[2022] KEHC 15329 (KLR)

Council of Governors & another v Director of Public Prosecutions & 5 others; Law Society of Kenya & another (Interested Parties) (Petition E 312 of 2020 & 38 of 2019 (Consolidated)) [2022] KEHC 15329 (KLR) (Constitutional and Human Rights) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 15329 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E 312 of 2020 & 38 of 2019 (Consolidated)

GL Nzioka, J Wakiaga & EN Maina, JJ

May 6, 2022

Between

Council of Governors

1st Petitioner

Mike Sonko Mbuvi Gidion Kioko

2nd Petitioner

and

Director of Public Prosecutions

1st Respondent

Ethics and Anti-Corruption Commission

2nd Respondent

Speaker Nairobi City County Assembly

3rd Respondent

Inspector General of the National Police Service

4th Respondent

Chief Magistrate, Nairobi Anti-Corruption Court, (Hon. D.N. Ogoti)

5th Respondent

Attorney General

6th Respondent

and

Law Society of Kenya

Interested Party

Senate of Kenya

Interested Party

Judgment

Introduction 1. The 1st Petitioner is a statutory body established under section 19 of the Intergovernmental Relations Act, 2012, consisting of Governors of the Forty-seven (47) Counties, whose functions are set out under section 20 of the Act.

2. The 2nd Petitioner was at the time of filing his petition the Governor of Nairobi City County.

3. The 1st Respondent is a constitutional office established by; Article 157 (1) of theConstitution of Kenya, (herein 'theConstitution'), and the Office of the Director of Public Prosecutions Act 2013, whose mandate is set out under Article 157 (6) of theConstitution.

4. The 2nd Respondent is an Independent Commission established under Article 79 of theConstitution and section 3 of the Ethics and Anti-Corruption Commission Act, No 22 of 2011, whose mandate is stipulated under Article 252, Schedule 6 to theConstitution and section 11 and 13 of Ethics and Anti-Corruption Commission Act, No 22 of 2011.

5. The 3rd Respondent is a constitutional office established under Article 245(1) and (2) of theConstitution and section 9 of the National Police Service Act, 2011 and whose functions and powers are set out under section 10 of the Act.

6. The 4th Respondent is a public office established under Article 156(1) of theConstitution and whose mandate are provided for under Article 156(6) of theConstitution.

7. The 5th Respondent is an ex-officio member of the Nairobi City County Assembly elected under Article 178 of theConstitution.

8. The 6th Respondent is the Chief Magistrate, in charge of the Anti-Corruption Court at Nairobi.

9. The 1st Interested Party is established under section 3 of the Law Society of Kenya Act, 2014 with its mandate stipulated under section 4 of the Act.

10. The 2nd Interested Party is established under Article 93(1) of theConstitution with its function provided for under Article 96 of theConstitution.

The Petitioners Case 11. The Petition No E 312 of 2020 (herein 'the 1st petition') dated; October 2, 2020, was presented before court on; October 5, 2020 whereas the Petition No 38 of 2019 (herein 'the 2nd petition') dated; December 17, 2019, was presented before court on; December 19, 2019. Subsequently, by the consent of the parties, the petitions were consolidated on; April 13, 2021, with the 1st petition being the lead matter.

12. The 1st petition was supported by the affidavit sworn on, the October 2, 2020, its then chairperson; Wycliffe Oparanya. He averred that, there is a trend where Governors, inter alai; Governors of; Samburu, Migori, Garissa, Nairobi and Kiambu, who have been charged with corruption and economic crime offences, have been targeted for constructive removal from office through bond terms, which require them, inter alia, to step aside and bars them from accessing their offices indefinitely.

13. That, the bond terms restricting the Governors from accessing their offices are based on the grounds that; the office is a crime scene and that, they will interfere with investigations, evidence and intimidate witnesses, who are their subordinates. That, these bond terms are highly pre-judicial against the Governors and contravenes the doctrine of the presumption of innocence until proven guilty, which is the bedrock principle in the law of crime.

14. That a crime scene is protected for purposes of collecting evidence and ceases to be of interest thereafter. Therefore, at the time of charging a Governor in Court, the 1st Respondent should have collected and protected sufficient evidence. Further, if 1st Respondent is apprehensive that the Governor(s) will tamper with crucial witnesses, the witnesses should be put under witness protection programme, as provided for under, the Witness Protection Act (Cap 79) of the Laws of Kenya. That, even then, economic crimes are complex, multifaceted and involve numerous players in and out of the country and cannot be restricted to the scene of crime.

