https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9869

Boore & 5 others v Independent Electoral and Boundaries Commission (IEBC) & 5 others (Petition E484 of 2025) [2026] KEHC 9869 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9869 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Petition E484 of 2025 RE Aburili, J July 2, 2026 Between Newton Mugambi Boore 1st Petitioner Dennis Mwaki Chabari 2nd Petitioner Morris Mawira 3rd Petitioner Agnes Mwende Justus 4th Petitioner Seth Mark Kinoti 5th Petitioner Christine Kanana Kithinji 6th Petitioner and Independent Electoral and Boundaries Commission (IEBC) 1st Respondent Attorney General 2nd Respondent National Assembly of Kenya 3rd Respondent and Senate of Kenya 1st Interested Party Law Society of Kenya 2nd Interested Party Katiba Institute 3rd Interested Party Judgment Background 1.Article 104 of the Constitution stipulates that the electorate under Articles 97 and 98 have the right to recall the Members of Parliament (MPs) representing their constituency before the end of the term of the relevant House of Parliament. Under the said Article, Parliament is mandated to enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed. 2.The Elections Act, 2011 (Elections Act) initially provided a framework for recall of MPs under sections 45, 46, 47 and 48 stipulating grounds such as violation of Chapter Six of the Constitution, mismanagement of public resources or conviction of an offence under the Elections Act. 3.On 14th July 2017 in Katiba Institute & Another v Attorney General & Another [2017 eKLR (Katiba Judgment), the High Court declared sections 45 (2), (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act as well as sections 28(1) (b) (ii) and (c) of the County Government’s Act unconstitutional for imposing discriminatory and overly restrictive conditions. That decision has not been overturned by a superior court. 4.Following the Katiba Judgment, Parliament amended the County Governments Act 2012 in 2020 to provide a workable recall mechanism for Members of County Assemblies (MCAs) but failed to enact one for MPs. 5.By a letter dated 21st August 2024, the petitioners wrote to the 1st respondent IEBC inquiring on the modalities and procedures for recalling the Senator for Tharaka Nithi County. The 1st respondent responded through letter dated 9th September 2024 indicating that it could not recall MPs on the premise that it was not fully constituted and the absence of an enabling legislation following the Katiba Judgment. 6.Upon reconstitution of the 1st respondent’s IEBC Commissioners, on 23rd July 2025 the petitioners again wrote another letter to the 1st respondent inquiring about the process and modalities of recall of Senator for Tharaka Nithi County. On 30th July 2025, the 1st respondent issued a public statement reiterating its earlier position. The Petition 7.Aggrieved by the response received from the IEBC, the petitioners filed petition dated 1st August 2025 challenging the 1st respondent’s said communication and/or response. The petition is brought pursuant to Articles 1, 2, 3, 10, 22, 23, 104, 165, 258 and 261(5) of the Constitution and is supported by the affidavits of Newton Mugambi Boore sworn on 1st August 2025 and 5th September 2025 and written submissions dated 8th September 2025, The petitioners’ case 8.The petitioners aver that the implication of declaring the aforementioned sections of the Elections Act unconstitutional in the Katiba Judgment was to curtail rather than facilitate Kenyan citizens to hold their legislators accountable. They are of the view that recall is the most effective tool for oversighting MPs and that in failing to enact a law to facilitate recall, the legislators do not want to be oversighted. 9.The petitioners contend that the issues raised herein are not idle as there have been recent public outcry by electorates to recall some MPs such as Nairobi Woman Representative Esther Passaris among others and that therefore, the 1st respondent’s inaction stifle this democratic process. 10.The petitioners urge the court to consider the decision in Gachagua & 40 others v Speaker, National Assembly & 15 others; Law Society of Kenya & 7 others (Interested Parties) [2024] KEHC 13473 (KLR) and the provisions of Articles 20 (3) and (4), 88, 259(1) and 260 and the Fifth Schedule (Article 261(1) and (5) of the Constitution in determining this matter. 11.The petitioners contend that the 1st and the 3rd respondents’ inactions violate the provisions of Articles 1, 2(1), 3(1), 10 (2) (a), 27 (1), 38, 47 and 104 of the Constitution. They further urge the court to find that the 1st respondent can adapt the provisions of sections 47 of the Elections Act and section 27-29 of the County Governments Act, 2012 to process the recalls in the interim. That it can also put in place interim administrative measures to effectuate the right. 12.The petitioners therefore seek the following reliefs:i.A declaration that the 1st respondent’s refusal to process applications and requests for recall of Members of Parliament, is unconstitutional and violates Articles 1, 2, 3, 10, 20 and 104 of the Constitution.ii.A declaration that the 3rd respondent’s failure to enact legislation to provide for the grounds and procedures for the recall of Members of Parliament, as mandated by Article 104(2), is a breach of Articles 1, 2, 3, 10, 20 and 104 of the Constitution.iii.A declaration that the conduct of the 1st and 3rd respondents has and continue to violate Articles 27, 38 and 47 of the Bill of Rights.ivAn order of Mandamus compelling the 1st respondent to facilitate the processing of recall petitions for Members of Parliament, pending the enactment of enabling legislation, using surviving provisions of the Elections Act, 2011 and the model provided by the County Government’s Act, 2012 and the provisions applicable to recall of Members of County Assembly.vAn order of Mandamus compelling the 3rd respondent to enact legislation, within 90 days, to provide for the grounds and procedures for recall of Members or Parliament in compliance with Article 104(2) of the Constitution.vi.A conservatory order restraining the 1st respondent from declining to process any recall petitions submitted by the electorate pending the determination of this petition or the enactment of enabling legislation.vii.A declaration that the right to recall under Article 104(1) is a self-executing constitutional right that does not require enabling legislation to be exercised, and that the 1st respondent has a duty to facilitate its exercise.viii.Costs of this petition to be borne by the respondents. The response by the 1st respondent-the Independent Electoral and Boundaries Commission-IEBC 13.The 1st respondent opposed the petition through replying affidavit sworn on 15th August 2025 by Chrispine Owiye. It urges that by dint of Article 88 (4) of the Constitution, its role is limited to implementation. That it cannot therefore create substantive recall procedure or grounds without a law enacted by Parliament under Article 104(2), without violating Articles 94(1) and (5) of the Constitution. 14.The 1st respondent asserts that Article 104(1) of the Constitution is not self-executing because under clause (2), Parliament is mandated to enact legislation prescribing the grounds and procedures on the exercise of the right of recall and that the absence of such legislation renders the said right inoperative in practical terms. 15.According to the 1st respondent, this does amount to the non-existence of the right; rather, it underscores that its constitutional mandate is limited by the doctrine of separation of powers. Consequently, its position on its media update on 30th July 2025 regarding its inability to effect a recall, constitutes a lawful acknowledgement of the prevailing legislative lacuna. 16.The 1st respondent contends that the court’s holding at paragraph 601 of the decision in Ndii & Others v Attorney General & Others [2021] KEHC 9746 (KLR) is only applicable to provisions that are self-executing. It further asserts that its actions were undertaken in a transparent and lawful manner; it publicly communicated its inability to process recall petitions for MPs due to the legal vacuum which aligns with the dictates of Articles 2(2), 10 ad 35 of the Constitution. 17.The 1st respondent states that since the Katiba Judgment, it has submitted Comments to both Chambers of Parliament for review of sections 45 (2), (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act. That in 2021/2022, it submitted Memorandum to the 3rd respondent urging Parliament to enact provisions for Recall of MPs to mirror those of Recall of MCAs under sections 27, 28 and 29 of the County Governments Act, to operationalize the provisions of Article 104 (2) of the Constitution but that those proposed amendments never materialized because the life of the 12th Parliament ended before the Bill could be passed by both Chambers of Parliament. 