[2022] KEHC 1548 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAPENGURIA

CONSTITUTIONAL PETITION NO. E002 OF 2021

IN THE MATTER OF ARTICLES 2, 19, 20, 22 (1) & (2), 23,

159 (2) (a), 258 AND 260 OF THE CONSTITUTION OF KENYA 2010 FOR

THE ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS

AND

IN THE MATTER OF THE ALLEGED CONTRAVENTION

OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER

ARTICLE 47 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE CONSTITUTION KENYA

(PROTECTION OF RIGHTD AND FUNDAMENTAL

FREEDOMS) PRACTICE AND PROCEDURE RULES 2013

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015

AND

IN THE MATTER OF VIOLATION OF SECTION 11 OF THE

COUNTY GOVERNMENT ACT, 2012 AS AMENDED BY SECTION 7 OF THE

COUNTY GOVERMENTS (AMENDMENT) ACT NO. 11 OF 2020

AND

IN THE MATTER OF STANDING ORDERS 44 AND 58 OF

THE WEST POKOT COUNTY ASSEMBLY STANDING ORDERS

AND

IN THE MATTER OF UNLAWFUL AND ILLEGAL, IMPEACHMENT

PROCESS FOR THE REMOVAL OFTHE HON. CATHERINE CHEPKEMOI

MUKENYANG FROMTHE OFFICE OF THE SPEAKER OF

WEST POKOT COUNTY ASSEMBLY

BETWEEN

HON. CATHERINE CHEPKEMOI MUKENYANG....................................PETITIONER

VERSUS

HON. EVANSON PKEMEI LOMADUNY............................................1ST RESPONDENT

THE COUNTY ASSEMBLY OF WEST POKOT...............................2ND RESPONDENT

JUDGMENT

Introduction

1. By an amended petition dated 24th September, 2021 the Petitioner seeks the following orders:

1) A declaration that the impeachment proceedings and the resultant resolution reached on 7th September, 2021 by the Respondents against the Petitioner violates Articles 10, 25, 47 and 50 of the constitution, section 4 of the Fair Administrative Action Act, 2015 and Section 11 of the County Government Act, 2012 as amended by Section 7 of the County Governments (Amendment) Act No. 11 of 2020.

2) A declaration that the impeachment proceedings and the resultant resolution for the removal of the Petitioner from the position of speaker of West Pokot County Assembly are null and void for contravening the provisions of the Constitution and the County Government Act, 2012 and the Fair Administrative Actions Act.

3) A declaration that the impeachment proceedings held by the Respondents in relation to the Petitioner were undertaken an arbitrary and capricious manner besides being in violation of the principles of natural justice and fair hearing.

4) An order of injunction restraining the Respondents or any member of the 2nd Respondent, their agents, servants and or any person whatsoever from declaring a vacancy in the office of the Speaker West Pokot County Assembly by way of Gazettement or otherwise and or in the alternative if so declared or Gazetted, an order suspending any such declaration and or Gazettement.

5) An order of injunction restraining the Respondents, any member of the 2nd Respondent, their agents or servants and or any person whatsoever from appointing, electing and or nominating any person as the Acting and/or Substantive Speaker of West Pokot County Assembly in lieu of the Petitioner.

6) An order of injunction restraining the Respondents by themselves, their agents, representatives or any other person whatsoever from preventing and/or obstructing the Petitioner from accessing the 2nd Respondent’s precincts and or from interfering with Petitioner’s execution of the lawful duties as Speaker of the west Pokot County Assembly.

7) An order of Certiorari to quash the unlawful impeachment proceedings against the Petitioner by the Respondent and any resolution and decision resulting therefrom.

8) An order for damages for breach of constitutional rights and freedoms.

9) Costs of the petition.

The Petitioner’s case

2. The gist of the Petitioner’s case is that on 25th August, 2021 she was served with a letter dated 24th August, 2021 by the Clerk of the County Assembly informing her of the Notice of the intention to move a motion for a resolution to remove her from office, dated 9th August, 2021 that had be issued by the 1st Respondent. That said clerk had attached the Notice of intention to move a motion for resolution to remove the Petitioner to the said letter. The Petitioner contends that although the said notice made reference to various annexures/ attachments, the same were not served upon the Petitioner when the notice of intention was being served. The Petitioner further contends that although the said notice stated the grounds for her removal, the same was not signed by one third of the members of the County Assembly as provided by Section 11 (3) of the County Government Act, 2012. That the only signature appended on the said Notice was that of the 1st Respondent.

3. The Petitioner averred that in his letter dated 24th August, 2021, the Clerk of the County Assembly of West Pokot invited her to respond to the Notice of Intention to move a motion for a resolution of her removal contrary to Section 11(4) and (5) of the County Government Act, 2012. That the clerk invited the Petitioner to appear before the 2nd Respondent on 7th September, 2021 to defend herself against the allegations levelled against her in the said notice. It was the Petitioner’s contention that Section 11 (4) and (5) of the County Government Act, 2012 stipulates that the clerk will notify the speaker for him to respond upon receiving a Notice of Motion of removal and not upon receiving notice of intention to move a motion of removal.

4. The Petitioner contends that she was not served with a written Notice of Motion for her removal from office in accordance with Order 44 of the West Pokot County Assembly Standing orders. That the 1st Respondent did not move a motion in writing.

