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Court of AppealDismissedCivil Appeal (Nyeri)

Kihara & 2 others v Kamau, Clerk, County Assembly of Murang’a & 3 others (Civil Appeal 86 of 2018) [2025] KECA 1530 (KLR)

Court of Appeal
3 October 2025
3,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that disputes over county assembly speaker elections must go through the election petition process, not constitutional petitions in the High Court.

What this practically means

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Executive summary

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The appellants filed two consolidated constitutional petitions in the High Court at Murang'a challenging the election of the 2nd respondent as speaker of the County Assembly of Murang'a on 4th September 2017, alleging disqualification without notice and violations of rights under Articles 10, 27, 28, 38, 47, 50, 177 and 178 of the Constitution. The respondents raised a preliminary objection that the High Court lacked jurisdiction, the dispute being an election petition reserved to the Resident Magistrate's Court under Section 75(1A) of the Elections Act. Waweru J. upheld the objection on 5th January 2018 and struck out the petitions with costs, holding that a speaker, once elected under Article 177(1)(d), becomes a member of the county assembly. On appeal, by the time of hearing the speaker's term and the assembly had expired following the August 2022 elections, but the appellants insisted on pursuing the remaining claims for compensation and costs. The Court of Appeal (W. Karanja, Jamila Mohamed and L. Kimaru, JJ.A) unanimously dismissed the appeal. Applying Supreme Court jurisprudence that jurisdiction flows only from the Constitution or statute and following NARC Kenya and Moses Mwicigi, the Court held that the petitions were a disguised challenge to the speaker's election and that the election petition route under Section 75(1A) is the exclusive remedy; the election of a speaker cannot ground claims of breach of rights. The High Court's ruling was affirmed, with costs to the 1st, 2nd and 3rd respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to hear and determine the consolidated constitutional petitions challenging the election of the speaker of the County Assembly of Murang'a
  2. 2.Whether the election of a speaker of a county assembly is an election to which Section 75(1A) of the Elections Act applies
  3. 3.Whether the petitions raised sui generis constitutional issues exempt from the election petition procedure
  4. 4.Whether the appeal was overtaken by events

Key legal issues

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01

Jurisdiction of the High Court over petitions challenging the election of a county assembly speaker

Holding

The High Court lacked jurisdiction; such disputes fall under Section 75(1A) of the Elections Act before the Resident Magistrate's Court.

Reasoning

Relying on Supreme Court authority that jurisdiction flows only from the Constitution or legislation, and that a court must down tools once it finds it lacks jurisdiction, the Court held that by Article 177(1)(d) a speaker once elected becomes a member of the county assembly. Disputes over the election of members of a county assembly are reserved to the election court under Section 75(1A). The petitions were a disguised election petition.

p. 6
02

Availability of constitutional petitions as a parallel mechanism

Holding

No constitutional petition or judicial review may short-circuit the election petition procedure for challenging county assembly elections.

Reasoning

Following NARC Kenya and Moses Mwicigi from the Supreme Court, the Court held that the only path for challenging elections of county assembly members is an election petition under the Elections Act. Claimed violations of rights by prospective candidates do not open a parallel route.

p. 6
03

Mootness of the appeal

Holding

The issues were overtaken by events as the term of the speaker and the county assembly had expired, though the court went on to decide the jurisdictional issue.

Reasoning

The term of the speaker and county assembly elected in 2017 had expired upon dissolution before the August 2022 elections, rendering substantial prayers moot. The appellants nonetheless insisted on a decision, and the court determined the appeal on the merits of the jurisdiction question.

p. 5

Legal principles established

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  • Disputes regarding the election of a speaker of a county assembly, the speaker being a member of the assembly by virtue of Article 177(1)(d), must be resolved by election petition before the Resident Magistrate's Court under Section 75(1A) of the Elections Act, and constitutional petitions cannot be used to circumvent that procedure.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs to the 1st, 2nd and 3rd respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court at Murang'a
Consolidated constitutional petitions dated 13th and 15th September 2017
Jurisdiction invoked
Section 75(1A) of the Elections Act and Article 165 of the Constitution

Relief refused

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Compensation for violation of fundamental rights

The election of a speaker cannot result in breach of rights; the only remedy is an election petition under Section 75(1A)

p. 6

Reversal of costs awarded by the High Court

Appeal dismissed with costs to respondents

Costs

Appeal dismissed with costs to the 1st, 2nd and 3rd respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the trial court was correct in striking out the appellants' petitions as it was a disguise challenge to the election of the speaker of the county Assembly of Murang'a without following the procedure contemplated under the Elections Act
p. 6Disguised election petitions
The appellants' remedy for their grievance lay with filing a petition for the nullification of the election of speaker of the county Assembly as provided under section 75 (1A) of the Elections Act. There is no other procedure contemplated by the law.
p. 6Exclusive election petition remedy
It is clear from the foregoing that the appellants' appeal lacks merit and is hereby dismissed with costs to the 1st, 2nd and 3rd respondents.
p. 6Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kihara & 2 others v Kamau, Clerk, County Assembly of Murang’a & 3 others (Civil Appeal 86 of 2018) [2025] KECA 1530 (KLR)", Case Analysis (2025). Civil Appeal (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1530/eng@2025-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.