Leonard Okari Mogaru & 1 other v Speaker, County Assembly of Nyamira & 2 others

relationship between that process and the actions impugned. The issue for determination is whether the process leading to the Petitioners’ removal falls within that constitutional and statutory framework. 3. The Petitioners, Leonard Okari Mogaru and Edith Nyaboke Omari, are adult Kenyan citizens who were, at all material times, appointed and serving as external members of the Nyamira County Assembly Service Board pursuant to Gazette Notice No. 14017 dated 01st November 2022. 4. The 1st Respondent is the Speaker of the County Assembly of Nyamira, the presiding officer charged with the conduct and regulation of the Assembly’s proceedings. 5. The 2nd Respondent is the County Assembly of Nyamira, a constitutional organ established under Article 176 of the Constitution. 6. The 3rd Respondent is the Clerk of the County Assembly of Nyamira, an office established under Section 13 of the County Governments Act, 2012. 7. The 1st Interested Party is the Nyamira County Assembly Service Board, a statutory body corporate established under the County Assembly Services Act, 2017. 8. The 2nd Interested Party is the Acting Clerk of the County Assembly of Nyamira. 9. These proceedings were commenced by way of a Petition dated 27th November 2024, filed at a time when the process for the Petitioners’ removal from office as members of the Nyamira County Assembly Service Board had been initiated. 10. The Petition was subsequently amended on 09th June 2025, in which the gravamen of the complaint remained that the Petitioners had neither been served with nor subjected to a lawful removal process as contemplated under the Constitution and the applicable statutory framework. 11. The operative pleading is the Further Amended Petition dated 02nd November 2025, supported by the affidavit of the 1st Petitioner sworn on 27th November 2024 and premised on Articles 1, 2, 3, 10, 22, 23, 47, 48 and 50 of the Constitution, as well as the County Governments Act (No. 17 of 2012), the County Assembly Services Act (No. 24 of 2017) and the Fair Administrative Action Act (No. 4 of 2015). 12. Subsequent to the filing of the Petition, the Respondents proceeded, on 28th November 2024, with the impugned process, culminating in the Petitioners’ removal from office, which now falls for determination. 13. The Petitioners aver that the process leading to their removal was initiated through a Motion dated 21st November 2024 and notices dated 26th November 2024 requiring them to appear before the County Assembly on 28th November 2024. 14. They contend that no petition for removal, as required under Section 10(2) of the County Assembly Services Act, was ever prepared, presented or served upon them. They plead that the statutory procedure governing removal was therefore not complied with. 15. The Petitioners further plead that the notices dated 26th November 2024 emanated from different persons each purporting to act as Clerk of the County Assembly, thereby creating uncertainty as to the lawful authority under which the process was undertaken. That uncertainty, in turn, raises the anterior question whether the process itself was anchored in a lawful foundation, or merely bore the appearance of legality without the authority required by law. 16. They further aver that the Assembly had been adjourned sine die prior to 28th November 2024 and that any sitting purportedly held on that date was unlawful and without jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 2

page 2 of 17

17. The Petitioners contend that notwithstanding those irregularities, the Assembly proceeded on 28th November 2024 to deliberate upon the Motion dated 21st November 2024 and resolved to remove them from office, and thereafter declared and advertised their positions as vacant. 18. It is their case, therefore, that the process culminating in their removal was unlawful, procedurally unfair and in violation of their rights under Articles 47 and 50 of the Constitution. 19. In support of their case, the Petitioners rely on Gazette Notice No. 14017 dated 01st November 2022 together with their respective appointment letters, which establish the legality of their appointment as members of the Nyamira County Assembly Service Board. 20. They further rely on the letter dated 26th November 2024 and the Motion dated 21st November 2024, which initiated the process leading to their removal from office. 21. They also rely on the letter dated 26th November 2024 issued by the 2nd Interested Party, which challenged the authority of the 3rd Respondent to issue summons and demonstrates the existence of conflicting authority within the office of the Clerk. 22. Further reliance is placed on Gazette Notice No. 13576 dated 09th October 2024 relating to the attempted reconstitution of the Board, and Gazette Notice No. 14273 dated 30th October 2024, which confirmed the lawful composition of the Board. 23. The Petitioners also rely on Gazette Notice No. 14230 dated 26th October 2024, which appointed the 2nd Interested Party as Acting Clerk and subsequently as Secretary to the Board. 24. In addition, the Petitioners rely on the suspension letter dated 25th October 2024, the show cause letter dated 04th November 2024, and the handover documentation, which demonstrate that the 3rd Respondent lacked lawful authority at the material time. 25. The Petitioners further rely on Gazette Notice No. 15844 concerning the status of Assembly sittings, which is material to the legality of the proceedings conducted on 28th November 2024. 26. Finally, the Petitioners rely on the advertisement and/or newspaper publication declaring their positions vacant, which evidences the implementation of the decision removing them from office. 27. On the basis of the foregoing, the Petitioners seek the following reliefs: 1. A DECLARATION that the Respondents in purporting to summon and, ipso facto, constructively purport to revoke the appointment of the petitioners as Members of the County Assembly Service Board in the absence of any Petition in the manner pleaded herein acted in contravention of Articles: 1(1); 3; 10; 22; 23; 27; 28; 41(1); 47; 48; 50; 124; 159; 165; 178(3) and 258 of the Constitution of Kenya, 2010; Sections: 3; 4; 6; 7 and 11 of the Fair Administrative Action Act [Cap. 7L Laws of Kenya]; Sections: 10 (2) of the County Governments Act [Cap. 265 – Laws of Kenya]; and in contravention of fundamental rules of natural justice and fairness; 2. A DECLARATION that the 3rd Respondents acts purporting to summon with intention to revoke the Petitioners appointment in the manner pleaded herein violated the Petitioners’ rights to due process, fair hearing and fair administrative action; 3. A DECLARATION that the letter dated 26th November 2024 by the 3rd Respondent herein is illegal, unlawful, null and void and thus of no consequence and the same be and is hereby quashed as the 3rd Respondent had no capacity to issue the said notice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 3

