Augustine Ndegwa Munga & 3 others v Independent Electoral and Boundaries Commission

SPEAKER, COUNTY GOVERNMENT OF KWALE ................ 2ND RESPONDENT UNITED DEMOCRATIC ALLIANCE (PARTY) ....................... 3RD RESPONDENT UNITED DEMOCRATIC MOVEMENT (PARTY) ................... 4TH RESPONDENT PAMOJA AFRICAN ALLIANCE ................................................ 5TH RESPONDENT ORANGE DEMOCRATIC MOVEMENT PARTY .................... 6TH RESPONDENT AND MARY CHARLES KALINGA ................................................. INTERESTED PARTY JUDGMENT INtroduction 1. This Judgment arises from a constitutional petition instituted by nominated Members of the County Assembly of Kwale (hereinafter “the Petitioners”) against the Independent Electoral and Boundaries Commission, the Speaker of the County Assembly of Kwale, and various political parties (hereinafter “the Respondents”). The Petition is anchored on alleged violations and threatened infringements of constitutional rights and freedoms under the Constitution of Kenya, 2010, particularly in relation to political rights, equality and freedom from discrimination, fair administrative action, and the principles of constitutional supremacy. 2. At its core, the Petition challenges the legality and constitutionality of a prior decision of the High Court sitting in its election appellate jurisdiction in Mombasa High Court Election Petition Appeal No. E087 of 2023, which nullified the Petitioners’ nomination as Members of the County Assembly of Kwale on the basis of alleged ineligibility relating to residency and voter registration requirements. The Petitioners contend that the said decision was erroneous in law, constitutionally infirm, and has precipitated imminent actions including their de-gazettement and removal from office. 3. The proceedings are further attended by the filing of a Cross-Petition by the Interested Party, who asserts a direct and substantive claim to the disputed seats and seeks the enforcement of the earlier judgment of the Court, including the declaration of vacancies, the conduct of fresh nominations, and the consequential gazettement and swearing-in of duly qualified nominees. In opposition to the Petition, the Interested Party raises preliminary objections to its competence, challenging the jurisdiction of this Court, invoking the doctrines of res judicata and statutory limitation, and alleging abuse of the court process. She accordingly urges that the Petition be struck out in limine. 4. The Respondents, for their part, oppose both the Petition and Cross-Petition, contending that the issues raised are settled, time-barred, and improperly framed as constitutional questions when they are in substance electoral disputes already adjudicated with finality. 5. By consent and directions of this Court, conservatory orders were issued on 15th August 2024 preserving the substratum of the Petition and restraining implementation of the impugned actions pending hearing and determination. Subsequent directions issued on 17th June 2025 structured the filing of responses, rejoinders, and submissions in respect of both the Petition and the Cross-Petition, and deferred the question of admission of the Cross-Petition to the present stage. 6. The Court is thus called upon to determine, inter alia, issues of jurisdiction, finality of electoral disputes, constitutional interpretation, alleged violation of political rights, the propriety of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 2

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conservatory orders in force, and the competing claims to nomination and representation in the Kwale County Assembly. The factual matrix, affidavits, and submissions of all parties reveal a complex intersection between constitutional litigation and electoral dispute resolution mechanisms, which this Court shall now proceed to examine in detail. The Petitioners’ Case 7. The Petition herein is instituted by the Petitioners, who are duly nominated Members of the County Assembly of Kwale, and who approach this Honourable Court invoking its jurisdiction as a Constitutional and Human Rights Court pursuant to Articles 22, 23 and 165 of the Constitution of Kenya, 2010, alleging violation and threatened infringement of their fundamental rights and freedoms guaranteed under the Constitution. 8. The Petition is premised on the supremacy of the Constitution under Article 2, and the binding obligation of all persons and State organs to respect, uphold and defend its provisions. The Petitioners further rely on the foundational principles under Article 10, including the rule of law, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, good governance, transparency and accountability, as well as the State’s obligations under Articles 19, 20 and 21 to respect, protect, promote and fulfil the rights and freedoms enshrined in the Bill of Rights. It is their case that the Constitution guarantees every citizen the right, without unreasonable restriction, to participate in political processes, to vie for public office, and to hold elective or nominated positions subject only to lawful and constitutionally permissible limitations. 9. The factual foundation of the Petition is largely not in dispute. The Petitioners were duly nominated as Members of the County Assembly of Kwale following the 2022 General Elections, and their nomination was subsequently gazetted in accordance with the applicable legal framework. Their nomination was thereafter challenged before the Chief Magistrate’s Court at Kwale in Election Petition No. E002 of 2022, which petition was dismissed, thereby affirming the validity of their nomination and gazettement. Aggrieved, the respondent therein escalated the matter on appeal to the High Court at Mombasa, which, by its judgment delivered on 14th September 2023, set aside the decision of the trial court and held, inter alia, that the nomination of persons who are neither residents nor registered voters within the relevant electoral unit is unconstitutional, null and void. The Court further proceeded to declare the Petitioners’ seats vacant, directed the conduct of fresh nominations, and held that the Petitioners were ineligible for re-election. 10. Dissatisfied with the said determination, the Petitioners pursued appellate recourse before the Court of Appeal and thereafter the Supreme Court. However, both appellate courts declined to entertain the merits of the appeals, holding that they lacked jurisdiction to interrogate the dispute as presented, thereby leaving the judgment of the High Court undisturbed and ostensibly final within the electoral dispute resolution framework. 11. The Petitioners now contend that the implementation of the impugned judgment and consequential orders would result in their degazettement and removal from office, not on account of any electoral malpractice, misconduct or statutory disqualification, but solely on the basis of an alleged requirement of residency and voter registration within Kwale County. They assert that such a requirement finds no anchorage in the Constitution or the Elections Act as a qualification for nomination to County Assemblies. In that regard, they maintain that citizenship is the primary constitutional threshold for eligibility, and that the introduction of a county-specific voter registration or residency requirement amounts to an unlawful, irrational and unconstitutional fetter on political rights protected under Article 38 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 3