15. It was further averred that, it is not clear whether the order to bar a Governor from the accessing the office is only tied to the physical office at the County Government Headquarters or it covers all County Government Offices in the Sub-counties and County wards or it is intended to prevent him from execution of his functions. That, the lack of clarity on these issues, has created confusion in some County Governments where officers reporting directly to the Governor are unsure about the reporting structure. Similarly, lack of clarity on the duration of staying out of office and timelines for a criminal trial has created an indefinite scenario amounting to constructive removal. Yet, there is a specific process for removal of Governor, under Article 181 (2) of theConstitution.

16. That, section 62(1) of Anti-Corruption and Economic Crimes Act, (ACECA), provides for suspension of a public officer including; Members of Parliament, Members of County Assembly (MCAs), and Governors charged with corruption. However, it is only when the Governors are charged in court, that the 1st Respondent seeks for the stepping order. Yet, these others play a key role in the management of National Government Constituency Development Funds.

17. The 1st Petitioner argued that no criminal case can be levelled against the Governor in his capacity as the Chief Executive Officer (CEO) unless there is personal culpability which must be apparent from the facts of the case or charge sheet in accordance with the dictates of Article 226 (5) of theConstitution. That, the concept of Chief Executive Officer in the context of Article 179 (7) of theConstitution is a political leadership and accountability issue that arises from Presidential systems of Government in Kenya, at the county and national level.

18. The 1st petitioner cited the case of; the Governor of Garissa where the 1st Respondent has illegally, illegitimately and unconstitutionally charged the Governor with wilful failure to comply with law on public finance, citing the provision of; section 30 of the County Government Act, by the mere fact that, he is the Chief Executive Officer of the County, yet that section does not create an offence at all.

19. Further, it was deposed that the law relating to public finance management is the Public Finance Management Act, 2012, (PFM) that establishes the office of; County Executive Committee Member for Finance, Accounting Officers and outlines specific responsibilities or functions of these persons in the value chain as well providing for individual liability when there is breach of the law.

20. The 1st Petitioner thus seeks the following orders: -a.A declaration that within the meaning of Article 157 of theConstitution as conjunctively read with the entire provisions of Article 50 of theConstitution, Article 226 (5) of theConstitution and Article 10 of theConstitution -it is unconstitutional for the Director of Public Prosecution to prefer a charge against an accused person that is based on collective criminal responsibility.b.A declaration that the Ethics & Anti-corruption Commission, National Police Service and Director of Public Prosecutions -have no constitutional or statutory powers to bar governors from holding office in any manner whatsoever.c.A declaration that the Ethics & Anti-corruption Commission, National Police Service and Director of Public Prosecutions -have no constitutional or statutory powers to authorise governors to access office(s).d.A declaration that the decision of Ethics & Anti-corruption Commission, National Police Service and Director of Public Prosecutions to seek to bar governors from office when they face criminal offenses and not seeking the same prohibition against other elected leaders such as Members of Parliament is a violation of Article 27 (1) of theConstitution that guarantees every person equal protection, and benefit of the law.e.A declaration that in the absence of a supporting legislation or an amendment of theConstitution, a magistrate, and judge of the High Court have no constitutional powers to bar a governor from holding office in any manner whatsoever.f.A declaration that the statements by the Ethics & Anti-Corruption Commission, National Police Service and Director of Public Prosecutions that Governors who have been charged with a criminal offense should be barred from office during the pendency of the criminal trial on the grounds that they are likely to commit more crimes -is an express violation of Article 50 (2) (a) of theConstitution that guarantees every accused person of the presumption of innocence until proven guilty.g.A declaration that requiring the governor who has been charged with an offense not to access office during the duration of the trial amounts to constructive removal from office when the trial is conducted indefinitely- and a breach of Article 181 of theConstitution.h.A declaration that requiring the governor who has been charged with an offense not to access office during the duration of the trial which is done indefinitely-is an unreasonable breach of the right of the governor to hold office as provided for in Article (38) (3) (c) of theConstitution.i.A declaration that within the meaning of Section 62 (1) of Anti-Corruption and Economic Crimes Act as read with section 62 (6) of Anti-Corruption and Economic Crimes Act and resonating the intention of Article 181 of theConstitution, an elected Governor cannot be constructively removed from office through the imposition of bail terms without the existence of a legislation enacted under Article 181 (2) of theConstitution that provides the grounds, procedures, and timelines of such removal as well as resumption of office.j.A declaration that requiring a governor who has been charged with an offense not to access office during the duration of the trial without the existence of a legislation that is required under Article 24 (1) of theConstitution -which legislation is meant to provide the extent of the limitation of the right vested to the Governor by Article (38) (3) (c) of theConstitution-is unconstitutional.k.A declaration that the entire contents of the Magistrate Court Act 2015, and Article 165 of theConstitution, does not empower a magistrate and a High Court judge to make laws to fill the apparent gaps in the implementation of Article 181 (2) and Article (38) (3) (c) of theConstitution, either through bail conditions or in any manner whatsoever.l.A declaration that in the absence of a legislation enacted by Parliament, only the Supreme Court of the Republic of Kenya can make laws under Article 163 (6) of theConstitution and the Supreme Court Act, 2011 by way of guidelines to file the gaps apparent in the implementation and application of Article 181 (2) of theConstitution and Article (38) (3) (c) of theConstitution as read with Article 24 (1) of theConstitution.m.A permanent injunction be issued to restrain any magistrate in Kenya from making orders that prohibit governors from accessing office when charged with a criminal offense -until a legislation is enactment by Parliament pursuant to the provisions of Article 181 (2) of theConstitution and Article (38) (3) ( c) of theConstitution as read with Article 24 (1) of theConstitution or until the Supreme Court issues guidelines to fill the gaps apparent in the implementation and application of Article 181 (2) and Article (38) (3) ( c) of theConstitution.n.A permanent injunction be issued to restrain the Ethics & Anti-Corruption Commission, National Police Service and Director of Public Prosecutions from making any application before any judge or magistrate to seek the prohibition of Governors from holding office -until a legislation is enactment by Parliament pursuant to the provisions of Article 181 (2) of theConstitution and Article (38) (3) ( c) of theConstitution as read with Article 24 (1) of theConstitution or until the Supreme Court issues guidelines to fill the gaps apparent in the implementation and application of Article 181 (2) and Article (38) (3) ( c) of theConstitutiono.The Respondents to bear the costs of the Petition.

