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Supreme CourtDismissedPetition 11 (E008) of 2022

Sonko v County Assembly of Nairobi City & 11 others

Supreme Court of Kenya
5 December 2022
27,047 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~108 min to read original · ~4 min brief

The bottom line

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Supreme Court upholds Mike Sonko’s impeachment; courts won’t second-guess political processes unless the Constitution is broken.

What this practically means

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The Supreme Court dismissed Mike Sonko’s final appeal against his removal as Nairobi governor. The Court ruled that impeachment is a political process run by the County Assembly and the Senate, not the courts – as long as they follow the Constitution and fair procedures. Sonko was given notice, a chance to respond, and the Assembly had enough votes. Public participation also happened through ads, online submissions, and hearings. The Court decided all issues anyway, to guide future cases, even though it lacked full jurisdiction because Sonko’s appeal wasn’t properly filed under the right constitutional article.

Executive summary

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The Supreme Court dismissed an appeal by Mike Mbuvi Sonko, the former Governor of Nairobi City County, challenging his impeachment. The court first addressed a preliminary objection on jurisdiction, finding that the appellant failed to specify which limb of article 163(4) of the Constitution the appeal was brought under, as required by settled jurisprudence. The court sustained the objection but, citing the public interest and the need to develop jurisprudence on impeachment, proceeded to determine all substantive issues. The court held that the removal process was conducted in accordance with the Constitution and the law. It found that due process was followed by the County Assembly and the Senate; the appellant was accorded adequate time and facility to respond to the charges; verification of the impeachment motion under Standing Order 67(1) did not require affidavits but only signatures of at least one-third of MCAs; there was sufficient public participation through newspaper advertisements, online publication, and questionnaires; and the charges were substantiated to the required standard, which is above a balance of probability but below reasonable doubt. The court also held that the sovereignty of the people was respected as they exercised power through their elected representatives. The court dismissed the appeal and ordered each party to bear their own costs. Two concurring opinions were delivered: Deputy Chief Justice Mwilu and Justice Wanjala would have struck out the appeal for lack of jurisdiction without determining the merits, while Justice Ibrahim concurred fully, emphasizing that the case warranted a departure from the Lillian S principle to settle fundamental questions on impeachment.

Questions the Court framed

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

  1. 1.Whether the court's jurisdiction was properly invoked
  2. 2.Whether due process was followed by the County Assembly in the removal of the appellant from the office of Governor
  3. 3.Whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate
  4. 4.Whether it was mandatory to verify the Motion for removal by affidavits or other statements on oath by MCAs who allegedly supported the Motion
  5. 5.Whether public participation was undertaken
  6. 6.Whether the charges were substantiated to the prescribed standard warranting removal of the appellant from the office
  7. 7.Whether the sovereignty of the people envisaged under article 1 of the Constitution was respected and protected in the removal process

Key legal issues

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01

Whether the Supreme Court had jurisdiction to determine an appeal that did not specify the ground of appeal under article 163(4) of the Constitution

Holding

The court lacked jurisdiction because the appellant failed to specify which limb of article 163(4) the appeal was based on, but the court nonetheless proceeded to determine all issues in the public interest.

Reasoning

The court found that the petition of appeal was expressed to be brought under repealed rules and did not specify whether it was under article 163(4)(a) or (b). The court sustained the preliminary objection on jurisdiction. However, citing the need to develop jurisprudence and guide lower courts, and because the outcome would be the same either way, the court proceeded to determine all the substantive issues raised in the appeal. The court emphasized that this approach was not a departure from the Lillian S principle but an extension for the Supreme Court's specialized mandate.

02

Whether due process was followed by the County Assembly in the removal of the appellant from the office of Governor

Holding

Due process was followed; the appellant was notified of the charges, given an opportunity to be heard, and the County Assembly had the requisite quorum.

Reasoning

The court relied on concurrent findings of fact by the High Court and Court of Appeal that the appellant was served with the Motion and charges, that he instructed counsel, and that he chose not to attend. The Hansard record showed 90 MCAs were present and 88 voted for impeachment, meeting the two-thirds threshold. The court found no misdirection or conclusions based on no evidence to warrant interference.

03

Whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate

Holding

The appellant was accorded adequate time and facility; the Senate meticulously followed its Standing Orders and the appellant filed a 118-page response.

Reasoning

The court noted that the appellant had seven days between December 10 and 16, 2020 to prepare, and that he filed a voluminous response. The Senate's procedure under Orders 75 and 76 was followed, and no step was taken outside the prescribed timelines. The court also deprecated the practice of 'parking' appeals to avoid Chapter Six consequences.

04

Whether it was mandatory to verify the impeachment Motion by affidavits or other statements on oath by members of the County Assembly who allegedly supported the Motion

Holding

Verification under Order 67(1) of the Nairobi City County Assembly Standing Orders does not require affidavits; signatures of at least one-third of MCAs in support of the motion suffice.