5. The Petitioner contends that she was served with the notice of intention for removal on 25th August, 2021 by the Clerk of the 2nd Respondent through his WhatsApp number and that upon receipt of the WhatsApp message she requested for the annexures/attachments in support of the allegations being levelled against her in the said notice. According to the Petitioner the said Clerk was in receipt of the message but never bothered to reply.

6. The Petitioner averred that upon being in receipt of the notice of intention to move a motion for her removal, she wrote a letter dated 27th August, 2021 addressed to the Clerk to the 2nd Respondent requesting for the annexures/attachments that had been referred to in the said notice. According the Petitioner the said letter was served and formally received by the Clerk on 27th August, 2021 by affixing his stamp on the Petitioner’s copy. That on 31st August, 2021 the Petitioner wrote another letter dated 31st August, 2021 requesting for postponement of her appearance before the West Pokot County Assembly on 7th September, 2021 citing one of the reasons for her request as not being served with the evidence of the allegations levelled against her.

7. The Petitioner averred that on 7th September, 2021 she appeared before the 2nd Respondent in company of her advocate and informed the members of the 2nd Respondent that she had not been served with any of the annexures/ attachments referred to in the notice of intention to move a motion for her removal. The Petitioner’s position is that while on the floor, she pleaded with the Respondents to be served with the said documents and be issued with an additional seven days so as to prepare a substantive response but her plea was disregarded by the 2nd Respondent who then purported to pass a resolution to impeach her.

8. The Petitioner averred that during the said hearing, the Respondents caused the Clerk to the Assembly to deny being in receipt of the Petitioner’s letters dated 27th August, 2021 and 31st August, 2021 despite the said letters bearing the official stamp of the Clerk of the County Assembly of West Pokot and in total disregard of the Petitioner’s submissions that she had requested for the same documents through a WhatsApp message reply to the said Clerk. The Petitioner contends that she was never afforded the opportunity to cross-examine the said Clerk on the allegations above. That in clear breach of the Petitioner’s fundamental right to fair hearing and fair administrative action, the Respondents resolved to proceed and table the Notice of Motion for the removal of the Petitioner, even after being informed about the Petitioner’s position, to wit, that she had not been served with the documents and evidence referred to in the notice.

9. The Petitioner averred that while seated on the 2nd Respondent, the Respondents proceeded to serve the notice of motion for her removal, again without attaching the annexures/attachments referred to therein. The Petitioner contends that once again she raised concern that the motion in her hands was without attachments/annexures bur her plea yet again fell on deaf ears.

10. The Petitioner further averred that while the session was ongoing, some of the members of the 2nd Respondent raised similar concerns that the notice of motion provided to them and that was now being read to them by the mover of the motion did not contain any of the attachments/ annexures being referred to therein. The Petitioner averred that these concerns were callously ignored by the Chairperson and by extension, the Respondents.

11. The Petitioner contends that the Respondents proceeded to compel her to respond to each and every subsequent allegation as read out by the respective members of the County Assembly, in total disregard of the Petitioner’s genuine concerns and reservations as stated earlier and in gross violation of the rules of the House on how plenary committee sessions should be conducted. That having made her case on non-service clear before the floor of the West Pokot County Assembly, the Petitioner informed the House that she was not in a position to substantively respond and requested the Respondents to allow her to leave the Respondents session on two grounds: first, that she had not been served with the documents required in order to formally respond to the allegations levelled against her and second that she was feeling unwell and needed urgent medical attention. That upon the Petitioner’s physical exit, the Respondents proceeded with the motion to impeach the Petitioner and purported to pass a resolution that the Petitioner had been impeached on the said date of 7th September, 2021.

12. The Petitioner’s case is that her fundamental rights and freedoms have been grossly violated and that the said impeachment process violates the Petitioner’s right to fair hearing and fair administrative action. It is the Petitioner’s contention that the actions of the Respondents amounted violation of the Petitioner’s right as outlined under Articles 25, 47 and 50 of the Constitution of Kenya and Section 4 of the Fair Administrative Actions Act. Further, the Respondents actions violated Sections 11(3), 11 (4) and (5) of the County Act 2012, and Order 44 of the West Pokot Standing Orders.

1st Respondent’s Case

13. In his Replying Affidavit sworn on 28th September, 2021 the 1st Respondent deposes as follows inter alia: that he is the Member of the County Assembly for Endugh Ward in West Pokot County and the mover of the motion to remove the Petitioner from her office. That on 23rd August, 2021 he served the office of the Clerk of the County Assembly of West Pokot with the motion for removal of Hon. Catherine Chepkemoi Mukenyang from office of the Speaker dated 9th August, 2021. That the motion was supported by 26 members of the West Pokot County Assembly. That the list of the signatures was annexed to the motion and the same was received by the Clerk of the County Assembly. That the motion was supported by more than one third of the members.

14. The 1st Respondent further averred that in the motion the following grounds were listed for the removal of the speaker; abuse of office, gross violation of Public Finance Management Act, 2011, gross violation of the Public Procurement and Asset Disposal Act, 2015 and gross misconduct. The 1st Respondent contends that he attached all documents supporting his motion and submitted the same to the Clerk of the County Assembly on 23rdd August, 2021. That the supporting documents included: Appointment letters marked, evidence of repair, maintenance costs, payment vouchers, letters purporting to schedule a staff meeting and signatories to KCB Bank.