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12. It is further the Petitioners’ case that they meet all the constitutional and statutory qualifications for nomination to the County Assembly and are not disqualified under any lawful criterion. They argue that the impugned requirement effectively introduces an extraneous and impermissible limitation on political participation, thereby violating Articles 27 and 38 of the Constitution, as well as undermining the principles of inclusivity and proportional representation under Articles 90 and 177 of the Constitution. 13. The Petitioners further aver that the threatened enforcement of the impugned decision poses an imminent violation of their constitutional rights, including their political rights, right to equality, and freedom from discrimination. They contend that unless restrained by this Honourable Court, the Respondents will proceed to degazette them and effect replacement of their positions, thereby occasioning irreparable prejudice and rendering the Petition nugatory. 14. In the premises, the Petitioners seek the following reliefs: a. A declaration that the Petitioners herein are duly nominated Members of Kwale County Assembly pursuant to the Special Issue of the Kenya Gazette Notice Volume CXVIII No. 186. b. A declaration that a nominated Member of County Assembly need not be a registered voter in the particular ward, constituency and/or county in which they are nominated, in order for their nomination to be held to be valid. c. A declaration that the order issued that the Petitioners herein are not eligible for re-election is unconstitutional, illegal, null and void and consequently, that the said order be and is hereby quashed. d. A permanent order restraining the Respondents from degazetting the Petitioners as the duly nominated members of the County Assembly of Kwale through the United Democratic Alliance Party, United Democratic Movement Party, Pamoja African Alliance (PAA Party) and Orange Democratic Movement Party on account of the issues raised in this petition. e. A permanent order restraining the 2nd Respondent from declaring the Petitioners seats vacant and/or swearing in any new nominated member by the United Democratic Alliance Party, United Democratic Movement Party, Pamoja African Alliance (PAA Party) and Orange Democratic Movement Party on account of the issues raised in this petition. f. Costs of the Petition. g. Such other order/reliefs as this Honourable Court shall deem just and fit in the interest of justice. 15. The Petitioners submit that the impugned actions and threatened implementation by the Respondents constitute egregious violations of constitutional guarantees, including Articles 2, 10, 19 - 24, 27, 38, 47, 48 and 50 of the Constitution of Kenya, 2010. They contend that the impugned conduct is unconstitutional, unlawful, irrational, unreasonable, and procedurally unfair, thereby warranting the intervention of this Honourable Court in exercise of its constitutional mandate. 16. They anchor their case on the doctrine of constitutional supremacy under Article 2, contending that any act or omission inconsistent with the Constitution is null and void ab initio. They further rely on Article 10, submitting that the Respondents’ actions are inimical to the national values and principles https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 4

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of governance, particularly the rule of law and good governance. Reliance is also placed on Articles 19, 20 and 21, which impose a positive obligation upon the State to respect, protect, promote and fulfil fundamental rights and freedoms. 17. On the alleged infringement of equality and political rights, the Petitioners invoke Article 27 and Article 38 of the Constitution and contend that the imposition of a residency and voter registration requirement within a specific county constitutes unjustifiable discrimination and an impermissible limitation on the right to participate in political life and hold public office. 18. On fair administrative action, the Petitioners submit that any decision to degazette them without due process and without lawful justification violates Article 47 of the Constitution. In support thereof, they rely on the decision in Isaac Aluoch Polo Aluochier v Senate & 2 Others, wherein the Court held that failure to provide reasons for an administrative action, particularly in an electoral context, offends the right to fair administrative action. 19. The Petitioners further contend that the enforcement of the impugned orders would occasion irreversible prejudice to their political rights and public service. In this regard, they rely on Cabinet Secretary, Ministry of Health v Joseph Enock Aura & Others, where the Court of Appeal underscored the duty of courts to prevent actions that may occasion irreversible harm where constitutional infirmities are alleged. 20. On the substantive legal issue of eligibility for nomination, the Petitioners submit that neither the Constitution nor the Elections Act imposes a requirement that a nominee to a County Assembly must be a registered voter within the specific county of nomination. They rely on Articles 90, 177 and 193 of the Constitution, read together with Sections 25, 34 and 35 of the Elections Act, and contend that nomination to party lists is a function of political parties within the framework of proportional representation, subject only to constitutional thresholds. They therefore submit that the law only requires that a nominee be a registered voter in Kenya and not within the specific county of nomination. 21. The Petitioners further submit that the nullification of their nomination fails to meet the threshold under Section 83 of the Elections Act. They rely on the Supreme Court decision in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 4 Others & Attorney General & Another, for the proposition that non-compliance with electoral law must be shown to have substantially affected the outcome or to have violated constitutional principles before an election can be invalidated, which threshold, they contend, has not been met in the present case. 22. On constitutional interpretation, the Petitioners urge this Court to adopt a purposive and holistic approach as articulated in Speaker of the Senate & Another v Attorney General & 4 Others, and Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 4 Others, particularly under Article 259 of the Constitution, so as to give effect to the spirit, purpose and values of the Constitution. 23. Applying the foregoing principles, the Petitioners submit that the constitutional and statutory framework governing party-list nominations does not contemplate a county-specific voter registration requirement, and that any such requirement constitutes an extraneous and unconstitutional addition to the qualifications for nomination. 24. The Petitioners maintain that the actions of the Respondents are constitutionally infirm, procedurally defective, and substantively unjustified. They accordingly urge this Honourable Court to grant the reliefs sought in the Petition, including affirmation of their nomination, nullification of the impugned orders, and permanent restraint against their degazettement or replacement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 5