21. The 2nd petition was supported by the 2nd Petitioner’s affidavit of the even date and a supplementary affidavit sworn on; May 12, 2021. He averred that, on December 6, 2019, he was travelling to Mombasa County, when he was arrested near Voi by a contingent of over 100 Police Officers armed with high caliber weapons. That. the officer did not identify themselves, despite his request.

22. That, he sought to speak to the Police Officer in charge of the operation but a commotion broke out between his bodyguards, and the officers. That, In the ensuing melee, he was bundled out of his car into a waiting police car, and driven to Voi airstrip, marooned by 20-armed Police Officers. Further, in a bid to forcefully board him in the waiting Helicopter, the Police Officers indiscriminately slapped him on the cheek, kicked, punched him near the heart, shoved him, tore his T-shirt, and tugged him until he lost one of his shoes.

23. He avers that, the senior police officer ordered the other officers to handcuff him and shockingly, he was handcuffed with two handcuffs and bundled into the waiting Helicopter and then flown to Wilson airport where he was bundled into a waiting police car and speedily driven to Integrity Centre Police Station, which had been cordoned off by Anti-riot armed vehicles and Police armed with high caliber military grade weapons.

24. That, he was informed by the Officer in Charge of the Station (OCS), at Integrity Centre; Mrs. Esther Gatheru, that she was under strict instruction from the 1st and 2nd Respondents to detain him over the weekend, before being taken to court on Monday, December 9, 2019 and that, she was to deny him police bond, which she did.

25. He avers that, he was held incommunicado for four (4) hours before he was given access to his lawyers and after being allowed to confer with his lawyers, they were not given a facility to sit in. That, the only room made available was fitted with surveillance cameras, which would have compromised his right to privacy. As such, he was forced them to stand in an open space. That, as a result and due to the physical attacks upon him during his arrest, his blood pressure rose to alarming levels during his detention but his plea to the OCS to permit him access medical attention was denied.

26. That, on December 7, 2019, his advocates renewed the application for his release on police bail or bond, to enable him join his family, take him for medical treatment but the request was declined. That, on the same day at night, his blood pressure rose to alarming levels and was attended to by a medic from MP Shah, who indicated that, he required immediate medical attention, as he might have suffered fractured ribs. On December 8, 2019, he once again sought to be released on police bail or bond but it was denied.