18.It avers that subsequently, Senate invited the 1st respondent to submit Memorandum on the Elections (Amendment) Bill, 2024 that emanated from NADCO recommendations and that in its submission, it again urged its earlier position and that these same submissions were made in April 2025 before the 3rd respondent’s House Committee. 19.The 1st respondent accordingly urges that this challenge must not therefore be seen as a deliberate act on its part in denying any recall rights but rather, as the actions of a law conscious institution caught at the cross-roads of intending to implement its mandate where the legislative foundations and procedures thereof are non-existence. 20.The 1st respondent states that although the right of recall is expressly guaranteed under Article 104 of the Constitution, its realization is subject to specific procedures and grounds, the formulation of which lies exclusively within the legislative mandate of Parliament. That its role is confined to implementation of such procedures once duly enacted and that in the absence of the requisite legislation, it can only acknowledge the existence of the right but cannot, without acting unlawfully, usurp the legislative functions necessary to effectuate the right. 21.The 1st respondent avers that the petitioner’s attempt to compel it to permit recall process in the absence of enabling legislation constitutes an illegality. It contends that the doctrine of necessity, or the proposition that the law may be breached owing to exigent circumstances, has been consistently disfavoured and rejected by the courts. It cites R v Dudley & Stephens (1884) 14 QBD 273 and United States v Bailey, 444 U.S. 394 (1980) where the Court held that a man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life. The respondent argues that despite the necessity of the political rights and fair administrative action under Article 38 and 47 respectively, the same cannot compel it to act ultra vires. 22.The 1st respondent avers that a proper constitutional remedy lies against the 3rd respondent who under Article 261(1) and (5) of the Constitution, is mandated to initiate and enact the requisite legislative framework to give effect to Article 104 of the Constitution. It urges the court to take judicial notice that political and election related disputes are inherently emotive and must, therefore, be addressed with the highest degree of caution and strict adherence to the law. 23.The 1st respondent urges this court to dismiss the petition and accord the 3rd respondent an opportunity to pass the Elections (Amendment) Bill before the floor of the House which seeks to amend the provisions on recall of MPs. In the alternative, it seeks directions on the development of guidelines for Recall of MPs that mirror those of Recall of MCAs encapsulated under sections 27, 28 and 29 of the County Governments Act, Cap 265 with necessary modification and/or how to operationalise provisions of Article 104 of the Constitution. The response by the 2nd respondent-the Attorney General 24.The 2nd respondent Attorney General opposed the petition through grounds of opposition dated 4th September, 2025. It is contended that the petition has not demonstrated how the Attorney General has violated constitutional rights; that the AG has not been cited for any commission and/or omission and that there are no reliefs sought against the AG. The AG urges this Court to dismiss the petition with costs. The response by the 3rd Respondent-The National Assembly 25.The 3rd respondent, the National Assembly, opposed the petition through replying affidavit sworn on 5th November 2025 by Samuel Njoroge, CBS. It contends that the petition is premature and in violation of the principle of separation of powers. That while the petitioners rely on the Katiba Judgment to fault it for failing to enact legislation to operationalize Article 104 the same is misleading because the legislative process to cure the mischief highlighted by the Court in the Katiba Judgment is underway; the court should not intervene. 26.According to the 3rd respondent, the Elections (Amendment) (No.2) Bill (Senate Bill No. 29 of 2024) was passed by the Senate on 5th December 2024 and transmitted to the National Assembly where it was read for a First Time on 13th February 2025. Subsequently, the Bill was committed to the Departmental Committee on Justice and Legal Affairs pursuant to Standing Order 143(2) of the National Assembly Standing Orders for public participation. 27.The 3rd respondent states that Clauses 25, 26 and 27 of the Bill seek to amend the provisions of sections 45, 46 (1) (b) (ii) and (c) and 48 of the Act that were declared unconstitutional. Further, that in line with the provisions of Article 118 (1) (b) of the Constitution and the National Assembly Standing Order 127 (3) and (4), the Clerk of the National Assembly placed an advertisement in the print media on 18th and 19th February, 2025 inviting the public to submit memoranda by way of written statements on the Bill on or before 5th March 2025 at 5.00 p.m. 28.That the said Clerk further through letter Ref. NO. NA/DDC/JLAC/2025/017 dated 10th April 2025 invited key stakeholders to submit views on the Bill and attend a public participation forum on 17th April 2025. That the said forum was attended by the Kenya Law Reform Commission (KLRC), the Office of the Registrar of Political Parties (ORPP), Katiba Institute, the CRADLE and the Electoral Law and Governance Institute of Africa (ELGIA). That the Independent Electoral and Boundaries Commission (IEBC) appeared before the Committee on 22nd April 2025. 29.The 3rd respondent states that the Departmental Committee oN Justice and Legal Affairs received ten memoranda from Council of Governors (COG), the IEBC, Inter-Religious Council of Kenya (IRCK), KLRC, ORPP, The Law Society of Kenya (LSK), the Centre for Multiparty Democracy (CMD), the CRADLE, the (ELGIA) and the Architects Alliance (TAA). 30.The 3rd respondent states that the Clerk of the National Assembly through letters REF. NO. NA/DDC/JLAC/2025/111 dated 9th October 2025 also invited the petitioners herein through the firm of KMK Africa Advocates LLP, to appear before the Departmental Committee on Justice and Legal Affairs to give their views on the Bill. Consequently, that the Bill is alive before the House and the legislative process is at an active stage hence, the claim that the National Assembly has abdicated its mandate is baseless. 31.The 3rd respondent urges that pursuant to Article 94(1) of the Constitution, this Court cannot direct Parliament in the manner of execution of its Constitutional mandate; that the Court can only make a declaration against actions of Parliament that violate the Constitution. That the order for mandamus to compel Parliament to enact the specific legislation prescribing grounds and procedures for recall of Members of Parliament therefore offends the principle of separation of powers. The 3rd respondent asserts that a similar prayer was sought in the Katiba Judgment but was declined. 32.According to the 3rd respondent, the petition is premature and non- justiciable under the doctrine of exhaustion of remedies because the petitioners have not utilized the dispute resolution mechanisms provided under Article 119 of the Constitution. It urges for the dismissal of the petition with costs.The 1st interested party- the Law Society of Kenya did not file any response to the petition The response by the 2nd interested party- the Senate of Kenya 33.The 2nd interested party, the Senate, opposed the petition through replying affidavit sworn on 30th September 2025 by Jeremiah Nyegenye, CBS. It cites the provisions of Articles 93(1), 96(1), 97, 98, 101, 102 and 103 of the Constitution that speak to among others, its establishment, mandate and vacation of office and asserts that it is bound by the provisions of Article 10 in carrying out its mandate. 34.The 2nd interested party reiterates the facts regarding the enactment of the Elections Act, 2011; the challenge to sections 45, 46, 47 and 48 of the Elections Act and sections 27, 28 and 29 of the County Governments Act, 2012 in the Katiba Judgment and the outcome thereof and the amendments to the County Governments Act, 2012 through the County Governments (Amendment) Act, 2020-Act No. 11 of 2020. 35.The 2nd interested party objects to the invitation to this court to borrow from the provisions of the County Governments Act, 2012 (amended) on the issue of recall of MPs. It argues that this is tantamount to inviting this court to read and/or impose words into the Elections Act, 2011 for purposes of enabling the recall provisions under Article 104 of the Constitution, which power this Court is devoid of as it cannot legislate. 