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The Intersted Party’s Case 25. The Interested Party opposes the Petition dated 31st July 2024 in limine and has filed a CrossPetition together contending that the proceedings are fatally incompetent, an abuse of the process of the Court, and an impermissible attempt to re-open issues already finally determined by courts of competent jurisdiction. It is her case that the Petition offends the constitutional and statutory architecture governing electoral disputes, particularly the strict timelines and appellate structure under the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2017, in that the impugned decision emanating from Mombasa High Court Election Petition Appeal No. E087 of 2023 Mary Charles Kalinga v IEBC & Others was delivered on 14th September 2023, whereas the present proceedings were instituted on 31st July 2024, well outside the prescribed timelines under Section 75(4) of the Elections Act and Rule 34(11) of the said Rules. She further contends that Section 85A of the Elections Act bars a second appeal in matters relating to the election of Members of County Assembly, and that the Petitioners, having exhausted appellate avenues up to the Court of Appeal and the Supreme Court, are improperly inviting this Court to exercise a jurisdiction it does not possess by disguising an election dispute as a constitutional petition. 26. The Interested Party further pleads res judicata, submitting that the matters raised herein were directly and substantially in issue in Mombasa High Court Election Petition Appeal No. E087 of 2023 Mary Charles Kalinga v IEBC & Others, wherein the High Court nullified the Petitioners’ nomination on grounds inter alia that they were neither residents nor registered voters within Kwale County, and that the said determination was left undisturbed following the dismissal of subsequent appeals in Josephine Wairimu & Others v Mary Charles Kalinga & Others at both the Court of Appeal and the Supreme Court for want of jurisdiction, thereby rendering the judgment final, binding, and incapable of collateral challenge. Reliance is placed on the principle that litigation must attain finality and cannot be re-opened through collateral constitutional proceedings. 27. It is further the Interested Party’s contention that the Petitioners have engaged in forum shopping, multiplicity of proceedings, and material non-disclosure in a bid to forestall the implementation of the judgment of 14th September 2023, and to perpetuate their continued occupation of office despite the nullification of their nomination. She avers that such conduct constitutes an abuse of the process of the Court, citing concealment of prior determinations and improper procurement of conservatory orders, and that the present Petition is a disguised appeal intended to frustrate execution of a valid and subsisting decree. 28. On the merits of her Cross-Petition, the Interested Party avers that she was a duly qualified nominee of the Pamoja African Alliance Party under the special seat category for Kwale County, being a resident and registered voter therein, but was unlawfully excluded from the gazetted list by the Independent Electoral and Boundaries Commission. She contends that the High Court judgment of 14th September 2023 vindicated her claim by nullifying the Petitioners’ nomination and directing fresh nominations, yet the same has not been implemented, resulting in her continued exclusion from office, denial of political rights, and loss of earnings and benefits. 29. In her Cross-Petition, the Interested Party therefore seeks the following reliefs as prayed: i. An Order that the Judgement of the Election Court delivered in Mombasa High Court Election Appeal No. E087 of 2023 Mary Charles Kalinga -vsThe IEBC & Others be sustained and vacancies be immediately declared in the office(s) of five nominated members of County Assembly of Kwale being https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 6

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Augustine Ndegwa Munga, Racheal Katumbi Mutisya, Josephine Wairimu Kinyanjui, Fartun Mohamed Musa and Mulki Abdullahi Adan. 30. ii. That an Order do issue compelling the Speaker Kwale County Assembly to declare vacancies in the office(s) of nominated MCA’s of the 1st - 4th Respondents together with that of Mulki Abdullahi Adan and issue a notice to the IEBC within 7 days of the Judgement herein. iii. The Court be pleased to Order the IEBC through the Chief Executive Officer and/or other authorized officer to conclude fresh nominations of the nullified nominated MCAs seats in Kwale County within 14 days of the Judgement herein. iv. That an Order do issue compelling the IEBC to re-consider the party list nominees in accordance with the Judgement in Mombasa High Court Election Appeal No. E087 of 2023 Mary Charles Kalinga -vs- The IEBC & Others and specifically publish and gazette the Cross-Petitioner Mary Charles Kalinga on priority basis/ranking as a lawfully nominated Member of Kwale County Assembly under the special seats/interests category as representing marginalized women and/or Gender Top Up Category and in compliance with residence and registration requirements within seven (7) days from the date of judgement. v. That an Order do issue compelling the Clerk County Assembly of Kwale to swear in the Cross-Petitioner Mary Charles Kalinga and other newly nominated persons on the nearest Tuesday after appointment and/or within 7 days of appointment. vi. An Order do issue that the 1st - 4th Respondents jointly and severally do reimburse and compensate the Cross-Petitioner within 14 days of the Judgement for loss of earnings and benefits since 14th September 2023 as follows: loss of earnings/salary Kshs. 146,748.50 * 21 months – Kshs. 3,081,718.50; annual travel allowance Kshs. 300,000 * 2 years – Kshs. 600,000; allowances for staff (Secretary, Personal Assistant and driver) Kshs. 60,000 per month * 21 months – Kshs. 1,260,000; total Kshs. 4,941,718.50. vii. An Order compelling the 1st - 5th Respondents jointly and severally to pay to the Cross-Petitioner costs of the Petition dated 14.07.2024 to be assessed by the Court. viii. An Order compelling the 1st-5th Respondents jointly and severally to pay to the Cross-Petitioner the costs of this Cross-Petition to be assessed by the Court. ix. The Honourable Court be pleased to order that the certificate under section 86 of the Elections Act do issue to the Cross-Petitioner. x. Any further relief/order that the Honourable Court may deem just and fit to grant. In sum, the Interested Party urges this Court to uphold the doctrine of finality in litigation, affirm the binding nature of the judgment in Mombasa High Court Election Petition Appeal No. E087 of 2023 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 7