page 3 of 17

4. A DECLARATION that the sitting and resolution of 28th November 2024 by 2nd Respondent culminating to the purported removal of the Petitioners herein from office as the external County Assembly Service Board Members is illegal, unlawful and violates the Petitioner’s rights thus void. 5. Orders of permanent injunction restraining the Respondents from attempting to revoke the appointment of the Petitioners from office as the County Assembly Service Board Members in a manner and procedure other than the one articulated under section 10 of the County Assembly Service Act. 6. An Order that Respondents be condemned to pay costs of this petition. 7. An Order compelling the immediate payment of the Petitioners’ salary and allowances from December 2024 to the present. 8. Such other further, appropriate and consequential orders and reliefs as this Honourable court may lawfully make. 28. The Respondents and the 1st Interested Party opposed the Petition by way of a Replying Affidavit sworn by the 3rd Respondent on 02nd July 2025, wherein he contends that the Petition is incompetent, misconceived and an abuse of the court process, and is in any event barred by the doctrine of res judicata. He avers that the issues raised in the present Petition were directly and substantially in issue in Kisii ELRC Petition No. E002 of 2024 between the same parties, which was heard and determined, culminating in a dismissal on 25th March 2025, and that the said decision has neither been appealed against nor set aside. 29. He further depones that the Petitioners were duly notified of the County Assembly proceedings through notices dated 26th November 2024 inviting them to appear before the Assembly on 28th November 2024 at 10:00 a.m., and that the Motion dated 21st November 2024, setting out the grounds for their proposed removal, was annexed thereto. He states that the Petitioners were informed of their right to submit written responses and to be represented by counsel, and were thereby afforded an opportunity to be heard in accordance with the law. 30. It is further his deposition that, despite receipt of the said notices, the Petitioners failed to attend the proceedings and instead instituted court proceedings which did not yield any orders restraining the Assembly from proceeding. Consequently, and in the absence of any subsisting court order to the contrary, the Assembly proceeded to debate and adopt the Motion on 28th November 2024, thereby effecting the Petitioners’ removal from office. 31. The 3rd Respondent further avers that, at all material times, he was the duly gazetted Clerk of the County Assembly and was therefore clothed with the requisite authority to issue the notices dated 26th November 2024. He contends that any contrary actions or notices relied upon by the Petitioners were undertaken without lawful authority and were subsequently nullified or overtaken by court orders, and cannot therefore be relied upon to impugn the impugned process. 32. He further contends that the removal process complied with the applicable statutory framework, and in particular that Section 10 of the County Assembly Services Act does not require a formal petition in the strict sense, but permits initiation of the removal process through a motion or written complaint, the substance of which, rather than its form, is determinative. He avers that the Motion dated 21st November 2024 satisfied the statutory threshold for initiation of the removal process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 4

page 4 of 17

33. The 3rd Respondent further avers that the Petitioners were accorded a fair hearing, having been notified of the allegations against them and afforded an opportunity to respond, but failed to utilise that opportunity. He therefore denies that the Petitioners’ rights under Articles 47 and 50 of the Constitution were violated, and maintains that the process undertaken by the Assembly was lawful, procedurally fair and in accordance with the Constitution and the law. 34. The 2nd Interested Party opposed the Respondents’ position and supported the Petition through a Replying Affidavit sworn on 01st December 2025, in which he depones that the process leading to the removal of the Petitioners was undertaken in a context of significant institutional conflict within the County Assembly, marked by disputes as to the lawful holders of the offices of Speaker and Clerk, and the existence of rival factions purporting to exercise authority. 35. He avers that the 3rd Respondent lacked authority at the material time, having been under suspension, and therefore had no legal capacity to issue the notices dated 26th November 2024 or to facilitate any proceedings of the Assembly. He contends that the said notices, together with the Motion dated 21st November 2024, were unlawful, issued without authority, and are null and void. 36. He further depones that the Assembly had been adjourned sine die and that no lawful sitting could be convened thereafter without the authority of the duly recognized Speaker. It is therefore his position that the purported sitting of 28th November 2024, at which the Motion was debated and adopted, was irregular, unconstitutional, undertaken without jurisdiction, and devoid of any legal foundation. 37. He adds that the Petitioners were neither served with any valid petition nor furnished with specific allegations, but were instead summoned on short notice, thereby denying them a fair opportunity to prepare and present their defence, contrary to the requirements of fair administrative action and fair hearing under the Constitution. 38. He further contends that the entire process, including the issuance of the notices, the tabling of the Motion, and the conduct of the Assembly proceedings, was undertaken in disregard of subsisting court orders emanating from the High Court at Nyamira and Kisii, and therefore amounted to actions taken in open defiance and contempt of court, rendering the said process unlawful, null and void. 39. On the issue of res judicata, he disputes the Respondents’ position and depones that the earlier proceedings relied upon were not determined on the merits but were disposed of on jurisdictional or procedural grounds. In that regard, he relies on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), and maintains that the doctrine does not arise in the absence of a final determination on the merits by a court of competent jurisdiction. 40. He further avers that the Gazette Notices relied upon by the Respondents were issued in violation of subsisting court orders and were subsequently revoked and rendered of no legal effect, and therefore cannot be relied upon to validate the impugned process. It is his position that proceedings founded on such actions, including the impugned notices, Motion and Assembly sitting, are illegal, null and void and incapable of sustaining a lawful removal process or a plea of res judicata. 41. The Petition was argued by way of submissions. The Petitioners filed written submissions dated 20th January 2026, in which they reiterate the contents of the Further Amended Petition dated 02nd November 2025 and the supporting affidavit sworn on 27th November 2024. 42. The Petitioners’ principal submission is that their removal from office as members of the Nyamira County Assembly Service Board was undertaken in violation of the law, and in particular Section 10 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 5

