lodged against that part of the decision; a court cannot act in vain
Costs
The 5th and 6th respondents shall bear half the costs of this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I. Save as expressly stated in this judgment and as ordered here below, the judgment of the High Court dated 16th April, 2014, is hereby affirmed.
V. The political question doctrine and the concept of separation of powers cannot oust the jurisdiction of courts to interpret the Constitution or to determine the question if anything said to be done under the authority of the Constitution or of any law is consistent with or in contravention of the Constitution as per Article 165(3)(d)(iii).
VI.What constitutes gross violation of the Constitution is to be determined on a case by case basis. Gross violation of the Constitution includes violation of the values and principles enshrined under Article 10 of the Constitution and violation of Chapter Six (Leadership and integrity) of the Constitution; or intentional and/or persistent violation of any Article of the Constitution; or intentional and blatant or persistent violation of the provisions of any other law.
VII.The 5th and 6th respondents shall bear half the costs of this appeal.
In the exercise of its supervisory role, the High Court cannot replace the decision of the competent organ with its own decision; it can only find fault with it.
we hold that the standard of proof required for removal of Governor is above a balance of probability but below reasonable doubt.
A Governor is entitled to notice and particulars of the charges facing him and notice as to whether the allegation is merely an allegation of violation of the Constitution or other law or gross violation of the Constitution and other law.
Issues in the judgment
#The judgment refers to Section 33 of the County Governments Act as Act 'No. 17 of 2012' in one passage but the appeal header and earlier reference describe it as 'No. 12 of 2012'
A second impeachment of the 1st appellant on 15th May 2014 is recorded in submissions as possibly rendering the appeal academic, but the judgment does not resolve mootness as a ground for dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambora & 3 others v Speaker of the Senate & 6 others (Civil Appeal 21 of 2014) [2014] KECA 377 (KLR)", Case Analysis (2014). Civil Appeal No. 21 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/377/eng@2014-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.