27. He further deposed that, on December 9, 2019, he was handcuffed, bundled into a waiting van and taken to Milimani Law Court where he took plea in; Anti-Corruption Case No 31 and 32 of 2019, on allegations of corruption. That, he applied to be admitted to bail or bond but the 1st Respondent opposed it through an affidavit sworn by Simon Cherpka.

28. That, the reasons advanced by the 1st Respondent in opposing grant of bond, that there would be a possible breach of security in the event that, he accessed his office or any other office in the seventeen (17) Sub counties, on the ground that the entire Nairobi City County was a scene of crime, is irrational and unreasonable, an abuse of the court process, and a violation of Article 157(11) of theConstitution.

29. That, on December 11, 2019, the trial court delivered the ruling on bail and bond and granted him bond of; Kshs 30 million with one surety of a similar amount or an alternative a cash bail of; Kshs 15 million. That, the court further stated that, by virtue of the pronouncements by; Ngugi J and Ngenye J, he would be and was further barred from accessing his office. That, if he needed to access his office, he was to be escorted by the Investigating officer of the case or any other authorized officer, to enable him gain access and pick his belongings.

30. That, he was further ordered to ensure that his supporters did not cause a disruption in any known legal proceedings or disturb peace in any form. Further, he was to deposit his passport and/or travel documents in court and was barred from communicating or approaching any witness either by himself or a proxy in any manner. He avers that, the order by the court barring him from his office created an unwarranted and unconstitutional scenario of a vacancy in the office of the Nairobi City County Governor.

31. The 2nd Petitioner further deposed that, the 1st Respondent abused the legal process by mounting trumped up charges against him in; ACC No 31 of 2019 and ACC No 32 of 2019, as the 1st Respondent was aware that, he had lodged a case; High Court ACEC Petition No 34 of 2019, challenging the same charges, and which was scheduled for hearing on, December 9, 2019.

32. The 2nd Petitioner further averred that, the ex parte order issued in the Nairobi Chief Magistrates Court Miscellaneous Criminal Case No 187 of 2018, allowing the 2nd Respondent to access his bank accounts for purposes of mounting a criminal case, impinge upon his right to privacy under Article 31 of theConstitution.

