High Court 19219 of 2025

THE CLERK COUNTY ASSEMBLY OF ISIOLO, SALAD BORU ............................................................................................... 1ST RESPONDENT ABDULLAHI JALDESA BANTICHA ......................................... 2ND RESPONDENT THE HON. ATTORNEY GENERAL .......................................... 3RD RESPONDENT THE CHIEF EXECUTIVE OFFICER GOVERNMENT PRINTER, ABDI HASSAN ALI .................................................................................. 4TH RESPONDENT THE GOVERNMENT PRINTER ............................................... 5TH RESPONDENT AND LAW SOCIETY OF KENYA .................................................... INTERESTED PARTY KATIBA INSTITUTE .............................................................. INTERESTED PARTY HON. MOHAMMED ROBA KOTO ...................................... INTERESTED PARTY HON.DAVID LEMANTILE .................................................... INTERESTED PARTY HON.HALIMA G. ABGUDO .................................................. INTERESTED PARTY HON. MEJA GOLICHA MEJJA ............................................. INTERESTED PARTY HON. DAVID WAITHAKA NYORO .................................... INTERESTED PARTY HON. NICHOLAS LOROT EWOTON ................................. INTERESTED PARTY HON. PETER LOSU LOYAN ................................................. INTERESTED PARTY HON. SALESIO KIAMBI ........................................................ INTERESTED PARTY HON. ABUBAKAR ABDI GODANA .................................... INTERESTED PARTY HON. KAMILLA WARSAME ................................................ INTERESTED PARTY HON. FRANCISCO MATIMALO ......................................... INTERESTED PARTY HON. AMINA OMAR ENOW ............................................... INTERESTED PARTY HON. NURA MOHAMMED .................................................. INTERESTED PARTY HON.FATUMA ABDULLAH .................................................. INTERESTED PARTY HON. FOZIA JIBRIL BORE ................................................... INTERESTED PARTY HON. DEKHA BONJA HALAKE .......................................... INTERESTED PARTY HON. NURA MOHAMMED .................................................. INTERESTED PARTY HON. RAHMA ANDIKADIR ................................................ INTERESTED PARTY (On the Petitioner’s Application dated 7th July 2025 and the 1st and 2nd Respondents Preliminary Objection (P.O.) dated 6th August 2025) RULING 1. The Applicant (Petitioner) approached this Court by way of a Constitutional Petition together with a Notice of Motion dated 7th July 2025, both brought under a certificate of urgency. In the Petition, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 2

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the Applicant impugns the constitutionality and legality of the appointment of the 2nd Respondent as Speaker of the County Assembly of Isiolo, as effected through Gazette Notice No. 8667 of 26th June 2025. 2. The Petitioner contends that the duly elected Speaker of the Isiolo County Assembly, Hon. Abdullahi Jaldesa Banticha, was neither lawfully removed from office nor did he tender his resignation. It is asserted that no vacancy was declared and that no election for a new Speaker was conducted by the County Assembly in accordance with the Constitution and the County Governments Act. Notwithstanding this, the 2nd Respondent is alleged to be poised to assume the office of Speaker without lawful authority, an action the Petitioner characterises as a flagrant breach of the constitutional and statutory framework governing the removal and appointment of a Speaker of a County Assembly. 3. In the Notice of Motion dated 7th July 2025, the Petitioner seeks conservatory relief restraining the 2nd Respondent from taking over, occupying, or otherwise purporting to exercise the functions of the office of Speaker of the Isiolo County Assembly pending the hearing and determination of the Petition. It is the Petitioner’s case that, absent such interim intervention, the 2nd Respondent is likely to unlawfully assume the office, thereby rendering both the Application and the substantive Petition otiose. 4. In opposition to the Petition and the accompanying Application, the 1st and 2nd Respondents lodged a Preliminary Objection dated 6th August 2025, seeking the striking out of the Petition and the Application in limine on the following grounds 5. a. That this Honourable Court lacks jurisdiction to entertain this Petition as the issues raised therein pertain to an employer–employee relationship governed by the Employment Act and relevant employment laws, and thus fall within the exclusive jurisdiction of the Employment and Labour Relations Court pursuant to Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. b. That there is a parallel suit on the same subject matter filed and pending before the Employment and Labour Relations Court being Nairobi Employment and Labour Relations Court: ELRCPET/E139/2025: Hon. Abdullahi Jaldesa Banticha vs The Givernment Printers, State Law Office and The Clerk, Isiolo County, and offends the provisions of section 6 of the Civil Procedure Act. c. That the Petition and Application offend the doctrine of separation of powers by seeking to invoke the jurisdiction of this Honorable Court to intervene in a matter that is political in nature and whose procedure is exclusively regulated by the Standing Orders of the County Assembly of Isiolo. d. That the instant Application and Petition is frivolous, vexatious, incompetent, and an abuse of the court process, intended to forum-shop, engage in multiplicity of suits, and embarrass the due administration of justice. Pursuant to the directions of the Court, the parties duly filed written submissions in respect of both the Preliminary Objection and the Notice of Motion. The Petitioner’s submissions are dated 8th August 2025, while the 1st and 2nd Respondents filed joint submissions dated 6th August 2025 in support of the Preliminary Objection and in opposition to the Petition and the Application. Further, the 4th, 7th, 13th, 14th, 16th, 17th, and 20th Interested Parties filed their submissions on 10th August 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 3

