Vincent Mariita Omao v Nyamira County Assembly & 4 others

JUDGMENT HCCHRPET E012 OF 2024 NYARIBO DENNIS KEBASO.....................................2ND INTERESTED PARTY 1. JUDGMENT The Petitioner is described in the Amended Petition as an adult Kenyan citizen who brings this Petition pursuant to Articles 22 and 258 of the Constitution in the public interest and for the enforcement of constitutional rights and principles of governance. 2. The 1st Respondent is described as the Nyamira County Assembly, being the legislative arm of the Nyamira County Government, exercising legislative and oversight functions over the County Executive and other entities within the County Government framework, and having capacity to sue and be sued. 3. The 2nd Respondent is described as the Clerk of the Nyamira County Assembly, being the administrative head of the 1st Respondent and an officer with capacity to sue and be sued. Page 2 of 59

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JUDGMENT 4. HCCHRPET E012 OF 2024 The 3rd Respondent is described as the Speaker of the Nyamira County Assembly and the presiding officer of the Assembly. 5. The 4th Respondent is described as the Nyamira County Assembly Service Board, a body corporate responsible for providing services and facilities necessary for the efficient and effective functioning of the County Assembly, and having capacity to sue and be sued. 6. The 5th Respondent is described as the Independent Electoral and Boundaries commission Commission, responsible for being the conducting constitutional or supervising referendums and elections to any elective body or office established under Article 88 of the Constitution. 7. The 1st and 2nd Interested Parties are described as adult Kenyan citizens of sound mind who were, at all material times, members of the County Assembly of Nyamira, the 1 st Interested Party having been nominated and the 2nd Interested Party having been elected. Page 3 of 59

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JUDGMENT 8. HCCHRPET E012 OF 2024 The Petitioner brings this Petition as a resident and voter within Nyamira County, asserting locus standi in the public interest pursuant to Articles 22 and 258 of the Constitution for the enforcement of constitutional rights and principles governing the management of public funds and the integrity of public office. 9. This matter was commenced by way of a Petition dated 20 th November 2024 and subsequently amended on 30th January 2025. The Petition is expressed to be brought in the matter of alleged violation and infringement of rights and fundamental freedoms guaranteed under Articles 25, 27, 28, 33, 35, 41, 47, 48 and 50 of the Constitution, and in the matter of alleged contravention of the County Governments Act, the Fair Administrative Action Act, 2015 and the Public Finance Management Act, 2012. The Petition challenges, inter alia, the continued recognition, participation and remuneration of the 1st and 2nd Interested Parties as members of the Nyamira Page 4 of 59

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JUDGMENT County HCCHRPET E012 OF 2024 Assembly notwithstanding judicial determinations nullifying their respective nomination and election. 10. The Petition, as amended, is grounded upon a series of factual and legal complaints which challenge the continued inclusion of the Interested Parties in the affairs and payroll of the Nyamira County Assembly following judicial determinations affecting their status. 11. It is pleaded that during the August 2022 general elections, the 1st Interested Party was nominated to represent the Orange Democratic Movement Party in the Nyamira County Assembly under the marginalized (youth) category, while the 2nd Interested Party was elected to represent Nyansiongo Ward in the same Assembly. 12. The Petitioner avers that the nomination of the 1st Interested Party was challenged in Mogeni v Independent Electoral and Boundaries Commission & 2 others [2023] KEHC 3193 (KLR), wherein the High Court, in a judgment delivered on 6th July Page 5 of 59

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JUDGMENT HCCHRPET E012 OF 2024 2023, allowed the appeal, found that the nominee was not qualified for nomination under the youth category, and declared the process leading to his gazettement illegal, null and void, with consequential orders for revocation and fresh nomination. 13. It is further pleaded that the election of the 2 nd Interested Party was the subject of challenge in Keroka Principal Magistrate’s Court Election Petition No. E001 of 2022 (Mochumbe Jackson Mogusu & 2 Others v Nyaribo Dennis Kebaso & Others), where the trial court invalidated the election and ordered a fresh poll, which decision was subsequently the subject of appeal in Mogusu & another v Kebaso & 6 others [2023] KEHC 19688 (KLR), wherein the High Court, in a judgment delivered on 6th July 2023, dismissed the consolidated appeals and set aside the order on costs, directing that each party bears its own costs. 14. The Petitioner contends that despite the appellate determinations, the 2nd Respondent maintained the names of Page 6 of 59

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JUDGMENT HCCHRPET E012 OF 2024 the 1st and 2nd Interested Parties in the payroll of the 1 st Respondent to the detriment of the residents of Nyamira County. 15. The Petition proceeds on the basis that the continued inclusion of the Interested Parties in the payroll resulted in payment of salaries, remuneration and allowances that were not lawfully due, and that such payments, once made, could not be recovered, thereby exposing public funds to irrecoverable loss. 16. The Petitioner asserts that the protection of public funds is the responsibility of every state organ and person, and that there exists a constitutional duty to ensure compliance with the Constitution, including the provisions governing the management of public finances at the county level. 17. It is further pleaded that the continued participation of the Interested Parties in the activities of the County Assembly, notwithstanding the nullification of their respective positions, rendered the Assembly ungovernable and interfered with its Page 7 of 59

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JUDGMENT HCCHRPET E012 OF 2024 lawful functioning, yet there existed no legal justification for such participation. 18. The Petitioner also contends that the Respondents acted in contravention of the County Governments Act and the Standing Orders governing the operations of the 1st Respondent, and that unless restrained by this Court, such conduct would result in duplication of roles and wastage of public resources. 19. The Petition invokes the constitutional guarantees of fair administrative action and fair hearing, contending that the impugned actions were inconsistent with Articles 47 and 50 of the Constitution. 20. It is further contended that unless the reliefs sought are granted, the substratum of the Petition will be rendered nugatory and the issues raised reduced to a mere academic exercise. Page 8 of 59