33. The 2nd Petitioner thus seeks the following orders: -a.A declaration do issue that in their arrest of the Petitioner herein on December 6, 2019 instigated by the 1st and executed by the 2nd Respondents and officers serving under the 2nd Respondent violated Section 9 of the Public Officers Ethics Act, and the said arrest thereby became an unlawful process.b.A declaration do issue that in investigating the bank accounts of the Petitioner with:a.Equity Bank Limited, account Number xxxx, Fourways Branch;b.Equity Bank Limited, Account Number xxxx, Kwale Branch;c.Equity Bank Limited, Account Number xxxx, Kenyatta Avenue Branch;d.Equity Bank Limited, Account Number xxxx Nyali Branch Mombasa, without any form of prior communication to the Petitioner that such investigations were ongoing, and without any form of consent granted to the 1st Respondent to so do, the 1st Respondent violated the Right to Privacy guaranteed to the Petitioner by operation of; Article 31 of theConstitution of Kenya.c.A declaration do issue that the 1st Respondent's declaration of the entire Nairobi City County to be a 'scene of crime' in Nairobi Anti-Corruption Case No 31 of 2019 and 32 of 2019 without designation of any specific office in the 17 sub-counties that constitute Nairobi City County to be such a scene of crime for the purposes of the said cases is unlawful, and constitutes an abuse of Court process.d.A declaration do issue that in the 6th Respondent barring the Petitioner from accessing the Nairobi City County offices as a condition precedent to the Petitioner's admission to, and sustenance of his bail is ultra vires the powers of the 6th Respondent, is unconstitutional and in violating the Petitioner's right to Presumption of Innocence, and amounts to a constructive removal from the elected office of Nairobi City County Governor of the Petitioner.e.A declaration do issue that the employ of 2 handcuffs by the arresting band of Police officers under the 2nd Respondent herein against the Petitioner as at the time of the Petitioner's arrest on December 6, 2019 was excessive, uncalled for, unlawful, and even unprecedented.f.A declaration do issue that absent a final decision of an Electoral Court upon exhaustion of all appeal processes thereby, or a removal of office of the Petitioner as the Nairobi City County Governor within the procedures contemplated in Article 181 of theConstitution, the mounting and judicial process in Anti-Corruption Case No 31 of 2019 and 32 of 2019 do not constitute an event of removal from office of the Petitioner as the governor of Nairobi City County.g.A declaration do issue that the mounting of a judicial process in an anti­corruption court such as Anti-Corruption Case No 31 of 2019 and 32 of 2019 does not, and did not amount to a removal of office of the Petition as such Governor nor did it create a vacancy in the office of the Governor of Nairobi City County.h.A declaration do issue that in mounting Anti-Corruption Case Number 31 of 2019 and 32 of 2019 the 1st Respondent was actuated by bad faith and malice and the same constitute an abuse of Court process.i.A declaration do issue that Section 62(6) of the Anti-Corruption Economic Crimes Act as read with Article 181 and 182 of theConstitution of Kenya prohibited the 6th Respondent, (the Chief Magistrate presiding over ACCM 31 of 201 9 and ACCM 32 of 2019) from barring the Petitioner from accessing the office of the Nairobi City County Governor, to which extent the said decision and Order constituting a precondition to admission to the Petitioner's bail within the stated cases is ultra vires and unconstitutional.j.An Order forthwith terminating the Ethics and Anti-Corruption Case No 31 of 2019 and 32 of 2019 so far as it relates to the 1st Respondent, for having been mounted by the 1st Respondent against the Petitioner in breach of Article 157(11) of theConstitution.k.An Order do issue that in ordering the Petitioner to be escorted to the Nairobi City County offices to remove his personal belongings therefrom as a condition for the Petitioner's admission to bail in Anti-Corruption Case No 21 (sic) 31 of 2019 and 32 of 2019 was ultra vires the powers of the 3rd Respondent under both the Magistrates Court Act and the Ethics and Anti-Corruption Act, and constitutes an unconstitutional and unlawful order.l.An Order setting aside paragraph 6 of the Order of the 6th Respondent, Hon DN Ogoti, in Nairobi Chief Magistrate Anti-Corruption Court Case Number 31 of 2019 and 32 of 2019 demanding that the Petitioner be escorted to the Nairobi City County offices to remove his personal belongings therefrom, yet the Petitioner is the incumbent serving Governor of Nairobi City County and has a Constitutional right to access the said office.m.An Order be issued barring the Nairobi City County Assembly Speaker from assuming, taking over, or otherwise occupying the office of the Nairobi City County Govern or by alleged reason of the Petitioner being charged under Nairobi Anti-Corruption Case No 31 of 2019 and Nairobi Anti-Corruption Case 32 of 2019, as no vacancy has Constitutionally arisen in the elected post of Nairobi City County Governor.n.A declaration do issue that the arrest without summoning the Petitioner in any manner on December 6, 2019 was a breach of Section 52 of the Kenya Police Force Act and a violation of the Principle of Rule of Law, absent a written Summons to the extent that such an act deprived the Petitioner his Right to documented information in the event of future actions.o.An Award of general damages, exemplary damages, and aggravated damages pursuant to Article 23(3) of theConstitution for injuries suffered due to unlawful arrest, detention, prosecution, and for the unconstitutional conduct of the 1st, 2nd and 6th Respondents, explicated herein:a.Violation of the Petitioner's right to privacy of the invasion of his bank accounts by the 1st and officers of 2nd Respondents acting at the behest of the 1st Respondent;b.Violation of the Petitioner's right to dignity and due process during the time of his arrest by the agents of the 2nd Respondent at the behest of the 1st Respondent on December 6, 2019 resulting in his detention on the December 7, 2019 and December 8, 2019;c.Violation by the officers of the 2nd Respondent of the Petitioner' s right to be informed of the reason(s) for his arrest when they violently arrested him on December 6, 2019;d.Violation by the 5th Respondent of the Petitioner's right to the presumption of innocence in Nairobi ACCM 31 of 2019 and Nairobi ACCM 32 of 2019. p)An order of Certiorari do issue pursuant to Article 23(3) of theConstitution, to remove to this Honourable Court for purposes of being quashed, and to quash, Paragraph 6/Order Number 6 of the Ruling and decision of the 6th Respondent contained in the 6th Respondent's Ruling dated December 11, 2019 in the consolidated Nairobi Anti-Corruption CM Case No 31 of 2019 and Nairobi Anti-Corruption CM Case No 32 of 2019. q)Any other order as may be expedient to issue in the circumstancer)Costs of, and incidental to these proceedings.