15. In response to paragraph 9, 10 and 11 of the Supporting Affidavit of the Petitioner, the 1st Respondent averred that the law does not anticipate that there is a difference in the Notice of Intention to move a Motion to remove a speaker from office and Notice of Motion to remove a speaker from office. The Notice of intention to move a motion serves the same purposes as a motion as long as it is in accordance with the provisions of Sections 11 (3) (a), (b) (c) and Section 4 (a) and (b) of the County Government Amendment Act No. 11 of 2020.

16. According to the 1st Respondent, the Notice of Intention to remove the Speaker served to the Petitioner by the Clerk of the County Assembly was adequate since it set out the allegations made against her, was signed by the 1st Respondent, was signed by one third of the all the members of the County Assembly and it attached the supporting annexures and documentations.

17. In response to paragraphs 12, 13 and 14 of the supporting affidavit of the Petitioner regarding the request letters that had been written to the Clerk of the 2nd Respondent, it was the 1st Respondent’s position that the 2nd Respondent would be best suited to respond to the said averments.

18. The 1st Respondent’s case is that on 7th September, 2021 he moved the motion to remove the Speaker of the County Assembly of West Pokot based on the grounds outlined in the Notice of Intention to move a Motion submitted to the Clerk. That the Petitioner appeared before the County Assembly to respond to the allegations levelled against her and that she was given ample time to defend herself. That despite the 2nd Respondent inviting the Petitioner to respond to the Motion to remove her in the letter dated 24th August 2021, she did not provide any written response within (7) days as required by Section 11 (5) of the County Governments (Amendment) Act No. 11 of 2020.

19. The 1st Respondent averred that after the Petitioner was given an opportunity to respond to the allegations, the members of the County Assembly proceeded to debate and vote on the motion and a resolution was passed to remove the Petitioner from the office as the Speaker of the County Assembly of West Pokot.

20. The 1st Respondent contends that the impeachment and removal of the Petitioner from her office as Speaker of West Pokot County Assembly was done procedurally and in the fairest manner.

2nd Respondent’s case

21. The petition was opposed by the 2nd Respondent vide the Replying Affidavit sworn by Hon. David Karugutiang on 23rd September, 2021 who deponed that he is the Clerk to the 2nd Respondent. The 2nd Respondent’s case is that in considering the impeachment motion moved by the 1st Respondent, it was only acting pursuant to the provisions of Sections 11 of the County Government Act, 2012 and Standing Order No. 71 of the County Assembly of West Pokot.

22. In response to paragraph 4 of the petition the Clerk to the 2nd Respondent denies that him or his support staff were served with letters seeking adjournment by the Petitioner. That in further response to the averments in paragraph 4 and 5 of the Petition, the Clerk to the 2nd Respondent alleges that the stamp captured in the Petitioner’s annexure marked CCM1 are forgeries. The Clerk alleges that he was away from office and that he has filed a formal complaint with the DCI in West Pokot regarding the forged stamps.

23. The 2nd Respondent’s case is that on 7th September 2021, its members passed a resolution constituting more than 75% of the membership impeaching the Petitioner and thereby terminating the subsisting contract of service between the Petitioner and it.

24. The Clerk to the 2nd Respondent maintains that prior to the impeachment of the Petitioner, his office had authored and served a letter inviting the Petitioner to attend the hearing of the impeachment motion together with the Notice of Intention to move a motion of her removal and as such the Petitioner was aware of the allegations that she was facing that led to the motion of impeachment being moved against her.

25. The 2nd Respondent’s position is that the Petitioner is entitled to what, in legal parlance is referred to as the right to “notice and hearing” and that means she must be given written notice which must contain substantial information with sufficient details to enable her ascertain the nature of allegations against her. The 2nd Respondent’s contention is that in the instant petition this was done and as such the Petitioner cannot be heard to say that the 2nd Respondent violated her right to fair hearing and administrative action as provided for in the Constitution of Kenya 2010. Further, the 2nd Respondent contends that receipt of the motion of impeachment is not disputed by the Petitioner.

26. The 2nd Respondent maintains the position that there was nothing unprocedural in the manner the impeachment motion was originated, scheduled, tabled, discussed and passed. That the Notice of Intention to remove the Speaker of West Pokot County Assembly dated 9th August was supported by 26 Members of the County Assembly. That pursuant to the Standing Order No. 35 of the County Assembly of West Pokot the Clerk to the Assembly prepared the order paper of 6th September, 2021 which was slotted for hearing on 7th September, 2021.

27. The 2nd Respondent contends that all the requisite procedures were followed and that the Petitioner was duly notified but failed to proffer any defence to the charges levelled against her and the impeachment was duly passed by the House.