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Petitioner’s Submissions 6. The Petitioner submits that this Court, exercising its constitutional jurisdiction, is properly seized of the matter. Counsel argues that the core of the dispute concerns alleged violations of the Constitution and the County Governments Act in the purported removal of the incumbent Speaker and the subsequent appointment of the 2nd Respondent. It is contended that the dispute transcends a mere employer–employee relationship and instead raises a fundamental constitutional question touching on the rule of law and the lawful transition of a state office. Reliance is placed on Article 165(3)(d) of the Constitution, which vests in the High Court jurisdiction to interpret the Constitution and to determine the constitutionality of any act done or purportedly done under its authority or that of any law. The Petitioner maintains that the appointment of the 2nd Respondent through a Gazette Notice, absent a lawful removal of the sitting Speaker, constitutes an act undertaken under colour of law but inconsistent with the Constitution, thereby falling squarely within this Court’s mandate. 7. While acknowledging the establishment of specialised courts under Article 162(2) of the Constitution, the Petitioner contends that not every dispute involving a public office is amenable to categorisation as an employment and labour relations matter. It is submitted that the office of Speaker of a County Assembly is a sui generis constitutional office, bearing a distinct public and political character that cannot be equated to an ordinary contract of employment. Counsel distinguishes the present dispute from conventional employer–employee claims, emphasizing that a Speaker is elected by the County Assembly pursuant to Article 178(1) of the Constitution and may only be removed through a constitutionally and statutorily prescribed process, namely a resolution supported by not less than twothirds of all members of the County Assembly, as provided under Article 178(3) of the Constitution and section 11 of the County Governments Act. 8. On the question of the parallel proceedings before the Employment and Labour Relations Court, the Petitioner submits that section 6 of the Civil Procedure Act ought not to be applied rigidly or mechanistically so as to bar the present Petition. It is argued that the parties in the ELRC matter are not identical to those before this Court and that, although related, the causes of action are distinct in their framing and substance. The Petitioner avers that ELRC Petition No. E139 of 2025 was instituted by the affected Speaker in his personal capacity against the Government Printer, the Attorney-General, and the Clerk of the County Assembly, primarily challenging the Gazette Notice from an employment perspective, whereas the present Petition raises broader constitutional questions. 9. The Petitioner further maintains that the Petition satisfies the threshold for a constitutional petition. Counsel relies on the decision in Anarita Karimi Njeru v Republic (No. 1) [1979], submitting that the Petition sets out with reasonable precision the specific provisions of the Constitution alleged to have been violated and the manner of such violation. 10. It is additionally submitted that the matter raises substantial constitutional questions deserving determination on the merits. To dismiss or strike out the Petition on technical grounds, it is urged, would amount to an abdication of the Court’s constitutional obligation under Article 258 to uphold and enforce the Constitution whenever a contravention or threatened contravention is alleged. The Petitioner rejects the Respondents’ characterisation of the dispute as purely political, contending that, notwithstanding its political context, the central issue is one of legality and constitutional compliance by public officials. Such a question, counsel submits, is plainly justiciable. Reliance is placed in David Sifuna v Clerk, Trans Nzoia County Assembly & Another [2014] eKLR, where the Court held that allegations of blatant constitutional violations in the process of removal from office necessarily invite judicial scrutiny, the court held thus: “the Court cannot exercise restraint… any intended and blatant violation of [the Constitution] by any state organ or person would definitely attract judicial scrutiny https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 4