Respondents’ Case 34. However, the 1st petition was opposed by the 1st Respondent and 3rd Respondents, through a preliminary objection dated, October 13, 2020, on grounds that: -a.The Petitioner applicant has no basis in presenting the petition considering that no proceedings have been initiated against the Council of Governors by the 1st, 2nd and 3rd Respondents.b.The Council of Governors has no locus to present the Petition.c.This court lacks jurisdiction to entertain the Petition on the issue of whether or not Governors charged with Criminal offences should step aside since the matter has been litigated in the High Court, Court of Appeal and its currently pending before the Supreme Court thus this Petition should be dismissed in limine.d.The respective Governors who have been charged in court and ordered to step aside have been so charged in their personal but not collegial c a p a c i t y and thus the Petitioner cannot litigate on their behalf.e.The prayer for injunctive relief against the Respondents cannot be issued as it would be tantamount to this court crippling the constitutional and statutory mandate of the Respondents contrary to the doctrine of separation of power.f.The Governors who have so far been charged have had the issue of stepping aside canvassed fully and decisions made thereon therefore the issue is now moot before this court.g.The Petition by the Petitioner is anticipatory in nature and the Petitioner seeks to obtain futuristic orders so as to cushion the seating Governors who harbor the fear of investigation and/or charging.

35. The 1st and 3rd Respondent also, filed a replying affidavit dated; October 13, 2020, sworn by Njoki Kihara, a Prosecution Counsel wherein she deposed that, the stepping aside order was not akin to removal of office, either directly or constructively nor did it defeat the social contract theory.

36. That, the grant of bail by courts in Kenya, would usually have reasonable conditions imposed and where a party is aggrieved by such the terms they can seek redress by way of revision or appeal. Therefore, the condition of not accessing office, did not amount to removal, as the process of removal of a Governor is clearly spelt out under Article 181 of theConstitution.

37. It was further averred that, the order not to access office was meant to safeguard the interest of justice by protecting witnesses from the risk of intimidation or any other form of interference. Therefore, the contention by the 1st Petitioner that, crucial witnesses should be placed under witness protection seeks to curtail the witnesses’ liberty in contravention of; Article 24 of theConstitution.

38. Further, the State will have to bear the burden or expenses of placing witnesses in witness protection scheme every time a Governor is charged with economic offences, implying that, Governors do not uphold the principle of safeguarding public funds, as provided for under Article 20 of theConstitution.

39. That, stepping aside orders did not create a vacuum, paralysis or confusion in performance of County Government functions since Article 179(5) of theConstitution provides that a Deputy Governor can act as the Governor. That, in any event, the situations where Governors, such as; Nyeri and Bomet Counties, were away from office for long period of time and the Counties continued to function without a hitch.

40. Further, in view of the admission by the 1st Petitioner that, Governors are entitled to a house in which they can conduct county business, the court’s intervention to allow them back to the offices is without merit. Furthermore, there have been no instances where both the Governor and Deputy Governor are facing criminal charges and therefore the issue is not ripe for determination.

41. That, the order for stepping aside did not affect the Governors’ presumption of innocence neither did it amount to a finding of guilty or a conviction of the Governor, as the Governors charged are subjected to the same trial process as any other public officers.

42. The Respondent stated, the interpretation sought by the 1st Petitioner on the term 'office' and 'crime scene' and /or where a crime maybe committed within a county, do not warrant the determination by this court as they are not constitutional issues. Furthermore, this court cannot entertain the 1st Petitioner’s prayer seeking for the interpretation of the order barring Governors from accessing office, on the ground of alleged ambiguity.

43. The 1st Respondent argued that, its decision on who to prosecute is decided on its own merit and on a case to case basis. That there is no evidence that, the 1st Respondent, exceeded its constitutional power, in that regard. That, Governors do not enjoy immunity from prosecution as Article 39 of theConstitution does not confer any class rights to Governors to hold office.

44. The Respondents argued that, it is possible to hear cases of economic crimes on a day to day basis and conclude them expeditiously, as in the case of; R v John Kayi Waluke and Grace Sarapay Wakhungu Milimani Chief Magistrate Court ACC No 31 of 2018 which was concluded in two (2) years. The Respondents further argued that for the war on corruption to be won, the law has to be applied uniformly to all persons charged. That, even then, Governors remain in office irrespective of the criminal charges and continue to enjoy full pay and other benefits.