28. The 2nd Respondent’s case is that the Petitioner is violating the doctrine of separation of powers since she is asking the Court to overrule the County Assembly herein, yet it is the 2nd Respondent’s task and mandate to remove the Speaker. That the Petitioner and the Court should not interfere with the internal arrangements of the 2nd Respondent regulated by the Standing Orders unless there is violation of the Constitution. Further, that owing to the fact that Section 17 of the County Government Act provides that the powers and privileges of Parliament shall apply with necessary modifications and that further by dint of Section 12 of the National Assembly (Powers and Privileges) Act which provides that no proceedings or decision of the Assembly or Committee of Privileges acting in accordance with this Act shall be questioned in any Court mean that the decision arrived at by the members of the 2nd Respondent in impeaching the Petitioner on 7th September 2021, should be allowed to stand as interfering with the same will amount to flouting the provisions of the National Assembly (Powers and Privileges Act)

29. The 2nd Respondent maintains that the Petitioner in alleging a violation of her Constitutional rights and freedoms must plead such allegation with a degree of precision and that the same has not be done by the petitioner herein to warrant an intervention by the Court.

30. The 2nd Respondent urged court to dismiss the petition with costs.

Determination

31. I have carefully analyzed, evaluated and considered the evidence tendered by the petitioner and the affidavits filed in court. I have also considered the rival submissions filed by all parties, the applicable law and the authorities relied on. In my view the Petition raises the following issues for determination:

a)Whether the proceedings leading to the resolutionand removal of the Petitioner from office of Speaker of County Assembly of West Pokot was done in accordance with the law.

b)Whether this court is barred by the doctrine of separation of powers

c)Whether the 2nd Respondent decision is protected by dint of the provisions of the County Assemblies Powers and Privileges Act

d)Whether the Petitioner’s petition was pleaded with reasonable precision as per the required standard in Constitutional Petitions.

e)Whether the Petitioner is entitled to the reliefs sought.

32. Whether the proceedings leading to the resolutionand removal of the Petitioner from office of Speaker of County Assembly of West Pokot was done in accordance with the law.

33. Article 47 (1)of the Constitution states as follows;

“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”

Article 47(2)

“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

34. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015under which section 4(3) provides as follows:

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable; or

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

35. The status of fair administrative action in Kenya’s constitutional and jurisprudential framework was discussed by Onguto, J in Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLR a case in which the powers of the same Respondent were in question, in which the learned Judge expressed himself inter alia as follows:

“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:

“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]

Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.

The Petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.

Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:

“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”

I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.

It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”

36. Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.

37. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.

38. In this case the Petitioner’s claim is that the Notice of Intention to move a motion for a resolution to remove her dated 9th August, 2021 by the 1st Respondent made reference to various annexures/attachment which were not served upon or provided to her when the Notice of Intention was being served on her. The Petitioner further contends that the Notice did not comply with the provisions of Section 11 (3) of the County Governments Act, 2012 which requires that the same to be signed by at least one third of all the members of the County Assembly. The Petitioner has alleged that she was served with the said Notice of Intention by the Clerk of the Assembly through his WhatsApp number and that upon receipt of the said message she requested for annexures/attachments or evidence referred to in the said notice but the Clerk never responded.

39. The Petitioner has also claimed that in a letter dated 27th August, 2021 addressed to the Clerk of the County Assembly of West Pokot, she requested for copies of the annexures/attachments referred to in the Notice. That the said letter was served and formally received by the Clerk who affixed his stamp on the Petitioner’s copy. The Petitioner has also claimed in a letter dated 31st August, 2021 addressed to the Clerk of the 2nd Respondent that she sought to have the postponement of her appearance before the said Assembly, giving reason that she had not received the annexures referred to in the said Notice in order to substantially respond to the allegations levelled against her. This request was ignored. The Respondents then compelled her to respond to each and every allegation contained in said Notice of Motion, in total disregard of her genuine concerns that she had not been served with the said annexures. The Respondents then proceeded to impeach her and purported to pass a resolution that the Petitioner had been impeached on the 7th September, 2021.

40. It is the Petitioner’s case she was never accorded a fair chance to respond to any of the allegations levelled against her in the Notice of motion that was moved on 7th September, 2021. That the Respondents actions were in breach of the rules of natural justice.

41. The Respondents on their apart have denied the above averments with the 2nd Respondent alleging that all the requisite procedures were followed prior to the impeachment of the Petitioner herein and that, in any event the Petitioner does not dispute being in receipt of the motion of impeachment. The 1st Respondent contends that the motion in question was signed by more than one third of the Member of the County Assembly of West Pokot. The Clerk to 2nd Respondent has denied receiving the two letters by the Petitioner, stating that the stamps of the said letters are a forgery. He contends that he has since reported the matter to the Directorate of Criminal Investigations (DCI) in West Pokot.

42. Further, the Respondents contend that the Petitioner herein was duly notified of the impeachment proceeding but failed to proffer a defence to the charges levelled against her and that the impeachment motion was duly passed by the house. The 2nd Respondent has also argued that by impeaching the Petitioner herein, it was only carrying out its mandate and that court should not interfere with the outcome of such process. The 2nd Respondent contention is that by filing this instant petition, the Petitioner is trying to subvert the doctrine of Separation of Powers as contemplated in the Constitution of Kenya 2010.

43. The question that this court must now answer is whether the impeachment of the Petitioner herein was carried out in a lawful and procedural manner.