Reasoning

The court interpreted Order 67(1) and found that the verification envisaged is by signatures on a verification form provided by the Clerk, not by sworn affidavits. The court held that if the intention was to require affidavits, the Standing Order would have expressly said so. The use of the verification form did not occasion a miscarriage of justice or prejudice to the appellant.

05

Whether public participation was undertaken in the impeachment of the Governor of Nairobi County

Holding

There was sufficient public participation through newspaper advertisements, online publication, questionnaires, and public hearings.

Reasoning

The court relied on concurrent findings of fact by the lower courts that the County Assembly published a notice in the Daily Nation newspaper, posted the Motion on its website, conducted a survey via questionnaires, and held public hearings. Over 40,000 submissions were received. The court noted that the Covid-19 pandemic necessitated alternative methods of public participation.

06

Whether the impeachment charges were substantiated to the prescribed standard to warrant the appellant's impeachment

Holding

The charges were substantiated to the required standard; all organs from the County Assembly to the Court of Appeal found proof of all charges.

Reasoning

The court reiterated that the standard of proof for impeachment is above a balance of probability but below reasonable doubt. The charges were detailed and specific, and the High Court and Court of Appeal independently evaluated the evidence and found them substantiated. The Supreme Court declined to re-evaluate the evidence for a third time, finding no perversity or illegality in the concurrent conclusions.

07

Whether the process of impeachment of the County Governor of Nairobi contravened the sovereignty of the constituents that elected him

Holding

The sovereignty of the people was respected; the people exercised their power through their elected representatives to uphold Chapter Six of the Constitution.

Reasoning

The court held that under article 1, sovereign power belongs to the people and is delegated to State organs. The County Assembly and Senate, as elected representatives, acted within their constitutional mandate to remove the appellant. Public participation ensured the people were directly involved. The removal process upheld the constitutional values of integrity and accountability.

Legal principles established

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  • An appeal to the Supreme Court must state exactly which part of Article 163(4) it relies on; otherwise, the Court can refuse to hear it.
  • The Supreme Court can choose to decide all issues in a case anyway, even without jurisdiction, if doing so develops the law and helps lower courts.
  • Impeaching a county governor is a political process solely for the County Assembly and Senate; courts only intervene if the Constitution or natural justice is violated.
  • The standard of proof for impeachment is medium – higher than a 50-50 balance but lower than ‘beyond reasonable doubt’ – and proving just one charge is enough.
  • Verification of an impeachment motion does not need sworn affidavits; signatures from at least one-third of MCAs on a form provided by the Clerk is sufficient.
  • Public participation in removing a state officer is mandatory and can be done through newspaper notices, website posts, surveys, and public hearings – even during a pandemic.

Court orders

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  1. 1.The petition of appeal dated April 1, 2022 is hereby dismissed
  2. 2.Parties to bear their own costs

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Martha Karambu Koome
M.K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
concurring

Wrote the judgment

We have read the majority Judgment and the reasons thereof. We agree that this appeal has been rightly dismissed for lack of merit. However, having determined that the appellant has not properly invoked this court's jurisdiction under article 163(4) of the Constitution, and having sustained the preliminary objection; we would have struck out the appeal at this stage without more.

We have read the majority Judgment and the reasons thereof. We agree that this appeal has been rightly dismissed for lack of merit. However, having determined that the appellant has not properly invoked this court's jurisdiction under article 163(4) of the Constitution, and having sustained the preliminary objection; we would have struck out the appeal at this stage without more.p. 43
concurring

Wrote the judgment

I have keenly and carefully read and considered the Judgment of the majority. The factual rendition of the facts and relevant laws are meticulously considered therein. I am in agreement with the conclusion of the majority. However, I write separately to address the question of jurisdiction.

I have keenly and carefully read and considered the Judgment of the majority. The factual rendition of the facts and relevant laws are meticulously considered therein. I am in agreement with the conclusion of the majority. However, I write separately to address the question of jurisdiction.p. 44
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
concurring

Wrote the judgment

We have read the majority Judgment and the reasons thereof. We agree that this appeal has been rightly dismissed for lack of merit. However, having determined that the appellant has not properly invoked this court's jurisdiction under article 163(4) of the Constitution, and having sustained the preliminary objection; we would have struck out the appeal at this stage without more.

We have read the majority Judgment and the reasons thereof. We agree that this appeal has been rightly dismissed for lack of merit. However, having determined that the appellant has not properly invoked this court's jurisdiction under article 163(4) of the Constitution, and having sustained the preliminary objection; we would have struck out the appeal at this stage without more.p. 43
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. E425 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010

Relief refused

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Setting aside the judgment of the Court of Appeal delivered on March 4, 2022

The appeal was dismissed for lack of merit; the removal of the appellant from office was in compliance with the Constitution and the law.

