High Court 18355 of 2025

The Committee on Powers and Privileges has no constitutional or statutory mandate to handle absenteeism matters of members of a County Assembly The case concerned a dispute over the removal of elected members of the County Assembly of Nyamira on grounds of alleged absenteeism. The petitioners argued that the Committee on Powers and Privileges had no constitutional or statutory mandate to handle absenteeism matters which were expressly governed by the Constitution, and that the process was conducted during a period of leadership disputes and subsisting court orders, rendering it unlawful and unfair. The respondents maintained that the Speaker acted within his lawful authority and was protected from personal liability by parliamentary immunity, and that the disciplinary process was proper. The court held that although a public officer acting within a lawful mandate was shielded from personal liability, a statutory committee could not exceed the powers expressly granted to it by the Constitution or statute. It found that the Committee lacked jurisdiction to determine absenteeism issues and that any process founded on an expanded mandate or inconsistent standing orders was ultra vires, unconstitutional, and therefore invalid. Reported by Flora Weru Constitutional Law – public officers – liability for duties of public officers- personal liability for duties performed in an official capacity – where the Speaker was sued as an individual and not in his official capacity as speaker- whether a public officer who performed duties in an official capacity could be sued and incur personal liability – whether acts done in execution of constitutional or statutory mandate exposed a public officer to personal civil liability – Constitution of Kenya, article 143; County Assemblies Powers and Privileges Act Cap 265C, section 11. Constitutional Law - legislative procedure - county assemblies – legislative procedure at the county assemblies – members of county assemblies - removal from office of a member of county assembly – grounds for removal of a member of a county assembly – whether absenteeism constituted a lawful ground for removal from office under the constitution and relevant statute – Constitution of Kenya, article 196; County Assemblies Powers and Privileges Act Cap 265C, section 16. Constitutional law - legislative procedure - legislative procedure at the county assemblies - committees of county assemblies – mandate of the committee on powers and privileges – what was the constitutional and statutory mandate of the committee on powers and privileges- Constitution of Kenya, article 196; County Assemblies Powers and Privileges Act Cap 265C, section 16. Brief facts The petitioners filed a petition dated July 8, 2025 seeking declarations that the resolution adopting the report of the Committee on Powers and Privileges was unconstitutional, null and void, and that the Committee had been illegally constituted. They also sought an order of certiorari to quash the impugned decision, costs, and further relief. The 1st petitioner stated that the respondents had unlawfully invoked article 194(1)(b) of the Constitution to declare their seats vacant, despite ongoing court orders and political instability within the County Assembly of Nyamira. He averred that they had lawfully attended gazetted sittings and that the resolution was procedurally flawed, unsupported by evidence, and politically motivated. In opposition, the respondents asserted that the removal process had been grounded in the applicable Standing Orders and that the Committee had acted within its mandate. They maintained that the petitioners had been notified, accorded a fair hearing, and had participated in the proceedings. The 1st Petitioner reiterated that the Committee lacked jurisdiction, due process had not been followed, and that the actions complained of were unconstitutional and undertaken in breach of pending court proceedings. Issues i. Whether a public officer who performed duties in an official capacity could be sued and incur personal liability? ii. Whether absenteeism was a ground for removal of office of a Member of a County Assembly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 2

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iii. iv. What was the mandate of the Committee on Powers and Privileges? Whether the Committee on Powers and Privileges possessed the authority to remove a member on the grounds of absenteeism. Relevant provisions of the Law Relevant Provisions of the law County Assemblies Powers and Privileges Act Cap 265C Section 11 - Immunity from legal proceedings 1. No civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to a county assembly or a Committee, or by reason of any matter or thing brought by him or her therein by a report, petition, Bill, resolution, motion or other document written to a county assembly. 2. No civil suit shall be commenced against the Speaker, the leader of the majority party, the leader of the minority party, a chairperson of a committees or any member for any act done or ordered by them in the discharge of the functions of their office. 3. The Clerk or other members of staff shall not be liable to be sued in a civil court or joined in any civil proceedings for an act done or ordered to be done in the discharge of their functions relating to proceedings of a county assembly or its committees. Section 15 - Committee of Powers and Privileges 1. There is established, for each county assembly, a committee known as the Committee of Powers and Privileges consisting of— 1. the Speaker, who shall be the chairperson of the Committee; and 2. such other members of the county assembly as may be provided in the Standing Orders of the county assembly. 1. The quorum of the Committee shall be a third of the members of the Committee, including the Speaker. 2. Subject to this Act and the Standing Orders of a county assembly, the Committee shall regulate its own procedure. 3. The functions of the Committee of Powers and Privileges shall be to— 1. inquire into the conduct of a member whose conduct is alleged to constitute a breach of privilege in terms of ; and 2. perform such other functions as may be specified in this Act. 1. The Committee of Powers and Privileges shall, either of its own motion or as a result of a complaint made by any person, inquire into the conduct of a Member whose conduct is alleged to constitute a breach of privilege in terms of , within fourteen days of receipt of a complaint. 2. The Committee of Powers and Privileges shall, within fourteen days of the conclusion of an inquiry, table its findings in the relevant county assembly together with such recommendations as it considers appropriate. 3. Each county assembly shall, in accordance with its Standing Orders, consider the report and the recommendations thereon and may take such action against the Member concerned as may be appropriate. Section 16 - Conduct constituting breach of privilege The Committee of Powers and Privileges may find a Member to be in breach of privilege if the Member— 1. contravenes sections , (1), or ; 2. commits an act mentioned in (1)(a), (b) or (2) and (3)(d), (e), (f) or (g); 3. willfully fails or refuses to obey any rule, order or resolution of a county assembly 4. contravenes any provision of the Speaker’s orders issued under section 40 of this Act; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 3

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5. conducts himself or herself in a manner which, in the opinion of the Committee on Powers and Privileges, is intended, or is likely to reflect adversely on the dignity or integrity of a county assembly, or of the Members or to be contrary to the best interests of a county assembly or its Members. Held 1. The principles established by section 11 were similar to those of article 143 relating to presidential immunity. Applying those principles, it followed that where a party undertook actions that were constitutionally recognized or statutorily sanctioned, and did so in an official capacity, particularly where such actions attracted institutional or statutory immunity, personal liability could not arise in the absence of clear evidence that the impugned conduct was undertaken ultra vires or amounted to personal wrongdoing. In the instant case, the petitioners placed no material before the court capable of meeting that threshold. 2. In view of the foregoing, and by virtue of section 11 of the County Assembly Powers and Privileges Act, the 2nd respondent acted squarely within the scope of his lawful mandate as Speaker. He was, therefore, insulated from personal liability for the actions undertaken during that period by the doctrine of parliamentary immunity. The 2nd respondent was improperly joined to these proceedings in his personal capacity rather than in his official capacity as Speaker of the County Assembly of Nyamira. Any claims advanced against him in the instant petition were devoid of legal effect. 3. Section 15 of the County Assemblies Powers and Privileges Act, 2017 provided for the establishment and composition of the Committee of Powers and Privileges. It further set out the functions of the Committee. The main function of the Committee was to consider whether a member of the County Assembly had breached their privileges or committed any actions enlisted under Section 16 of the Act. 4. The charges levelled against the petitioners related to absenteeism and did not fall within any of the scenarios contemplated under section 16. The issue of a member’s absenteeism, together with the attendant consequences, was governed by the Constitution and the applicable County Assembly Standing Orders. Article 194 of the Constitution provided for the automatic removal of a member of the County Assembly for unexplained or unapproved absenteeism. 5. A reading of article 194(1)(b) of the Constitution was that the removal from office and declaration of a member’s seat as vacant by the Speaker was an automatic consequence once it was established that the member either failed to obtain prior permission for absence or did not furnish satisfactory reasons for such absence. There was no constitutional or statutory requirement that this process be referred to the Committee of Powers and Privileges for determination, nor did that Committee possess jurisdiction, even remotely, over such a matter. 6. In essence, there was no legal provision requiring the Committee on Powers and Privileges to summon or conduct hearings in relation to an absent member. Its mandate was confined strictly to the functions set out under section 16 of the Act and did not extend to any matters beyond those parameters. It followed that the Committee had no authority to determine issues of absenteeism, as was purported in the instant case. 7. The Committee derived its mandate solely from the Standing Orders of the Nyamira County Assembly, which prescribed the procedure for the removal of a member whose conduct fell within the ambit of article 194(1)(b) of the Constitution. 8. The Constitution was the supreme law of the land, and all legislative or procedural instruments must be crafted and interpreted in fidelity to that supremacy. Standing Orders, as one of the procedural instruments governing the operations of the County Assemblies, derived their authority from the Constitution. 9. It could not be gainsaid that Standing Orders could not contradict the Constitution. Where a Standing Order conflicted with constitutional provisions, or purported to operate ultra vires the limits set by the Constitution, it was invalid to the extent of that inconsistency or excess. Accordingly, the instant Court, sitting as a constitutional court, was perfectly entitled to interrogate the Standing Orders to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 4