36.The 2nd interested party further urges that this court lacks the standing to legally direct Parliament on the way, shape or form of legislation to be enacted. That doing so would be an affront to separation of powers. It also asserts that in any event, on 5th December 2024, the Senate considered and passed The Elections (Amendment) (No. 2) Bill, 2024 which seeks to amend the Elections Act; with Clauses 25 and 26 therein seeking to amend sections 45 and 46 of the Elections Act. 37.The 2nd interested party states that the Amendment Bill was transmitted to the National Assembly for consideration and for public participation in line with Articles 10 and 118 of the Constitution. That therefore, any orders form this court would usurp the mandate of Parliament and cripple it from discharging lawful duties. It further states that the petitioners have neither utilized the dispute resolution mechanism envisaged under Article 119 of the Constitution and Petitions to Parliament (Procedure) Act nor demonstrated how the Senate or Parliament has threatened/or violated the petitioners’ rights under the Constitution. It urges for the dismissal of petition with costs. The 3rd interested party did not file any response to the petition. The Petitioners’ supplementary affidavit 38.The petitioners filed a supplementary affidavit asserting that the constitutional commissions such as the 1st respondent are not wholly or purely implementation bodies; that the 1st respondent also plays regulatory /delegated legislative roles and monitoring roles under Article 88(4) (d), (i), (j) and (k) of the Constitution. 39.The petitioners urge that the duty to develop the law envisaged under Article 20(3) of the Constitution also binds the 1st respondent. Further, that Article 10(1) anticipates interpretation of the law by implementing agencies and the 1st respondent is therefore guilty of dereliction of duty. That contrary to the assertion that the 1st respondent cannot create substantive recall procedures or grounds, the Constitution provides for the right of recall and sections 27 and 28 of the County Governments Act provide for grounds and procedures for recall of MCAs, which can be applied mutatis mutandis to recall of MPs. 40.The petitioners in addition, urge that the provisioning of the right of recall outside the Bill of Rights does not in any way diminish its importance or remove it from the interpretation matrix provided for in Articles 19-22 of the Constitution. They further urge that the 1st respondent retains residual powers to promulgate regulations and provide guidance over and above its role of implementation so as to give effect to constitutional provisions, especially where the absence of a statutory framework has the effect of holding constitutional provisions in abeyance for an inordinate time. 41.The petitioners assert that Article 104 is self-executing in nature and can be exercised even in the absence of legislation as found in Centre for Rights Education & Awareness (CREAW) v Attorney General & another [2015] eKLR. That any position that supposes a different interpretation of Ndii & others v Attorney General & others (supra) must also be contextually applied in the current matter. 42.According to the petitioners, the MCAs and Members of the national Assembly do the same work but only at different levels of government. That the provisions applicable to MCAs must therefore be similarly applied to Members of the National Assembly to cure the intentional violation of Article 27 by the 1st respondent and the artificial lacuna created by the Members of the National Assembly. Further, that the 1st respondent has not provided evidence of the Comments and or the Memorandum issued to Parliament or any efforts to have legislation enacted. 43.The petitioners are of the view that, taking efforts to effectuate the right of recall cannot amount to an illegality; that the determination of this petition does not prevent the 3rd respondent from discharging legislative mandate and the Attorney General has been sued as the principal legal advisor of government as provided by Article 156 of the Constitution. The Petitioners’ submissions 44.The petitioners’ submissions are dated 8th September, 2025. They submit that Article 104(1) of the Constitution vests in the electorate a direct and inalienable right to recall MPs; that the right embodies the sovereignty of the people under Article 1 and pre-exists any statutory framework. They also assert that the said right is self-executing, hence the 1st respondent’s refusal to process recalls petitions, citing the absence of legislation, violates Articles 1, 2(1), 3(1), 10, 88(4) and 104(1) of the Constitution. 45.To augment that position, the petitioners cite the Katiba Judgment; Centre for Rights Education & Awareness (CREAW) v Attorney General & Another [2015] eKLR; Mumo Matemu v Trusted Society [2013] eKLR; Ndii & others v Attorney General & others [2021] KEHC 9746 (KLR); August and Another v Electoral Commission and others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363A and Gachagua & 40 others v Speaker, National Assembly & 15 others [2024] KEHC 13473 (KLR). 46.The petitioners urge that Article 20(3) of the Constitution mandates courts and state organs to develop the law to enforce rights, adopting interpretations favouring enforcements. That the 1st respondent must therefore interpret surviving provisions (such as the Elections Act section 47 on by-elections) and apply County Governments Act (sections 27-29) mutatis mutandis to exercise the recall of MPs. 47.The petitioners again reiterate their position that, the 1st respondent has not provided proof of the submissions of memoranda or comments to Parliament; that the 1st respondent retains quasi-legislative powers for interim measures; that Article 88 of the Constitution empowers it to act creatively within constitutional bounds to facilitate rights and that the 3rd respondent’s delay in enacting the enabling legislation is not an excuse available to it for not effectuating the right of recall because, that duty is mandatory. They rely on Speaker of the Senate & Another v Hon. Attorney & Another &3 others Supt. CT. Advisory Opinion Reference No. 2 of 2013; Para 2013 [2013] eKLR (Re Senate) and August v Electoral Commission (supra). 48.The petitioners maintain that by failing to enact legislation to effectuate Article 104(1) of the Constitution, the 3rd respondent has violated the provisions of Articles1, 10 (2) (a) and (c),104(2), 261(5). It is their position that, the Fifth Schedule of the Constitution required this enactment by 27th August 2012 and that Parliament’s prompt amendment of MCAs in 2020 demonstrates capacity but reveals self-preservation for MPs. They therefore urge the court to order enactment of the relevant legislation within of 90 days and issue an order for structural interdict to enable supervision/implementation. Reliance is placed on the cases of in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) (s. Afr.) and Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] KEHC 7074 (KLR). 49.Concerning violation of Articles 27, 38 and 47 of the Constitution, the petitioners submit that the respondents’ actions create unequal treatment. That while MCAs can be recalled under the amended laws, MPs cannot despite both performing legislative and oversight roles. This, in their view, discriminates between county and constituency electors, thereby denying equal benefit of the law. 50.The petitioners argue that the right to recall is integral to political participation under Article 38(c), allowing citizens to champion caused by removing non- performing leaders. That the inaction by the respondents stifle this, breaching participation, hindering political choices and frustrating sovereignty. They further submit that the 1st respondent’s refusal and Parliament’s delay are administrative actions that are not expeditious, efficient, lawful or reasonable and therefore a breach of Article 47 of the Constitution. 51.Citing the decisions in CREAW; August (ZACC); Ndii case; Doctors for Life and State of Kerala & Anor v N.M. Thomas & Others 1976 AIR 490, 1976 SCR (1) 906, the petitioners maintain that Article 104 (1) of the Constitution is self-executing. They argue that the 1st respondent has issued guidelines for by-elections and voter education under Article 88(4); that it similarly can, for MPs. Additionally, that the 1st respondent ‘s regulatory powers under Article 88 (4) (j)-(k) do allow development of guidelines for recalls by adapting grounds for recall of MCAs under section 27 of the County Governments Act 2012. 52.The petitioners rely on Article 23(3) (a) and the decision in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR) and urge that the remedies and orders sought be granted. The 1st respondent’s submissions 53.The 1st respondent relies on the Black’s Law Dictionary (12th Edition); Thomas Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the State of the American Union 62 (2nd ed. 1871) and Wyatt-Shaw T, “The Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution: ‘They Mean Something” (1994) 15 Public Land and Resources Law Review 8 for the contention that Article 104 (1) is not self-executing. 54.The 1st respondent submits that the petitioner’s reliance on Ndii & Others v Attorney General & others (supra)is misplaced and that the Court’s finding that the absence of legislation does not always render a provision inoperative was made in the context of a referendum. That the court still acknowledged the necessity for additional legislation. 