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Mary Charles Kalinga v IEBC & Others, strike out the Petition as incompetent, and allow the CrossPetition in its entirety with costs. Respondents’ Case 31. The 1st Respondent, the Independent Electoral and Boundaries Commission (IEBC), maintains that it approaches the Petition with neutrality contending that it acted strictly within its constitutional and statutory mandate in receiving, verifying, and gazetting the impugned party lists. It is its case that under Articles 90, 177 and 38 of the Constitution, as read together with Section 25 of the Elections Act, its role in party list nominations is circumscribed to ensuring compliance with the express requirements of the law and does not extend to interrogating internal party nomination disputes or imposing additional eligibility criteria not contemplated by statute. 32. The IEBC asserts that the Petitioners were duly nominated through party lists submitted by their respective political parties in accordance with Article 177(1)(b) and (c) of the Constitution, and that there exists no constitutional or statutory requirement of county residency, local voter registration, or county-specific registration as a condition precedent to nomination to a County Assembly. It further contends that Section 25(2) of the Elections Act exhaustively sets out disqualifying grounds for nomination, none of which includes residency or voter registration within a particular county, and that any attempt to import such requirements would amount to impermissible judicial legislation. 33. The Commission further submits that its actions were undertaken in strict fidelity to Articles 27, 38 and 47 of the Constitution and wholly within the confines of the applicable constitutional and statutory framework. It relies on Election Petition Appeal No. E002 of 2022, Kalinga v IEBC & 10 Others, for the proposition that eligibility criteria for nomination must derive exclusively from the Constitution and statute, and on Aden Noor Ali v IEBC & 2 Others (2018 eKLR), for the principle that courts and administrative bodies alike cannot expand nomination requirements through interpretive or administrative innovation. 34. The 1st Respondent further reiterates that it lawfully discharged its constitutional and statutory mandate under Article 88 of the Constitution, Article 177, and Section 25 of the Elections Act in processing and publishing the impugned party list nominations. It maintains that, as a matter of law, eligibility for nomination to County Assemblies does not include any requirement of county residency or county-specific voter registration unless expressly stipulated by statute. It therefore contends that electoral disqualifications must rest on clear, certain, and predictable legal norms, and not on judicially implied or administratively created thresholds. 35. Accordingly, the 1st Respondent prays that this Honourable Court affirms the legality of its actions, declares that it did not violate the Petitioners’ rights under Articles 27, 38 and 47 of the Constitution, and dismisses the Cross-Petition to the extent that it seeks to introduce additional eligibility criteria not anchored in law. 36. The 1st, 2nd, 3rd and 4th Respondents, on their other hand through replying affidavits sworn by Josephine Wairimu Kinyanjui, Seth Mwatela Kamanza, and Ramadhani Masudi Bungale, and as amplified in their written submissions dated 7th October 2025, oppose the cross petition jointly contending that the impugned application is misconceived, incompetent, and an abuse of the process of the Court, as it seeks to improperly reopen settled electoral questions under the guise of constitutional litigation. They assert that the High Court is properly vested with jurisdiction under Articles 165(3)(b) and (d) of the Constitution to entertain constitutional questions arising from alleged violations of fundamental rights, and that the matters raised in the Cross-Petition framed under Articles 22, 23, 24, 27, 38(3), 91 and 177 are quintessential constitutional issues. They rely on a purposive and liberal approach to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 8

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constitutional interpretation as articulated in Njoya & 6 Others v Attorney General & Another [2004] eKLR, as well as comparative authority in State v Acheson 1991 (20) SA 805 and Government of the Republic of Namibia v Cultura 2000 (1) SA 407, to emphasize that the Constitution must be read as a living instrument, broadly and purposively construed. They further rely on Okoiti & 15 others v Attorney General & 7 others (Consolidated Petitions) [2022] KEHC 3209 (KLR) to support the proposition that constitutional claims arising within electoral contexts remain justiciable before the High Court. 37. On jurisdictional objection, the Respondents maintain that the Cross-Petitioner cannot approbate and reprobate by invoking constitutional jurisdiction while simultaneously disputing the Court’s authority to hear the matter. They argue that the Petition and Cross-Petition are, in substance, an attempt to relitigate issues already determined in prior electoral proceedings, including challenges relating to nomination, eligibility, and gazettement. 38. On the merits, the Respondents deny all allegations of illegality in their nomination and gazettement. They aver that they were duly nominated by their respective political parties in compliance with the Constitution, the Elections Act, and applicable party lists procedures, and that no constitutional or statutory requirement imposes residency or county-specific voter registration as a condition for nomination. They further deny allegations of misrepresentation of gender and residency, terming them unsubstantiated and false. 39. They also emphasize that conservatory orders issued in the proceedings preserve the status quo, thereby legally entitling them to continue holding office pending determination of the Petition, and that removal from office can only be effected through lawful implementation by constitutional bodies, particularly the Independent Electoral and Boundaries Commission. 40. The Respondents further contend that the Cross-Petitioner’s claim for immediate assumption of office is legally untenable, as any vacancy, if it arises, must be filled through party list mechanisms and not by automatic substitution. They also argue that the prayer for compensation is indicative of a private financial motive rather than public interest litigation, thereby undermining the integrity of the CrossPetition. 41. Reliance is placed on the doctrines of constitutional avoidance, exhaustion of remedies, and res judicata, with the Respondents asserting that the proceedings constitute a collateral attack on final determinations in prior election litigation and an abuse of court process. Accordingly, they pray for dismissal of the Cross-Petition in its entirety with costs, together with any other orders the Court may deem just. 42. On the factual matrix, Josephine Wairimu Kinyanjui depones that she and her co-Respondents were lawfully nominated and duly gazetted as Members of the County Assembly of Kwale in accordance with the Constitution, the Elections Act, and applicable party nomination procedures, and continue to hold office unless and until removed in accordance with due process of law. She denies any illegality or constitutional infraction in the nomination process and asserts that the allegations advanced are without factual or legal basis. 43. Seth Mwatela Kamanza, the 2nd Respondent, avers that no specific constitutional violation has been demonstrated against him, and contends that the grievances raised are electoral in nature and ought to have been ventilated through the dispute resolution mechanisms established under Chapter Seven of the Constitution, the Elections Act, the IEBC Act, and the Political Parties Act. He invokes the doctrines of exhaustion of remedies and constitutional avoidance, and further relies on Section 9 of the Fair Administrative Action Act to contend that the proceedings are premature and improperly before the Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 9