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through the High Court.”. In that regard, the Petitioner urges that this Court ought not to shy away from interrogating the constitutionality of the 2nd Respondent’s appointment merely because it arose within a county assembly setting. 11. With respect to the interim relief sought, the Petitioner submits that the threshold for the grant of conservatory orders has been met. Relying on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, counsel outlines the applicable principles, beginning with the requirement to establish a prima facie case with a likelihood of success. It is contended that due process was plainly not followed and that the appointment of the 2nd Respondent is, on the face of it, ultra vires and unconstitutional. The Petitioner points out that the Respondents have placed no evidence before the Court demonstrating that the incumbent Speaker was lawfully removed by a two-thirds majority of the Assembly or that the 2nd Respondent was validly elected. In the absence of such evidence, the impugned Gazette Notice is said to lack any legal foundation. 12. Secondly, the Petitioner submits that unless conservatory orders are granted, both he and the public stand to suffer irreparable harm and the Petition would be rendered nugatory. Counsel underscores the grave disruption that would ensue were the 2nd Respondent to assume the office unlawfully, resulting in competing claims to the Speakership and precipitating confusion in the legislative process, institutional instability within the County Assembly, and erosion of public confidence in the rule of law. These consequences, it is argued, are not merely personal but strike at the heart of public governance. 13. Thirdly, it is submitted that the balance of convenience and the public interest weigh heavily in favour of preserving the status quo. Maintaining the existing state of affairs pending the determination of the Petition would ensure continuity and stability in the operations of the County Assembly, whereas permitting the 2nd Respondent to assume office under contested circumstances would risk conferring a veneer of legality upon an alleged constitutional violation. 14. The Petitioner urges this Court to dismiss the Preliminary Objection, affirm its jurisdiction, and grant the conservatory orders sought. It is contended that a strong prima facie case has been established demonstrating that the intended installation of the 2nd Respondent as Speaker is unlawful. The Petitioner accordingly prays for, inter alia, a declaration that Gazette Notice appointing the 2nd Respondent as Speaker is unconstitutional, null and void; an order quashing the said Gazette Notice; a permanent injunction restraining the 2nd Respondent from occupying or purporting to occupy the office of Speaker; and a declaration affirming that the incumbent Speaker remains the lawful holder of the office unless and until lawfully removed or he resigns. Respondents’ Submissions 15. The 1st and 2nd Respondents contend that this Court lacks jurisdiction to entertain the Petition, having regard to the nature of the dispute. They rely on Article 162(2)(a) of the Constitution, which mandates Parliament to establish a court of equal status to the High Court to hear and determine disputes relating to employment and labour relations, namely the Employment and Labour Relations Court (ELRC), established under the Employment and Labour Relations Court Act, 2011. Further reliance is placed on Article 165(5)(b) of the Constitution, which expressly divests the High Court of jurisdiction in matters falling within the purview of the courts contemplated under Article 162(2). According to the Respondents, the dispute before Court fundamentally concerns the tenure, removal, and replacement of a public office holder and is, in substance, an employment or labour relations dispute between the Speaker and the County Assembly 16. The Respondents submit that the contest is essentially over an office that attracts remuneration and attendant benefits, and is therefore analogous to a job dispute. They argue that section 12 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 5

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the Employment and Labour Relations Court Act expressly empowers the Employment and Labour Relations Court (ELRC) to determine disputes between employers and employees, including those involving state and public officers, as well as disputes arising from contracts of service or rights incidental to employment. In their view, although the office of Speaker is initially filled through an election, the relationship between the County Assembly and the Speaker crystallises into an employment relationship once the Speaker assumes office and begins to draw a salary from public funds. 17. Considerable emphasis is placed on the existence of ELRC Petition No. E139 of 2025. The Respondents contend that the subject matter of that suit is substantially similar to that of the present Petition, both questioning who the lawful Speaker of the Isiolo County Assembly is and challenging the legality of the 2nd Respondent’s appointment. They argue that the mere fact that the Petitioner in the present matter is a different person does not remove the dispute from the ambit of the sub judice rule. In their view, the real interest at stake is the retention of office by Hon. Banticha, and the present Petition is said to advance the same cause under the guise of constitutional litigation. 18. On the role of the Court vis-à-vis the internal affairs of a County Assembly, the Respondents invoke the doctrine of separation of powers. They submit that the removal of a Speaker is a matter constitutionally committed to the County Assembly, subject only to the framework set out in Article 178(3) of the Constitution and section 11 of the County Governments Act, as implemented through the Assembly’s Standing Orders. Counsel urges that courts should exercise restraint and avoid undue intrusion into the internal workings of legislative bodies, save where intervention is unavoidable. 19. The Respondents further argue that the Petitioner is effectively inviting the Court to determine who should occupy the Speaker’s chair, thereby usurping the constitutional mandate of the County Assembly and offending Article 1(3) of the Constitution, which vests sovereign power in state organs to be exercised in accordance with the Constitution. They contend that the proper recourse lay in following the procedures prescribed by law and the Standing Orders of the Assembly. Reliance is placed on Speaker of the National Assembly v Karume [1992] eKLR for the proposition that where the Constitution or statute provides a specific dispute resolution mechanism, that procedure ought to be strictly followed before resorting to the courts. 20. In the alternative, and without prejudice to the foregoing, the Respondents submit that the Petitioner has failed to meet the threshold for the grant of conservatory orders. They argue that no prima facie case with a probability of success has been established, particularly in light of their contention that the High Court is not the proper forum and that the alleged constitutional violations are neither clear nor self-evident. 21. On the question of irreparable harm, the Respondents submit that the loss alleged is, at its core, the loss of an office together with its attendant benefits, matters which are quantifiable and capable of redress through damages or reinstatement should the claim ultimately succeed. They downplay the assertion of an impending constitutional crisis, maintaining that the County Assembly can continue to function under whomever is recognised as Speaker, and noting that the law contemplates circumstances in which an acting Speaker or Deputy Speaker may preside. In their view, the Assembly’s operations will not be paralysed; rather, the only question is who ought to occupy the office. The Respondents therefore contend that the balance of convenience favours allowing the Assembly’s chosen Speaker to assume office so as to ensure continuity of legislative functions without undue judicial interference. They further argue that the public interest lies in respecting democratic processes and the autonomy of devolved units, rather than in the Court appearing to impose leadership upon the County Assembly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 6