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JUDGMENT 21. HCCHRPET E012 OF 2024 In the premises, the Petitioner seeks the following reliefs: 1) A declaration that the process of maintaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent was unconstitutional, illegal, null and void; 2) An order directing the 2nd Respondent to remove the 1st and 2nd Interested Parties from the payroll of the 1st Respondent; 3) An order of prohibition restraining the 2 nd Respondent from maintaining the 1st Interested Party in the payroll unless nomination conducted in strict compliance with is the Constitution and the law; 4) An order of prohibition restraining the 2 nd Respondent from maintaining the 2nd Interested Party in the payroll until fresh elections are conducted in Nyansiongo adherence of the Ward Constitution, in strict the County Governments Act and other relevant laws; Page 9 of 59

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JUDGMENT 5) HCCHRPET E012 OF 2024 An order directing the 2nd Respondent to surcharge the 1st and 2nd Interested Parties the salaries and personal emoluments earned from 06th July 2023 until full settlement; 6) In the alternative to prayer (e), an order that the 2nd Respondent, Duke Onyari, be held liable for unlawful payment of salaries and personal emoluments to the 1st and 2nd Interested Parties; 7) A permanent injunction restraining the Respondents from admitting the 1st and 2nd Interested Parties into the payroll of the 1st Respondent; 8) An order by way of mandamus compelling the 2 nd Respondent to degazette the 1st and 2nd Interested Parties as nominated and elected Members of County Assembly respectively; 9) Costs of the Petition; 10) Any other relief that this Court may deem just and appropriate. Page 10 of 59

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JUDGMENT 22. HCCHRPET E012 OF 2024 The 1st and 4th Respondents oppose the Petition through the Replying Affidavit of Duke S. Onyari, the Clerk of the Nyamira County Assembly, sworn on 10th December 2025, contending that the Petition is misconceived in fact and law and discloses no constitutional violation attributable to them. 23. It is their case that the Clerk of the County Assembly is not the officer responsible for the disbursement of salaries and allowances, and that any liability for alleged unlawful payments cannot be attributed to that office. 24. They further contend that they were not parties to the election petitions and appeals that culminated in the nullification of the Interested Parties’ positions, and that implementation of such decisions is subject to statutory processes, including formal notification under the Elections Act. 25. The 1st and 4th Respondents attribute any delay in implementation to procedural and institutional constraints, including delays in communication, the absence of a duly Page 11 of 59

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JUDGMENT HCCHRPET E012 OF 2024 constituted electoral commission at the material time, and operational challenges affecting the relevant institutions. 26. It is further their position that the issues raised in the Petition have since been overtaken by events, the nomination of the 1st Interested Party having been revoked by Gazette Notice dated 26th August 2025 and subsequently replaced on 24 th September 2025, while the seat of the 2nd Interested Party was declared vacant on 08th August 2025, followed by a byelection held on 27th November 2025 and the gazettement of a new member on 01st December 2025. 27. The 5th Respondent opposes the Petition through the Replying Affidavit of Chrispine Owiye, OGW, sworn on 17 th September 2025, and maintains that it acted at all times within its constitutional and statutory mandate. It is deponed that following the 2022 General Election, the 2nd Interested Party was elected as Member of County Assembly for Nyansiongo Ward, as reflected in a Gazette Notice published on 24 th August 2022. The deponent avers that the election of the 2 nd Page 12 of 59

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JUDGMENT HCCHRPET E012 OF 2024 Interested Party was subsequently challenged in Keroka Principal Magistrate’s Court Election Petition No. E001 of 2022 (Mochumbe Jackson Mogusu & 2 Others v Nyaribo Dennis Kebaso & 2 Others), wherein the court, in a judgment delivered on 15th February 2023, invalidated the election and directed the 5th Respondent to conduct a fresh election for Nyansiongo Ward. 28. It is further deponed that the said decision was the subject of appeal in Nyamira High Court Election Petition Appeal Nos. E006 and E007 of 2023 (Consolidated), and that in a judgment delivered on 6th July 2023, the High Court dismissed the appeals and upheld the decision of the trial court, save as to costs. 29. With respect to the 1st Interested Party, the 5th Respondent avers that the nomination was challenged in Nyamira High Court Election Petition Appeal No. E004 of 2023, wherein the Court declared the nomination and gazettement unlawful, Page 13 of 59

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JUDGMENT HCCHRPET E012 OF 2024 illegal, null and void, and directed that the same be revoked and a fresh nomination undertaken. 30. It is deponed that, in compliance with the said judgment, the 5th Respondent revoked the nomination of the 1 st Interested Party through a Gazette Notice dated 26th August 2025. 31. The 5th Respondent further avers that it, together with the relevant political party, commenced the process of reallocating the seat in accordance with the court’s directions. 32. It is therefore the 5th Respondent’s position that it fully complied with all lawful court orders arising from the election petitions and appeals, and that no constitutional violation can be attributed to it. 33. On that basis, the 5th Respondent contends that the Petition discloses no cause of action against it and urges the Court to dismiss it with costs. Page 14 of 59

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JUDGMENT 34. HCCHRPET E012 OF 2024 The 1st Interested Party opposes the Petition through his Response to the Amended Petition dated 28 th November 2025, wherein he denies each and every allegation contained in the Petition save for those expressly admitted. He admits that he was nominated to the Nyamira County Assembly to represent the Orange Democratic Movement Party but avers that the election petitions and appeals referenced by the Petitioner were dismissed, and denies that his name has been maintained in the payroll, putting the Petitioner to strict proof. 35. The 1st Interested Party further avers that the Court has since pronounced itself on his status and maintains that he is no longer representing any person in the Nyamira County Assembly. He states that the seat was declared vacant on 08th July 2025, following communication by the 3rd Respondent vide a letter dated 16th June 2025, and that his nomination was revoked and he was duly degazetted through a Kenya Gazette Notice published on 26th August 2025, thereby bringing his tenure to an end. Page 15 of 59