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44. Ramadhani Masudi Bungale, on behalf of the 4th Respondent, similarly depones that the nomination process was conducted in strict compliance with the Constitution, the Elections Act, the Political Parties Act, and internal party nomination procedures, including verification by the Registrar of Political Parties and the IEBC. He further asserts that the issues raised were conclusively determined in Election Petition No. 2 of 2022 and in the subsequent appellate proceedings culminating in the judgment in Mombasa High Court Election Petition Appeal No. E087 of 2023, and that the present proceedings constitute a collateral attack on final and binding determinations of competent courts. 45. In their written submissions dated 7th October 2025, the Respondents rely on the doctrines of constitutional avoidance, exhaustion of remedies, and res judicata, and submit that the Petition and Cross-Petition offend settled principles governing constitutional litigation. They contend that electoral disputes are governed by a specialized constitutional and statutory framework under Chapter Seven of the Constitution and the Elections Act, which cannot be circumvented through constitutional petitions, and that entertaining such claims would impermissibly create a parallel dispute resolution mechanism contrary to the constitutional design. 46. The Respondents pray that the Cross-Petition be struck out or dismissed in limine with costs as being res judicata, premature, an abuse of the process of the Court, and otherwise legally untenable. The 3rd Petitioner’s Rejoinder on the Intersted Party’s Case 47. The 3rd Petitioner opposes the Interested Party’s Notice of Motion dated 26th November 2024 through a replying affidavit sworn by Josephine Wairimu Kinyanjui, stating that she is a duly nominated Member of the County Assembly of Kwale and is competent to respond to the application. 48. She contends that the application for joinder is fatally defective, incompetent, and without merit, as the Applicant has failed to meet the legal threshold under the Mutunga Rules by demonstrating a direct and identifiable interest in the proceedings or any specific prejudice that would arise from non-joinder. 49. It is further argued that the Applicant’s pleadings largely duplicate issues already raised in the Petition and existing affidavits on record, and therefore do not add any new or useful dimension to warrant joinder. The alleged interest is described as speculative and insufficient to justify participation in the proceedings. 50. She denies any allegations of concealment or abuse of court process and maintains that the proceedings are a bona fide pursuit of justice. Analysis and Determination 51. Upon considering the pleadings, affidavits, rival submissions, and the entirety of the record placed before this Court, , the Court is of the considered view that the issues that commend themselves for determination are as follows: i. Whether this Court is barred from entertaining the Petition and CrossPetition by the doctrines of res judicata, functus officio, and finality of litigation arising from Mombasa High Court Election Petition Appeal No. E087 of 2023 and related proceedings. ii. Whether the Petition and Cross-Petition, though framed under Articles 22, 23 and 165 of the Constitution, amount in substance to an impermissible collateral attack and abuse of the process of the Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 10