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Interested Parties’ Submissions 22. The 4th, 7th, 13th, 14th, 16th , 17th, and 20th Interested Parties filed joint submissions on 10th August 2025. They assert that, as elected Members of County Assembly representing the people, they have a direct interest in ensuring that the rule of law is upheld within the County Assembly. They corroborate the Petitioner’s account that no resolution was passed to remove Hon. Banticha as Speaker. The Interested Parties state that they were taken by surprise when an individual was gazetted as Speaker without their knowledge or a vote, describing it as an “executive fiat” that contravened both the sovereignty of the people and the autonomy of the Assembly. They contend that the actions in gazetting the 2nd Respondent are null and void ab initio and urge the Court to intervene to protect the institution of the County Assembly from what they term an illegal takeover. 23. The Interested Parties support the Petitioner’s arguments on jurisdiction, emphasizing that the dispute affects the entire County Assembly and raises constitutional issues of governance beyond a mere employment relationship. They submit that the Speaker, once elected, embodies the lawful authority and dignity of the Assembly, and any unlawful attempt to install another person in that office undermines the constitutional order at the county level. Reliance is placed on Article 1(3)(a) of the Constitution, which vests sovereign power in state organs, including County Assemblies, and on Article 165(3)(d), empowering the High Court to enforce the Constitution. They further invoke Article 23(3) on the Court’s power to grant appropriate relief, including conservatory orders, in matters of constitutional enforcement. 24. The Interested Parties stress that they were not parties to the Employment and Labour Relations Court (ELRC) case and that their interests, namely ensuring lawful leadership of the Assembly, were not represented therein. They contend that, even if Hon. Banticha pursued remedies in the Employment and Labour Relations Court, the broader constitutional questions raised by the present Petition remain unresolved and fall squarely within the High Court’s mandate. They argue that ELRC remedies may be limited to employment issues, whereas this Court can provide comprehensive constitutional relief affecting all stakeholders. They urge the Court to address the substance over form, noting that the Isiolo County Assembly, as a constitutional organ, faces unlawful interference. Reliance is placed on Article 2 of the Constitution, affirming the supremacy of the Constitution and the necessity to strike down conduct inconsistent with it, regardless of forum. 25. On the balance of convenience, the Interested Parties assert that maintaining the incumbent Speaker in office is the prudent course. Hon. Banticha has presided as Speaker since the Assembly’s first sitting following the last general election, during which the Assembly’s business has proceeded without disruption. Introducing a new Speaker mid-term through a contested process has already caused division among members and public confusion. They caution that if the 2nd Respondent is permitted to assume office, a substantial faction of Members of County Assembly may refuse to recognize his authority, thereby paralyzing the legislative process. 26. The Interested Parties urge this Court to grant the conservatory orders sought by the Petitioner. They submit that no prejudice will be caused to the Respondents, as the 2nd Respondent has not yet lawfully assumed office and would lose nothing except a possible opportunity, which may be restored if he ultimately prevails. Conversely, they argue that significant prejudice would be caused to constitutional governance and the public interest if the injunction is denied. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 7