page 5 of 17

of the County Assembly Services Act, which they contend prescribes a mandatory statutory procedure for removal. They argue that the process must be initiated by way of a petition, and that the absence of such a petition renders the entire process void ab initio, as it goes to the root of the jurisdiction to undertake the removal. 43. In support of that proposition, the Petitioners rely on Republic v County Government of Mombasa; Outdoor Advertising Association of Kenya (Ex parte) [2014] KEHC 5564 (KLR), where the Court affirmed the settled principle that where a statute prescribes a specific procedure for the exercise of a power, that procedure must be strictly followed. They submit that the ratio decidendi of that decision is that administrative or statutory power cannot be exercised in disregard of prescribed procedural safeguards, and any action so taken is a nullity in law. They therefore contend that the Respondents’ failure to initiate the removal process through a petition was not a mere procedural lapse, but a jurisdictional defect that invalidates the entire process. 44. The Petitioners further submit that the process was fundamentally defective on account of conflicting notices dated 26th November 2024, allegedly issued by different persons purporting to act as Clerk of the County Assembly. They argue that such conflicting notices demonstrate uncertainty, lack of lawful authority, and procedural irregularity, thereby vitiating the entire process. It is their case that a process grounded on such ambiguity cannot meet the constitutional threshold of legality and procedural fairness. 45. It is their further submission that the notices summoning them were issued by a person who lacked lawful authority, and that the process was therefore ultra vires. They argue that actions undertaken without legal authority are void and incapable of conferring any rights or obligations, and that the Respondents acted outside the scope of their statutory mandate, thereby rendering the entire process unlawful. 46. The Petitioners also challenge the legality of the plenary sitting held on 28th November 2024, submitting that the County Assembly had previously been adjourned sine die pursuant to Gazette Notice No. 15844, and that in the absence of a lawful sitting, the Assembly lacked jurisdiction to transact any business. They therefore contend that the proceedings conducted on that date, including the debate and adoption of the motion for their removal, were null and void for want of jurisdiction. 47. They further submit that the subsequent advertisement of their positions was founded on an unlawful process and is therefore equally invalid, as it constitutes a consequential act flowing from an illegality. 48. On the question of fair hearing, the Petitioners submit that they were denied an opportunity to be heard prior to their removal, in violation of Articles 47 and 50 of the Constitution. They rely on Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR), in which the Court of Appeal emphasized that the right to fair administrative action entails prior notice, disclosure of allegations, an opportunity to be heard, and reasons for the decision, and that these requirements apply even in administrative and quasi-judicial processes. They submit that failure to comply with these requirements renders the process unconstitutional. 49. The Petitioners further rely on Kidero & 4 others v Waititu & 4 others [2014] KESC 11 (KLR), where the Supreme Court underscored that the right to a fair hearing under Article 50 is fundamental and non-derogable, and cannot be limited or ignored even in administrative proceedings. They argue that their removal without a fair hearing violated these constitutional guarantees. 50. In addition, the Petitioners invoke Article 236 of the Constitution, submitting that as public officers they were entitled to protection from removal without due process. They contend that the impugned https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 6