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10. 11. 12. 13. 14. 15. 16. ascertain their conformity with the Constitution. It followed therefore, that the Standing Orders of the Nyamira County Assembly could not confer upon any committee functions that were not expressly provided for in the Constitution or, at the very least, in statute. In the instant case, it was evident that the Standing Orders of the Nyamira County Assembly, in purporting to subject the petitioners to disciplinary proceedings for alleged absenteeism, exceeded the powers contemplated under the Constitution and the Act. Standing Order No. 239, insofar as it empowered the Committee to inquire into matters of the members’ absenteeism, amounted to a departure from—and indeed a violation of—the constitutional and statutory framework. That Standing Order sought to create a procedure neither envisaged by article 194(1)(b) nor provided for under section 16 of the Act. In short, the Committee acted ultra vires both the Constitution and the County Assemblies Powers and Privileges Act. (Para 86). The Committee being a creature of statute and deriving its authority from the Constitution, could only act within the limits expressly set out. A plain reading of article 194(1) (b) demonstrated that the Committee was not mandated to address issues of absenteeism; had the Constitution or the statute intended to confer such authority, they would have expressly done so. That conclusion was reinforced by the maxim expressio unius est exclusio alterius—implied exclusion—which denoted that where the law expressly provided for one matter while omitting others, that omission must be taken as deliberate. Put differently, if the law intended to provide for a particular process, it would say so. Neither the Constitution nor the County Assemblies Powers and Privileges Act, 2017 expressly assigned to the Committee on Powers and Privileges the role of addressing members’ absenteeism so its purported exercise of such authority over the petitioners was devoid of any legal foundation. No Hansard proceedings or other official records of the Assembly were placed before the Court to demonstrate that such approval was ever debated or adopted. It was trite that he who alleged must prove, as required by sections 107 to 109 of the Evidence Act. In the absence of the Assembly’s official record, the instant Court was not persuaded that the requisite proceedings took place or that the Committee’s resolutions were properly tabled and debated. The respondents’ failure to produce the official Hansard further lends credence to the Petitioners’ assertion that the Committee’s constitution arose solely from a unilateral communication issued by the 2nd Respondent in his capacity as Speaker, and that the Hansard extracts produced could have been made-up to support the dates relied upon by the respondents in issuing their resolutions against the petitioners. The chronology of this dispute demonstrated that the impeached Speaker had secured conservatory orders requiring the maintenance of the status quo pending determination of the various applications and petitions before the court. Accordingly, the County Assembly could not lawfully conduct sittings under the leadership of the 2nd Respondent, whose own election had been stayed by the same conservatory orders. Regular Assembly business could only resume once the question of the legitimate Speaker was resolved, which occurred on June 4, 2025 when judgment was delivered in Bomet Consolidated Petition E004 of 2025. It fell upon the respondents and their Committee to assess the petitioners’ conduct only with respect to the period following the delivery of the Bomet judgment. Any reliance on conduct predating that decision disregarded the prolonged leadership vacuum within the Assembly and the subsisting conservatory orders. Proceeding on the basis of events that occurred during a time of legal uncertainty rendered the process neither fair nor legally sustainable. Although the 2nd respondent was elected Speaker on 19th December 2024, he could not lawfully assume office or discharge any of the functions of that office in view of the conservatory orders issued on February 6, 2025 in Petition E001 of 2025, Edwin Onchoko v Nyamira County Assembly & Another (Hon. Thaddeus Nyabaro – Interested Party). Those orders remained in force and effectively suspended the exercise of the Speaker’s functions. Consequently, the 2nd respondent lacked the authority or capacity to raise allegations of absenteeism against the petitioners, particularly because the period in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 5

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17. 18. 19. 20. 21. 22. 23. 24. question fell entirely within the time when his assumption of office had been placed in abeyance. The leadership dispute that persisted between October 2024 and June 2025 made it impossible for the Assembly to conduct ordinary business until the courts resolved the impasse. The respondents and the Committee on Powers and Privileges would only have been justified in resolving to remove the petitioners from office if they had demonstrated that the petitioners failed to attend eight consecutive sittings after the High Court in Bomet delivered its judgment on June 4, 2025. Similarly, liability would have arisen if the petitioners continued to attend “Bunge Mashinani” sittings under the impeached Speaker after that determination. No such evidence was presented. The dates relied upon by the respondents to support the allegations of absenteeism were inconsistent across the pleadings and fell within a period when the Assembly was embroiled in leadership disputes, during which the former Speaker’s tenure had been preserved by subsisting conservatory orders. Those inconsistencies called into question the legal and procedural integrity of the disciplinary process and reinforced the conclusion that the petitioners were subjected to an improper and unfair process. Even assuming the petitioners were politically neutral, a reasonable member of a county assembly would be expected to comply with directions issued by the office lawfully recognised at the time. Between 24th October 2024 and June 2025, conservatory orders preserved the former Speaker’s authority, thereby vesting in him the legal mandate to convene sittings. It was therefore improper to expect members to disregard that lawful position and act under a competing authority whose status had not yet been confirmed through the judicial process. The impugned resolution dated 07th July 2025 which was passed by the Committee and forwarded to the County Assembly for noting and adoption affected a total of twelve members. It was axiomatic that courts should always consider the wider interests of justice and public interests in considering such cases. The impugned resolution of the Committee of Powers and Privileges, purporting to remove the Petitioners from office as Members of the Nyamira County Assembly, had the practical effect of undermining the will of the electorate who duly chose them to serve for the term 2022–2027. Any action that resulted in the displacement of elected representatives must be approached with circumspection, given its implications for democratic representation. Removing twelve members without regard to the constitutional and statutory framework, and without considering the consequential impact on the electorate, including the possibility of leaving portions of the County without representation pending fresh elections, would run contrary to the overarching public interest. The steps taken by the respondents to discipline and expel the petitioners were not supported by any constitutional or statutory authority. The close proximity between the conclusion of the leadership dispute and the initiation of disciplinary action suggested that the process was not grounded in a proper exercise of the Assembly’s disciplinary mandate. There was no demonstration of bad faith on the part of the Petitioners. Following the High Court in Bomet’s judgment affirming the impeachment of Hon. Enock Okero Ogori, they acknowledged the resulting change in the Assembly’s leadership, resumed sittings at the official precincts and recognized the 2nd respondent as the duly elected Speaker. Their participation in the disciplinary proceedings, notwithstanding their concerns regarding the legality of the Committee’s constitution, did not prejudice or waive their right to challenge the legality and procedural propriety of those proceedings before the instant Court. As Speaker, the 2nd respondent bore a constitutional and institutional responsibility to provide stable leadership during a period of significant internal turbulence. Instead, he proceeded to constitute a committee without requisite authority and at a time when the Assembly lacked quorum, thereby undermining orderly governance. Such actions were inconsistent with the obligations of his office and did not advance the restoration of functional stability within the Assembly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 6

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25. The instant Court could not sanction a process that resulted in the removal of elected representatives through procedures that did not comply with constitutional or statutory requirements. Such actions undermined democratic governance and compromised the electorate’s right to representation. The public interest in ensuring lawful, accountable, and constitutionally compliant decision-making by county assemblies outweighed any justification advanced for the impugned actions. 26. The petitioners were subjected to an unfair and legally unsustainable process. The leadership disputed within the Assembly rendered the conduct of official business uncertain. The former Speaker remained in office under conservatory orders until the High Court in Bomet determined the question of his impeachment. The Senate’s Resolution was issued notwithstanding pending judicial proceedings and was therefore in tension with the principles of res sub judice and separation of powers; and the petitioners could not be held liable for participating in sittings convened by a Speaker whose tenure had not yet been conclusively resolved. 27. Allowing the respondents to act in the manner undertaken would risk creating an internal environment in which members could be deterred from exercising independent judgment or engaging in lawful dissent. Such an outcome would be inconsistent with the constitutional values that required transparent, accountable, and participatory governance within county assemblies. 28. The Committee on Powers and Privileges was improperly constituted, the Assembly lacked quorum when the impugned actions were taken, and the 2nd respondent lacked the authority to constitute or direct the Committee in the manner he did. The Committee therefore acted ultra vires the Constitution and the County Assemblies Powers and Privileges Act in making the impugned Resolution. Accordingly, the Resolution was null and void. Petition allowed Orders i. A declaration was issued that the resolution passed and adopted by the respondents regarding the report of the Committee on Powers and Privileges concerning the conduct of the petitioners, as contained in the Order Paper dated 07 July 2025, was unconstitutional, null and void. ii. A declaration was issued that the 1st respondent’s purported Committee on Powers and Privileges concerning the conduct of the petitioners was improperly and illegally constituted. iii. A declaration was issued that the resolution of the respondents in the Order Paper dated 07July 2025, discussing the conduct of the petitioners, violated the petitioners’ rights to a fair hearing and fair administrative action. iv. An order of certiorari was issued, quashing the decision, procedure, proceedings, acts and report of the 1st respondent’s purported Committee on Powers and Privileges concerning the conduct of the petitioners, culminating in the adoption of the Order Paper dated 07th July 2025. v. Pursuant to section 27 of the Civil Procedure Act, and the principle that costs follow the event, the 1st respondent shall bear the costs of the instant petition, payable to the petitioners and the Interested Party, while the petitioners shall bear the costs of the 2nd respondent. Citations Cases Kenya 1. Anarita Karimi Njeru v Republic Miscellaneous Criminal Application 4 of 1979; [1979] KEHC 30 (KLR) - (Explained) 2. Attorney General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) Petition 12, 11 & 13 of 2021 (Consolidated); [2022] KESC 8 (KLR) - (Explained) 3. Kamau v Ethics & Anti-Corruption Commission & 5 others Civil Appeal 102 of 2016; [2017] KECA 406 (KLR) - (Explained) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 7