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iii. Whether the parties are entitled to the reliefs sought or whether the Petition and Cross-Petition ought to be dismissed with costs. 52. The Court is invited to determine three dispositive questions that go to the root of both the Petition and Cross-Petition, namely; whether this Court is divested of jurisdiction by reason of functus officio, res judicata, and the constitutional and statutory finality of electoral dispute resolution; whether the present proceedings, though clothed as constitutional litigation, amount in substance to an impermissible collateral attack on a final and subsisting judicial determination arising from Mombasa High Court Election Petition Appeal No. E087 of 2023 and whether, in light of the foregoing, any enforceable constitutional or statutory right remains capable of sustaining the reliefs sought, or whether the Court must, in fidelity to principle, decline jurisdiction and terminate the proceedings as an abuse of process. 53. These issues are not merely procedural, they are foundational to the integrity of judicial decisionmaking, the certainty of electoral outcomes, and the constitutional design of dispute resolution under Article 87 of the Constitution and the Elections Act. They implicate the structural architecture of electoral justice and the doctrine of finality which underpins both constitutional adjudication and democratic stability. 54. At the heart of this dispute lies an incontrovertible procedural history. The Petitioners were nominated and gazetted as Members of the County Assembly of Kwale. Their nomination was challenged, first before the subordinate court and subsequently on appeal, culminating in the decision of the High Court in Election Petition Appeal No. E087 of 2023, which nullified their nomination on the basis that they were ineligible due to lack of residency and voter registration within the County of nomination. 55. The Petitioners pursued appellate recourse up to the Court of Appeal and the Supreme Court, both of which declined to assume jurisdiction or disturb the impugned determination, thereby leaving the judgment of the High Court standing as the final and binding determination within the electoral dispute resolution framework. 56. The Interested Party anchors her Cross-Petition on the constitutional principle of finality in electoral dispute resolution, contending that this Court is bound to give effect to the subsisting judgment and is divested of jurisdiction to entertain what is, in substance, an attempt to reopen conclusively determined electoral litigation. The IEBC and the other Respondents align themselves with this position, submitting that any contrary approach would run afoul of the constitutional architecture established under Article 87 of the Constitution, which mandates Parliament to enact legislation ensuring the timely, efficient, and final resolution of electoral disputes. They argue that to permit the re-litigation of concluded electoral questions under the guise of constitutional litigation would impermissibly convert this Court into an appellate forum of indeterminate temporal reach, thereby undermining legal certainty, electoral stability, and the constitutional value of finality which underpins the entire electoral dispute resolution framework. 57. In that context, the first and most dispositive issue for determination is whether this Court is functus officio and consequently barred by the doctrine of res judicata from entertaining the present proceedings. The doctrine of functus officio, as authoritatively articulated by the Supreme Court in Railway Corporation v Magistrates Court Nairobi & Another [2021] eKLR, denotes that a court which has rendered a final determination on the merits becomes bereft of jurisdiction to revisit, vary, or re-adjudicate the same matter, save only in narrowly circumscribed circumstances such as correction of clerical or arithmetical errors, or review strictly within the confines of the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 11

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58. This principle does not operate in isolation, but forms part of an interlocking constitutional and statutory matrix that gives effect to legal certainty, judicial finality, and the orderly administration of justice. It is firmly anchored in the constitutional imperative of finality in litigation, which the Supreme Court in Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd [2014] eKLR affirmed as essential to the administration of justice, emphasising that litigation, once properly concluded, must attain finality. In the electoral context, this imperative assumes heightened constitutional force under Article 87 of the Constitution, which demands expeditious and conclusive resolution of electoral disputes so as to safeguard electoral certainty and public confidence in democratic governance. 59. The doctrine of res judicata, codified under Section 7 of the Civil Procedure Act and constitutionally underpinned by Article 50(2)(o) of the Constitution, therefore operates in tandem with these principles to bar re-litigation of matters directly and substantially in issue between the same parties and finally determined by a court of competent jurisdiction. 60. Complementarily, Article 87 of the Constitution and the Elections Act establish a self-contained electoral dispute resolution framework designed to ensure that electoral grievances are resolved within defined temporal and procedural boundaries. The effect of this constitutional design is to preclude collateral challenges to concluded electoral determinations through alternative procedural pathways, including constitutional petitions, save in the clearest of cases where a distinct and independent constitutional question arises. 61. The Interested Party maintains that the Petition is, in effect, a disguised appeal against the judgment in Election Petition Appeal No. E087 of 2023, while the Respondents submit that this Court is being invited, indirectly, to sit on appeal over a decision already subjected to appellate scrutiny. The Petitioners, however, contend that they are not challenging the correctness of the prior decision but rather its constitutional implementation, arguing that the imposition of residency and voter registration requirements offends Articles 27 and 38 of the Constitution, and that a continuing violation arises from the threatened degazettement and removal from office. That argument, however, collapses upon proper legal scrutiny, for it is trite that a litigant cannot repackage a concluded dispute as a continuing constitutional violation in order to evade the doctrine of finality. 62. The Supreme Court in Peter Oduor Ngoge v Hon. Francis Ole Kaparo & 5 Others [2012] eKLR expressly cautioned against the deployment of constitutional litigation as a “clever artifice” to reopen matters already conclusively determined, affirming that constitutional jurisdiction cannot be invoked to circumvent the finality of judicial decisions. 63. Similarly, in Molaudzi v S 2015 (8) BCLR 904 (CC), the Constitutional Court of South Africa held that finality of litigation is a foundational principle of judicial authority, only to be departed from in truly exceptional circumstances to avert a demonstrable and grave miscarriage of justice. 64. Applying these principles, the Court finds that what the Petitioners seek is not interpretation of constitutional rights in a vacuum, but a substantive re-engagement with, and reversal of, the legal effect of a final judicial determination. The attempt to re-characterize the dispute as a continuing violation of political rights does not alter its essential character. The gravamen of the Petition remains the legality of the residency and voter registration requirement already conclusively adjudicated upon in E087 of 2023. 65. This Court is therefore functus officio in respect of that determination, and any contrary finding would offend both hierarchical judicial authority and the doctrine of judicial discipline. To permit such relitigation under constitutional guise would collapse the distinction between original and appellate https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 12