page 6 of 17

process fell short of the constitutional threshold of procedural fairness, legality, and rationality, and ought therefore to be invalidated. 51. The Respondents and the 1stInterested Party filed written submissions dated 02nd July 2025, opposing the Petition and urging the Court to dismiss it with costs. 52. As a preliminary issue, the Respondents and the 1st Interested Party submit that the Petition is barred by the doctrine of res judicata, on the basis that a similar petition was previously filed and determined in Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) [2025] KEELRC 995 (KLR), which was dismissed on 25th March 2025 and has neither been appealed nor set aside. They contend that the issues raised in the present Petition were directly and substantially in issue in the earlier proceedings. 53. In support of that argument, they rely on John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (supra) where the Supreme Court affirmed that the doctrine of res judicata applies with equal force to constitutional litigation and serves to prevent the re-litigation of issues that have been conclusively determined between the same parties. They submit that, in the circumstances, the dismissal of the earlier Petition constituted a final determination for purposes of the doctrine, thereby barring the present proceedings. 54. On the merits, the Respondents submit that the Petitioners were lawfully removed from office following due process. They contend that the Petitioners were duly notified of the proceedings through notices dated 26th November 2024, were furnished with the Motion dated 21st November 2024 setting out the grounds for their removal, and were invited to appear before the Assembly on 28th November 2024. 55. They further submit that the Petitioners were informed of their right to submit written responses and to be represented by counsel, but failed to attend the proceedings, and cannot therefore be heard to complain that their right to fair hearing was violated. They argue that the right to be heard includes an obligation on the affected party to take advantage of the opportunity afforded. 56. The Respondents contend that in the absence of any court order restraining the Assembly from proceeding, the Assembly lawfully debated and adopted the motion on 28th November 2024, thereby effecting the Petitioners’ removal. 57. On the interpretation of Section 10 of the County Assembly Services Act, they submit that the provision does not make it mandatory for removal to be initiated by a formal petition, and that the use of the term “may” denotes discretion. They argue that the Motion dated 21st November 2024 satisfied the statutory requirement, and that the Court should adopt a substantive rather than formalistic interpretation of the provision. 58. The Respondents further submit that the 3rd Respondent was the duly gazetted Clerk of the County Assembly and was lawfully authorized to issue the notices in question. They contend that any Gazette Notices relied upon by the Petitioners had been stayed and subsequently quashed by court orders, and cannot therefore be relied upon to impugn the process. 59. On costs, the Respondents and the 1st Interested Party submit that costs follow the event. In that regard, they rely on Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) for the principle that a successful party is ordinarily entitled to costs. They further cite Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383 for the proposition that although the court has discretion in awarding costs, such discretion must be exercised judiciously. They also rely on Re Ebuneiri Waisswa Kafuko Kampala HCMA No. 81 of 1993, as cited in Republic v Kenya National Highway Authority, Kasarani Police https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 7

page 7 of 17

Station DTO, Traffic Commandant & Attorney General Ex Parte Kanyingi Wahome [2015] KEHC 7558 (KLR), to emphasize that a successful party should not ordinarily be denied costs absent good reason. 60. The Respondents further rely on authorities addressing the centrality of jurisdiction and the proper constitutional framework applicable to disputes of this nature. In that regard, they place reliance on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR for the principle that jurisdiction is foundational and that a court must down its tools the moment it finds that it lacks jurisdiction. They submit that the question whether this Court is properly seized of the dispute must be determined at the outset. 61. They further rely on County Government of Kakamega & others v Onsongo & 12 others [2025] KECA 190 (KLR), County Government of Kakamega v Ali Adam & another [2023] KECA 1384 (KLR), and County Government of Kakamega v Nyongesa & another [2023] KECA 177 (KLR), to submit that disputes relating to the removal of members of County Assembly Service Boards raise constitutional and jurisdictional questions which must be situated within the proper statutory and constitutional framework, and that the Court must carefully characterize the nature of the dispute before determining it. 62. The 2nd Interested Party did not file written submissions and relies solely on the Replying Affidavit sworn on 01st December 2025. 63. Having considered the pleadings, affidavits and submissions on record, as well as the reliefs sought in the Further Amended Petition, the issues that arise for determination are as follows: 64. 1. Whether this Petition is barred by the doctrine of res judicata. 2. Whether the removal of the Petitioners complied with Section 10 of the County Assembly Services Act, including whether initiation by way of a petition was mandatory. 3. Whether the 3rd Respondent had lawful authority to issue the notices dated 26th November 2024 and to initiate and facilitate the process leading to the Petitioners’ removal. 4. Whether the County Assembly was lawfully constituted and had jurisdiction to conduct the proceedings of 28th November 2024, including the effect of the alleged adjournment sine die. 5. Whether the process leading to the removal of the Petitioners met the constitutional threshold of fairness under Articles 47 and 50 of the Constitution. 6. Whether, in light of the foregoing, the removal of the Petitioners from office was unconstitutional, unlawful, null and void, and whether the consequential acts flowing therefrom are invalid. 7. Whether the Petitioners are entitled to a permanent injunction restraining unlawful removal otherwise than in accordance with Section 10 of the County Assembly Services Act. 8. Whether the Petitioners are entitled to payment of salaries, allowances and benefits from the date of removal to the expiry of their respective terms of office. 9. Whether the Petitioners are entitled to the other reliefs sought. The Court now proceeds to determine each of the issues framed for determination. In doing so, the Court is guided by the central question that underlies this dispute, namely whether the process leading to the Petitioners’ removal was anchored in the law, or whether it was merely clothed in the appearance of legality without the requisite legal foundation. In doing so, the Court has carefully https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 8