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Kimaru v Inspector General of Police & another; Independent Medico-Legal Unit & another (Interested Parties) Constitutional Petition E007 of 2023; [2025] KEHC 1782 (KLR) - (Explained) 5. Law society of Kenya v Centre for Human Rights and Democracy & 13 others Civil Appeal 308 of 2005; [2013] KECA 172 (KLR) - (Explained) 6. Matemu v Trusted Society of Human Rights Alliance & 5 others Civil Application 29 of 2014; [2014] KESC 6 (KLR) - (Applied) 7. Mohamed & 2 others v Attorney General & another Constitutional Petition 169 of 2018; [2024] KEHC 5518 (KLR) - (Mentioned) 8. Munya v Kithinji & 2 others Application 5 of 2014; [2014] KESC 30 (KLR) - (Explained) 9. Ngoge v Ole Kaparo, Clerk of the National Assembly & 3 others Miscellaneous Civil Application 22 of 2004; [2007] KEHC 120 (KLR) - (Explained) 10. Okumu & another v Engineers Board of Kenya Civil Appeal 89 of 2019; [2020] KECA 203 (KLR) (Mentioned) 11. Onchoko v Nyamira County Assemly & another; Nyabaro & another (Interested Parties) Petition E001 of 2025; [2025] KEHC 2262 (KLR) - (Mentioned) 12. Otieno v Airtel Kenya Ltd Petition 218 of 2017; [2018] KEHC 9063 (KLR) - (Mentioned) 13. Republic v County Assembly of Nyamira Committee of Powers & Priviledges & 4 others Ex-parte Nyabaro & another Miscellaneous judicial Review 02 of 2019; [2019] KEHC 4204 (KLR) (Mentioned) 14. Republic v Non Governmental Orgnizations Cordination Board Ex-Parte Evans Kidero Foundation Judicial Review Miscellaneous Application 78 of 2017; [2017] KEHC 9598 (KLR) (Explained) 15. Senate & 3 others v Speaker of the National Assembly & 10 others Petition 19 (E027) of 2021; [2023] KESC 7 (KLR) - (Mentioned) United Kingdom 1. Hadkinson v Hadkinson [1952] 2 All ER 567 - (Applied) 2. M v Home Office and Another [1992] 4 All ER 97 - (Applied) United States 1. Eliot v Eliot 81 Wis 295 - (Applied) 2. Marbury v Madison 5 US 137 (1803) - (Applied) Statutes Kenya 1. Civil Procedure Act (Cap 21) section 27 - (Interpreted) 2. Constitution of Kenya articles 47, 50, 75(2),(b) (d); 88; 124; 143; 165(3)(d); 178(1); 194(1)(b); 196 (Interpreted) 3. County Assemblies Powers and Privileges Act (Cap 265C) sections 10, 11, 15(1)(2)(3)(4)(5)(6)(7); 16; 17(3); 25; 26(1); 27; 29; part IV - (Interpreted) 4. Elections Act (Cap 7) sections 75(1)(A); 78; part VII - (Interpreted) 5. Evidence Act (Cap 80) sections 107, 108, 109 - (Interpreted) 6. Fair Administrative Action Act (Cap 7L) section 4 - (Interpreted) Advocates Mr. Bonuke for the petitioners. Mr. Mokua for the 1st respondent. Mr. Ndubi for the 2nd respondent. Mr. Bogonko for the interested party. 4. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 8

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JUDGMENT Introduction 1. Few disputes lay bare institutional rupture as starkly as the conflict that befell the Nyamira County Assembly. What began as a leadership contest quickly devolved into parallel sittings, competing speakerships, and fractured political allegiances, conditions under which the petitioners’ seats were ultimately declared vacant. This petition invites the court to distil the material facts from that turbulence, to test the impugned actions against the strict demands of the the Constitution, and to determine whether the drastic step of extinguishing elected mandates was taken within the bounds of lawful authority. 2. The petitioners before the court comprise both elected and nominated Members of the Nyamira County Assembly who challenge the constitutionality and legality of the respondents’ actions culminating in the declaration that their seats had fallen vacant. 3. The 1st petitioner is an elected Member of County Assembly of Nyamira representing the people of Bokeira Ward. 4. The 2nd petitioner is a Special Elected Member of the County Assembly of Nyamira representing the ANC Party. 5. The 3rd petitioner is a Special Elected Member of the County Assembly of Nyamira representing the Ford Kenya Party. 6. The 4th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party. 7. The 5th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party. 8. The 6th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the people of Rigoma Ward. 9. The 7th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party. 10. The 8th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the UPA Party. 11. The 9th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the ODM Party. 12. The 10th petitioner is a Special Elected Member of the County Assembly of Nyamira representing the Wiper Party. 13. The 1st respondent is the Nyamira County Assembly established under article 176 of the the Constitution of Kenya and vested with legislative authority and oversight functions as provided under article 185 of the the Constitution of Kenya. 14. The 2nd respondent is the current Speaker of the Nyamira County Assembly and also an elected Member of the County Assembly of Nyamira representing the people of Ekerenyo Ward, under the provisions of article 178(1) of the the Constitution of Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 9

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15. The interested party is an Independent Commission under article 88 of the the Constitution of Kenya and the Independent Electoral and Boundaries Commission Act, Cap 7C, having functions inter alia, the conduct of elections and referenda. The Petition 16. The petitioners herein instituted the present suit vide petition dated July 8, 2025, seeking the following prayers: 1. A declaration that the resolution passed and adopted by the respondents regarding the Report of the Committee on Powers and Privilege concerning the conduct of the petitioners in the Order Paper dated July 7, 2025 is unconstitutional, null and void. 2. A declaration that the 1st respondent’s purported Committee on Powers and Privilege concerning the conduct of the petitioners was improperly and illegally constituted. 3. A declaration be issued that the resolution of the respondents in the Order Paper dated July 7, 2025 discussing the conduct of the petitioners violated the fundamental rights and freedoms of the petitioner to a fair hearing and fair administrative action. 4. That an order of certiorari do issue to bring up before this honourable court to quash the decision, procedure, proceedings or act and report by the 1st respondent’s purported Committee on Powers and Privilege concerning the conduct of the petitioners culminating in its adoption of Order Paper dated July 7, 2025. 5. An order that the respondents be condemned to pay costs of the petition. 6. Such further appropriate and consequential orders and reliefs as this honourable court may lawfully make. 17. The petition is supported by the 1st petitioner’s supporting affidavit sworn on July 8, 2025 in which he deposed that the respondents had unlawfully invoked the provisions of article 194(1)(b) of the the Constitution to declare the seats of duly elected Members of County Assembly, being the petitioners herein, vacant and that the Committee on Powers and Privileges which tabled the impugned report was bereft of jurisdiction. He averred that the County Assembly of Nyamira had been embroiled in a prolonged political instability following suspension of the Speaker on October 8, 2024 and his subsequent impeachment despite existing conservatory orders. He also averred that the petitioners lawfully attended Assembly sittings in ‘Bunge Mashinani’ which had been duly gazetted vide Gazette Notice No 14229 of October 29, 2024 and that this was the basis of the retaliatory political action by a rival faction in the Assembly to eject them from office on the pretext that they absented themselves from eight (8) consecutive sittings, thereby warranting invoking of article 194(1)(b) of the the Constitution. 18. The 1st petitioner averred that the resolution in question was not only factually and legally flawed but equally procedurally defective as it was passed in open defiance of existing court orders; that the 2nd respondent had unlawfully assumed the role of the Speaker at the time thereby bringing to question the legitimacy of the Committee that was constituted to look into their conduct. It was averred that it was legally and factually untenable that there were proceedings totalling to the constitutional threshold of eight (8) sittings presided over by any other speaker other than Hon Enock Okero Ogori, since the 2nd respondent was only elected on December 19, 2024, which election was in any event stayed by the existing conservatory orders, until June 4, 2025 when judgment was delivered by the High Court in Bomet affirming his position. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 10

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19. It was further averred that the period which the petitioners are said to have absconded County Assembly sittings fell within the period when the County Assembly sittings had been suspended; that the purported Clerk of the County Assembly one Duke Onyari had been suspended from the office on October 25, 2024 and issued with a suspension letter on November 4, 2024. That even so, the Committee was empowered under articles 75(2)(b) and 194(1)(c) to impose any other penalty other than what was stipulated in article 194. 20. It was averred that the impugned resolution was passed while there were ongoing court proceedings in breach of the res sub judice rule; that there was no verifiable evidence furnished to support the claim that the petitioners had absented themselves from eight consecutive sittings since the alleged lists were never accompanied by any official copies of the Hansard to substantiate the claim that the sittings actually took place. The 1st petitioner contended that the action by the respondents was not a lawful execution of their constitutional mandate, but a clear manifestation of a politically motivated purge which if left unchecked would result in silencing dissenting voices and punishing perceived political opponents. The Responses 21. In response to the petition, the 1st respondent filed a replying affidavit sworn on August 1, 2025 by Duke Onyari, the Clerk of the County Assembly opposing the Petition and he stated that article 194(1) (b) of the the Constitution did not provide for the procedure for the removal of the petitioners as that procedural law was anchored on Standing Order No 239 of the Nyamira County Assembly Standing Orders. He deposed that the petitioners admitted in their supporting affidavit to the petition that they had been attending ‘Bunge Mashinani’ under the leadership of the impeached speaker from October 2024 to June 2025, yet they knew of the High Court at Bomet’s decision in Petition No E004 of 2025 where it was held that all actions undertaken by the Speaker post-impeachment were illegal, null and void, with no other court orders post-impeachment maintaining him as the Speaker of the County Assembly of Nyamira. 22. The 2nd respondent also filed a replying affidavit dated August 20, 2025 opposing the petition. He deposed that the Committee on Powers and Privileges drew its mandate from the provisions of Standing Order No 195 of the Nyamira County Assembly which gave it the mandate to scrutinize the conduct of the petitioners as Members of the County Assembly. It was averred that the County Assembly of Nyamira wrote to the petitioners through the office of the Clerk of the County Assembly vide letters dated June 20, 2025 requiring them to individually appear before the Committee at the County Assembly boardroom on specific dates and time for hearing. 23. The 2nd respondent averred that they complied with articles 47 and 50 of the the Constitution and section 4 of the Fair Administrative Action Act by according the petitioners procedural fairness and gave them the reasons for the disciplinary hearing which the petitioners duly acknowledged, attended, and fully participated in the proceedings, some with their legal counsel. Therefore, they could not contend that the committee was bereft of jurisdiction on account of impending judicial proceedings in cases which they were not even parties to. 24. The 2nd respondent further averred that the petitioners admitted to abandoning the sittings of the gazetted precincts of the County Assembly for several months in favour of ‘Bunge Mashinani’ and that their conduct was the subject of inquiry by the Senate House of the Standing Committee on Devolution and Intergovernmental Relations on the Operational and Leadership Crisis in Nyamira County Assembly. 25. The petitioners filed a further affidavit sworn by the 1st petitioner on September 23, 2025 in which he deposed that the issue of jurisdiction was now res judicata as it had already been addressed by the court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 11