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JUDGMENT 36. HCCHRPET E012 OF 2024 The 1st Interested Party denies the remaining allegations in the Petition and unsupported, contends and that further the same are untrue and avers that the Petition is incompetent, devoid of legal justification, and an afterthought intended to advance mischief without any legal basis. He maintains any that the Petitioner has not established entitlement to the reliefs sought and urges the Court to dismiss the Petition with costs. 37. The Petition was canvassed by way of written submissions. The parties’ submissions, though advanced from differing perspectives, coalesce around a number of discernible issues which may conveniently be considered in sequence. 38. Prominent among these is the question concerning the legal effect attendant upon the nullification of an election or nomination. The Petitioner, in submissions dated 02nd April 2026, anchors his argument on the supremacy of judicial determinations and the immediate legal consequences flowing from nullification. It is submitted that once a court of competent jurisdiction nullifies an election or nomination, the Page 16 of 59

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JUDGMENT HCCHRPET E012 OF 2024 legal foundation upon which the office is held is extinguished forthwith. In support of this proposition, reliance is placed on Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 for the principle that a void act is a nullity and every proceeding founded on it is incurably defective, and on Raila Odinga & Another v IEBC & 2 Others [2017] eKLR to reinforce the argument that an election that does not comply with constitutional and legal standards cannot confer a lawful mandate. The Petitioner further invokes Teachers Service Commission v KNUT [2015] eKLR to submit that court orders are binding and must be complied with unconditionally and cannot be subordinated to administrative convenience or bureaucratic delay. On that basis, it is contended that certification and gazettement are merely consequential administrative acts that cannot sustain an otherwise invalid office. 39. In contrast, the 1st and 4th Respondents together with the 2nd Interested Party, in submissions dated 05th March 2026, argue that the legal consequences of nullification are not selfPage 17 of 59

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JUDGMENT HCCHRPET E012 OF 2024 executing and must be operationalised through the statutory framework established under section 86(1) of the Elections Act. It is submitted that certification and notification by the election court are not mere formalities but integral steps in giving legal effect to the judgment, and that in their absence, the process of declaring a vacancy and effecting replacement cannot lawfully commence. To contextualise the delay in implementation, they rely on Moenga & 2 others v Nyamora & 7 others; Nyabaro & another (Interested Parties) [2025] KEHC 7765 (KLR) to demonstrate the institutional challenges that affected the Nyamira County Assembly, including leadership disputes and administrative paralysis. The 05th Respondent, in submissions dated 06th February 2026, while not directly contesting the doctrine of nullity, supports the position that implementation of court decisions must occur within the constitutional and statutory framework governing electoral processes and maintains that all steps taken were within its mandate. Page 18 of 59

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JUDGMENT 40. HCCHRPET E012 OF 2024 Closely related is the question whether the Interested Parties lawfully continued in office following nullification. The Petitioner maintains that upon nullification, the Interested Parties ceased, in law, to be members of the County Assembly and could not lawfully continue to occupy office or discharge its functions, relying on the same authorities of Macfoy v United Africa Co. Ltd and Raila Odinga & Another v IEBC & 2 Others (supra). 41. The 1st Interested Party, in submissions dated 05th March 2026, contests that position and argues that cessation of office is dependent upon compliance with statutory processes, including certification, notification, and gazettement, and that any delay in removal cannot be equated to unlawful occupation. Similarly, the 1st and 4th Respondents together with the 2nd Interested Party submit that any continued presence in office was attributable to institutional and procedural constraints, again placing reliance on Moenga & 2 others v Nyamora & 7 others; Nyabaro & another (Interested Parties) (supra). Page 19 of 59

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JUDGMENT 42. HCCHRPET E012 OF 2024 The 5th Respondent in submissions dated 06th February 2026 maintains that it acted within its mandate in revoking nomination and facilitating the processes leading to replacement, and that no illegality can be attributed to it. 43. The parties further address the allegation that the continued retention of the Interested Parties in the payroll after nullification resulted in unlawful payment of salaries and allowances, thereby occasioning loss of public funds. The Petitioner submits that such payments were unlawful and relies on Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR for the principle that public funds must be utilised strictly in accordance with the law and that any unauthorised expenditure is unconstitutional. The Petitioner further invokes section 112 of the Evidence Act to argue that payroll records are within the exclusive control of the Respondents, and that failure to produce such records entitles the Court to draw an adverse inference. The 1st Interested Party disputes the allegation and Page 20 of 59

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JUDGMENT HCCHRPET E012 OF 2024 submits that no evidence has been placed before the Court to demonstrate continued receipt of salaries or allowances after nullification, and that the burden of proof lies upon the Petitioner. The 1st and 4th Respondents together with the 2nd Interested Party similarly contend that the Petitioner has failed to discharge the evidential burden required to establish unlawful expenditure or liability. 44. It is also contended that the Petition does not meet the constitutional threshold required for the enforcement of fundamental rights and freedoms. The 5 th Respondent, and the 1st Interested Party, in submissions dated 05th March 2026, submit that the Petition fails to meet that threshold, both relying on Anarita Karimi Njeru v Republic (1979) eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR for the requirement that constitutional violations be pleaded with reasonable precision and supported by a proper factual foundation. The 1 st Interested Party further relies on Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] KEELC 4674 (KLR) to Page 21 of 59

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JUDGMENT HCCHRPET E012 OF 2024 argue that constitutional petitions must not be framed in general terms or used as substitutes for ordinary civil disputes where alternative remedies exist. The Petitioner, on the other hand, relies on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) to contend that the Petition meets the threshold. It is therefore evident that these authorities are relied upon by the Petitioner, the 5th Respondent, and the 1st Interested Party alike, albeit to advance opposing conclusions. 45. The 1st to 4th Respondents together with the 2nd Interested Party further submit that the Petition has been overtaken by events, on the basis that the 1st Interested Party was degazetted and replaced, and that a by-election was conducted in respect of the 2nd Interested Party’s seat, rendering the reliefs sought incapable of enforcement. The Petitioner, however, relies on Communications Commission of Kenya v Royal Media Services Ltd & 5 Others [2014] eKLR to submit that courts retain jurisdiction to determine issues of public importance even where intervening events Page 22 of 59