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Issues for Determination 27. Having carefully considered the pleadings, the Preliminary Objection, and the written and oral submissions of all parties, the principal issue that emerges for determination is: Whether this Court has jurisdiction to hear and determine the present dispute. 28. Under the Constitution of Kenya, 2010, the High Court’s broad jurisdiction in civil and criminal matters under Article 165(3)(a) is expressly circumscribed by Article 165(5)(b), which ousts the High Court’s jurisdiction in respect of matters falling within the mandate of specialized courts established under Article 162(2). Article 162(2)(a) specifically required Parliament to establish a court of equal status to the High Court to hear and determine disputes relating to employment and labour relations. Parliament fulfilled this constitutional mandate by enacting the Employment and Labour Relations Court Act, 2011, thereby establishing the Employment and Labour Relations Court (ELRC) and defining its jurisdiction under Section 12. Section 12 vests the ELRC with exclusive original jurisdiction to hear and determine all disputes relating to employment and labour relations, a position reinforced by Section 87(2) of the Employment Act, which prohibits any other court from adjudicating employment disputes falling within the ELRC’s purview. 29. These constitutional and statutory provisions underscore that where the subject matter of a dispute is essentially an employment or labour relations issue, the High Court has no authority to entertain it. Jurisdiction is a foundational matter that must be determined at the outset, for without jurisdiction a court must “down its tools” and take no further step. This principle was eloquently stated in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd, where Nyarangi J.A. held: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds that it is without jurisdiction.” 30. Likewise, the Supreme Court in Samuel Kamau Macharia v KCB and Others [2012] eKLR emphasized that: “ A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus a Court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…the Court must operate within the constitutional limits. It cannot expand jurisdiction through judicial craft or innovation.” 31. In the present matter, the dispute arises from an employment relationship. By the Petitioner’s own pleadings, an employment relationship existed with the Respondent, and the claim is essentially concerned with alleged unfair treatment in the course of employment. This indicates that the dispute “relates to employment and labour relations” within the meaning of Article 162(2)(a). Courts have consistently held that even if a matter is framed as a constitutional petition, if its genesis and real issues https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 8

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are employment-related, the correct forum is the ELRC. This position was reinforced by the Court of Appeal in Registrar of Trade Unions v Nicky Njuguna & 4 Others, where it was held: “ This same issue was central in the following matters; Prof. Daniel N. Mugendi v Kenyatta University & Others Nairobi Civil Appeal No. 6 of 2012 (Unreported); U.S.I.U v A.G & Others (2012) eKLR; Seven Seas Technologies v Eric Chege Nairobi HC Misc. Appl. No. 29 of 2013 (Unreported) and Judicial Service Commission v Gladys Boss Shollei & Another Civil Appeal No 50 of 2014. In all the aforesaid decisions by this Court differently constituted, it was emphasized that although Article 165(3)(c) of the Constitution gives the High Court jurisdiction to determine questions involving violation of the Bill of Rights, the Article did not oust the jurisdiction of ELRC to deal with such issues especially when the interpretation of the Constitution is intricately interwoven with a labour issue or is central to the determination thereof. In any case the Court found that under Article 20, the Constitution gives all courts and bodies powers to deal with constitutional matters; thus the court had jurisdiction to deal with all constitutional matters that arise before it in employment and labour disputes.” 32. In determining the appropriate forum, the Court notes two critical facts. First, the Petitioner alleges that Hon. Abdullahi Jaldesa Banticha was neither lawfully removed nor did he resign, and that no notice of vacancy was issued or election conducted for a new Speaker, as required under the Constitution and the County Governments Act. Second, it is common ground that Hon. Abdullahi Jaldesa Banticha subsequently filed an Employment and Labour Relations Court Petition vide Nairobi Employment And Labour Relations Court ELRCPET/E139/2025, challenging the purported unconstitutionality and illegality of the Gazette Notice. 33. Having found that the aggrieved party chose to ventilate his grievances in the Employment and Labour Relations Court (ELRC), and being satisfied that the present Petition concerns the same subject matter, it follows that the High Court has no jurisdiction to entertain parallel proceedings or to determine issues that are already before a court of equal status. Proceeding to hear this Petition on its merits would contravene the sub judice rule and the constitutional allocation of jurisdiction. 34. In the circumstances, I uphold the Preliminary Objection filed by the 1st and 2nd Respondents on 6th August 2025. Both the Petition and the interlocutory Application are struck out for want of jurisdiction and on account of being sub judice. In the interests of justice, each party shall bear its own costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner: No appearance Counsel for the 1st and 2nd Respondent: Ms. Ruth Kiunga h/b Mr. Eric Theuri Counsel for the Interested Parties: No appearance Court Assistant: Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19219/eng@2025-12-05 9

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