55.The 1st respondent submits that the contrast with its duty in the recall of MCAs is instructive. That it can and does process such recalls because Parliament has discharged its legislative duty and as such, it can proceed with the recall as provided for under sections 27, 28 and 29 of the County Governments Act, thus, demonstrative of its readiness to act when a lawful foundation exists. 56.The 1st respondent denies violating Articles 1, 2, 3, 10, 27, 38 and 47 of the Constitution. On the contrary it submits that it has upheld the supremacy of the Constitution and the rule of law under Articles 2(2) and 10 of the Constitution. Crafting or devising recall grounds and procedures as suggested by the petitioners, it argues, would be to exercise a legislative authority which it does not possess. 57.Regarding violation of Articles 27 and 38, the 1st respondent submits that, the fact that MCAs can be recalled while MPs cannot, is not its creation but that it is the direct and regrettable consequence of Parliament’s selective amendment of legislation. As for Article 47, it submits that an administrative action cannot be fair or lawful if it is ultra vires. It relies on the cases of Centre for Rights, Education and Awareness (CREW) & Another v the Speaker of the National Assembly and 2 others and Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001. 58.The 1st respondent argues that while it has regulatory powers under Article 88 (4) (i) –(k), these powers are delegated and subsidiary allowing it to make regulations on campaign finance, codes of conduct and nomination of candidates, all in furtherance of existing elections laws. These powers, it submits, do not and cannot extend to creating entirely new substantive grounds of recall/or procedures for a constitutional process where the primary legislation is absent. 59.The 1st respondent submits that the 3rd respondent is the true respondent in this matter for failing to discharge its constitutional mandate under Articles 104(2) and 261(1) of the Fifth schedule. That the proper remedy is for this court to invoke Article 261(5) and issue an order of mandamus directed at the 3rd respondent, compelling it to enact the requisite legislation within a specified strict timeline. 60.That in the alternative, should this court find that a mechanism must be established, the court itself should develop interim guidelines for the recall process, mirroring those in the County Governments Act with the necessary modifications. The 1st respondent further submits that the court may also grant the remedy of structural interdicts under Article 23. It relies on Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR). 61.The 1st respondent urges the court to dismiss the petition as against it and issue an order directing the 3rd respondent to enact legislation pursuant to Article 104(2) within the prescribed period, failing which this Court may develop interim guidelines for the recall process; and make no order as to costs against the 1st respondent. The 2nd respondent’s submissions 62.The 2nd respondent filed written submissions dated 17th November, 2025 and relies on Anarita Karimi Njeru v Republic [1979] eKLR; Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others [2013] eKLR and Abuya Abuya v Independent Electoral and Boundaries Commission & Another [2014] eKLR for the contention that the AG’S conduct as set out in the petition does not constitute a violation of the petitioners’ rights as the AG plays no role in the recalling of MPs. 63.The 2nd respondent submits, that following the {{/akn/ke/judgment/kehc/2017/4648 Katiba Judgment}}, Parliament has not enacted new legislation to provide for a valid framework for recall of MPs. Consequently, it is urged that IEBC has no role in recalling MPs in Kenya because there is no operational law that provides for the grounds and procedures for this. It is submitted that the IEBC’s role would be limited to processing recall petitions once the necessary law is passed and the High Court confirms the grounds for recall. 64.The 2nd respondent submits that from the 2nd interested party’s replying affidavit, the Elections (Amendment) (No. 2) Bill, 2024 is being considered. Therefore, this petition is said to be premature and the court should exercise restraint. It relies on Wanjiru Gikonyo and Others v National Assembly of Kenya and 4 others [2016] eKLR and SDV Transami Kenya Limited v Attorney General & 2 others & another [2016] eKLR. Citing the case of Kenya Human Rights Commission & another v Attorney General & 5 others [2019] eKLR, the AG urges that this petition should be dismissed with costs. The 3rd respondent’s submissions 65.The 3rd respondent’s submissions are dated 29th April, 2026. Relying on the cases of Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR and Geoffrey Muthija Kabiru & 2 others [2015] eKLR, it is urged that the petition offends the doctrine of exhaustion of remedies because the petitioners have failed to utilize the dispute resolution mechanism provided under Article 119 of the Constitution. 66.The 3rd respondent submits that the petition is premature and in violation of the principle of separation of powers. This is because, as elucidated in its replying affidavit, that the legislature is already considering the Elections (Amendment) (NO.2) Bill (Senate Bill No. 29 of 2024) which seeks to cure the mischief highlighted in the Katiba Judgment. Therefore, it argues that the court’s intervention will offend the doctrine of separation of powers. Reliance is placed on In the Matter of the Speaker of the Senate & another (Advisory Opinion Reference 2 of 2013) [2013] KESC 7 (KLR). 67.The 3rd respondent reiterates the contents of its replying affidavit and asserts that in line with Article 118 of the Constitution and the National Assembly Standing Order 127 (3) and (3A), extensive public participation has been undertaken in as far as the legislative process of the Elections (Amendment) (No.2) Bill (Senate Bill No. 29 of 2024) is concerned. Therefore, that the claim that it has abdicated its constitutional duty is misplaced and without merit. 68.The 3rd respondent cites Article 94(1) of the Constitution for the position that the court cannot direct Parliament on the manner of execution of its Constitutional mandate because doing so will offend the principle of separation of powers. It relies on Pevans East Africa Limited & another v Chairman, Betting Control and Licensing Board & 7 others [2013] eKLR and Katiba case and urges for the dismissal of the petition with costs. The 2nd interested party’s submissions 69.The 2nd interested party urges the court to be guided by the principles in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR in determining the instant petition. 70.The 2nd interested party submits that a reading of sections 45, 46, 47 and 48 of the Elections Act, 2011 and sections 27, 28 and 29 of the County Governments Act, 2012 and the case of Katiba Institute (supra) leads to the conclusion that the right of recall as provided for under Article 104 of the Constitution has been rendered inoperable. That the remaining provisions namely section 45(1), (4) and (5) of the Elections Act, 2011 cannot in themselves sustain the recall of an MP. 71.The 2nd interested party submits that the Court cannot compel the 1st respondent to facilitate the processing of recall petitions for Members of Parliament for the reason that the remaining provisions of sections 45(1), (4) and (5) of the Elections Act, 2011 cannot in themselves sustain the recall of an MP. It relies on Republic v Kenya School of Law & another Exparte Kithinji Maseka Semo & another [2019] eKLR and argues that in asking the court to use the provisions of the County Governments Act, the petitioners are asking this court to impose and/or read words into the Elections Act. 72.The 2nd interested party relies on Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for the argument that the orders sought to compel the 3rd respondent to enact legislation, within 90 days cannot issue as doing so would not only usurp the mandate of Parliament but also offend the doctrine of separation of powers. 73.The 2nd interested party relies on Article 119 and the case of Kenya Association of Stock Brokers and Investment Banks v Attorney General & another [2015] eKLR and reiterates that the petition offends the doctrine of exhaustion of remedies owing to the dictates of Article 119 of the Constitution. It denies that the petitioners have met the legal threshold for a constitutional petition and urges for its dismissal with costs. The 3rd interested party’s submissions 74.The 3rd interested party submits that the court’s decision in the {Katiba judgment was meant to provide guidance and to align national legislation with the Constitution, not to curtail the right of people to hold the electorate accountable as argued by the petitioners. That this resonated with Articles 2(4), 23(3) and 165(3) (b) of the Constitution. 