page 8 of 17

considered the Further Amended Petition, the supporting affidavit, the Replying Affidavit sworn by the 3rd Respondent on behalf of the Respondents and the 1st Interested Party, and the 2nd Interested Party’s Replying Affidavit, together with the respective written submissions and authorities cited by the parties. Whether the Petition is barred by the doctrine of res judicata 65. The Respondents and the 1st Interested Party have raised the plea that the present Petition is barred by the doctrine of res judicata, contending that the issues herein were previously litigated and determined in earlier proceedings involving the same parties, namely Mogaru & another v Speaker County Assembly of Nyamira & 2 others; Nyamira County Assembly Board & another (Interested Parties) (supra). The plea of res judicata, therefore, is not merely procedural; it determines whether this Court is properly seized of the question whether the impugned process possessed a lawful foundation. 66. The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit… between the same parties… and has been heard and finally decided by such court.” 67. The rationale underpinning the doctrine is the principle of finality in litigation, aimed at preventing parties from being vexed twice over the same matter and safeguarding the integrity of judicial decisions. Its application, however, is not automatic and is subject to the satisfaction of well-settled conditions. 68. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 others (supra) the Court of Appeal set out the elements that must be satisfied before the doctrine can apply, namely that the matter in issue must be identical in both suits, the parties must be the same or litigating under the same title, the matter must have been heard and finally determined, and the court that determined the former suit must have been competent. 69. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (supra) affirmed that while the doctrine applies with equal force to constitutional litigation, it must be applied with circumspection so as not to unjustifiably impede access to justice or the enforcement of constitutional rights. The Court emphasized that the plea cannot succeed where the earlier proceedings did not result in a final determination on the merits. 70. In the present case, this Court has perused the judgment in the earlier proceedings relied upon by the Respondents and notes that the Petition therein was dismissed solely on the ground that the Court lacked jurisdiction to determine the dispute, the matter relating to the removal of members of a County Assembly Service Board having been found to raise a constitutional question falling within the jurisdiction of the High Court and not the Employment and Labour Relations Court. A determination on jurisdiction, without more, does not engage with the substance of legality that now falls for determination before this Court. 71. Such a determination, being one founded on jurisdiction, does not constitute a substantive adjudication on the merits of the issues in dispute. It is settled that a decision declining jurisdiction does not resolve the substantive rights of the parties, but merely determines the forum in which such rights may properly be ventilated. 72. In those circumstances, the Respondents have not demonstrated that the issues raised in the present Petition were heard and finally determined on their merits in the earlier proceedings. The threshold for https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 9

page 9 of 17

the application of res judicata, as set out under Section 7 of the Civil Procedure Act and the authorities cited, has therefore not been met. 73. Consequently, the Court finds that the present Petition is not barred by the doctrine of res judicata. Whether the removal of the Petitioners complied with Section 10 of the County Assembly Services Act, including whether initiation by way of a petition was mandatory 74. Section 10(2) and (3) of the County Assembly Services Act provides as follows: “ (2) Any person may petition the county assembly for the removal of a member of the Board on the grounds specified under subsection (1). (3) The procedure for the removal of a member of the Board under this section shall be as prescribed in the Standing Orders of the county assembly.” 75. The Respondents contend that the use of the word “may” in subsection (2) renders the requirement for a petition discretionary, and that the Motion dated 21st November 2024 substantially complied with the statutory requirement for initiation of the removal process. 76. This issue goes to the very foundation of legality in the present dispute. This Court has considered that submission. While the word “may” is, in its ordinary meaning, permissive, statutory interpretation is not a purely literal exercise. The Court is required to adopt a purposive and contextual approach, taking into account the object of the provision, the structure of the statute, and the nature of the rights affected. 77. The removal of a member of a County Assembly Service Board is a matter of grave consequence, affecting both tenure in public office and the reputation of the office holder. It is therefore a process that must be undertaken strictly in accordance with the law and in a manner that safeguards procedural fairness. 78. Within that statutory framework, a petition is not a mere technical formality. It is the formal instrument through which allegations are initiated, particularised and communicated to the affected party, and upon which the removal process is anchored. It provides the foundation for the subsequent procedural steps contemplated under the Act and the Standing Orders. It is, therefore, not a matter of procedural form, but the legal foundation upon which the entire process rests. 79. The requirement for a petition also serves a constitutional function. It is through the petition that the affected party is apprised of the specific allegations against them and afforded a meaningful opportunity to respond. Its omission therefore not only offends the statutory scheme but also undermines the procedural fairness guaranteed under Article 47 of the Constitution. 80. In those circumstances, the Court is not persuaded that the use of the word “may” permits the complete omission of a petition. Such an interpretation would defeat the purpose of the statute and erode the procedural safeguards intended by the legislature. The provision must therefore be construed as prescribing a mandatory step in the initiation of the removal process. To hold otherwise would be to elevate appearance over legality, and to permit a process to stand without the foundation required by law. 81. The Respondents further urge the Court to treat the Motion dated 21st November 2024 as a petition in substance. While the principle that substance prevails over form is recognised, it cannot be invoked to defeat an express statutory requirement or to substitute a jurisdictional precondition clearly provided for by statute. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 10