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jurisdiction and undermine the principle in Speaker of the National Assembly v Karume [1992] KLR 21 that where a clear procedure for redress is prescribed by law, that procedure must be strictly followed. 66. The second issue for determination is whether the present proceedings, comprising both the Petition and the Cross-Petition, constitute an abuse of the process of the Court, albeit presented under the guise of constitutional litigation. 67. Abuse of process is a doctrine of wide import, grounded in the inherent jurisdiction of the Court to protect the integrity of its proceedings. As articulated by the Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, it encompasses the improper or perverted use of judicial process to achieve a purpose other than that for which it was intended, including the re-litigation of concluded issues, multiplicity of suits, and the institution of proceedings for collateral or ulterior purposes. 68. Abuse of process, in its classical formulation, denotes the misuse or perversion of the court’s procedures in a manner that is inconsistent with the due administration of justice. As defined in Black's Law Dictionary, it entails the improper use of legal process for a purpose other than that for which it was designed, often to achieve an ulterior or collateral advantage. This conceptualisation has long been recognised in common law jurisprudence. In Hunter v chief constable of the west midlands police 1982 ac 529, the House of Lords held that it is an abuse of the process of the court to mount a collateral attack on a final decision of a competent court, affirming the inherent jurisdiction of courts to prevent proceedings that would bring the administration of justice into disrepute. Equally instructive is the oft-cited dictum of Lord Denning in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 where he emphasized that the court will not permit its process to be used as “a means of vexation or oppression” or in a manner that is “manifestly unfair to a party.” These authorities underscore that the doctrine is not merely procedural, but is anchored in the Court’s duty to safeguard the integrity, finality, and credibility of the judicial process. 69. The same principle was reiterated in Johnson v Gore Wood & Co [2001] UKHL 65, which underscored that litigation must be conducted in a manner that brings finality, and that parties are not permitted to fragment or repackage disputes in successive proceedings. 70. Against that doctrinal backdrop, the Interested Party contends that the Petition is a calculated stratagem to forestall the enforcement of the judgment in Mombasa High Court Election Petition Appeal No. E087 of 2023, while simultaneously inviting this Court to invalidate or neutralize its effect indirectly. The Respondents align with this position, submitting that the Petitioners are engaged in impermissible forum shopping by invoking Articles 22 and 23 of the Constitution to circumvent the electoral dispute resolution framework under Article 87 and the Elections Act. Their argument is that to entertain such a claim would be to convert constitutional jurisdiction into an appellate forum of indeterminate temporal reach, thereby eroding the finality of electoral adjudication. 71. The Petitioners, however, maintain that they are properly before this Court seeking vindication of constitutional rights under Articles 27, 38 and 47, and rely on the purposive approach to constitutional interpretation in Njoya & 6 Others v Attorney General & Another [2004] eKLR, as well as the principle in Raila Odinga & Another v IEBC & 4 Others [2017] eKLR that electoral processes must conform to constitutional standards. While those propositions are doctrinally sound, they do not avail a litigant who seeks, in substance, to reopen a dispute that has been conclusively determined within a specialized constitutional framework. 72. The Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR cautioned that the doctrine of constitutional avoidance requires courts to decline jurisdiction where a matter falls within a clear statutory mechanism, particularly where such mechanism has been https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 13

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invoked and exhausted. Similarly, in Peter Oduor Ngoge v Hon. Francis Ole Kaparo & 5 Others [2012] eKLR, the Supreme Court warned against the use of constitutional litigation as a “clever artifice” to reopen concluded matters. 73. Upon a careful consideration of the pleadings and submissions, this Court is satisfied that the gravamen of the Petitioners’ case is not a novel or continuing constitutional violation, but rather a direct challenge to findings already pronounced upon in the electoral dispute resolution hierarchy. The attempt to reframe the dispute as one concerning constitutional rights does not alter its essential character. The Court is guided by the enduring maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa, which underscore the public interest in finality and the prohibition against repetitive litigation. To permit the Petition to proceed would be to sanction a collateral attack on a final judgment through a procedural avenue not designed for that purpose. 74. The foregoing reasoning applies, mutatis mutandis, and with equal force, to the Cross-Petition. Although the Interested Party has ostensibly framed her claim as one seeking the enforcement of the judgment in Election Petition Appeal No. E087 of 2023, a careful and objective scrutiny of the reliefs sought discloses a broader and impermissible design that transcends mere execution and ventures into the realm of substantive re-litigation and jurisdictional overreach. The Cross-Petitioner seeks, inter alia, declarations of vacancy, directions compelling the electoral body to undertake fresh nominations, and orders mandating her own gazettement and swearing-in. These are not merely incidental or facilitative orders, they are substantive electoral remedies that fall squarely within the constitutional and statutory remit of the electoral dispute resolution framework and the administrative mandate of the Independent Electoral and Boundaries Commission. 75. In that regard, the Cross-Petition suffers from the same vice it attributes to the Petition. It constitutes an improper invocation of constitutional jurisdiction to achieve ends that are governed by a distinct and specialized legal regime. The Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR emphasized that where the Constitution or statute provides a clear procedure for redress, that procedure must be strictly followed. Likewise, in Speaker of the National Assembly v Karume [1992] eKLR, the Court of Appeal held that where a dispute resolution mechanism is prescribed, it must be adhered to without deviation. To grant the orders sought would require this Court to descend into the arena of nomination and allocation of special seats functions constitutionally reserved for political parties and the electoral management body under Articles 90 and 177 of the Constitution. 76. Further, the Cross-Petitioner’s claim to automatic entitlement to office is legally untenable. Party-list nominations do not operate on the basis of direct substitution by judicial fiat, rather, they are governed by party lists and processes subject to constitutional and statutory oversight. Additionally, the claim for compensation for alleged loss of earnings improperly transmutes a public law dispute into a private pecuniary claim, thereby reinforcing the conclusion that the Cross-Petition is animated, at least in part, by collateral considerations inconsistent with the purpose of constitutional litigation. 77. In the premises, this Court finds that both the Petition and the Cross-Petition constitute an abuse of the process of the Court. Each, in its own way, seeks to deploy constitutional jurisdiction to circumvent the constitutional and statutory architecture governing electoral disputes, one by attempting to reopen a concluded determination, and the other by seeking to enforce and expand it through improper judicial means. Neither can be sustained. 78. The third issue for determination is whether there subsists any enforceable or justiciable right capable of sustaining the reliefs sought in either the Petition or the Cross-Petition. The Petitioners seek declaratory and injunctive reliefs affirming their nomination and impugning the validity and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 14