75.The 3rd interested party asks the court to take judicial notice that on 27th July 2020 Parliament only chose to amend the County Governments Act, 2012 to provide for a clear path of recall of MCAs but has failed to provide one for MPs. This, it argues amounts to disobedience of court orders and a violation of national values and principles of natural justice and the rule of law protected under Article 10 of the Constitution. 76.The 3rd interested party is of the view that Article 104 of the Constitution is self-executing. That contrary to the respondents and the 2nd interested party’s averments, the procedure for recall of an MP provided under the Elections Act, 2011 is operational; but that only the grounds were contested. Therefore, that the failure by Parliament to amend the Elections Act cannot hold the Constitution in abeyance. 77.According to the 3rd interested party, with the guidance provided in the Katiba Judgment, the remaining provisions of the Elections Act read in conjunction with the County Governments Act provide a sufficient basis for the 1st respondent to enforce the right to recall MPs. Furthermore, that under the Constitution, there are numerous provisions on grounds that can lead to the removal of a state officer from office such as those under Chapter Six of the Constitution on Leadership and Integrity. 78.The 3rd interested party therefore argues that whereas the Elections Act, 2011 was meant to provide specific grounds for recall of Members of Parliament, a declaration of unconstitutionality of the specific provisions of the Elections Act did not invalidate the provisions of the Leadership and Integrity Act that provide for grounds of removal of state officers hence, the failure by the IEBC to carry out its constitutional mandate of processing petitions for recall of MPs is unfounded and a breach of the petitioners’ right. 79.The 3rd interested party submits that Parliament’s abdication of its duty and the subsequent pleading by the 1st respondent of a lacuna in law is unfounded because of the primacy of rights principle envisaged under Article 2(3) and 20(3) (a) of the Constitution. Therefore, that any right protected in the Constitution is justiciable and enforceable and cannot be invalidated by lack of an enabling statute. 80.The 3rd interested party submits that Article 19 (3) b) of the Constitution includes other rights not found in the Bill of Rights under Chapter Four of the Constitution. This, in its view, essentially classifies the right to recall, under Chapter Eight of the Constitution, as one of the rights and fundamental freedoms and that lack of legislation cannot limit the exercise of a right. It relies on Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR). 81.The 3rd interested party submits that the right to recall is a democratic right that empowers the citizenry to hold their elected representatives accountable, which right, as envisioned by the constitutional drafters, was to ensure that elected representatives remain responsive to their constituents. It argues that the exercise of this right is certainly not subject to statutory postponement. It asserts that the right to recall should be protected and enforced, despite the alleged lack of legislative guidance. Analysis and Determination 82.I have considered the petition, responses thereto and the detailed written submissions. I find the following issues and sub issues emerging for determination:a.Whether this court has jurisdiction to entertain this petition in view of:a.The principle of justiciabilityb.The doctrine of separation of powersc.The doctrine of exhaustion of remediesb.Whether Article 104 (1) of the Constitution is self-executingc.Whether the respondents have violated the Articles 1, 2,3, 10, 20, 27, 38, 47 and 104 of the Constitutiond.Whether an order of mandamus should issue against the 1st respondent to compel and facilitate the processing of recall petitions of MPS using the surviving provisions of the Elections Act, 2011 and the provisions similar to recall of MCAse.Whether an order of mandamus should issue to compel the 3rd respondent to enact legislation, within 90 days to provide for grounds and procedures for recall of MPs.f.Whether a conservatory order should issue against the 1st respondent for declining to process any recall petitions submitted by the electorate pending the determination of the petition or the enactment of the enabling legislation a. Whether this court has jurisdiction to entertain this petition 83.The jurisdiction of this court to adjudicate over the petition on the issues raised by the petitioner and argued on has been attacked on three fronts. First, that the petition is non-justiciable, second, that the petition offends the doctrine of separation of powers and third that it offends the doctrine of exhaustion of remedies. These issues if affirmed have the effect of divesting this court with the jurisdiction to hear and determine the instant petition. 84.In Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) the Supreme Court stated as follows:“41.This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.” 85.The Court of Appeal in Public Service Commission & 4 Others v Cheruiyot & 20 Others [2022] KEC 15 (KLR) had the following to say on the aspect of jurisdiction:“36.Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.36.The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.37.A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.38.The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.39.In Samuel Kamau Macharia and Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(68).A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. 86.The Supreme Court in Munene v Kingara and 2 others [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis. 87.I will now analyse each of the jurisdictional principles raised by some of the respondents and the 2nd interested party. a. The principle of justiciability 88.The 3rd respondent and the 2nd interested party contend and submit that Parliament is already considering the Elections (Amendment) (No.2) Bill,2024 which seeks to amend the sections of the Elections Act that were declared unconstitutional in the Katiba Judgment. That therefore the petition is premature, incompetent and non-justiciable and should await the outcome of the legislative process. 89.A 3-Judge Bench of the High Court in Nairobi Constitutional Petition No. 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020) eKLR, stated as follows regarding justiciability: -96.The Black’s Law Dictionary, 9th Edition, Thomson Reuters Publishers at page 943-944 defines justiciability as follows:“proper to be examined in courts of justice” or “a question as may properly come before a tribunal for decision”97.A Court must satisfy itself that the case before it is not caught up by the bar of non-justiciability. The concept of non-justiciability is comprised of three doctrines: Firstly, the Political Question Doctrine; secondly, the Constitutional-Avoidance Doctrine; and, thirdly, the Ripeness Doctrine…107.Lastly is the Ripeness Doctrine. The doctrine focuses on the time when a dispute is presented for adjudication. The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.108.Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.” 90.In Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR, Onguto J stated:“(27)Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases...The court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before court must be ripe, through a factual matrix for determination.” 91.In Simion Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others [2018] eKLR, the court stated:“53.I have considered the petition, responses, rival submissions and do find the issues raised by the petitioners are non-justiciable. Justiciability refers to the types of matters that the courts can adjudicate. To be justiciable, the court must not be offering advisory opinion, the petitioners must have standing and the issues must be ripe for determination.” 92.It is not in dispute in the present petition as demonstrated by the 3rd respondent that the amendments to the Elections Act, to provide for how Article 104 of the Constitution should be implemented in respect of recall of members of Parliament, following the declaration of unconstitutionality of the previous sections of the Elections Act, in the Katiba Judgment, is being considered by the National Assembly and therefore, I am in agreement with the 3rd respondent and the 2nd interested party that this petition is premature and not ripe for determination and that the petitioners as well as the Court should let Parliament legislate and wait for the outcome. 