page 10 of 17

82. A motion is an internal procedural mechanism of the County Assembly, whereas a petition is a statutory trigger for the invocation of the removal process. The two are conceptually and legally distinct, and cannot be treated as interchangeable without undermining the structure and intent of the statute. In that sense, a motion cannot cure the absence of a petition, just as form cannot substitute for the legal foundation required by statute. 83. This position is consistent with the settled principle that where the Constitution or statute prescribes a specific procedure for the exercise of public power, that procedure must be strictly followed. As was held by the Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), where there is a clear procedure prescribed by law, it must be adhered to. A similar position was adopted in Republic v County Government of Mombasa; Outdoor Advertising Association of Kenya (Ex parte) (supra), where the Court held that administrative action undertaken in violation of statutory procedure is a nullity. 84. In the present case, it is not disputed that no petition was prepared, presented or served upon the Petitioners. The removal process was instead initiated through a motion of the County Assembly. The failure to initiate the process by way of a petition, as contemplated under Section 10(2), constituted a fundamental departure from the statutory framework. This was not a mere procedural irregularity capable of being cured, but a substantive defect going to the root of the process. The process, lacking that foundation, was legally untenable from inception. 85. The Respondents further contend that the process complied with the County Assembly Standing Orders. However, where a statute expressly prescribes the manner in which a process is to be initiated, compliance with internal procedural rules cannot cure the omission of a mandatory statutory requirement. Standing Orders cannot override or substitute statutory provisions. 86. In the absence of a valid petition, the removal proceedings lacked a lawful foundation and were therefore void ab initio. The Court therefore finds that the removal of the Petitioners did not comply with Section 10 of the County Assembly Services Act and was unlawful. Whether the 3rd Respondent had lawful authority to initiate and facilitate the removal process of the Petitioners 87. The Petitioners and the 2nd Interested Party contend that the 3rd Respondent lacked lawful authority at the material time, having been suspended, and therefore had no legal capacity to issue the notices dated 26th November 2024 or to facilitate any proceedings of the County Assembly. It is their case that any process undertaken under such circumstances was null and void ab initio. 88. The Respondents, on the other hand, maintain that the 3rd Respondent was the duly appointed and gazetted Clerk of the County Assembly and was therefore clothed with the requisite authority to issue the impugned notices and facilitate the proceedings leading to the Petitioners’ removal. 89. The starting point is the statutory framework. Section 13 of the County Governments Act establishes the office of the Clerk of the County Assembly and provides that the Clerk is appointed by the County Assembly Service Board with the approval of the County Assembly. The Clerk is designated as the authorised officer and serves as the head of the County Assembly service. The office is therefore not merely administrative, but is the statutory conduit through which the procedural and administrative functions of the Assembly are exercised. 90. It follows that any process undertaken in the name of the County Assembly, particularly one with significant legal consequences such as the removal of members of a statutory board, must be initiated https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 11

page 11 of 17

and conducted under the authority of a person lawfully holding that office. Authority, in that sense, is not merely formal, but must be exercised within the limits imposed by law. 91. The allegation that the 3rd Respondent lacked such authority is founded on averments by the Petitioners and the 2nd Interested Party, who depone that he had been suspended and therefore lacked capacity to act. Reference is made to internal correspondence and resolutions said to emanate from the County Assembly Service Board in support of that position. 92. The Respondents dispute that position and assert that the 3rd Respondent was duly appointed and gazetted as Clerk, and therefore lawfully in office at the material time. The material on record thus discloses competing and contested positions as to the lawful holder of the office of Clerk. 93. Upon consideration of the evidence placed before the Court, the material relied upon to demonstrate suspension does not conclusively establish, on a balance of probabilities, the fact or legal effect of such suspension. Similarly, the Respondents’ assertion of lawful appointment is not supported by clear and uncontested material sufficient to resolve the evident conflict. 94. In those circumstances, the question of whether the 3rd Respondent was lawfully in office remains unresolved on the evidence presented, and the allegation that he lacked authority is not established. 95. Even if authority were assumed, Be that as it may, even assuming in favour of the Respondents that the 3rd Respondent was lawfully in office and properly clothed with authority, such authority could only be exercised within the confines of the law. 96. As already found under Issue No. 2, the removal process was not initiated by way of a petition as required under Section 10 of the County Assembly Services Act. That omission constituted a fundamental defect in the process. 97. It follows that the question of the 3rd Respondent’s authority does not validate or cure a process that was unlawful from inception. Authority cannot legitimize a process undertaken in contravention of a mandatory statutory requirement. Authority cannot confer legality upon a process that is fundamentally defective. 98. Accordingly, whether or not the 3rd Respondent was lawfully in office, the notices dated 26th November 2024 and the proceedings founded thereon were undertaken pursuant to a process that was legally untenable and are therefore invalid. Whether the County Assembly was lawfully constituted and had jurisdiction to conduct the proceedings of 28th November 2024, including the efiect of the alleged adjournment sine die 99. The Petitioners contend that the proceedings of the County Assembly held on 28th November 2024, at which the motion for their removal was debated and adopted, were unlawful on the basis that the Assembly had previously been adjourned sine die, and therefore lacked jurisdiction to transact any business on that date. 100. It is their case that once the Assembly stood adjourned sine die, no lawful sitting could be convened in the absence of proper re-convening procedures under the applicable legal and procedural framework. They therefore argue that any proceedings purportedly conducted on 28th November 2024 were irregular, unconstitutional and devoid of legal effect. 101. The Respondents, on the other hand, maintain that the Assembly was properly convened and was lawfully seized of the matter. They contend that in the absence of any court order restraining the Assembly from proceeding, it was entitled to transact its business, including the consideration and adoption of the motion for removal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 12