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and that the appointment of the committee referred to by the 2nd respondent in his replying affidavit marked “DSO-8’ was an invalid appointment made by the 2nd respondent; that there was no report tabled by him as required by Standing Order No 239 on the petitioners’ absenteeism. He averred that none of the respondents proved that the Assembly was quorate to conduct any business or debate and that the Assembly reserved the right to gazette other stations as places of sitting and amend their calendar accordingly to ensure efficient discharge of its duties. He contended that some of the issues raised by the respondents in their replying affidavits were no longer viable as they had been resolved by way of consent in other courts. 26. He further deposed that the actions of the 1st respondent’s Committee of Privileges were ultra vires and bereft of the County Assembly’s approval, that the Senate’s resolutions could not usurp the principles of sub judice because there were active appellate and ELRC matters directly touching on the issues at hand. It was averred that the process of declaring the seats of the petitioners vacant under the Elections Act did not end with communicating with the interested party herein but required that the interested party transmits a notice to the respective Returning Officer within prescribed timelines under the Elections Act. 27. With respect to the 2nd respondent’s response, the petitioners through the 1st petitioner deposed that the provisions of the standing orders on removal of a member from the County Assembly due to absenteeism was donated by part IV of the County Assemblies Powers and Privileges Act Cap 265C and that the only way they could be removed was through the provisions of article 194(1)(b) of the the Constitution, which required members to seek permission for missing sittings from the Speaker; yet, this was impossible for them to do as the 2nd respondent had been barred by conservatory orders from assuming that role and the petitioners could therefore not address or approach him. That the 2nd respondent ought to demonstrate which of his purported sittings as a speaker they failed to attend without permission if any. 28. The 1st petitioner also deposed that because there was a change of guard at the County Assembly owing to the judgment in Bomet, they chose to comply with the summons in obedience to the administrative authority in place, but that did not mean that they were in agreement with the the Constitution of the impugned committee. That they had clearly demonstrated several breaches of constitutional rights and blatant disregard of procedure which were sufficient to discredit any actions undertaken by the respondents. He further deposed that no authority could usurp the court’s proceedings and that no report called for the removal of any faction of the Members of County Assembly from office. 29. At the close of the pleadings, parties took directions before this court to canvass the Petition by way of written submissions. The Submissions The petitioners’ submissions 30. In their submissions dated September 30, 2025, counsel for the petitioners identified the following issues for determination, namely whether the Committee on Powers and Privileges had the mandate to initiate or undertake removal proceedings against the petitioners under article 194(1)(b) of the the Constitution, whether the Committee was properly and lawfully constituted if such mandate existed, and whether the impugned Resolution adopted by the 1st respondent was valid or a nullity. 31. Counsel for the petitioners submitted, on the first issue, that the Committee on Powers and Privileges derived its mandate from article 196 of the the Constitution and sections 15(4) and 16 of the County Assemblies Powers and Privileges Act, Cap 265C. It was argued that the Committee’s authority is https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 12

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limited to inquiring into whether a member has breached the provisions of sections 25, 26(1), 27 and 29 of the Act, and to recommending the penalties provided under section 17(3). Counsel contended that none of these provisions empowers the Committee to inquire into or determine matters relating to absenteeism. the the Constitution and the Act, it was submitted, supersede the Standing Orders, and since neither instrument assigns the Committee a role in proceedings under article 194(1)(b), Parliament must be taken to have deliberately excluded such a mandate. Consequently, any body purporting to exercise that function would be acting without lawful authority. 32. For the above argument, counsel cited the Court of Appeal’s decision in Mohamed Ali Sheikh v Abdiwahab Sheikh & 4 others; Emmanuel Changawa Kombe (IP) (2018) KECA 75 KLR and Republic v Transitional Authority and another & another ex parte Crispus Fwamba and 4 others (2013) KEHC 6518 KLR for the proposition that if parliament was aware of a scenario but omitted or remained silent on it then it did not intend to provide for it; together with the fact that actions or decisions made in excess or without jurisdiction pursuant to delegated power were grounds for review of a decision under section 7(2)(a) of the Fair Administrative Action Act. 33. Counsel also submitted that the Committee was unknown to the County Assembly because there already existed a Privileges Committee duly approved by the County Assembly before the onset of the volatile leadership crisis that was experienced in the county of Nyamira and that no legal provision existed to the effect that the impeachment of a Speaker ousted all existing committees. It was submitted that there was no evidence of the House being invited to approve the the Constitution of the said Committee or a discharge of the members sitting in the previous committee, contrary to Standing Order No 159 on Discharge of Committees, lending credence to the assertion that the Committee was formed from the 2nd respondent’s unilateral communication when he purported to act as speaker. 34. Counsel cited the case of Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission and 4 Others (2017) eKLR where the Court of Appeal held that a body not properly constituted cannot purport to carry out its mandate under the law. Counsel also cited the case of Republic v NonGovernmental Organizations Coordination Board Ex Parte Evans Kidero Foundation (2017) eKLR where Odunga J (as he then was) nullified the actions of the respondents which were not backed by the law. Counsel submitted that the petitioners’ right to a fair trial were threatened and grossly violated by the utter disregard of legal procedures and provisions and they relied on the Court of Appeal’s decision in Law Society of Kenya v Centre for Human Rights and Democracy and 13 others (2013) KECA 172 KLR where the court found that the tribunal had deviated from established legal beacons. 35. On the second issue, counsel submitted that the impugned Resolution emanated from a report (“NJO-1A”), which enclosed summons issued to twelve MCAs, all dated June 20, 2025, requiring them to appear before the Committee. The summons cited various dates relating to sittings allegedly not attended by the petitioners, with those addressed to the 1st to 9th petitioners referring to the period between October 29, 2024 and December 10, 2024, while only the summons to the 10th petitioner referred to sittings between January 3, 2025 and February 18, 2025. Counsel argued that these references were inconsistent with the 1st respondent’s position that the petitioners failed to attend sittings between February 25, 2025 and June 3, 2025, thereby demonstrating the absence of a fair hearing, as the Committee itself was not clear on the particulars of the allegations. It was further submitted that although the 2nd Respondent was elected on December 19, 2024, he could only assume the functions of Speaker on June 4, 2025 after the delivery of the Bomet judgment, owing to conservatory orders issued on February 10, 2025. 36. Counsel further submitted that the alleged sittings of the County Assembly were fictitious as the respondents did not adduce evidence of the Hansard, registers of the sittings signed by the members https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 13