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JUDGMENT HCCHRPET E012 OF 2024 have occurred. It is argued that the question of unlawful expenditure of public funds remains live and justiciable notwithstanding subsequent compliance. The 1st Interested Party aligns with the position that the matter has been overtaken by events, while the 5th Respondent maintains that the processes undertaken were within the law. 46. On liability, the Petitioner submits that liability attaches to the Respondents for permitting continued occupation of office and the resultant unlawful expenditure of public funds. The 1st to 4th Respondents together with the 2ndInterested Party dispute liability and submit that the 2nd Respondent, being the Clerk of the County Assembly, is not the accounting officer responsible for disbursement of salaries and allowances, relying on sections 19 and 20 of the County Assemblies Services Act. They further submit that the power to gazette or degazette members lies exclusively with the electoral body. The 1st Interested Party similarly disputes any liability, maintaining that no unlawful benefit has been demonstrated. The 5 th Respondent maintains that its mandate is limited to functions Page 23 of 59

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JUDGMENT HCCHRPET E012 OF 2024 expressly conferred by the Constitution and statute, that it acted within that mandate, and that no causal nexus has been established between its actions and the alleged violations, and that no liability can therefore attach. 47. Finally, on the issue of costs, all parties rely on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR for the principle that costs follow the event, subject to the discretion of the Court. The 1st to 4th Respondents together with the 2nd Interested Party further rely on Impressa Ing Fortunato Federice v Nabwire [2001] 2 EA 383 and Re Ebuneiri Waisswa Kafuko, Kampala HCMA No. 81 of 1993 cited in Pet No 466 of 2014 Republic vs Kenya National Highway Authority & Others, Ex parte Kanyingi Wahome to emphasise that costs are discretionary and that a successful party should not be denied costs absent misconduct. The Petitioner urges that costs be awarded in its favour, while the 1st Interested Party, the 1st to 4th Respondents together with the 2nd Interested Party, and the 5th Page 24 of 59

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JUDGMENT HCCHRPET E012 OF 2024 Respondent urge the Court to exercise its discretion otherwise. Issues for determination 48. Having considered the Amended Petition, the responses thereto, the rival submissions by the parties, and the specific reliefs sought, the issues that arise for determination are as follows: 1) Whether the Amended Petition meets the constitutional threshold for a constitutional petition, including the requirement of precision in pleading and evidentiary sufficiency; 2) Whether the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took immediate legal effect, or was contingent upon certification, notification and other statutory processes under the Elections Act; 3) Whether, following such nullification, the continued inclusion of the 1st and 2nd Interested Page 25 of 59

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JUDGMENT HCCHRPET E012 OF 2024 Parties in the payroll of the 1 st Respondent, and their participation in the affairs of the Nyamira County Assembly, was unconstitutional, illegal and unlawful; 4) Whether any salaries, allowances and/or other emoluments were paid to the 1st and 2nd Interested Parties after nullification, and if so, whether such payments constituted unlawful expenditure of public funds and are recoverable by way of surcharge; 5) Whether the 2nd Respondent is the proper party against whom the orders sought, including removal from payroll, prohibition, mandamus for degazettement, and/or personal liability, can issue, having regard to the statutory mandate of that office; 6) Whether the Petitioner has established a basis for the grant of the declaratory, prohibitory and mandatory orders Page 26 of 59 sought, including

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JUDGMENT HCCHRPET E012 OF 2024 removal from payroll and restraining further inclusion of the Interested Parties therein; 7) Whether the Petitioner has established a basis for the grant of a permanent injunction restraining the Respondents from admitting or retaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent; 8) Whether the Petition has been overtaken by events in light of the subsequent degazettement, declaration of vacancies, and replacement of the Interested Parties; 9) 49. What orders should issue, including on costs. The first issue for determination is whether the Amended Petition meets the constitutional threshold required of a constitutional petition. The applicable principles are settled. In Anarita Karimi Njeru v Republic (supra), and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra), the courts held that a party alleging violation of constitutional rights must set Page 27 of 59 out, with reasonable

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JUDGMENT HCCHRPET E012 OF 2024 precision, the provisions said to be infringed and the manner of such infringement, and must present a clear factual foundation capable of sustaining constitutional adjudication. 50. The 1st Interested Party and the 5th Respondent contend that the Petition falls short of that threshold. They argue that it is vague and omnibus, that it cites numerous constitutional provisions without particularizing the alleged violations, and that it is unsupported by evidence, particularly in relation to the allegation that the Interested Parties continued to receive salaries after nullification. On that basis, they urge that the Petition does not disclose a sustainable constitutional claim. 51. The Petitioner, on the other hand, maintains that the Petition clearly identifies the impugned conduct, namely the continued recognition, participation and remuneration of the 1st and 2nd Interested Parties as members of the Nyamira County Assembly notwithstanding judicial determinations nullifying their respective nomination and election. It is further contended that this conduct is linked to constitutional Page 28 of 59

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JUDGMENT HCCHRPET E012 OF 2024 principles relating to governance, the rule of law and public finance, and that the factual basis is sufficiently set out to warrant constitutional intervention. 52. Upon consideration of the Amended Petition, this Court is satisfied that the gravamen of the complaint is clearly discernible. The Petition is anchored on a specific factual matrix, namely that despite the nullification of the nomination and election of the Interested Parties, they continued to be retained in office and in the payroll of the 1 st Respondent, thereby occasioning expenditure of public funds without lawful authority. 53. That complaint is directly linked to identifiable constitutional principles, particularly those governing the rule of law, accountability in public office, and the lawful use of public resources. Although multiple constitutional provisions are cited, the substance of the claim is neither vague nor speculative, and the issues in controversy are capable of clear identification. Page 29 of 59