93.The 3rd respondent and the 2nd interested party content and urge that Parliament is seized with the matter and that any intervention from this court will cripple its legislative mandate and abrogate the doctrine of separation of powers. That therefore the court should exercise restraint and await the outcome unless it is demonstrated that it has violated the Constitution or any other written law. 94.In the case of Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) the court addressed its mind on the doctrine of separation of powers as follows:“49.It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of powers does not only proscribe organs of government from interfering with the other’s functions. It also entails empowering each organ of government with countervailing powers which provide checks and balances on actions taken by other organs of government. Such powers are, however, not a license to take over functions vested elsewhere. There must be judicial, legislative and executive deference to the repository of the function. We therefore agree with the High Court’s dicta in the petition the subject of this appeal that:[Separation of powers] must mean that the courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the executive sufficient latitude to implement legislative intent. Yet, as the Respondents also concede, the Courts have an interpretive role - including the last word in determining the constitutionality of all governmental actions...” 95.In Pevans East Africa Ltd & another v Chairman, Betting Control & Licensing Board & 7 others [2018] KECA 332 (KLR) the Court of Appeal held:“63.Where the Constitution had reposed specific functions in an institution or organs of State, the courts must give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution. Courts must decline to intervene at will in the constitutional spheres of other organs, particularly when they are invited to substitute their judgment over that of the organs in which constitutional power reposes, because those organs have expertise in their area of mandate, which the courts do not normally have. 96.In the case of Law Society of Kenya v National Assembly & 2 others [2023] KEHC 1469 (KLR) Ong’undi J (as she then was ) held: -“28.Similarly, the Notice made it clear that the impugned Regulations are Draft Regulations hence the same are not yet finalized contrary to the petitioner’s allegations. As per the submissions of the 2nd respondent the making of the impugned Regulations is at the Consultative stage. Looking at the legislative process outlined in the Statutory Instruments Act, it is apparent that the procedure which the respondents are mandated by law to carry out is yet to be completed.29.It is a set principle in law that for any Regulation to have effect, it must go through all the set legislative processes. From what is placed before this Court, the legislative process is incomplete despite the petitioner’s contention that the impugned Regulations bear the effective date of March 1, 2023. Notwithstanding the set date, what is clear is that a law can only take effect and come into force once the Regulation is published in accordance with the dictates of the law. Palpably, with an incomplete legislative process it would not be prudent for this Court to exercise its mandate over the matter.31.Being guided by the set legal principles, the material before the Court and the Wanjiru Gikonyo case (supra) I find that the petitioner’s application dated February 21, 2023 is premature and the conservatory orders sought will not be granted. However, in the event that the 2nd respondent gives effect to the impugned Regulations on March 1, 2023, or any other date before the exhaustion of the entire legislating process the petitioner will be at liberty to move the court appropriately.” 97.Based on the above analysis and supported by previous decisions of the superior Courts, and as earlier stated, I further find that Parliament is currently sized with the matter and therefore this court must exercise restraint until the process is completed. Therefore, any intervention at this point will cripple the legislative process and interfere with the legislative mandate of Parliament which will lead to an infraction of the doctrine of separation of powers. b. Whether the petition offends the doctrine of exhaustion of remedies 98.Both the 3rd respondent and the 2nd interested party submit that the petition offends the doctrine of exhaustion of remedies because the petitioners did not utilize the dispute resolution mechanism stipulated under Article 119 of the Constitution. 99.Article 119 of the Constitution provides as follows:Right to petition Parliament.119. (1)Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.(2)Parliament shall make provision for the procedure for the exercise of this right 100.Article 159(2) (c) of the Constitution recognises and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -159(2)In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-(a)…(b)…(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3. 101.The Supreme Court decision in Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR, held:“63.Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so, parties would bide their time, overlooking the recognized forums, and later springing a complainant the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 others; [2015] eKLR; wherein the Appellate Court observed:“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.” 102.The Court of Appeal in Benjamin v General & 55 others [2024] KECA 1672 (KLR) addressed this issue as follows:(116)The foregoing verdict also finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this Court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by the Constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance… “ 103.Courts have on a number of occasions pronounced themselves on the right to petition Parliament under Article 119 of the Constitution. In the case of Council of Governors & 3 others v Senate & 53 others [2015] eKLR a three-judge bench addressed its mind on the issue as follows:71.It is useful, however, in closing on jurisdictional questions, to address ourselves to the provisions of Article 119(1) of the Constitution. The AG submits that the petitioners ought to have approached Parliament in accordance with the provisions of Article 119(1) prior to filing its petition. Article 119(1) and (2) are in the following terms:“Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal legislation.2.Parliament shall make provision for the procedure for the exercise of this right.”72.The question is whether this provision is intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the legislature, guaranteed under Articles 22 and 258. Further, whether it can also be taken as ousting the jurisdiction of the Court under Article 165(3)(d) to determine any question respecting the interpretation of the Constitution, including “the question whether any law is inconsistent with or in contravention of” the Constitution, or under Article 165(3)(d)(iii), to determine any matter “…relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government”?73.In our view, the answer must be in the negative. Doubtless, Article 119(i) will serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that are within the purview of Parliament, including the repeal or amendment of legislation. It appears to us, however, that Article 119 is not intended to cover situations such as is presently before this Court. The question of the constitutionality of the impugned CGAA was raised with Parliament prior to its enactment. As deposed by Mr. Charles Nyachae, the Chairman of CIC, in his affidavit sworn on 19th September 2014, the issue had been brought to the attention of Parliament through CIC’s Advisory Opinion in the month of August 2014, prior to the enactment of the CGAA. Parliament, nonetheless, appears to have disregarded the concerns raised regarding its conformity with the Constitution and proceeded to enact the legislation.74.It would therefore be, in our view, for the Court to abdicate its responsibility under the Constitution to hold that a party who considers that legislation enacted by Parliament in any way violates the Constitution is bound to first petition Parliament with respect to the said legislation. The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and Articles 2(4) and 165(3(d)(i) mandate this Court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.” 104.Similarly in Katiba Institute & 4 others v Attorney General & 3 others; Inuka Kenya ni Sisi & another (Interested Parties) [2025] KEHC 12779 (KLR) the court held:“74.On the strength of the ratio in the above precedents, it is the finding of this Court that the right to Petition the Court is a fundamental constitutional right that is not ousted by Article 119 on the right to petition Parliament. It is only the Court that is constitutionality mandated to adjudicate questions of constitutionality of action or omissions. 105.From the above decisions, it is clear that Article 119 of the Constitution does not oust the right of the petitioners to present this petition to court and I therefore find that the failure to approach Parliament under Article 119 of the Constitution does not offend the doctrine of exhaustion of remedies. Each case must be determined on its own facts and circumstances. Whether Article 104 (1) of the Constitution is self-executing 106.Article 104(1) of the Constitution provides:Right of recall.104. (1)The electorate under Articles 97 and 98 have the right to recall the member of Parliament representing their constituency before the end of the term of the relevant House of Parliament.