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and an Order Paper for the sittings’ deliberations to prove the absenteeism but merely produced registers which were fictitious documents as proof of non-attendance. Counsel also added that the alleged County Assembly sittings were not even quorate (12 members) to conduct its businesses as demonstrated by the registers which indicated that sittings of 28th to 30th January had 7, 6 and 10 members respectively. 37. It was additionally submitted that Standing Order No 33 required that the sittings be adjourned if the House was not quorate and because the various sittings relied on by the Committee to conclude the petitioner’s non-attendance were not quorate, they failed to prove the petitioners’ failure to attend the sessions. Further, that no Hansard report had been adduced in respect of October 29, 2024 and December 10, 2024 as the dates relied on by the Committee to find the petitioners culpable for absenteeism and no proof was adduced of the election of a speaker to preside over the House proceedings as such proceedings would have been impossible in light of the unstable and existing turmoil in the Assembly. 38. Counsel for the petitioners submitted that conservatory orders had preserved the office of the former Speaker, Hon Enock Okero Ogori, together with his authority to discharge the functions of that office, which formed the basis for the issuance of Gazette Notices designating an alternative venue for County Assembly sittings. It was therefore argued that the petitioners could not be faulted for associating with the Speaker who was lawfully recognized at the time, particularly when the 2nd respondent had no legal capacity to act as Speaker under the subsisting orders. Counsel further contended that the move to remove the petitioners from office amounted to the retroactive application of disciplinary measures without regard to the prevailing circumstances, and that the decisions taken against them were tainted by unreasonableness and bias. Counsel cited the Court of Appeal decision in Godfrey Ajuong Okumu & another v Engineers Board of Kenya (2020) KACA 203 (KLR) to this end. 39. On the issue of the Senate’s Resolutions, counsel submitted that there was no logical reason for implementing the resolutions of the Senate while there were ongoing court proceedings. Counsel stated that the constitutional threshold for removing the petitioners from their duly elected offices had neither been met under article 194 (1) (b) on failure to attend 8 consecutive sittings nor had they accorded them a fair hearing. They relied on the Supreme Court case of Munya v Kithinji and 2 Others Application No 5 of 2014 (2014) KESC 30 KLR where it was held that in interpreting provisions of the Elections Act, a court of law could not disengage from the the Constitution. Petitioners’ further submissions 40. The petitioners filed further submissions dated October 24, 2025 with the leave of the court granted on October 22, 2025. Counsel submitted that this court (differently constituted) on July 11, 2025 dismissed all preliminary issues of jurisdiction such that to raise it herein would be akin to creating confusion and making a mockery of the court. Counsel submitted that the issue before the court was not an election petition as envisioned by Part VII of the Elections Act on Election Disputes Resolution of section 75(1)(A) and 78 of the Elections Act which required that the election of a Member of County Assembly be challenged in the subordinate courts and petitioner to deposit security for costs. That the present petition was a constitutional issue seeking to challenge the exercise of the County Assembly’s mandate in exercising its authority as it did against the petitioners in accordance with the court’s jurisdiction under article 165(3)(d). 41. Counsel also submitted that there were numerous authorities from the superior courts which held that provisions such as section 10 of the County Assemblies Powers and Privileges Act had to be overlooked if there was an apparent or actual risk of infringement of rights or conduct that was ultra vires any powers donated by the the Constitution. The case of Peter O Ngoge v Francis Ole Kaparo & 4 others (2007) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 14

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KEHC 1433 KLR was cited where a three-judge bench emphasised the need for courts to promote the principle of separation of powers and not interfere with internal arrangements of the legislative bodies unless they violated the the Constitution and the principle that there was nothing that was immune from the court’s scrutiny if it was in conflict with the the Constitution. Counsel further cited the Court of Appeal’s decision in LSK v Centre for Human Rights and Democracy & 13 others (2013) KECA 172, KLR and Republic v County Assembly of Nyamira Committee of Powers and Privileges & 4 others Ex Parte Thaddeus Nyabaro and another (2019) KEHC 4204 KLR in support of their argument for the application of section 10 of the County Assemblies Powers and Privileges Act. 42. Counsel additionally submitted that the summons issued to the petitioners indicated different dates that they allegedly failed to attend the Assembly sittings from what was stated at paragraph 34 oF Their Submissions; that they allegedly absconded between February 25, 2025 and June 3, 2025 according to the submissions but the summons indicated different dates which were relied on by the Committee in arriving at their decision. Counsel further contended that the Committee members were alien and did not have the House’s approval to act but were merely constituted as a result of communication passed by the 2nd respondent and because the 1st respondent contended that ‘Bunge Mashinani’ which the petitioners attended was never approved by the County Assembly, there was equally no quorum at the Assembly to constitute the impugned Committee. 43. Lastly, it was submitted that the 1st respondent deceived the court and made a mockery of the rule of law by denying the existence of valid consents executed by the parties in Kisumu ELRC 054 of 2024 and alleging that the Speaker made a communication to the Assembly on June 17, 2025 as submitted, yet they did not attach the specific Hansard proceedings to prove this. It was their further submission that the 2nd respondent misapprehended the law by arguing that he was wrongfully joined in the present proceedings because he enjoyed immunity from civil and criminal liabilities in the discharge of his functions as the Speaker, yet he was a party and a beneficiary of a ruling of this court (differently constituted) in Republic v County Assembly of Nyamira Committee of Powers and Privileges & 4 others ex parte Thaddeus Nyabaro (supra). The 2nd respondent’s submissions 44. Counsel for the 2nd respondent submitted on two main issues being whether the 2nd respondent as the speaker of the County Assembly of Nyamira has properly been sued in his personal capacity and whether the petitioners are entitled to the orders sought in their petition. 45. Counsel submitted that after the delivery of the decision in the High Court at Bomet, the contestation of the election of the 2nd respondent as speaker of the County Assembly of Nyamira ended on June 4, 2025 and that the petitioners failed to recognize him as the Speaker thereby suing him in his personal capacity as opposed to his official role which was the basis of him discharging the Speaker’s functions in the present petition. It was submitted that section 11 of the County Assembly Powers and Privileges Act clearly granted the speaker of the Assembly immunity from civil and criminal proceedings in the course of his official functions and therefore the court ought to find that it was improper for him to be sued in his personal capacity while discharging official speaker duties. 46. On the second issue, it was submitted that the substantive law on the vacation of office of a member of County Assembly was article 194(1)(b) of the the Constitution, while the procedural law was sections 16 and 17 of the County Assemblies Powers and Privileges Act and Nyamira County Assembly Standing Orders (2024) under No 239. Counsel submitted that the petitioners failed to attend the sittings of the Assembly at the gazetted precincts from October 2024 and defiantly joined the former impeached speaker to establish a parallel illegal outfit dubbed, ‘Bunge Mashinani’, which became the subject of inquiry by the Senate where a resolution was passed on May 15, 2025 that nullified the said Assembly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 15

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and actions undertaken. That this resolution further got legal backing by the High Court in Bomet in its judgment of June 4, 2025. 47. Counsel also submitted that it was the above events that led to the 2nd respondent informing the County Assembly of the petitioners’ conduct where the Assembly opted to refer the matter to the Committee of Powers and Privileges and not out of retaliation or vendetta as alleged in the petition. That even then, the Committee was guided by articles 47 and 50 of the the Constitution and the provisions of the Fair Administrative Action Act in according the petitioners an opportunity to be heard. Counsel submitted that the petitioners bore the burden of proof to substantiate their claim for violation of their constitutional rights and cited the case of Kimaru v Inspector General of Police & another; Independent Medico-Legal Unit & Another, Constitutional Petition No E007 of 2023 (2025) KEHC , 1782 KLR in this regard, together with the case of Anarita Karimi Njeru v Republic (1979) KLR where it was held that a petitioner ought to set out with a reasonable degree of precision the rights infringed and the manner of infringement. The cases of Mohammed and another v Attorney General & 282 others, Constitutional Petition No E007 of 2023 (2024) KEHC 12089 KLR and Leonard Otieno v Airtel Kenya Limited (2018) eKLR were also cited. 48. It was further submitted that the the Constitution of the select Committee of Powers and Privileges pursuant to Standing Order No 193 of the Nyamira County Assembly on June 17, 2025 was a resolution of the entire House including the petitioners herein and it was incumbent upon them to tender evidence that the findings of the Committee were wrong and that they indeed never absconded the sittings at the gazetted Assembly precincts. 49. Finally, counsel submitted that the County Assembly was an institution and creature of the the Constitution and enabling statutes and that the petitioners placed their allegiance on the former speaker who had been impeached on October 24, 2024, yet it should have been to the institution of the County Assembly. That for these reasons, the petition ought to be found as unmerited and dismissed in its entirety. 50. On costs, it was submitted that costs should be awarded to the successful litigant in accordance with section 27 of the Civil Procedure Act and as determined in the case of Republic v Rosemary Wairimu Munene, ex parte Applicants v Ihururu Dairy Farmers Cooperative Society Limited, Judicial Review Application No 6 of 2014. The interested party’s submissions 51. Counsel submitted on behalf of the interested party that its role in these proceedings was confined to providing clarification on the applicable laws, procedures, and administrative steps undertaken by the Commission to the extent relevant to the issues before the court. Counsel further emphasized that the interested party maintained a strictly neutral posture and left the determination of the substantive issues entirely to the court. 52. On costs, it was submitted that since the Commission was neither a protagonist in the dispute nor initiated or volunteered to be part of the dispute before the court but should be awarded costs in the final determination of the matter since it had expended public resources to facilitate legal, technical and administrative costs in compliance with the directions of the court requiring them to respond to the issues raised by the primary parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 16

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Issues for Determination 53. I have considered the entire petition, the grounds upon which it is founded, the prayers sought, the parties’ written submissions, and the annexures to the various pleadings, and I have evaluated them against the applicable law and the following issues for determination: 1. Whether the 2nd respondent has been properly sued in his personal capacity in this suit. 2. Whether the Committee on Powers and Privileges was rightfully constituted. 3. Who ought to bear the costs in this petition? Analysis and Determination 1. Whether the 2nd respondent has been properly sued in his personal capacity in this suit. 54. From the facts of this case, it is discernible that the 2nd respondent who is the current Speaker of the County Assembly of Nyamira was elected in office on December 19, 2024. However, he was barred from being gazetted and carrying out the functions of a speaker as a result of interim conservatory orders issued by this Court on February 6, 2025 in Nyamira Petition No E001 of 2025, Edwin Onchoko v Nyamira County Assembly & another, (Hon Thaddeus Nyabaro -Interested Party). He later assumed his duties as a Speaker upon the determination of the Bomet Consolidated Petition No E004 of 2025 delivered by Ng’arng’ar J on June 4, 2025. 55. The 2nd respondent contended that the actions complained of in the petition were undertaken in the course of discharging the duties vested in him in his official capacity as Speaker. He therefore argued that the petitioners acted improperly in instituting proceedings against him in his personal capacity. 56. I have considered the provisions of section 11 of the County Assembly Powers and Privileges Act. The said section provides as follows: 11. 57. Immunity from legal proceedings 1. No civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to a county assembly or a Committee, or by reason of any matter or thing brought by him or her therein by a report, petition, Bill, resolution, motion or other document written to a county assembly. 2. No civil suit shall be commenced against the Speaker, the leader of the majority party, the leader of the minority party, a chairperson of a committees or any member for any act done or ordered by them in the discharge of the functions of their office. 3. The Clerk or other members of staff shall not be liable to be sued in a civil court or joined in any civil proceedings for an act done or ordered to be done in the discharge of their functions relating to proceedings of a county assembly or its committees. The principles established by section 11 are similar to those of article 143 relating to presidential immunity which were well explained by the Supreme Court of Kenya in the case of Attorney-General & 2 others v Ndii & 79 others; Prof Rosalind Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent) where it held thus: “ 32. The immunity of the President was unlike that of the other state actors. The President not only enjoys functional immunity like all public officials who https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 17

