James Gacheru & Others v Governor, Kiambu County Government & Others (Preliminary Objections)
The bottom line
#Courts won't conduct a full audit of county government performance; you must use the correct specialized constitutional bodies.
What this practically means
#Executive summary
#Key legal issues
#Whether the immunity under Section 133(1) of the County Governments Act and Section 206 of the Public Finance Management Act could be determined at the preliminary stage
The immunity limb was not a pure point of law because good faith is a disputed question of fact requiring ascertainment
The court applied the Mukisa Biscuit test: a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct. Since the Petition indirectly alleged mala fides and the Respondents disputed it, whether the officers acted in good faith required factual ascertainment and could not be resolved preliminarily.
Whether the High Court had jurisdiction over the Petition in light of separation of powers and exhaustion
The court lacked jurisdiction; the Petition was before the wrong forum and was struck out
The Petition sought a wide-ranging exit audit of the entire county government's performance, a function assigned to the EACC, Controller of Budget, Auditor General, Senate and county assemblies. The Petitioners bypassed these organs, failed to use the recall procedure under Section 27 of the County Governments Act, and did not plead constitutional violations with the precision required by Anarita Karimi Njeru.
Whether the Petition was pleaded with sufficient precision
The Petition did not positively disclose how the constitutional provisions cited were violated
Applying Anarita Karimi Njeru and Mumo Matemu, a petitioner seeking relief for constitutional violation must plead with reasonable precision the provisions infringed and the manner of infringement. The omnibus Petition asserted mere failure to perform duties without specifying violations or illegality.
Legal principles established
#- A preliminary objection raising a disputed question of fact, such as whether public officers acted in good faith, is not a pure point of law
- Courts must defer to constitutionally designated organs where complaints concern performance of duties by county government organs, and cannot conduct exit audits or merit reviews of county governments
Court orders
#- 1.The preliminary objections are upheld and the Petition is struck out
- 2.The 1st to 102nd Respondents are awarded half the costs of the Petition
- Jurisdiction invoked
- Article 165(3)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Gacheru & Others v Governor, Kiambu County Government & Others (Preliminary Objections)", Case Analysis (2019). . Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.