(2)Parliament shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed. 107.The Supreme Court of Kenya in Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR), in determining whether Article 171 of the Constitution is self-executing held as follows: -58.We are fortified in our conclusion by sub-Article (2)(a) of Article 250 which directs that, in those constitutional commissions where the procedure and manner of identification and recommendation for appointment of the chairpersons and commissioners are not provided for in the Constitution, recourse will be to national legislations. Examples of such commissions, are the Kenya National Human Rights and Equality Commission established under Article 59 of the Constitution; National Land Commission under Article 67 of the Constitution; Ethics and Anti- Corruption Commission under Article 79 of the Constitution; Independent Electoral and Boundaries Commission under Article 88 of the Constitution; and Teachers Service Commission under Article 237 of the Constitution. In contrast, by Article 171, the Constitution itself provides for the means of identifying and methods of appointment of each of the four categories of membership of the JSC, occasioning no need to resort to either Article 250 or national legislation for this purpose.” 108.In the Katiba Judgment the court held as follows:“66.Parliament is established by Article 93 of the Constitution. Article 94 vests legislative authority on Parliament on behalf of the people of Kenya. Parliament at the national level means both the National Assembly and the Senate. Under the Fifth Schedule to the Constitution, Parliament was commanded to pass the legislation within two years from the date of promulgation of the Constitution. the Constitution also provides a mechanism for compliance. One of the sanctions is dissolution of Parliament. Article 261 (5) to (9) provide as follows:67.It is conceded that Parliament enacted the Elections Act 2011; and, the County Governments Act 2012. On the face of it, the legislations contain grounds and procedures for recalling a Member of Parliament or the County Assembly. See sections 45, 46, 47 and 48 of the Election Act 2011; and, sections 27, 28 and 29 of the County Governments Act 2012. The petitioners contend that the provisions are hopelessly inadequate and amount to naught. The petitioners’ case is that no legislation on recall was effectively passed; or, that the provisions contravene Article 104 of the Constitution.70.On a plain reading of the statutes, we disagree with the petitioners that Parliament has not passed legislation setting out the grounds and procedures for recall. This is not the same as saying that the impugned provisions are adequate or effective. But it would be incorrect to say that no legislation has been passed at all…” 109.Elsewhere, the Supreme Court of North Carolina in the case of Kitchin v Wood 70 SE 995, 154 NC 565, 1911 NC Lexis 310 defined a self-executing provision as follows:“Touching this subject, the Illinois Court says: “Where it is apparent that a particular provision of the organic law shall go into immediate effect, without ancillary legislation, and this can be determined by giving full force and effect to all its clauses relating to the same subject, and the language is free from ambiguity, then it becomes the imperative duty of judicial tribunals to declare it self-executing; and where the provision is unambiguous, and the purpose of the provision would be frustrated unless it is given immediate effect, it will be held self-executing.” Tuttle v National Bank of Republic, 161 Ill., 497, reversing 48 Ill. App., 481.” 110.Under Clause 2 of Article 104 of the Constitution, the Constitution is explicit that Parliament shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed. The Katiba Judgment is also explicit that the mandate to make the procedure and grounds for recall is on Parliament. I therefore find that the provision is therefore not self-executing and needs enactment of a piece of legislation to actualize it. Whether the 1st and 3rd respondents have violated the Articles 1, 2,3, 10, 20, 27, 38, 47 and 104 of the Constitution 111.The petitioners claim and submit that the refusal by the 1st respondent to process applications and requests for recall of MPs and the failure of the 3rd respondent to enact an enabling legislation violates the above constitutional provisions. This position is supported by the 3rd interested party, Katiba Institute. The 1st respondent contends and submits that it cannot be faulted for not processing the applications and requests for recall owing to the absence of the enabling legislation. The 2nd respondent also contends that Parliament cannot process the recalls because there is no enabling legislation and that the 3rd respondent and 2nd interested party are currently looking into the amendments to the sections of the Elections Act that are declared unconstitutional. This position is reiterated by the 3rd respondent and the 2nd interested party. 112.This calls into question the mandate of the 1st respondent as stipulated in Article 88 (4) of the Constitution and section 4 of the Independent Electoral and Boundaries Commission Act, 2011. Article 88 (4) provides:(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.(5)The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation. 113.Section 4 of the IEBC Act provides:As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for-(a)the continuous registration of citizens as voters;(b)the regular revision of the voters' roll;(c)the delimitation of constituencies and wards in accordance with the Constitution;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development and enforcement of a code of conduct for candidates and parties contesting elections;(k)the monitoring of compliance with the legislation required by Article 82 (1)(b) of the Constitution relating to nomination or candidates by parties;(l)the investigation and prosecution of electoral offences by candidates, political parties or their agents pursuant to Article 157(12) of the Constitution;(m)the use of appropriate technology and approaches in the performance of its functions; and(n)such other functions as are provided for by the Constitution or any other written law. 114.I find nothing in the Article 88(4) of the Constitution or section 4 of the IEBC Act that suggests that the 1st respondent should make the procedures for the recall of MPs. Moreover, Article 104 of the Constitution is explicit that that role is for the Parliament. Therefore, in the absence of the enabling law to effectuate Article 104(1), the 1st respondent cannot process the applications and requests for recall of MPs. The 1st respondent cannot, therefore be said to have violated the provisions of Articles 1,2,3,10, 20,27, 38, 47 and 104 of the Constitution. 115.As for the 3rd respondent, it has been demonstrated that Parliament is currently seized with the matter and is in the process of amending the provisions of the Elections Act that were declared unconstitutional and therefore it is making efforts to comply with the directions given in the Katiba Judgment. It therefore cannot be said that they have violated the constitutional provisions cited by the petitioners, unless the process is completed. I further find that the petitioners have not demonstrated how those rights have been violated as expected under Anarita Karimi Njeru v Republic [1979] eKLR. Whether an order of mandamus should issue against the 1st respondent to facilitate the processing of recall petitions of MPS using the surviving provisions of the Elections Act, 2011 and the provisions similar to recall of MCAs 116.Circumstances in which mandamus will issue were defined in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] KECA 58 (KLR) wherein the Court of Appeal stated:“24.The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”25.What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. We can do no better than give examples. The Liquor Licensing Act, Chapter 121 Laws of Kenya, by section 4(1) creates a licensing court for every licensing area and provides that the licensing court, chaired by the District Commissioner of each area, is to consider and determine applications for and the cancellation of liquor licences. Section 8 of the Act provides the manner and procedure to be followed by those who desire to acquire liquor licences.” 117.In the Katiba Judgment, there was a challenge to the constitutionality of sections 45, 46, 47 and 48 of the Constitution. In its judgment, the three-judge bench declared sections 45 (2) (3) and (6), 46 (1) (b) (ii) and (c) and 48 of the Elections Act unconstitutional. The surviving sections therefore are sections 45 (1), (4) (5), 46 (1) (a) (b) (i), (2-9) and 47 of the Elections Act. 118.Section 45(1), (4), (5) provide,(1)The electorate in a county or constituency may recall their member of Parliament before the end of the term of the relevant House of Parliament on any of the grounds specified in subsection (2).