Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others [2020] KEELRC 113 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to halt the Senate impeachment process against Nairobi Governor Mike Sonko, holding courts should wait until the political process concludes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the requirements for grant of a conservatory order pending the hearing and determination of the Petition.
- 2.What orders if at all should be granted by the court if the applicant satisfies (i) above.
Key legal issues
#Whether conservatory orders should issue to halt the Senate impeachment proceedings pending determination of the Petition
The application fails; the applicant did not satisfy the Gatirau Munya test and judicial restraint under separation of powers favours awaiting the Senate's conclusion.
The court applied the Supreme Court's Gatirau Munya criteria for conservatory orders in public-law matters. Although inherent merit was discernible, the court entertained sufficient doubts and held that public interest and proportionate magnitudes militate against interim intervention before the Senate concluded its mandated process, citing the Supreme Court's inner-constraints doctrine in Justus Kariuki Mate v Martin Nyaga Wambora and the High Court's approach in Waiguru and Ngilu.
Whether the intended 6th Respondent was impliedly joined and the amended Petition deemed filed
No; neither joinder nor amendment was ever expressly granted and cannot be implied.
Counsel argued Nzioki Wa Makau J. inadvertently omitted to grant prayer (ii). The court rejected the invitation to imply the order, holding that in a court of record an express order is required; consequently the petition as filed does not directly deal with the 3rd December 2020 Assembly events, weakening the basis for the interim relief sought.
The proper judicial posture toward an ongoing gubernatorial impeachment process
Courts may intervene only in clear actual or impending violations, with restraint, and preferably after the Senate has concluded.
Relying on Justus Kariuki Mate, Mumo Matemu, In the Matter of the Speaker of the Senate, Anne Mumbi Waiguru and Charity Kaluki Ngilu, the court held that each arm of government must respect the others' independence, that the Senate functions like an appellate forum over Assembly impeachment, and that the High Court's supervisory jurisdiction on threshold issues is best exercised after the fact.
Legal principles established
#- Conservatory orders in public litigation are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes, not on private-law injunction criteria.
- A court may interfere with an ongoing impeachment process only where there is an actual or impending violation of the Constitution or other law, and must tread with utmost caution in observance of separation of powers.
- Supervisory jurisdiction over the impeachment threshold is best exercised after the conclusion of the process before the County Assembly and the Senate.
Court orders
#- 1.The application dated 30th November 2020 is dismissed in its entirety.
- 2.Costs in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159(2), 162(2) of the Constitution and Legal Notice No. 117 of 2013 (Mutunga Rules)
Relief refused
#Joinder of the intended 6th Respondent and deemed filing of the amended Petition
Nzioki Wa Makau J. never granted prayer (ii); joinder and amendment cannot be implied in a court of record
Conservatory orders prohibiting the County Assembly and Senate from deliberating on the impeachment Motion
The Gatirau Munya public-law criteria were not satisfied; public interest favours allowing the Senate process to conclude before judicial intervention
Costs
Costs in the cause.
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.
Accordingly, the application dated 30th November 2020 is dismissed in its entirety. Costs in the cause.
Public interest and the proportionate magnitudes, and priority levels attributable to the present case militate against grant of interim orders before conclusion of the impeachment process by the senate.
The court declines the invitation by counsel for the applicant to find that the 6 th respondent was impliedly joined to the suit.
Conservatory orders, consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.
Issues in the judgment
#The judgment inconsistently dates the interim orders and application before Nzioki Wa Makau J., alternately recording them as dated 30th November 2020 and granted on 30th December 2020
The respondents' summary refers to the initial impeachment motion as withdrawn on 25th December 2020, which is chronologically impossible given events of November-December 2020
The two-thirds removal threshold is attributed to Article 188 of the Constitution, whereas the quoted Article 181 governs removal of a governor and Article 188 concerns boundaries of constituencies and wards - a possible mis-citation in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mike Sonko Mbuvi Gidion Kioko v Clerk Nairobi City County Assembly & 5 others [2020] KEELRC 113 (KLR)", Case Analysis (2020). Petition No. 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/113/eng@2020-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.