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JUDGMENT 54. HCCHRPET E012 OF 2024 As regards the contention that the Petition is unsupported by evidence, that argument properly goes to the merits rather than to the competency of the Petition. At this stage, the question is whether a justiciable constitutional issue has been disclosed. The evidentiary burden, including the production of payroll records, falls for consideration upon evaluation of the evidence, and in any event such records lie within the custody of the Respondents. 55. In the premises, the Court is satisfied that the Amended Petition meets the constitutional threshold. It sets out with sufficient clarity the impugned conduct, the constitutional principles implicated, and the nature of the alleged violation, and therefore discloses a proper basis for constitutional adjudication. 56. Accordingly, the Court finds that the Amended Petition is competent and properly before it. Page 30 of 59

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JUDGMENT 57. HCCHRPET E012 OF 2024 The second issue for determination is whether the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took immediate legal effect, or whether it was contingent upon certification, notification and other statutory processes under the Elections Act. 58. The Petitioner’s case is that once a court of competent jurisdiction nullifies an election or nomination, the legal foundation upon which the office is held is extinguished immediately, and any continued recognition of such office thereafter is unlawful. It is contended that the subsequent processes of certification, notification or gazettement are merely administrative steps which cannot confer validity upon an otherwise nullified office. 59. The Respondents, on the other hand, contend that the implementation of such nullification is dependent upon compliance with statutory procedures, particularly certification and notification under section 86(1) of the Elections Act. It is their position that in the absence of such certification, the Page 31 of 59

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JUDGMENT HCCHRPET E012 OF 2024 process of declaring a vacancy and effecting replacement cannot lawfully be undertaken, and that any delay in implementation must be viewed within that statutory framework. 60. It is not in dispute that the nomination of the 1 st Interested Party and the election of the 2nd Interested Party were both nullified through judicial proceedings, culminating in the determination of the respective appeals on 06th July 2023. The question is therefore not whether nullification occurred, but when its legal effect crystallised. 61. This Court is of the considered view that a clear distinction must be drawn between the legal effect of a judicial determination and the administrative steps necessary for its implementation. 62. A judgment of a competent court takes effect upon delivery, unless stayed or set aside on appeal. Where an appeal is preferred, the operative legal position is determined upon Page 32 of 59

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JUDGMENT HCCHRPET E012 OF 2024 conclusion of the appellate process. In the present case, the appellate process in respect of both Interested Parties was concluded on 06th July 2023, and that date therefore marks the point at which the legal position became final and binding. 63. Certification and notification under section 86(1) of the Elections Act, as well as gazettement or degazettement, are procedural mechanisms designed to operationalize and give effect to the judgment. They do not determine the validity of the office, nor do they create or sustain legality. To hold otherwise would be to subordinate judicial determinations to administrative processes and to recognise a category of office that is legally invalid yet administratively sustained, a position that is inconsistent with the rule of law. 64. The argument advanced by the Respondents, that nullification is contingent upon certification and notification, cannot therefore be sustained. Such processes facilitate implementation but do not suspend or postpone the legal consequences of a court’s decision. Once the legal foundation Page 33 of 59

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JUDGMENT HCCHRPET E012 OF 2024 of the office is removed by judicial determination, no lawful authority remains upon which the holder of that office can continue to act. 65. Accordingly, this Court finds and holds that the nullification of the nomination of the 1st Interested Party and the election of the 2nd Interested Party took legal effect upon the conclusion of the appellate process on 06th July 2023, and was not contingent upon certification, notification or gazettement. 66. The third issue for determination is whether, following the nullification of the nomination of the 1 st Interested Party and the election of the 2nd Interested Party, their continued inclusion in the payroll of the 1 st Respondent and their participation in the affairs of the Nyamira County Assembly was unconstitutional, illegal and unlawful. 67. The Petitioner’s case is that once the appellate process was concluded on 06th July 2023, the legal foundation upon which the 1st and 2nd Interested Parties held office was Page 34 of 59

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JUDGMENT HCCHRPET E012 OF 2024 extinguished, and any continued recognition of them as members of the County Assembly, including their retention in the payroll, was without lawful basis. It is contended that such continued occupation of office and enjoyment of public benefits amounted to an unlawful exercise of public power and a violation of constitutional principles governing the use of public resources. 68. The Respondents and the 1st Interested Party, on the other hand, contend that any delay in the removal of the Interested Parties from office and from the payroll was attributable to statutory and administrative processes, including certification and notification under the Elections Act, as well as institutional constraints such as the absence of a fully constituted electoral commission and internal administrative challenges within the County Assembly. 69. It is not in dispute that the appellate process in respect of both the nomination of the 1st Interested Party and the election of the 2nd Interested Party was concluded on 06th July 2023. It is Page 35 of 59

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JUDGMENT HCCHRPET E012 OF 2024 further borne out by the record that the 1 st Interested Party was not degazetted until 26th August 2025 and subsequently replaced on 24th September 2025, while the 2 nd Interested Party remained in office until a by-election was conducted on 27th November 2025 and a new member gazetted on 70. 01st December 2025. In light of the Court’s finding under the preceding issue that nullification took legal effect upon conclusion of the appellate process, it follows that from 06th July 2023, the 1st and 2nd Interested Parties ceased, in law, to hold office as members of the County Assembly. From that date, they no longer had any lawful authority to participate in the affairs of the Assembly or to benefit from the privileges and emoluments attached to that office. 71. The explanation advanced by the Respondents, that the continued occupation of office was dependent upon certification, notification or other administrative processes, cannot avail them. As already observed, such processes are Page 36 of 59

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JUDGMENT HCCHRPET E012 OF 2024 facilitative of implementation and do not confer legality upon an otherwise invalid office. Administrative delay or institutional constraints cannot operate to validate what the law has already declared void. 72. Accordingly, the continued participation of the 1 stand 2nd Interested Parties in the affairs of the Nyamira County Assembly after 06th July 2023 constituted an unlawful exercise of public authority. Equally, their continued inclusion in the payroll of the 1st Respondent during that period, if established, lacked any legal foundation and was inconsistent with constitutional principles governing accountability, the rule of law and the proper use of public resources. 73. In the premises, this Court finds and holds that the continued recognition, participation and retention in the payroll of the 1st and 2nd Interested Parties after 06th July 2023 was unconstitutional, illegal and unlawful. Page 37 of 59