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consequences of a prior judicial determination, while the Cross-Petitioner, in turn, seeks enforcement of the same judgment through declarations of vacancy, orders for fresh nominations, consequential appointment, and monetary compensation. The Independent Electoral and Boundaries Commission maintains that it acted strictly within its constitutional and statutory remit under Articles 88, 90 and 177 of the Constitution as read together with Section 25 of the Elections Act, and that no legal requirement exists imposing county-specific residency or voter registration as a qualification for nomination. Reliance is further placed on Aden Noor Ali v IEBC & 2 Others [2018] eKLR for the proposition that electoral qualifications are creatures of statute and cannot be expanded by judicial implication or administrative innovation. 79. However, once this Court has reached the conclusion that the substratum of the dispute was conclusively determined within the constitutionally prescribed electoral dispute resolution framework, and that the present proceedings are barred by the doctrines of functus officio and res judicata, the legal consequence is inexorable, no live controversy remains capable of sustaining the invocation of this Court’s jurisdiction. The jurisdiction of this Court under Articles 22, 23 and 165 is not abstract or advisory, it is contingent upon the existence of a concrete, justiciable dispute. The Supreme Court in Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation cautioned against the issuance of abstract or academic pronouncements divorced from a real dispute, while in John Florence Maritime Services Limited v Cabinet Secretary for Transport [2021] eKLR, the Court reaffirmed that courts must decline jurisdiction where the substratum has been extinguished by prior conclusive adjudication or where the matter has become purely academic. 80. Within that constitutional architecture, the framework governing party-list nominations anchored in Articles 88, 90 and 177 of the Constitution and operationalised through Section 25 of the Elections Act constitutes a complete, self-contained and institutionally allocated regime for nomination, verification, gazettement and substitution of nominees. The mandate of the Independent Electoral and Boundaries Commission is circumscribed within that framework and cannot be extended through judicial craft to confer, vary, or extinguish elective office outside the statutory scheme. It follows, therefore, that the reliefs sought herein lack an independent juridical foundation, being founded instead upon a matter that has already been finally and conclusively determined within the constitutional and statutory framework governing electoral dispute resolution. 81. Moreover, the invocation of constitutional provisions, however robustly framed, cannot be deployed to resuscitate or perpetuate litigation that has attained finality. The doctrine of constitutional avoidance, as authoritatively restated by the Supreme Court in Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR, obliges courts to decline jurisdiction where the dispute falls squarely within a clearly defined statutory framework that has been invoked and exhausted. To hold otherwise would be to permit constitutional litigation to operate as an appellate bypass, thereby undermining the certainty, stability, and finality that are indispensable to the rule of law. 82. In the result, the Court is satisfied that no enforceable or subsisting right remains upon which the reliefs sought in either the Petition or the Cross-Petition can properly be anchored. The claims advanced are, in substance, an attempt to re-engage a controversy that has already been judicially determined with finality, and which this Court is functus officio to revisit, reconfigure, or enforce in the manner sought. To entertain them would be to act in vacuo and to sanction a misuse of the constitutional jurisdiction of this Court. Accordingly, both the Petition and the Cross-Petition are devoid of legal foundation and must fail. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 15

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Disposition 83. In the final analysis, having duly considered the pleadings on record, the supporting and replying affidavits, the rival written submissions, and the applicable constitutional and statutory framework, as well as the relevant jurisprudence cited and the entirety of the material placed before it, this Court is persuaded that both the Petition and the Cross-Petition are fatally defective at the threshold. The Court reaches the firm conclusion that the dispute before it does not constitute a fresh, justiciable constitutional controversy capable of independent adjudication, but is instead an impermissible invitation to revisit, directly or indirectly, a final and binding determination of a court of competent jurisdiction in Mombasa High Court Election Petition Appeal No. E087 of 2023. 84. The doctrines of functus officio and res judicata, as well as the constitutional and jurisprudential imperative of finality in litigation, apply with full force and effect in the circumstances of this case. These doctrines operate not merely as procedural bars, but as foundational safeguards of judicial authority, certainty, and the orderly administration of justice. In the present matter, their invocation renders this Court devoid of jurisdiction to entertain proceedings whose substratum has already been conclusively adjudicated. 85. Further, the Court is satisfied that, notwithstanding their constitutional framing, the pleadings herein in substance seek to reopen issues already settled within the electoral dispute resolution framework contemplated under Article 87 of the Constitution and the Elections Act. To that extent, the proceedings amount to an abuse of the process of the Court, as they improperly seek to achieve indirectly what cannot be attained directly in law, thereby undermining the integrity and finality of judicial determinations. 86. Accordingly, and in the exercise of this Court’s inherent jurisdiction to prevent abuse of its process, to uphold the rule of law, and to safeguard the authority of judicial decisions, the Court makes the following orders: i. The Petition dated 31st July 2024 is hereby dismissed. ii. The Cross-Petition filed by the Interested Party is hereby dismissed. iii. The conservatory orders issued on 15th August 2024, together with all consequential orders preserving the status quo, are hereby vacated, discharged, and set aside forthwith. iv. Each party shall bear its own costs Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. BAHATI MWAMUYE MBS JUDGE. In the presence of Counsel for the 1st, 2nd, and 4th Petitioners – Ms. Filsam Counsel for the 3rd Petitioner – Mr. Kariuki Henry Counsel for the 2nd Respondent – Ms. Nicole Karungari Counsel for the 4th Respondent – Mr. Mbatai h/b Mr. Issa Interested Party/ Cross-Petitioner – Ms. Mary Charles Kalinga https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6904/eng@2026-04-29 16

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