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perform state duties, which protected them from civil liability for official functions, he also enjoyed sovereign immunity as the Head of State and the single representation of the sovereignty of the Republic. 34. It was the sovereign immunity that the Head of State, like all heads of states, enjoys that makes article 143(4) relevant in that, the immunity should be waived by consent of the Republic through ratification of a treaty that forbade such immunity. Likewise, that was also why this immunity (from any proceedings, and especially from criminal liability) is limited to the duration during which the person represents the sovereignty of the Republic, and expires upon expiry of such term…… …The import of article 143(2) of the the Constitution with respect to protection of the President was as follows: a. Immunity did not extend to acts or omission of sitting President done in purely personal capacity not connected with his office. b. The immunity was only in respect to acts or omissions connected with the office and functions of that office. c. Where an action or inaction/omission was in official capacity but bereft of any constitutional authority or power whatsoever or was in fact done in gross violation or serious violation of the the Constitution then it was actionable against the President in person but only after he has left office. d. For acts and omissions falling under (c) above and which had to be questioned or challenged immediately, the President could be sued, not in his personal name, but through the Attorney General. The superior courts below fell in error in their interpretation and application of article 143(2) of the the Constitution by holding that civil proceedings could be instituted against the President or a person of the President during their tenor of office in respect of anything done contrary to the the Constitution. Civil proceedings could not be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the the Constitution. Such proceedings could be instituted against the President vide the Attorney General…” 58. Applying these principles to the present dispute, it follows that where a party undertakes actions that are constitutionally recognised or statutorily sanctioned, and does so in an official capacity, particularly where such actions attract institutional or statutory immunity, personal liability cannot arise in the absence of clear evidence that the impugned conduct was undertaken ultra vires or amounted to personal wrongdoing. In the present case, the petitioners placed no material before the court capable of meeting that threshold. 59. In view of the foregoing, and by virtue of section 11 of the County Assembly Powers and Privileges Act, I am satisfied that the 2nd respondent acted squarely within the scope of his lawful mandate as Speaker. He was, therefore, insulated from personal liability for the actions undertaken during that period by the doctrine of parliamentary immunity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 18

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60. Accordingly, I find that the 2nd respondent was improperly joined to these proceedings in his personal capacity rather than in his official capacity as Speaker of the County Assembly of Nyamira. Any claims advanced against him in this petition are, in the circumstances, devoid of legal effect. 2. Whether the Committee on Powers and Privileges was rightfully constituted. 61. Before addressing the substantive question, it is necessary to outline the sequence of events that ultimately gave rise to the petitioners’ present grievances. 62. The former Speaker, Hon Enock Okero Ogori, first approached this court by way of a Petition and an accompanying application under Certificate of Urgency dated October 10, 2024, being Petition E008 of 2024, which was subsequently consolidated with Petition E011 of 2024. He complained that the County Assembly had unlawfully suspended him and barred him from accessing his office and discharging his functions as Speaker, thereby infringing his constitutional rights. A differently constituted bench of this court granted conservatory orders on October 11, 2024 for purposes of facilitating service and preserving the substratum of the dispute pending inter partes hearing. The court further fixed the matter for mention on October 14, 2024 to confirm service and issue directions. 63. Despite the fact that the matter was still pending, the County Assembly proceeded with the impeachment of the former Speaker, prompting him to file a further notice of motion dated October 22, 2024 seeking to cite the respondents for contempt. In a ruling delivered on November 4, 2024, the court found merit in the application and held that the respondents had acted in contempt of the subsisting conservatory orders by proceeding with the impeachment before the Petition could be heard and determined. The respondents were accordingly directed to show cause. 64. In a subsequent ruling dated December 19, 2024, the court pardoned the contemnors after they undertook to comply with the court orders and to perform their mandate within the confines of the law. 65. Several interlocutory applications challenging the court’s jurisdiction were also filed. Ultimately, in its ruling delivered on November 19, 2024, the court, held that although the petition raised constitutional issues well within the court’s remit, the crux of the dispute concerned the impeachment of the Speaker, which constituted an employment matter. 66. For orderly and efficient administration of justice, the court therefore directed that the matter be transferred to the Employment and Labour Relations Court at Kisumu for the determination of both the constitutional questions and the employment dispute. 67. It is noteworthy that throughout this period, no formal application was made by any party seeking to lift or vary the conservatory orders earlier issued by this court, which therefore remained in force pending the hearing and final determination of the former Speaker’s petitions. In reliance upon those orders, whose effect was to preserve the prevailing status quo, the former Speaker, having been barred from accessing the official County Assembly precincts, proceeded to gazette alternative locations as the designated precincts for conducting sittings of the County Assembly, vide Gazette Notice No 14229 dated October 29, 2024, which he referred to as “Bunge Mashinani.” 68. Meanwhile, at the main County Assembly, the members who were not affiliated with the former Speaker proceeded to elect and swear in a new speaker Hon Thaddeus Nyabaro, the 2nd respondent herein on December 19, 2024. 69. Subsequently, a petition and notice of motion application was filed in Petition No E001 of 2025, Edwin Onchoko v Nyamira County Assembly & another seeking to nullify the said election in the main https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 19

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suit and seeking conservatory orders to stay the effect and implementation of the new speaker. This court rendered a ruling dated February 6, 2025 once again granting fresh conservatory orders and interim injunctive orders staying the new speaker from being gazetted and assuming office pending hearing and determination of the application and petition. Other applications challenging the court’s jurisdiction once again and calling for the court’s recusal in the matter emerged which culminated in all the files being consolidated and transferred by the Principal Judge of the High Court to Bomet High Court for determination. 70. The above background led to the County of Nyamira having two politically rival factions holding separate County Assembly sessions with different speakers. This forms the basis for the petitioners herein being called upon to show cause and attend disciplinary hearings for allegedly absconding eight consecutive county assembly sittings. 71. I have considered the arguments advanced by the respondents in this case. They contended that they had been directed by the Senate to surcharge and recover all allowances and funds paid to the impeached speaker and the members who conducted business outside the gazetted precincts of the County Assembly namely ‘Bunge Mashinani’. That in implementing this Resolution, they proceeded to constitute the impugned Committee to accord the petitioners a fair hearing which resulted in the County Assembly’s resolve and the subsequent action by the Speaker, the 2nd respondent herein to declare vacant, the offices held by the petitioners, pursuant to section 17 of the County Assemblies Powers and Privileges Act and articles 75(2),(b),(d), and 194(1)(b) & (c) of the the Constitution. They averred that there was no ill will, retaliation or vendetta on their part. 72. The petitioners on their part brought to question the the Constitution of the Committee and the legality of its decision. I have considered the law in this regard and considered the relevant provisions relating to the the Constitution and composition of the Committee. 73. Section 15 of the County Assemblies Powers and Privileges Act, 2017 provides for the establishment and composition of the Committee of Powers and Privileges as follows: 15. Committee of Powers and Privileges 1. 74. There is established, for each county assembly, a committee known as the Committee of Powers and Privileges consisting of— a. the Speaker, who shall be the chairperson of the Committee; and b. such other members of the county assembly as may be provided in the Standing Orders of the county assembly. 2. The quorum of the Committee shall be a third of the members of the Committee, including the Speaker. 3. Subject to this Act and the Standing Orders of a county assembly, the Committee shall regulate its own procedure. Further, the Nyamira County Assembly Standing Order No 193 provides as follows: 193. Committee on Powers and Privileges 1. There shall be a select committee to be known as the Committee on Powers and Privileges. 2. The Committee shall consist of the Speaker as the Chairperson and ten other Members of the County Assembly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 20