(4)A recall under subsection (1) shall only be initiated twenty-four months after the election of the member of Parliament and not later than twelve months immediately preceding the next general election.(5)A recall petition shall not be filed against a member of Parliament more than once during the term of that member in Parliament. 119.Section 46 (1) (a), (b) (i), (2-8) provides:(1)A recall under section 45 shall be initiated by a petition which shall be filed with the Commission and which shall be—(a)in writing;(b)signed by a petitioner who—(i)is a voter in the constituency or county in respect of which the recall is sought; and(ii)..........(c)...........(2)The petition referred to in subsection (1) shall—(a)specify the grounds for the recall as specified under section 45(2);(b)contain a list of such number of names of voters in the constituency or county which shall represent at least thirty percent of the registered voters; and(c)be accompanied by the fee prescribed for an election petition.(3)The list of names referred to in subsection (2)(b) shall contain the names, address, voter card number, national identity card or passport number and signature or thumb prints of the voters supporting the petition and shall contain names of at least fifteen percent of the voters in more than half of the wards in the county or the constituency, as appropriate.(4)The voters supporting a petition under subsection (3) shall represent the diversity of the people in the county or the constituency as the case may be.(5)The petitioner shall collect and submit to the Commission the list of names under subsection (2)(b) within a period of thirty days after filing the petition.(6)The Commission shall verify the list of names within a period of thirty days of receipt of that list.(7)The Commission, if satisfied that the requirements of this section are met, shall within fifteen days after the verification, issue a notice of the recall to the Speaker of the relevant House.(8)The Commission shall conduct a recall election within the relevant constituency or county within ninety days of the publication of the question. 120.Section 47 of the said Elections Act provides:(1)Where a member of Parliament is to be recalled under section 45, the Commission shall frame the question to be determined at the recall election.(2)A question referred to in subsection (1) shall be framed in such a manner as to require the answer "yes" or the answer "no".(3)The Commission shall assign a symbol for each answer to the recall question.(4)The voting at a recall election shall be by secret ballot.(5)A recall election shall be decided by a simple majority of the voters voting in the recall election.(6)Where a recall election results in the removal of a member of Parliament, the Commission shall conduct a by-election in the affected constituency or county.(7)A member of Parliament who has been recalled may run in the by-election conducted under subsection (6). 121.In the alternative, the petitioners submit that the provisions of the County Governments Act can be used with modification. Section 27 (1) and (2) of the County Governments Act, 2012 provides27.Recall of a county assembly member(1)The electorate in a county ward may recall their member of the county assembly before the end of the term of the member on any of the grounds specified in subsection (2).(2)A member of a county assembly may be recalled on any of the following grounds—(a)gross violation of the Constitution or any other law;(b)incompetence;(c)gross misconduct; or(d)if convicted of an offence punishable by imprisonment for at least six months. 122.From a cursory look at the above cited provisions of the Elections Act and the County Governments Act, it clear that there are no grounds provided for in the Elections Act for recall of the MPs. Further, the County Governments Act specifically provides for MCAs. I therefore find that the 1st respondent cannot process the applications and requests for recall of Members of Parliament without the ground and neither can it apply provisions which relate to MCAs. Accordingly, the order of mandamus cannot issue where there is no statutory duty placed on the 1st respondent to act and where the Constitutional provisions mandate legislation to be enacted to implement the recall clause. Whether an order of mandamus should issue against the 3rd respondent to enact legislation, within 90days to provide for grounds and procedures for recall of MPs. 123.The Court of Appeal in the decision inPevans East Africa Ltd& another v Chairman, Betting Control& Licensing Board & 7 others (supra) stated as follows on this issue:64.We have already adverted to the view of the Supreme Court in The Speaker of the Senate & Another v Attorney General & 4 Others (supra) where it emphasised that the courts cannot supervise the working of Parliament and that the institutional comity between the three arms of Government should not be endangered by unwarranted intrusion by any arm into the mandate of other arms. Similar approach has been taken by the High Court, as regards matters of taxes, in Kenya Union of Domestic Hotels, Education & Allied Workers v Salaries & Remuneration Commission [2014] eKLR; Kenya Union of Domestic Hotels, Education & Allied Workers v Kenya Revenue Authority & 3 Others [2013] eKLR; Mark Obuya & Others v Commissioner of Domestic Taxes & 2 Others [2014] eKLR and Bidco Oil Refineries Ltd v Attorney General & 3 Others [2013] eKLR. 124.In the Katiba Judgment faced with a similar issue, the three-judge bench held;“124.We were asked to compel Parliament to pass the legislation within ninety days of the delivery of the judgment in this matter. We decline. We are in agreement with the Supreme Court in U.S v Butler 297 U.S. 1[1936]. It was held:“When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the Article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.” 125.I have already found that Parliament is already seized with the matter; this court cannot therefore direct it within what period to make the amendment. Based on the decisions above cited, this order cannot issue to compel Parliament to enact legislation and within the specified period given by the petitioners. Whether a conservatory order should issue against the 1st respondent for declining to process any recall petitions submitted by the electorate pending the determination of the petition or the enactment of the enabling legislation 126.Conservatory orders were defined in Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) as follows:“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.” 127.The law on issuance of conservatory orders in constitutional petitions finds its bearing under Article 23(2) (c) of the Constitution. Further, Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides:Conservatory or interim orders.1)Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.2)Service of the application in sub rule (1) may be dispensed with, with leave of the Court.3)The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court. 128.The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:“a.An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; andThe public interest must be considered before grant of a conservatory order.” 129.Similarly, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) the Court stated that:“25.Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice….26.It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….28.Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….29.Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….30.The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma.31.Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.” 130.A similar position was taken in Centre for Rights Education & Awareness (CREAW) & another v Speaker of the National Assembly & 2 others [2017] KEHC 9419 (KLR) as follows:“A party who moves the court seeking conservatory orders must show to the satisfaction of the Court that his or her rights are under threat of violation; are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedom and preserve the subject matter pending the hearing and determination of a pending case or Petition.” 131.Further, on public interest, the Supreme Court in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) guided as follows:“Conservatory orders’ bear a more decided public Law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the “prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes ….” 132.In this case, the prayer for conservatory orders cannot issue because it is overtaken by events. 133.On the whole I find and hold that the petition dated h1st August 2025 is not merited and the same is hereby dismissed. 134.As the petition was brought in the public interest, each party shall bear their own costs of the dismissed petition. 135.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY, 2026R.E. ABURILIJUDGE