page 12 of 17

102. The question whether the Assembly was lawfully constituted and possessed jurisdiction to transact business on the material date is a threshold issue, as jurisdiction is the foundation upon which the validity of any proceedings rests. As was held in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd (supra), jurisdiction is everything, and without it a court or tribunal must down its tools. Jurisdiction, like statutory procedure, forms part of the legal foundation upon which valid action must rest. 103. Although that principle is often stated in relation to courts, it applies with equal force to statutory bodies and deliberative assemblies exercising public power. Any proceedings undertaken without jurisdiction are null and void. The material before the Court indicates that there existed a dispute as to the status of the Assembly at the material time, including whether it had been adjourned sine die and whether the sitting of 28th November 2024 was lawfully convened. However, even assuming, in favour of the Respondents, that the Assembly was properly constituted and procedurally capable of sitting on that date, the legality of its proceedings must still be tested against the governing statutory framework. However, even a properly constituted forum cannot validate a process that lacks a lawful foundation. 104. As already determined under Issue No. 2, the removal process was not initiated by way of a petition as required under Section 10 of the County Assembly Services Act. That omission went to the root of the process and rendered it legally defective from inception. 105. It follows that the validity of the Assembly’s sitting, whether regular or otherwise, does not cure or validate a process that was fundamentally unlawful. Jurisdiction to sit does not translate into jurisdiction to undertake a process that is not anchored in law. The existence of jurisdiction to sit does not extend to sanctioning a process not grounded in law. 106. Accordingly, even if the Assembly was lawfully constituted and properly convened on 28th November 2024, the proceedings conducted in relation to the Petitioners’ removal were undertaken pursuant to a process that was legally untenable. 107. In the premises, the Court finds that the proceedings of 28th November 2024, insofar as they related to the removal of the Petitioners, were invalid and of no legal effect. Whether the process leading to the removal of the Petitioners met the constitutional threshold of fairness under Articles 47 and 50 of the Constitution 108. The Petitioners contend that the process leading to their removal violated their rights to fair administrative action and fair hearing as guaranteed under Articles 47 and 50 of the Constitution. They argue that they were not accorded a meaningful opportunity to know and respond to the allegations against them. 109. The Respondents, on their part, maintain that the Petitioners were duly notified of the proceedings through notices dated 26th November 2024, were furnished with the Motion dated 21st November 2024, and were informed of their right to attend, be heard, and be represented by counsel. They contend that the Petitioners failed to attend the proceedings and cannot therefore complain of a denial of the right to be heard. 110. Article 47 of the Constitution guarantees to every person the right to administrative action that is lawful, reasonable and procedurally fair, while Article 50 guarantees the right to a fair hearing. These provisions impose a duty on decision-makers to ensure that affected persons are afforded adequate notice, disclosure of the case against them, and a meaningful opportunity to be heard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 13

page 13 of 17

111. As was held by the Court of Appeal in Judicial Service Commission v Mutava & another (supra), the right to fair administrative action entails, inter alia, prior notice of the allegations, an opportunity to respond, and reasons for the decision. Similarly, the Supreme Court in Kidero & 4 others v Waititu & 4 others (supra) underscored that the right to a fair hearing is fundamental and applies to all proceedings affecting rights. 112. In the present case, the Court has already found that the removal process was not initiated in accordance with Section 10 of the County Assembly Services Act, in that no petition was presented. The petition is the foundational document through which allegations are crystallised, particularised and communicated to the affected party. Without that foundation, the procedural safeguards necessary for fairness are fundamentally compromised. 113. In the absence of such a petition, the procedural framework necessary to ensure fairness was fundamentally compromised. The Petitioners could not be said to have been adequately apprised of the specific allegations against them in a manner contemplated by law. 114. While the Respondents assert that notices were issued and an opportunity to attend was afforded, the right to be heard is not satisfied by mere invitation to attend proceedings. It presupposes a lawful process in which the affected party is furnished with sufficient and structured information to enable a meaningful response. The right to be heard presupposes a lawful process, not merely an invitation to participate in one. 115. A process that is not anchored in the statutory framework cannot meet the constitutional threshold of fairness, however procedurally elaborate it may appear. Compliance with form cannot substitute for compliance with the law that gives the process legitimacy. 116. Accordingly, the Court finds that the process leading to the removal of the Petitioners did not meet the constitutional threshold of fairness under Articles 47 and 50 of the Constitution and was therefore unconstitutional. Whether, in light of the foregoing, the removal of the Petitioners was unconstitutional, unlawful, null and void, and whether the consequential acts are invalid 117. The findings under Issues 2, 3, 4 and 5 cumulatively demonstrate that the process leading to the Petitioners’ removal was fundamentally flawed. The process was not initiated in accordance with the statute, was undertaken in the context of contested authority, and failed to meet the constitutional threshold of procedural fairness. The defects identified are not peripheral; they go to the root of the process. 118. In public law, where a process is undertaken in contravention of mandatory statutory provisions or constitutional requirements, the resulting decision is null and void. Such a decision is incapable of conferring legal rights or obligations. A process undertaken without legal foundation cannot yield a valid outcome. 119. The removal of the Petitioners, having been undertaken pursuant to a process that was unlawful from inception, is therefore invalid. 120. It follows that any consequential acts founded on that removal, including the declaration and/or advertisement of vacancies in the Petitioners’ positions, are equally invalid, as they derive from an unlawful foundation. For they are built upon a foundation that the law does not recognise. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 14