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75. 3. The quorum of the Committee shall be a third of the Members of the Committee including the Speaker, but otherwise, subject to the the Constitution or any written law, the Committee shall regulate its own meetings and its own procedures. 4. The Committee shall, either of its own motion or as a result of a complaint made by any person, inquire into the conduct of a Member whose conduct is alleged to constitute a breach of privilege, within fourteen days of receipt of a complaint. 5. The Committee shall within fourteen days of the conclusion of an inquiry, table its findings in the County Assembly together with such recommendations as it considers appropriate. 6. The County Assembly shall, on receiving the findings and recommendations of the Committee, consider the report and recommendations thereon and may take such action as provided in section 17(3) of the County Assemblies Powers and Privileges Act, 2017 against the Member concerned as may be appropriate. Section 15 of the County Assemblies Powers and Privileges Act, 2017 further sets out the Committee functions as follows: 4. The functions of the Committee of Powers and Privileges shall be to— a. inquire into the conduct of a member whose conduct is alleged to constitute a breach of privilege in terms of section 16; and b. perform such other functions as may be specified in this Act. 5. The Committee of Powers and Privileges shall, either of its own motion or as a result of a complaint made by any person, inquire into the conduct of a Member whose conduct is alleged to constitute a breach of privilege in terms of section 16, within fourteen days of receipt of a complaint. 6. The Committee of Powers and Privileges shall, within fourteen days of the conclusion of an inquiry, table its findings in the relevant county assembly together with such recommendations as it considers appropriate. 7. Each county assembly shall, in accordance with its Standing Orders, consider the report and the recommendations thereon and may take such action against the Member concerned as may be appropriate. 76. It follows therefore that, the main function of the Committee is to consider whether a member of the County Assembly has breached their privileges or committed any actions enlisted under section 16 of the Act. 77. The aforementioned provision states: Conduct constituting breach of privilege 16. The Committee of Powers and Privileges may find a Member to be in breach of privilege if the Member— a. contravenes sections 25, 26(1), 27 or 29; b. commits an act mentioned in section 28(1)(a), (b) or (2) and (3)(d), (e), (f) or (g); c. wilfully fails or refuses to obey any rule, order or resolution of a county assembly; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 21

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78. d. contravenes any provision of the Speaker’s orders issued under section 40 of this Act; or e. conducts himself or herself in a manner which, in the opinion of the Committee on Powers and Privileges, is intended, or is likely to reflect adversely on the dignity or integrity of a county assembly, or of the Members or to be contrary to the best interests of a county assembly or its Members. The charges levelled against the petitioners related to absenteeism and did not fall within any of the scenarios contemplated under section 16 cited above. The issue of a member’s absenteeism, together with the attendant consequences, is governed by the the Constitution and the applicable County Assembly Standing Orders. Article 194 of the the Constitution provides for the automatic removal of a Member of the County Assembly for unexplained or unapproved absenteeism in the following terms: 194. Vacation of office of member of county assembly (1) The office of a member of a county assembly becomes vacant— (a) ____ (b) if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence; 79. My reading of article 194(1)(b) of the the Constitution is that the removal from office and Declaration of a Member’s seat as vacant by the Speaker is an automatic consequence once it is established that the member either failed to obtain prior permission for absence or did not furnish satisfactory reasons for such absence. There is no constitutional or statutory requirement that this process be referred to the Committee of Powers and Privileges for determination, nor does that Committee possess jurisdiction, even remotely, over such a matter. 80. In essence, there is no legal provision requiring the Committee on Powers and Privileges to summon or conduct hearings in relation to an absent member. Its mandate is confined strictly to the functions set out under section 16 of the Act and does not extend to any matters beyond those parameters. It follows that the Committee has no authority to determine issues of absenteeism, as was purported in this case. 81. It appears to the court that the Committee derived its mandate solely from the Standing Orders of the Nyamira County Assembly, which prescribe the procedure for the removal of a member whose conduct falls within the ambit of article 194(1)(b) of the the Constitution. The relevant provision is Standing Order No 239 which provides as follows: 239. Failure to attend sittings 1. If, during any session, a Member is absent from eight sittings of the County Assembly without permission, in writing from the Speaker, the Speaker shall report the matter to the County Assembly and the matter shall stand referred to the Committee of Privileges for hearing and determination. 2. The Committee on Powers and Privileges shall inquire into a matter referred to it under paragraph (1) within fourteen days from the date the matter is referred to it and shall thereupon submit a report to the County Assembly. 3. If the report of the Committee finds that the Member has offered a satisfactory explanation for the Member’s absence from eight sittings of the County Assembly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 22

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without the permission in writing from the Speaker, there shall be no further proceedings in the County Assembly in respect of the matter. 4. If the report of the Committee finds that the Member has not offered a satisfactory explanation for the Member’s absence from eight sittings of the County Assembly under paragraph (1), the Chairperson of the Committee or a Member of the Committee designated by the Committee for that purpose shall, upon submitting the report, give a three days’ notice of a motion that, “This County Assembly notes the Report of the Committee on Powers and Privileges laid on the Table of the County Assembly on ….regarding……”.with other necessary modification. 5. A motion under paragraph (4) shall be debated in the usual manner of debating motions, except that— 6. 82. a. no amendment shall be permitted to the motion; b. the debate of the motion shall not be anticipated by a motion for the adjournment of the County Assembly, and no dilatory motion shall be moved in relation to the business, and the business shall not be interrupted under any Standing Order. At the conclusion of the debate on a motion under paragraph (4), the Speaker shall not put a question but shall declare that, pursuant to article 103(1)(b) of the the Constitution, the office of the Member concerned has become vacant. It bears reiterating the settled principle that the the Constitution is the supreme law of the land, and all legislative or procedural instruments must be crafted and interpreted in fidelity to that supremacy. This principle was eloquently articulated in Marbury v Madison, 5 US 137 (1803), where the court stated: “ If, then, the courts are to regard the the Constitution, and the the Constitution as superior to any ordinary act of the legislature, the the Constitution, and not such ordinary act, must govern the case to which they may both apply.” 83. Standing Orders, as one of the procedural instruments governing the operations of County Assemblies, derive their authority from the the Constitution. Their foundation is article 124, which provides: “ 124. Committees and Standing Orders (1) Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.” 84. It cannot be gainsaid that Standing Orders may not contradict the the Constitution. Where a Standing Order conflicts with constitutional provisions, or purports to operate ultra vires the limits set by the the Constitution, it is invalid to the extent of that inconsistency or excess. Accordingly, this court, sitting as a constitutional court, is perfectly entitled to interrogate the Standing Orders to ascertain their conformity with the the Constitution. (See Speaker of the National Assembly v Senate & 44 others [2023] eKLR.) 85. It follows, therefore, that the Standing Orders of the Nyamira County Assembly cannot confer upon any committee functions that are not expressly provided for in the the Constitution or, at the very least, in statute. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 23

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86. In the present case, it is evident that the Standing Orders of the Nyamira County Assembly, in purporting to subject the petitioners to disciplinary proceedings for alleged absenteeism, exceeded the powers contemplated under the the Constitution and the Act. The respondents have argued that the referral to the Committee was necessary to comply with articles 47 and 50 of the the Constitution and the Fair Administrative Action Act, so as to afford the petitioners a fair hearing. However, I find that Standing Order No 239, insofar as it empowered the Committee to inquire into matters of members’ absenteeism, amounted to a departure from—and indeed a violation of—the constitutional and statutory framework. That Standing Order sought to create a procedure neither envisaged by article 194(1)(b) nor provided for under section 16 of the Act. In short, the Committee acted ultra vires both the the Constitution and the County Assemblies Powers and Privileges Act. 87. Further, I hold that the Committee, being a creature of statute and deriving its authority from the the Constitution, could only act within the limits expressly set out. A plain reading of article 194(1) (b) demonstrates that the Committee was not mandated to address issues of absenteeism; had the the Constitution or the statute intended to confer such authority, they would have expressly done so. This conclusion is reinforced by the maxim expressio unius est exclusio alterius—implied exclusion—which denotes that where the law expressly provides for one matter while omitting others, that omission must be taken as deliberate. Put differently, if the law intended to provide for a particular process, it would say so. 88. The court in Eliot v Eliot, 81 Wis 295, aptly articulated this doctrine when it held: It is fair to assume that, had the legislature intended other restrictions upon the right of action, it would have expressed the same in the statute. Expressio unius est exclusio alterius.” 89. My ultimate finding on this issue is that, because neither the the Constitution nor the County Assemblies Powers and Privileges Act, 2017 expressly assigned to the Committee on Powers and Privileges the role of addressing members’ absenteeism, its purported exercise of such authority over the petitioners was devoid of any legal foundation. 90. I have also considered the respondents’ contention that the Committee was duly constituted and approved by the County Assembly. However, no Hansard proceedings or other official records of the Assembly were placed before the court to demonstrate that such approval was ever debated or adopted. It is trite that he who alleges must prove, as required by sections 107 to 109 of the Evidence Act. In the absence of the Assembly’s official record, this court is not persuaded that the requisite proceedings took place or that the Committee’s resolutions were properly tabled and debated. The respondents’ failure to produce the official Hansard further lends credence to the petitioners’ assertion that the Committee’s constitution arose solely from a unilateral communication issued by the 2nd respondent in his capacity as Speaker, and that the Hansard extracts produced may have been made-up to support the dates relied upon by the respondents in issuing their resolutions against the petitioners. 91. Turning to the central issue of the petitioners’ alleged absenteeism, I have considered the evidence relied upon by the respondents, particularly the Committee’s report at page 15, where its findings state: “ These are three sets of unattended eight sittings by all the members on 25–27 February and 4–6 March 2025, the 1st set; 11th, 13th and March 27, 2025, the 2nd set; and 1st & 3rd April, 13th & 29th May and June 3, 2025 as per annex 6.” 92. I have also examined one of the letters addressed to the 9th petitioner, Hon Janerose Nafula, dated June 20, 2025, summoning her to appear before the Committee on June 30, 2025. That letter stated that she had been absent from plenary sittings without the Speaker’s permission between November https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 24