44. InR vs Aga Khan Education Services ex parte Ali Sele & 20 Others High Court Misc.Application No.12 of 2002,the court while considering the applicability of the rules of natural Justice held inter aliaas follows:-

“On the allegation that there was breach of the rules of natural Justice, it is not in every situation that the other side must be heard. There are situations where a hearing would be unnecessary and even in some cases obstructive. Each case must be put on the scales by the court and there cannot be general requirement for hearing in all situations. There will be for example situations when the need for expedition in decision making far outweighs the need to hear the other side and in such situations, the court has to strike a balance”.

45. In this particular case the Petitioner does not dispute being in receipt of the Notice of Intention to move a motion for her removal but disputes the said notice was not in accordance with the provisions stipulated under Section 11 (3) (b) of the County Government Act as it was not signed by at least one third of all members of the 2nd Respondent as required, but was only signed by the 1st Respondent. That further the notice did not have annexures/attachments referred to therein to enable her substantially respond to the said allegations. My reading of the last paragraph of page (6) of the 1st Respondent annexure marked as EPL-1 (a) being the Notice of Intention for the removal of the Petitioner herein reads as follows:

“This motion is supported by the following members who have signed separate forms to confirm that they have read, understood and support this motion.”

46. From the reading of the above cited paragraph it is clear that the motion failed to mention the names of members supporting the said motion. The 1st Respondent only mentions that the motion is supported by the following members who have signed separate forms. Annexure marked as EPL-1 (b) is a list of members attached by 1st Respondent bearing the title “signatures in support of the motion for the removal of Hon. Catherine Chepkemoi Mukenyang as speaker of County Assembly by way of impeachment.” The said signatures are endorsed on a separate page and there is no indication that the separate page is a continuation of the first page of the motion. It is therefore my finding that the motion in question did not satisfy the requirements of Section 11(3) (b) of the County Governments Act as it was only signed by the 1st Respondent herein.

47. The Petitioner has alleged that the Notice of Intention for her removal lacked the annexures/attachments referred to therein and therefore she could not substantially respond to the allegations levelled against her. The 1st Respondent maintains that he served the Clerk to the Assembly with the motion together with the annexures therein. Surprisingly, the 1st Respondent has chosen to remain silent about the manner in which he effected service of the motion upon the Petitioner. Although the Petitioner does not dispute receipt of the Notice herein, it is worth noting that she was served with the said Notice via WhatsApp. The Petitioner contends that the Notice did not have the requisite annexure/attachments and that she had requested for the same from the Clerk via WhatsApp. There is no indication to suggest that service was effected upon her in any other manner whatsoever. Service by means of WhatsApp is outside the means recognized by the law, and would therefore, be bad service. WhatsApp is an instant messaging service, which uses the internet. Its use would therefore, raise questions of proof of delivery, acknowledgement of receipt of service or proof of identity of the intended recipient. Questions of authentication of such service would equally arise. Procedure for service cannot be sacrificed as mere technicalities. Personal service remains the best form of service. Indeed from the evidence before court there is no proof that the Notice in question was served upon the Petitioner together with the annexures/ attachments thereto.

48. The Respondents have actually failed to prove that the Petitioner was served with the Notice together with the annexures/attachments referred to therein. It is not sufficient to merely outline the grounds of removal of a speaker as provided for under Section 11 (2) of the County Government Act but one must also specify requirements or the facts constituting those grounds as provided for under Section 11 (4) of the same Act.

49. The Clerk of 2nd Respondent has denied being in receipt of the Petitioner’s letters dated 27th August, 2021 and 31st August, 2021 respectively. It was his case that the stamps on the said letter were forged and that he has filed a formal complaint with the DCI in West Pokot regarding the forged stamps. From the record it is clear that the issue of the forged stamps was reported to the DCI West Pokot but the findings of the said investigations are not before this court at the moment so as to enable the court make a finding on the same. A keen perusal of the 2nd Respondent’s annexure marked as DK1 being a copy of letter dated 14th September, 2021 from the office of the DCI in West Pokot indicates that Clerk to the County Assembly was to provide original copies of the said letters for purposes of further investigations. There is no indication that the same was done in order to conclude the said investigations.

50. The right to a fair trial encompasses the right to respond to allegations levelled upon a party. The Petitioner’s contention is that at the hearing of her impeachment the Respondents herein, breached her right to a fair trial. That the Respondents had compelled her to respond to each and every subsequent allegation as read out by the respective Members of the County Assembly despite the fact that she had raised concerns about not having been served with the supporting documents to the said motion.

51. It is worth noting that neither of the parties has questioned the authenticity of the Hansard record of the proceedings of the 2nd Respondent annexed by the 1st Respondent as exhibit EPL-3 on 7th September 2021, which sets out the true record of the proceedings in the Assembly which led to the impeachment and removal from office of the Petitioner. The facts set out in the Hansard are therefore proven facts and the court treats them as such in the context of this judgment.

52. From the reading of the proceedings before the 2nd Respondent’s Assembly held on 7th September, 2021 it is clear that the Respondent herein proceeded to impeach the Petitioner even after she had raised numerously objections to the said proceedings. Having found that the Respondent’s herein failed to serve the Petitioner with the evidentiary documents they sought to rely on during the motion, it is crystal clear that requiring her to submit on the same at the hearing of her impeachment was not only unfair but a breach of her fundamental rights and freedoms as envisaged by the Articles 25 (c), 47 (1) & (2), 50 of the Kenyan Constitution and Section 4 of the Fair Administrative Actions Act. Consequently, I find and hold that the Petitioner herein was prejudiced at the hearing of her impeachment motion and as a result the impeachment proceedings against her were irregular and unprocedural.