Quashing the resolution of the Senate passed on December 17, 2020 for the removal of the appellant from the office of the Governor

The court found the removal process was conducted in accordance with the Constitution and the law.

Costs to the appellant

The court ordered each party to bear their own costs due to the public interest nature of the case.

Costs

Parties to bear their own costs

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.

We find no merit in this appeal and accordingly dismiss it.
p. 43 Final orders dismissing the appeal
Parties to bear their own costs.
p. 45 Costs order
in appropriate cases and only this final court, will rise to the occasion and not down tools, to resolve disputes that relate to its constitutional mandate.
p. 28 Supreme Court's exceptional jurisdiction to determine issues despite lack of jurisdiction
The spheres of jurisdiction of the removal of a County Governor is exclusively reposed in two legislative organs, the County Assembly and the Senate, the representatives of the people.
p. 43 Exclusive power of County Assembly and Senate in impeachment
The standard of proof is intermediate, that is, above a balance of probability but below all reasonable doubt, and the proof of any one of the charges is sufficient to discharge the burden of proof.
p. 43 Standard of proof in impeachment proceedings
the Motion for the removal from office of Governor Nairobi County was duly verified in accordance with order 67(1) of the Nairobi City County Assembly Standing Orders; and that the verification is not in the form of an affidavit or any other forms of deposition.
p. 39 Verification of impeachment motion does not require affidavits
Public participation is an integral element of the process of removal of a State officer from office.
p. 43 Public participation in impeachment
the appellant was accorded a fair hearing within the meaning of article 50 and fair administrative action in terms of article 47 of the Constitution, and under the Standing Orders.
p. 7 Fair hearing and fair administrative action in impeachment
Chapter six, in our view, is the soul of the Constitution of Kenya. Without integrity in leadership, the Constitution itself will be in utmost peril.
p. 13 Importance of Chapter Six on leadership and integrity

Key timeline

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2020-12-10
Nairobi County Assembly serves Governor Mike Sonko with an impeachment motion containing 15 charges.
2020-12-17
County Assembly passes the impeachment motion with 88 votes out of 90 MCAs present, meeting the two-thirds threshold.
2020-12-18
Sonko files a response and appears before the Senate through counsel; Senate considers his 118-page written submission.
2020-12-21
Senate votes to uphold the impeachment, removing Sonko from office as Nairobi Governor.
2022-04-01
Sonko files a petition of appeal to the Supreme Court against the Court of Appeal decision that affirmed his impeachment.
2022-11-15
Supreme Court dismisses Sonko's appeal, confirming his impeachment was lawful and procedurally fair.

Practical implications

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For lawyers

Draft precise appeal grounds at Supreme Court

This ruling reaffirms that ignoring Article 163(4)(a) or (b) in your notice of appeal invites a preliminary objection. Always specify the exact limb – appeals on constitutional interpretation vs matters of general public importance. The Court stressed it will not tolerate vague pleadings. However, take note: even if you falter, the Court may still decide everything if the public interest demands it – but don’t rely on that exception.

For businesses

Prepare for county leadership instability

For individuals

Know your rights if accused in impeachment

If you’re a county governor facing impeachment, you have a right to be served with charges, time to prepare – even just 7 days – and to be heard by both the County Assembly and Senate. But don’t ignore the process: Sonko chose not to attend the Assembly hearing, and the Court said that was his decision. Hire a lawyer immediately. You can file a written response. Public participation also lets citizens like you submit comments to the Assembly or Senate.

Frequently asked questions

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Was Mike Sonko's impeachment in Kenya legal?+

Yes. The Supreme Court confirmed the impeachment followed the Constitution and County Assembly rules. The Assembly had enough votes (88 out of 90 MCAs). Sonko was notified, given 7 days to prepare, and filed a 118-page response. The Senate held public hearings and received over 40,000 submissions. The Court said due process was fully observed.

Can a Kenyan governor be impeached without sworn evidence?+

Yes. The Supreme Court ruled that verifying an impeachment motion does not require sworn affidavits from MCAs. Signatures of at least one-third of MCAs on a form provided by the Clerk is sufficient under Nairobi's County Assembly Standing Orders. The Court said if affidavits were required, the rules would have said so.

What is the standard of proof for impeaching a Kenyan governor?+

It's an intermediate standard – higher than a balance of probability but lower than beyond reasonable doubt. This means the accusers need strong evidence, but not proof perfect. Also, if any one of the charges is proven to that standard, the impeachment succeeds even if other charges fail.

Can the Kenya Supreme Court hear an appeal that wasn't properly filed?+

Normally, no – the Court will sustain a preliminary objection and dismiss the appeal if the appellant doesn't specify which part of Article 163(4) they rely on. But in this case, the Court decided all the issues anyway because the outcome would be the same and to develop legal guidance for lower courts. This is a rare exception, not the rule.

Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sonko v County Assembly of Nairobi City & 11 others", Case Analysis (2022). Petition 11 (E008) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/76/eng@2022-12-05

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