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28, 2024 and December 10, 2024. Similar contents were addressed to the 7th petitioner, Hon Sagwe, citing identical dates of alleged absenteeism. Yet, in paragraph 52 of his submissions, the 2nd respondent alleged that the Petitioners had failed to attend sittings at the gazetted precincts of the County Assembly from October 2024 until sometime after June 2025, asserting that they defied his leadership and aligned themselves with the already impeached Speaker as from October 24, 2024. 93. Read in isolation, the 2nd respondent’s submissions might suggest that the petitioners deliberately absconded Assembly sittings owing to their refusal to recognise him as the duly elected Speaker. However, the factual record does not support such a conclusion. The chronology of this dispute demonstrates that the impeached Speaker had secured conservatory orders requiring the maintenance of the status quo pending determination of the various applications and petitions before this court. Accordingly, the County Assembly could not lawfully conduct sittings under the leadership of the 2nd respondent, whose own election had been stayed by the same conservatory orders. Regular Assembly business could only resume once the question of the legitimate Speaker was resolved, which occurred on June 4, 2025 when judgment was delivered in Bomet Consolidated Petition E004 of 2025. 94. It therefore fell upon the Respondents and their Committee to assess the Petitioners’ conduct only with respect to the period following the delivery of the Bomet judgment. Any reliance on conduct predating that decision disregarded the prolonged leadership vacuum within the Assembly and the subsisting conservatory orders. Proceeding on the basis of events that occurred during a time of legal uncertainty rendered the process neither fair nor legally sustainable. 95. Moreover, although the 2nd respondent was elected Speaker on December 19, 2024, he could not lawfully assume office or discharge any of the functions of that office in view of the conservatory orders issued on February 6, 2025 in Petition E001 of 2025, Edwin Onchoko v Nyamira County Assembly & Another (Hon. Thaddeus Nyabaro – Interested Party). Those orders remained in force and effectively suspended the exercise of the Speaker’s functions. Consequently, the 2nd respondent lacked the authority or capacity to raise allegations of absenteeism against the petitioners, particularly because the period in question fell entirely within the time when his assumption of office had been placed in abeyance. The leadership dispute that persisted between October 2024 and June 2025 made it impossible for the Assembly to conduct ordinary business until the courts resolved the impasse. 96. It is also significant that, even after the related petitions were transferred to the High Court in Bomet for determination, neither the respondents nor any member of the County Assembly took steps to have the subsisting conservatory orders lifted, whether before this court or before the ELRC in Kisumu. In the absence of such an application or order, the conservatory orders remained fully operative. This raises the pertinent question whether the 2nd respondent could lawfully assume office as Speaker or constitute the impugned Committee while those orders were still in force. In addressing this question, I have been guided by the principle articulated by Romer LJ in Hadkinson v Hadkinson [1952] 2 All ER 567, where the court held: “ It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 25

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97. The same position was underscored in M v Home Office and another [1992] 4 All ER 97, where the court stated: “ An order which is made by a court with unlimited jurisdiction is binding unless and until it is set aside. Common sense suggests that this must be so. Were it otherwise court orders would be consistently ignored in the belief, sometimes justified, that at some time in the future they would be set aside. This would be a recipe for chaos.” 98. The respondents and the Committee on Powers and Privileges would only have been justified in resolving to remove the petitioners from office if they had demonstrated that the petitioners failed to attend eight consecutive sittings after the High Court in Bomet delivered its judgment on June 4, 2025. Similarly, liability would have arisen if the petitioners continued to attend “Bunge Mashinani” sittings under the impeached Speaker after that determination. No such evidence was presented. 99. The dates relied upon by the respondents to support the allegations of absenteeism are inconsistent across the pleadings and fall within a period when the Assembly was embroiled in leadership disputes, during which the former Speaker’s tenure had been preserved by subsisting conservatory orders. These inconsistencies call into question the legal and procedural integrity of the disciplinary process and reinforce the conclusion that the petitioners were subjected to an improper and unfair process. 100. Even assuming the petitioners were politically neutral, a reasonable member of a county assembly would be expected to comply with directions issued by the office lawfully recognised at the time. Between October 24, 2024 and June 2025, conservatory orders preserved the former Speaker’s authority, thereby vesting in him the legal mandate to convene sittings. It was therefore improper to expect members to disregard that lawful position and act under a competing authority whose status had not yet been confirmed through the judicial process. 101. I have also considered the broader element of public interest and the implications of the Resolution dated July 7, 2025, which was passed by the Committee and forwarded to the County Assembly for noting and adoption. It is notable that the impugned Resolution affected a total of twelve members. 102. In considering this issue, I am minded of the purpose of constitutional litigation involving individuals such as the petitioners herein and equally affecting members of the public. It is axiomatic that courts should always consider the wider interests of justice and public interests in considering such cases. I make reference to the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, SC Application No 29 of 2014 [2014] eKLR where her Ladyship Njoki SCJ explained the essence of public interest litigation thus: “ Public interest litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation…In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the court has discretion on a case by case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it…” 103. Based on the foregoing, I am satisfied that the impugned Resolution of the Committee of Powers and Privileges, purporting to remove the petitioners from office as Members of the Nyamira County Assembly, had the practical effect of undermining the will of the electorate who duly chose them to serve for the term 2022–2027. Any action that results in the displacement of elected representatives must be approached with circumspection, given its implications for democratic representation. Removing twelve members without regard to the constitutional and statutory framework, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 26

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without considering the consequential impact on the electorate, including the possibility of leaving portions of the County without representation pending fresh elections, would run contrary to the overarching public interest. 104. The steps taken by the respondents to discipline and expel the petitioners were not supported by any constitutional or statutory authority. The close proximity between the conclusion of the leadership dispute and the initiation of disciplinary action suggests that the process was not grounded in a proper exercise of the Assembly’s disciplinary mandate. 105. I recognize that there has been no demonstration of bad faith on the part of the petitioners. Following the High Court in Bomet’s judgment affirming the impeachment of Hon Enock Okero Ogori, they acknowledged the resulting change in the Assembly’s leadership, resumed sittings at the official precincts and recognized the 2nd respondent as the duly elected Speaker. Their participation in the disciplinary proceedings, notwithstanding their concerns regarding the legality of the Committee’s constitution, did not prejudice or waive their right to challenge the legality and procedural propriety of those proceedings before this court. 106. As Speaker, the 2nd respondent bore a constitutional and institutional responsibility to provide stable leadership during a period of significant internal turbulence. Instead, he proceeded to constitute a committee without requisite authority and at a time when the Assembly lacked quorum, thereby undermining orderly governance. Such actions were inconsistent with the obligations of his office and did not advance the restoration of functional stability within the Assembly. 107. This court cannot sanction a process that results in the removal of elected representatives through procedures that do not comply with constitutional or statutory requirements. Such actions undermine democratic governance and compromise the electorate’s right to representation. The public interest in ensuring lawful, accountable, and constitutionally compliant decision-making by county assemblies outweighs any justification advanced for the impugned actions. 108. The circumstances of this case demonstrate that the petitioners were subjected to an unfair and legally unsustainable process. The leadership disputes within the Assembly rendered the conduct of official business uncertain; the former Speaker remained in office under conservatory orders until the High Court in Bomet determined the question of his impeachment; the Senate’s Resolution was issued notwithstanding pending judicial proceedings and was therefore in tension with the principles of res sub judice and separation of powers; and the petitioners cannot be held liable for participating in sittings convened by a Speaker whose tenure had not yet been conclusively resolved. 109. Allowing the respondents to act in the manner undertaken would risk creating an internal environment in which members may be deterred from exercising independent judgment or engaging in lawful dissent. Such an outcome would be inconsistent with the constitutional values that require transparent, accountable, and participatory governance within county assemblies. 110. In the result, I find that the Committee on Powers and Privileges was improperly constituted, the Assembly lacked quorum when the impugned actions were taken, and the 2nd respondent lacked the authority to constitute or direct the Committee in the manner he did. The Committee therefore acted ultra vires the the Constitution and the County Assemblies Powers and Privileges Act in making the impugned Resolution. Accordingly, the Resolution is null and void. 111. The petition finds merit and the court therefore makes the following orders: 1. A declaration is hereby issued that the Resolution passed and adopted by the respondents regarding the Report of the Committee on Powers and Privileges concerning the conduct of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 27

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the petitioners, as contained in the Order Paper dated July 7, 2025, is unconstitutional, null and void. 2. A declaration is hereby issued that the 1st respondent’s purported Committee on Powers and Privileges concerning the conduct of the petitioners was improperly and illegally constituted. 3. A declaration is hereby issued that the Resolution of the respondents in the Order Paper dated July 7, 2025, discussing the conduct of the petitioners, violated the petitioners’ rights to a fair hearing and fair administrative action. 4. An order of certiorari is hereby issued, quashing the decision, procedure, proceedings, acts and report of the 1st respondent’s purported Committee on Powers and Privileges concerning the conduct of the petitioners, culminating in the adoption of the Order Paper dated July 7, 2025. 5. Pursuant to section 27 of the Civil Procedure Act, and the principle that costs follow the event, the 1st respondent shall bear the costs of this petition, payable to the petitioners and the interested party, while the petitioners shall bear the costs of the 2nd respondent. DELIVERED AT NYAMIRA THIS 27th DAY OF November 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Petitioners - Mr. Bonuke for Bonuke & Co. Advocates For 1st Respondent - Mr. Mokua for Mokua Ndubi & Co. Advocates For 2nd Respondent - Mr. Ndubi for Robert Ndubi & Co. Advocates For Interested Party - Mr. Bogonko for Benjamin Bogonko &Associates Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18355/eng@2025-11-27 28

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