Whether this court is barred by the doctrine of separation of powers

53. With regard to the doctrine of separation of powers, it is the 2nd Respondent’s contention that the Petitioner in filing this petition is attempting to subvert the doctrine of Separation of powers as contemplated in the Constitution of Kenya 2010. The 2nd Respondent’s case is that by filing this petition, the Petitioner is asking the court to overrule the County Assembly of West Pokot, yet it is the 2nd Respondent’s task and mandate to remove a Speaker, the Petitioner herein. The 2nd Respondent argument is that the Court should not interfere with its internal arrangements governed by the Standing Orders unless there is a violation of the Constitution.

54. Article 1 of the Constitution reposes the sovereign power to the people of Kenya but provides for the delegation of that power to various state organs. These include; Parliament, The County Assemblies, the Executive at the national and County Levels of Government, the Judiciary, independent tribunals and Commissions. To facilitate the proper and effective exercise of that delegated power the Constitution allocates functions, powers and responsibilities to all these organs. While I agree that every state organ should be accorded the space to perform its constitutional mandate without undue interference, Article 2 of the Constitution states that;

“(i) This Constitution is the Supreme law of the Republic and binds all persons and all state organs at both levels of government.

(ii) No person may claim or exercise state authority except as authorised under this Constitution”.

55. This means that no person or state organ is above the law and above the Constitution. All organs created by the Constitution are subordinate to it. Further, Article 10(1) binds all state organs, state officers, public officers and all persons while applying and interpreting the Constitution. Therefore, when any of these organs step outside its area of operation, this Court will not hesitate to intervene. The Supreme Court has ably captured this in Re The Matter of the Interim Independent Electoral Commission Advisory Opinion No. 2 of 2011where it expressed itself as follows;

“The effect of the constitution's detailed provision for the rule of law in the process of governance, is that the legality of executive or administrative actions is to be determined by the courts, which are independent of the executive branch. The essence of separation of powers, in this context, is that the totality of governance- powers is shared out among different organs of government, and that these organs play mutually- countervailing roles. In this set-up, it is to be recognized that none of the several government organs functions in splendid isolation.”

56. The Supreme Court in Speaker of National Assembly v Attorney General and 3 Others (2013) e KLR stated as follows;

“Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of Parliamentary supremacy does not commend itself to nascent democracies such as ours. Where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. If Parliament violates the procedural requirements of the supreme law of the land, it is for the courts of law, not least the Supreme Court to assert the authority and supremacy of the Constitution. It would be different if the procedure in question were not constitutionally mandated. This Court would be averse to questioning Parliamentary procedures that are formulated by the Houses to regulate their internal workings as long as the same do not breach the Constitution. Where however, as in this case, one of the Houses is alleging that the other has violated the Constitution, and moves the Court to make a determination by way of an Advisory Opinion, it would be remiss of the Court to look the other way. Understood in this context therefore, by rendering his Opinion, the Court does not violate the doctrine of separation of powers. It is simply performing its solemn duty under the Constitution and the Supreme Court Act.”

The Court went on to state as follows;

“Whereas all State organs, for instance, the two Chambers of Parliament, are under obligation to discharge their mandates as described or signaled in the Constitution, a time comes such as this, when the prosecution of such mandates raises conflicts touching on the integrity of the Constitution itself. It is our perception that all reading of the Constitution indicates that the ultimate Judge of “right” and “wrong” in such cases, short of a resolution in plebiscite, is only the Courts..”

57. The Court of Appeal also discussed this doctrine in Mumo Matemu vs Trusted Society of Human Rights Alliancewhere it stated as follows;

“It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a per-commitment in our constitutional edifice. However, separation of power 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 constitution democracy as well as accord the executive sufficient latitude to implement legislative intent. Yet as the Respondents concede, the Courts have an interpretive role, including the last word in determining the constitutionality of all governmental actions.”

58. The Court being the only arm of government vested with the power to interpret the Constitution, and to safeguard, protect and promote its provisions has the duty and obligation to intervene in actions of other arms of government and state organs where it is alleged or demonstrated that the Constitution has either been violated or was threatened with violation. The Amended Petition alleges violation of the Constitution and violation of the Petitioner's constitutional rights and freedoms with regard to her removal from office. Being guided by the above cases it is my finding that the doctrine of separation of power does not inhibit this Court's jurisdiction to address the Petitioner's grievances.

Whether the 2nd Respondent decision is protected by dint of the provisions of the County Assemblies Powers and Privileges Act

59. It was the 2nd Respondent’s contention that, owing to the fact that Section 17 of the County Government Act provides that the powers and privileges of the Parliament shall apply with necessary modifications and that further by dint of Section 12 of the National Assembly (Powers and Privileges) Act which provides that no proceedings or decision of the Assembly or Committee of Privileges acting in accordance with this Act shall be questioned in any Court can only mean that the decision arrived at by the members of the 2nd Respondent in impeaching the Petitioner on 7th September 2021, should be allowed to stand as interfering with the same will be tantamount to flouting the provisions of the National Assembly (Powers and Privileges Act)

60. It is worth noting that with the enactment of the County Assemblies Powers and Privileges Act No. 6 of 2017, Section 17 of the County Government Act has since been deleted.