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JUDGMENT 74. HCCHRPET E012 OF 2024 The question whether such payments were in fact made, and the evidentiary burden attendant thereto, will be addressed under the subsequent issue relating to surcharge and recovery of public funds. 75. The fourth issue for determination is whether any salaries, allowances and/or other emoluments were paid to the 1st and 2nd Interested Parties after nullification, and if so, whether such payments constituted unlawful expenditure of public funds and are recoverable by way of surcharge. 76. The Petitioner pleads that notwithstanding the nullification of the nomination and election of the Interested Parties, the Respondents retained them in the payroll and continued to disburse to them salaries and allowances, thereby occasioning loss of public funds. The 1st Interested Party denies having been maintained in the payroll and contends that no evidence has been placed before the Court to demonstrate that he received any such payments. The Respondents similarly deny Page 38 of 59

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JUDGMENT HCCHRPET E012 OF 2024 liability and maintain that the Petitioner has not discharged the burden of proof. 77. The issue that therefore arises is whether, on the material before the Court, it can be said that payments were in fact made to the Interested Parties after the operative date of nullification. 78. This Court has already found, under the preceding issues, that the nomination of the 1st Interested Party and the election of the 2nd Interested Party were nullified with finality on 06 th July 2023, and that from that date they ceased, in law, to hold office. It follows that any payment of salaries, allowances or emoluments to them thereafter would have been made without lawful authority. 79. The difficulty, however, lies in the evidentiary position. The Petitioner does not place before the Court payroll records or documentary proof of payment. That fact alone is not determinative. Payroll records and evidence of disbursement Page 39 of 59

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JUDGMENT HCCHRPET E012 OF 2024 of salaries are documents peculiarly within the custody and control of the Respondents. In such circumstances, the law recognises that the evidential burden shifts to the party in possession of such material to produce it. 80. Section 112 of the Evidence Act provides that where any fact is especially within the knowledge of a party, the burden of proving or disproving that fact lies upon that party. In the present case, whether salaries continued to be paid after nullification is a matter that lies squarely within the knowledge and control of the Respondents, who are responsible for the administration and management of the payroll of the County Assembly. 81. Despite this, no payroll records, payment schedules or any documentary evidence were placed before the Court to demonstrate that payments to the 1st and 2nd Interested Parties ceased upon nullification of their respective offices. The Respondents, having denied the allegation of continued payment, were under a duty to place before the Court Page 40 of 59

page 40 of 59

JUDGMENT HCCHRPET E012 OF 2024 material within their possession to rebut that allegation. Their failure to do so entitles this Court to draw an adverse inference that, had such records been produced, they would have confirmed that payments were indeed made during the period in question. 82. In light of that adverse inference, and having already found that the Interested Parties had no lawful basis to hold office after 06th July 2023, this Court is satisfied that salaries, allowances and emoluments were paid to them during the period subsequent to nullification, and that such payments constituted unlawful expenditure of public funds. 83. The question then turns to whether such payments are recoverable by way of surcharge. Public funds are held in trust and must be utilised strictly in accordance with the Constitution and the law. Any expenditure incurred without lawful authority is prima facie recoverable, particularly where the recipients had no legal entitlement to the funds. The continued receipt of public funds by persons who, in law, no Page 41 of 59

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JUDGMENT HCCHRPET E012 OF 2024 longer held office cannot be justified, and equity does not permit the retention of benefits obtained without lawful basis. 84. Further, Article 226(5) of the Constitution contemplates personal liability for loss of public funds occasioned through unlawful conduct. The payments made to the 1st and 2nd Interested Parties, having been found to lack any legal foundation, fall within that category of recoverable public loss. 85. Accordingly, this Court finds and holds that the 1st and 2nd Interested Parties are liable, by way of surcharge, to refund all salaries, allowances and emoluments received during the period of unlawful occupation of office, being from 06 thJuly 2023 until the dates of their respective removal and replacement. 86. The fifth issue for determination is whether the 2 nd Respondent is the proper party against whom the orders sought, including removal from payroll, prohibition, Page 42 of 59 mandamus for

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JUDGMENT HCCHRPET E012 OF 2024 degazettement, and/or personal liability, can issue, having regard to the statutory mandate of that office. 87. The Petitioner seeks, inter alia, orders directing the 2 nd Respondent to remove the 1st and 2nd Interested Parties from the payroll, to surcharge them for salaries and emoluments received, and in the alternative, to hold the 2 nd Respondent personally liable for unlawful payments. The Respondents oppose those prayers on the basis that the 2 nd Respondent, as Clerk of the County Assembly, does not exercise the statutory mandate relating to gazettement or degazettement of Members of County Assembly, and that liability cannot attach to him personally in the absence of proof of wrongdoing. 88. The starting point is the statutory role of the 2 nd Respondent. This Court takes judicial notice of Section 148(4) of the Public Finance Management Act, 2012, which designates the Clerk of the County Assembly as the Accounting Officer of the County Assembly. As Clerk, the 2nd Respondent also serves as the administrative head of the Assembly and Secretary to the Page 43 of 59

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JUDGMENT HCCHRPET E012 OF 2024 County Assembly Service Board. In that capacity, the 2 nd Respondent bears statutory responsibility for the management of public funds, including oversight of payroll and financial administration within the Assembly. 89. Accordingly, this Court is satisfied that the 2 nd Respondent is the proper party against whom orders relating to the administration of the payroll and implementation of this Court’s orders can issue. Any directive requiring the removal of persons from the payroll, or compliance with findings relating to unlawful expenditure of public funds, properly lies against that office in its official capacity. 90. However, a clear distinction must be drawn between institutional responsibility and personal liability. While the 2 nd Respondent bears statutory responsibility as Accounting Officer, no material has been placed before this Court to demonstrate that he personally authorised, directed or participated in the unlawful payments so as to attract personal liability. In the absence of such evidence, the threshold for Page 44 of 59