page 14 of 17

Whether the Petitioners are entitled to a permanent injunction restraining unlawful removal 121. The Petitioners have sought a permanent injunction restraining the Respondents from revoking their appointments as members of the County Assembly Service Board otherwise than in accordance with Section 10 of the County Assembly Services Act. That relief is predicated on the assertion that the impugned process was unlawful and ought not to be repeated. 122. This Court has already found that the process leading to the Petitioners’ removal was undertaken in contravention of the Constitution and the governing statute, and has declared the same unlawful and void ab initio. The Court has further issued findings nullifying the decision of 28th November 2024. 123. An injunction is, by its nature, a prospective remedy intended to restrain threatened or continuing unlawful conduct. In the present case, the removal complained of has already taken place and has been addressed through declaratory and quashing relief. The Court having already addressed the foundational illegality. 124. The Petitioners did not seek reinstatement to office, and no order has been made restoring them to the positions previously held. The reliefs granted by this Court address both the legality of the impugned process and the consequences flowing therefrom. 125. In those circumstances, there is no subsisting or threatened act requiring restraint by way of injunction. The grant of such an order would serve no practical purpose beyond what has already been achieved through the declarations issued. 126. Accordingly, the prayer for a permanent injunction has been overtaken by events and does not arise for grant. The same is declined. Whether the Petitioners are entitled to payment of salaries, allowances and beneffits 127. The Petitioners have further sought payment of salaries, allowances and benefits which they contend were unlawfully withheld following their removal from office. This claim arises directly from the impugned decision and falls to be determined in light of the Court’s findings on its legality. 128. The Court has found that the removal of the Petitioners was undertaken through a process that was unlawful, unconstitutional and void ab initio. In law, a decision that is null and void is treated as having no legal effect from the outset, and is deemed never to have occurred. A nullity in law is incapable of interrupting legal entitlement. 129. The consequence of such a finding is that the Petitioners are, in contemplation of law, regarded as having remained in office for the duration of their respective terms, subject only to lawful removal in accordance with the statute. The absence of a lawful removal preserves that entitlement. 130. The Petitioners held statutory offices with defined tenure and attendant remuneration. They therefore had a legitimate expectation that, absent lawful removal, they would serve their full terms and receive the salaries, allowances and benefits attached to those offices. 131. The unlawful removal deprived the Petitioners of those entitlements. The loss suffered is a direct and foreseeable consequence of the impugned decision and is neither remote nor speculative. The loss flows directly from a process lacking legal foundation. 132. In the circumstances, and in order to give full effect to the Court’s findings and to restore the Petitioners to the position they would have been in but for the unlawful act, the Petitioners are entitled to payment https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 15

page 15 of 17

of all salaries, allowances and benefits that would have accrued to them from the date of their removal up to the expiry of their respective terms of office. 133. In the result, and having considered the pleadings, the affidavits on record, the submissions of the parties and the issues for determination, the Court hereby makes the following orders: 1. It is hereby declared that this Petition is not barred by the doctrine of res judicata. 2. A declaration be and is hereby issued that the removal of the Petitioners from office did not comply with Section 10 of the County Assembly Services Act, and in particular that the failure to initiate the process by way of a petition rendered the entire process unlawful. 3. It is hereby found that, although the allegation that the 3rd Respondent lacked lawful authority was not established on the evidence, that issue does not validate or cure the unlawfulness of the process leading to the Petitioners’ removal. 4. A declaration be and is hereby issued that the proceedings of the County Assembly held on 28th November 2024, insofar as they related to the removal of the Petitioners, were invalid and of no legal effect. 5. A declaration be and is hereby issued that the process leading to the removal of the Petitioners violated Articles 47 and 50 of the Constitution and therefore failed to meet the constitutional threshold of fairness. 6. A declaration be and is hereby issued that the removal of the Petitioners from office was undertaken in contravention of the Constitution and the County Assembly Services Act, and is therefore unconstitutional, unlawful, null and void. 7. A declaration be and is hereby issued that the Petitioners are entitled to payment of all salaries, allowances, emoluments and benefits that would have accrued to them from December 2024 to the expiry of their respective terms of office. 8. The 3rd Respondents as the Accounting Officer of the County Service Board shall compute and pay to the Petitioners all sums due under order (7) above within thirty (30) days from the date of this Judgment. 9. The sums awarded under order (7) shall attract interest at court rates from the date of the Petitioners’ unlawful removal until payment in full, the Petitioners having been deprived of their lawful entitlements from that date. 10. The prayer for a permanent injunction restraining the Respondents from revoking or otherwise interfering with the Petitioners’ appointments as members of the County Assembly Service Board otherwise than in accordance with Section 10 of the County Assembly Services Act is hereby declined, the Court having granted declaratory and consequential reliefs which adequately address the unlawfulness of the impugned process. 11. The Petitioners shall have the costs of this Petition to be borne by the Respondents and the 1st Interested Party. The 2nd Interested Party shall bear his own costs. 12. Mention on 25th May 2026 to confirm compliance with orders (7), (8) and (9) above DELIVERED AT NYAMIRA THIS 23rd DAY OF April 2026 WAMAE.T. W. CHERERE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 16

page 16 of 17

Appearances Court Assistant - Terer For Petitioners - Omoke for Morara Omoke Advocates For Respondents and 1st I.Party - Mokua Ndubi & Co. Advocates 2nd Interested Party - Present in person https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6716/eng@2026-04-23 17

page 17 of 17