61. Part III of the County Assemblies Powers and Privileges Act, provides for the privileges and immunities of members. Section 8, 10 and 11 of the said Act provide that;

Section 8 Freedom of speech and debate

No civil or criminal proceedings may be instituted in any court or tribunal against a member of a county assembly by reason of any matter said in any debate, petition, motion or other proceedings of a county assembly.

Section 10 Proceedings not to be questioned in courts

No proceedings or decision of a county assembly or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court.

Section 11 Immunity from legal proceedings

1) No civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to a county assembly or a Committee, or by reason of any matter or thing brought by him or her therein by a report, petition, Bill, resolution, motion or other document written to a county assembly.

2) No civil suit shall be commenced against the Speaker, the leader of the majority party, the leader of the minority party, a chairperson of a committees or any member for any act done or ordered by them in the discharge of the functions of their office

3) The Clerk or other members of staff shall not be liable to be sued in a civil court or joined in any civil proceedings for an act done or ordered to be done in the discharge of their functions relating to proceedings of a county assembly or its committees.

62. From the above provisions it is clear that County Assemblies just like the Senate and the National Assembly hold, exercise and enjoy privileges, immunities and powers bestowed on them, their members and officers in terms of the provisions of the County Assemblies Powers and Privileges Act. While appreciating that privileges, immunities and powers such as those provided for by the County Assemblies Powers and Privileges Act are essential for the proper governance and protection of County Assemblies because they need them for the control of its internal procedures and for complete freedom of expression in their deliberations inside the Assemblies, the Court has constitutional mandate to interfere with such powers whenever necessary.

63. In the case of Doctors for Life International vs Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11; 2006 (912) BCLR 1399 (CC); 2006(6) SA 416 (CC)the court emphasized that;

“What should be made clear is that when it is appropriate to do so, courts may – and if need be must – use their powers to make orders that affect the legislative process. Therefore, while the doctrine of separation of powers is an important one in our constitutional democracy, it cannot be used to avoid the obligation of a court to prevent the violation of a Constitution. The right and the duty of this Court to protect the Constitution are derived from the Constitution, and this Court cannot shirk from that duty. As O’Regan J explained in a recent minority judgment, “the legitimacy of an order made by the court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution.” In order for the founding values that lie at the heart of our Constitution to be made concrete, it is particularly important for this Court to afford a remedy, which is not only effective, but which should also be seen to be effective. The provision of section 172(1) (a) are clear, and they admit of no ambiguity; “[w]hen.........”

64. The Supreme Court in the case of Speaker of the National Assembly vs Attorney General and 3 Others (2013) eKLRstated thus;

“Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of Parliamentary supremacy does not commend itself to nascent democracies such as ours. Where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. If Parliament violates the procedural requirements of the supreme law of the land, it is for the courts of law, not least the Supreme Court, to assert the authority and supremacy of the Constitution. It would be different if the procedure in question were not constitutionally mandated. This Court would be averse to questioning Parliamentary procedures that are formulated by the Houses to regulate their internal workings as long as the same do not breach the Constitution. Where however, as in this case, one of the Houses is alleging that the other has violated the Constitution, and moves the Court to make a determination by way of an Advisory Opinion, it would be remiss of the Court to look the other way. Understood in this context therefore, by rendering its opinion, the Court does not violate the doctrine of separation of powers. It is simply performing its solemn duty under the Constitution and the Supreme Court Act.”

The court concluded;

“Whereas all State organs, for instance, the two Chambers of Parliament, are under obligation to discharge their mandates as described or signaled in the Constitution, a time comes such as this, when the prosecution of such mandates raises conflicts touching on the integrity of the Constitution itself. It is our perception that all reading of the Constitution indicates that the ultimate judge of “right” and “wrong” in such cases, short of a resolution in plebiscite, is only the Courts.”

65. From the pleadings before court, it is clear that the resolution to impeach the Petitioner was made within the proceedings of the County Assembly West Pokot. However, I am aware that should any given County Assembly violate the Constitution and the law in the course of its proceedings it falls upon the Judiciary to say so and to pronounce such violation. The Court cannot ignore any breaches of the Constitution in favour of parliamentary privilege. The Constitution is the Supreme law of the land and it binds all persons and all state organs at both levels of government. It is therefore important to remember that even though County Assemblies have powers to impeach a Speaker, it must function within the limits prescribed by the Constitution. Courts being guardians of the Constitution have a duty to always ensure that the doctrine parliamentary privilege is not abused. SeeMartin Nyaga Wambora & 4 Others vs Speaker of the Senate & 6 others 2014] eKLR

Whether the Petitioner’s petition was pleaded with reasonable precision as per the required standard in Constitutional Petitions;

66. The 2nd Respondent has argued that the Petitioner has failed to plead her case with reasonable precision to enable the court grant the reliefs sought and that they had also failed to state the alleged violations of the Constitution.