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JUDGMENT HCCHRPET E012 OF 2024 imposing personal liability under Article 226(5) of the Constitution has not been met. 91. The Petitioner further sought an order of mandamus compelling the 2nd Respondent to degazette the 1st and 2nd Interested Parties. That prayer is, however, legally untenable. The power to gazette or degazette Members of County Assembly is vested in the 5th Respondent, and not in the office of the Clerk of the County Assembly. In any event, the material before the Court shows that degazettement has since been effected by the 5th Respondent, and subsequent processes undertaken to fill the respective positions. The prayer for mandamus in that regard has therefore been overtaken by events and cannot issue. 92. In the premises, this Court finds that the 2 nd Respondent is properly before the Court for purposes of implementing orders relating to payroll administration and compliance with the law, but no basis has been established for the imposition of Page 45 of 59

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JUDGMENT HCCHRPET E012 OF 2024 personal liability, and no orders relating to gazettement or degazettement can issue against that office. 93. The sixth issue for determination is whether the Petitioner has established a basis for the grant of the declaratory, prohibitory and mandatory orders sought. 94. The Petitioner seeks, inter alia, a declaration that the continued inclusion of the 1st and 2nd Interested Parties in the payroll of the 1st Respondent was unconstitutional, illegal, null and void; orders directing their removal from the payroll; and orders of prohibition restraining their continued or future inclusion in the payroll absent compliance with the law. 95. The grant of declaratory, prohibitory and mandatory relief is discretionary and is predicated upon proof of a violation of the Constitution or the law. A declaration will issue where the Court is satisfied that a legal right has been infringed or that an unlawful state of affairs exists. Orders of prohibition and mandamus, on the other hand, issue to restrain unlawful Page 46 of 59

page 46 of 59

JUDGMENT HCCHRPET E012 OF 2024 conduct or to compel the performance of a public duty, respectively, where such duty is clearly established. 96. In the present case, this Court has already found that the nomination of the 1st Interested Party and the election of the 2nd Interested Party were nullified with finality on 06th July 2023, and that from that date they ceased, in law, to hold office. The Court has further found that their continued participation in the affairs of the County Assembly and their continued inclusion in the payroll, if established, lacked any lawful foundation and was inconsistent with constitutional principles governing the rule of law and the use of public resources. 97. In those circumstances, the Petitioner has established a proper basis for the grant of a declaration that the continued retention of the 1st and 2nd Interested Parties in the payroll after the operative date of nullification was unlawful. Such a declaration serves to affirm the legal position and vindicate Page 47 of 59

page 47 of 59

JUDGMENT HCCHRPET E012 OF 2024 the constitutional principle that public office and public funds must be exercised strictly in accordance with the law. 98. With regard to the orders directing removal from payroll and restraining continued inclusion therein, the Court notes that the Interested Parties have since been removed from office and replaced following the requisite processes, including degazettement and subsequent elections or nominations. To that extent, the specific prohibitory and mandatory orders sought have been overtaken by events. 99. However, that does not deprive the Court of jurisdiction to pronounce itself on the legality of the impugned conduct. Where a violation is established, the Court is entitled to grant declaratory relief notwithstanding that the impugned conduct has ceased. Such relief serves an important public purpose by clarifying the law and ensuring management of public affairs. Page 48 of 59 accountability in the

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JUDGMENT 100. HCCHRPET E012 OF 2024 In the premises, this Court finds that the Petitioner has partially established a basis for the grant of relief. A declaration shall issue as to the unlawfulness of the continued inclusion of the Interested Parties in the payroll after nullification. The prayers seeking mandatory and prohibitory orders are, however, declined on account of having been overtaken by events. 101. Accordingly, the declaratory relief succeeds, while the mandatory and prohibitory reliefs fail to the extent indicated. 102. The seventh issue for determination is whether the Petitioner has established a basis for the grant of a permanent injunction restraining the Respondents from admitting or retaining the 1st and 2nd Interested Parties in the payroll of the 1st Respondent. 103. The Petitioner seeks a permanent injunction on the basis that, following nullification of the nomination and election of the Interested Parties, any continued or future inclusion of them in the payroll would be unlawful. The prayer is therefore directed Page 49 of 59

page 49 of 59

JUDGMENT HCCHRPET E012 OF 2024 at preventing both continued and prospective violation of the law. 104. A permanent injunction issues upon final determination of rights and is intended to restrain ongoing or threatened unlawful conduct. It is granted where a legal right has been established and there exists a real likelihood of its violation, either continuing or imminent. 105. In the present case, this Court has already found that the nomination of the 1st Interested Party and the election of the 2nd Interested Party were nullified with finality on 06th July 2023, and that from that date they ceased, in law, to hold office. The Court has further found that their continued inclusion in the payroll after that date was unlawful. 106. However, it is equally borne out by the record that subsequent steps were taken to give effect to the nullification. The 1st Interested Party was degazetted on 26th August 2025 and replaced on 24th September 2025, while the 2nd Interested Party’s seat was declared vacant on 08 th August 2025, Page 50 of 59

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JUDGMENT HCCHRPET E012 OF 2024 followed by a by-election conducted on 27 th November 2025 and the gazettement of a new member on 01st December 2025. 107. An order of permanent injunction cannot issue in the absence of a continuing or threatened violation. Where the conduct complained of has ceased and there is no demonstrated risk of its repetition, such an order would serve no practical or legal purpose. 108. In the premises, while the Court has found that the past inclusion of the Interested Parties in the payroll after nullification was unlawful, the prayer for a permanent injunction has been overtaken by events and cannot issue. 109. Accordingly, the claim for a permanent injunction is declined. 110. The eighth issue for determination is whether the Petition has been overtaken by events in light of the subsequent Page 51 of 59

page 51 of 59

JUDGMENT HCCHRPET E012 OF 2024 degazettement, declaration of vacancies, and replacement of the Interested Parties. 111. The Respondents contend that the Petition has been rendered moot by subsequent developments, namely the degazettement of the 1st Interested Party, the declaration of vacancy in respect of the 2nd Interested Party’s seat, and the conduct of a by-election culminating in the gazettement of a new member. It is therefore urged that the reliefs sought are no longer capable of practical enforcement. 112. There is no dispute that subsequent events occurred following the nullification of the nomination and election of the Interested Parties. As already noted, the 1st Interested Party was degazetted on 26th August 2025 and replaced on 24th September 2025, while the 2nd Interested Party’s seat was declared vacant on 08th August 2025, followed by a election conducted on 27th November 2025 byand gazettement of a new member on 01st December 2025. Page 52 of 59 the