67. The rule that a constitutional petition ought to state clearly the alleged violation and relief sought was stated in the case of Anarita Karimi Njeru v Republic (1976-1980) KLR 154where the court stated at Page 156 of the Judgment that:

“We would however again stress that if a person is seeking redress from the High Court or an order which invokes a reference to the Constitution, it is important (if only to ensure that Justice is done in his case) that he should set out with reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”

Similarly, the Court of Appeal emphasized on the importance of this rule in the Mumo Matemu Case(supra)when the Court observed as follows;

We cannot but emphasize the importance of precise claims in due process, substantive Justice, and the exercise of Jurisdiction by a court. In essence, due process, substantive Justice and the exercise of Jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the Judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.

The Court went on to state that;

“However, our analysis cannot end at that level of generality. It was High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi NJeru(supra) underscores the importance of defining the dispute to be decided by the court. in our view, it is a misconception to claim as it has been in

recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the constitution and the overriding obJective principle under section 1A and 1B of the Civil Procedure Act(Cap 21) and

section 3A and 3B of the appellate Jurisdiction act (cap 9). Procedure is also a handmaiden of Just determination of cases. Cases cannot be dealt with Justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive Justice, as they give fair notice to the other party. The principle in Anarita Karimi NJeru(supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.

68. For a Petition to be competent, the manner in which it is presented must comply with the provisions of Rule 10 of the Mutunga Rules. This rule provides that;

10(1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.

(2) The petition shall disclose the following— (a) the petitioner’s name and address; (b) the facts relied upon;

(c) the constitutional provision violated;

(d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted

the suit; or in a public interest case to the public, of persons or community;

(e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;

(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and

(g) the relief sought by the petitioner.

69. The Amended Petition before the Court refers to Articles 2,19, 20, 22 (1) & (2), 23, 47, 159 (2) (a), 258 and 259 of the Constitution in its title and the same are also reproduced in its legal foundations. At paragraphs 52 to 57 the Petitioner states the facts in support of the Petition and also provided the particulars for alleged violations and the manner in which the Constitution was violated. The Petitioner has also stated the reliefs sought. From the foregoing it is clear that, the Amended Petition has provided sufficient particulars to support the alleged violations of the constitution that would enable the court make a determination of whether or not to grant the reliefs sought. It is therefore my finding that the Amended Petition has met the threshold required under Rule 10 of the Mutunga Rules.

Whether the Petitioner is entitled to the reliefs sought.

70. The process for the removal of the Petitioner from office did not accord her the right to fair administrative action and the right to fair hearing as the Petitioner was not served with the evidentiary documents that the Respondents were relying on during the impeachment proceedings so as to enable her file her defence to the serious charges levelled against her. Further, the Petitioner sought for adjournment of the said proceedings on grounds that she had not been served with the said evidentiary documents but the same was denied, breaching of the Petitioner’s right to fair administrative action and fair hearing under Articles 47 & 50 of the Constitution.

71. Article 23 (3) of the Constitution provides that in any proceedings brought under Article 22, a Court may grant appropriate relief, which includes but is not limited to declaration of rights, injunction, conservatory order, a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24, an order for compensation; and an order of Judicial review.

72. The Petitioner sought damages for the violation of her constitutional rights. The principles applicable to award of damages for constitutional violations under the Constitution were exhaustively discussed by the Privy Council in the famous case of Siewchand Ramanoop vs The AG of T&T, PC Appeal No. 13 of 2004 wherein it was held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense.

Per Lord Nicholls at Paragraphs 18 & 19:

“When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and deter further breaches.

All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.”

73. Supreme Court of Canada established a consideration on when a remedy in a Constitutional violation case is “just and appropriate” in Doucet-Boudreau vs Nova Scotia (Minister of Education), 2003 SCC 62 to include, a remedy that will:

(1) meaningfully vindicate the rights and freedoms of the claimants;

(2) employ means that are legitimate within the framework of our constitutional democracy;

(3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and

4) be fair to the party against whom the order is made

74. Being guided by the above case law, I find that the justice of this case does not favour the granting of an award of damages for the breach of constitutional rights and that a declaration of violation of rights would be the appropriate remedy in the circumstances of this case.

75. Accordingly, I enter judgement in favour of the Petitioner as follows;

1)A declaration is hereby issued that the impeachment proceedings and the resultant resolution reached of 7th September, 2021 by the Respondents against the Petitioner violates Articles 10, 25, 47 and 50 of the constitution, section 4 of the Fair Administrative Action Act, 2015 and Section 11 of the County Government Act, 2012 as amended by Section 7 of the County Governments (Amendment) Act No. 11 of 2020.

2)A declaration is hereby issued that the impeachment proceedings and the resultant resolution for the removal of the Petitioner from the position of speaker of West Pokot County Assembly are null and void for contravening the provisions of the Constitution and the County Government Act, 2012 and the Fair Administrative Actions Act.

3)An Order of Certiorari be and is hereby issued to bring into this Court for the purposes of quashing theunlawful impeachment proceedings against the Petitioner by the Respondents and any resolution and decision resulting therefrom.

4)Costs of the suit be borne by the Respondents.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 15TH OF MARCH 2022.

E. K. OGOLA

JUDGE