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JUDGMENT 113. HCCHRPET E012 OF 2024 The question that arises is whether those subsequent events have rendered the Petition wholly academic or incapable of determination. 114. This Court is of the considered view that while certain prayers sought in the Petition, particularly those seeking removal from payroll, prohibition, mandamus, and injunctive relief, have been overtaken by events, the Petition itself is not rendered moot in its entirety. The issues relating to the legal effect of nullification, the lawfulness of the continued occupation of office by the Interested Parties after nullification, the legality of their continued inclusion in the payroll and participation in the affairs of the County Assembly, and whether salaries, allowances and emoluments were paid after nullification and are recoverable by way of surcharge, remain live and justiciable notwithstanding the subsequent developments. 115. These issues raise substantive questions of constitutional compliance, public finance accountability, and the rule of law, which are not extinguished by subsequent compliance or Page 53 of 59

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JUDGMENT HCCHRPET E012 OF 2024 corrective action. The fact that the impugned state of affairs has since been regularised does not cure the illegality that existed during the intervening period, nor does it absolve the parties from accountability. 116. In that regard, the Court retains jurisdiction to determine the dispute and to grant appropriate relief, including declaratory and consequential orders, notwithstanding that some of the specific reliefs sought may no longer be capable of enforcement. 117. Accordingly, this Court finds that while certain prayers in the Petition have been overtaken by events, the Petition itself has not been wholly overtaken by events and remains justiciable to the extent of the issues identified above. 118. In the premises, the objection that the Petition is moot fails, save only in respect of those reliefs which have been rendered incapable of enforcement by subsequent events. Page 54 of 59

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JUDGMENT 119. HCCHRPET E012 OF 2024 On costs, under Section 27 of the Civil Procedure Act, costs follow the event unless the Court for good reason orders otherwise. While the Respondents opposed the Petition, this Court has found that no personal or direct liability attaches to them, they having acted within their respective statutory mandates. The substantive relief granted relates to recovery of public funds from the 1st and 2nd Interested Parties. In the circumstances, the Respondents are not entitled to costs. 120. The final issue for determination is what orders should issue in light of the findings made by this Court, including the question of costs. 121. This Court has found that the nomination of the 1 st Interested Party and the election of the 2nd Interested Party were nullified with finality on 06th July 2023, and that from that date they ceased, in law, to hold office. The Court has further found that their continued occupation of office and inclusion in the payroll of the 1st Respondent thereafter was unlawful, and that any salaries, allowances and emoluments paid to them during that Page 55 of 59

page 55 of 59

JUDGMENT HCCHRPET E012 OF 2024 period constituted unlawful expenditure of public funds recoverable by way of surcharge. 122. The Court has also found that the 2nd Respondent, as the Accounting Officer of the County Assembly, is the proper officer through whom orders relating to payroll administration and implementation of this Court’s orders may issue in his official capacity. However, no basis has been established for the imposition of personal liability against him. Further, certain reliefs sought, including those relating to prohibition, mandamus and permanent injunction, have been overtaken by events. 123. In the premises, and for the reasons set out above, this Court makes the following orders: 1) A declaration is hereby issued that the continued retention of the 1st and 2nd Interested Parties in the payroll of the 1st Respondent after 06th July 2023 was unconstitutional, unlawful, null and void; Page 56 of 59

page 56 of 59

JUDGMENT HCCHRPET E012 OF 2024 2) The prayers seeking orders of removal from payroll, prohibition, mandamus and permanent injunction are hereby declined, having been overtaken by events; 3) An order is hereby issued directing the 2nd Respondent, in his capacity as the Accounting Officer pursuant to Section 148(4) of the Public Finance Management Act, 2012, to surcharge the 1st and 2nd Interested Parties in respect of all salaries, allowances and emoluments unlawfully received as follows: (i) In respect of the 1st Interested Party: from 06th July 2023 to (ii) 26th August 2025; In respect of the 2nd Interested Party: from 06th July 2023 to 01st December 2025; 4) For purposes of giving effect to order (c) above, the quantum payable shall be computed from the official payroll records of the Nyamira County Assembly under the direction of the 2nd Respondent, as Accounting Officer, within sixty (60) days from the Page 57 of 59

page 57 of 59

JUDGMENT HCCHRPET E012 OF 2024 date hereof, and a report thereof filed in this Court, together with a detailed account of the means deployed or proposed to be deployed to recover the said amount, statutory, or including lawful any administrative, recovery mechanisms undertaken or to be undertaken for that purpose 5) Accordingly, costs of the Petition are awarded to the Petitioner as against the 1st and 2nd Interested Parties. 6) Mention on 06th July 2026 to confirm compliance with orders (3) and (4) above DELIVERED AT NYAMIRA THIS 2026 16th DAY OF April WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant: Hilda For the Petitioner - Mr. Omao for Samuel N. Mainga & Co. Advocates For the 1st and 4th Respondents and the 2nd Interested PartyMr. Mokua for Mokua Ndubi & Co. Advocates For the 1st Interested Party – Mr. Ochoki for Ochoki & Co. Advocates Page 58 of 59

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JUDGMENT HCCHRPET E012 OF 2024 For the 5th Respondent – Mr. Bogonko for Benjamin Bogongo & Associates Advocates Page 59 of 59

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