45. The Respondents further argued that, section 62(6) discriminates against public officers and should be declared unconstitutional as it offends chapter 6 of theConstitution as read with Article 10. That, if this court should uphold the 1st Petition, any statute which cushions certain officers should be declared unconstitutional.

46. It was averred the 1st petition seeks to suspend the operation of theConstitution in respect of the enforcement of Chapter 6, in order to await the enactment of an act of Parliament but the absence of legislation cannot defeat theConstitution, the supreme law. Further, the absence of guidelines from the Supreme Court of Kenya, to address gaps in Articles 181(2), 38(3)(c) and 24(1) of theConstitution cannot be the basis of suspending the operation of; Articles 10, 73 and Chapter 6 of the Constitution.

47. That, the 1st Petitioner should canvass in the trial court the issue as to whether a Governor facing criminal charges relating to public procurement should step aside. In that regard, issues raised in relation to the Governor of; Garissa County should be raised at the trial court and that the matters of that Governor should not be disguised as constitutional issues. Further, the 1st Petitioner is canvassing issues on behalf of Governors without their consent and therefore the 1st Petitioner is acting on its own.

48. That, Governors are not officious by standers on management of county funds and resources, as section 30(3)(f) of the County Government Act, 2012, provides that, Governors shall be accountable for management and use of County resources. Therefore, the accusations that the 1st Respondent is abusing its power for political expediency and that, the war on corruption has been weaponized against specific targets, is unfounded and calculated to besmirch its character.

49. In response to the 1st Petitioner prayer that, the 1st Respondent be barred from making any application barring the Governors from accessing their office was termed as untenable as any application by the 1st Respondent against Governors made during the hearing of bail applications was purely intended to uphold the law. Therefore, the contention that Governors are subjected to uncoordinated and inconsistent application of the law, is not correct. Finally, tit was argued that, the 1st Respondent cannot influence the decision of the trial court, and if the aggrieved party feels that they cannot get justice, then they can apply to the court to disqualify itself from hearing any particular matter.

50. The 1st Respondent also opposed the 2nd petition vide a replying affidavit dated; April 26, 2021. sworn by a learned Prosecution Counsel; Ms Judy Thuguri. She deposed that, the petition contains mere allegations, lacks specificity and does not raise any serious question of law or fact.

51. That, pursuant to the provisions of; Article 157(6) and (10) of Constitution, the 1st Respondent is mandated to institute and prosecute criminal cases and make the decision to charge independently without any influence or control or consent of any person, body or authority. Further, the 2nd Petitioner has failed to demonstrate how the 1st Respondent has acted ultra vires, without due regard to public interest, rule of law and/or has been motivated by malice in instituting the criminal cases against him. Similarly, he has failed to substantiate the alleged violation of his constitutional rights.

52. The Respondent maintained that, it adhered to the requirement under the sixth schedule of the National Police Service Act, on the use of proportional force to effectively apprehend the 2nd Petitioner and that, the onus is on him to prove otherwise. Further, section 52 of the National Police Service Act, empowers the 3rd Respondent to compel attendance of any person to a police station at the time of investigations of an alleged offence.

53. The Respondent termed the argument that it required the 2nd Petitioner’s consent to access his bank accounts as untenable, and averred that, he purpose of warrants to investigate bank accounts, is to protect the right of affected person from unreasonable searches, seizures and unnecessary arrest.

54. Finally, the Respondent argued that, if the orders sought are granted, it will be gravely prejudiced, as it will be denied the right to exercise its constitutional and statutory mandate. To the contrary, the 2nd Petitioner has not demonstrated that, he would suffer irreparable injury or loss if the orders sought for in the petition are not granted.

55. In the same vein, the 2nd Respondent opposed the 1st Petition vide a replying affidavit dated; May 3, 2021, sworn its Assistant Director Forensic Investigation, Simon Cherpka. He deposed that, he assigned various investigation teams, investigation briefs with respect to the County Governments of; Busia, Samburu, Kiambu, Nairobi, Migori and Garissa.

56. That, the investigations results revealed unique set of facts and circumstances of; wanton embezzlement of public funds by County Officials who were holding influential positions. That they were involved in fraudulent schemes to defraud the County funds and unlawful acquire public property and that brazen corruption and economic crimes, was established to be the common denominator. That, 2nd Respondent forwarded its findings and recommendations to the 1st Respondent for independent review and/or the decision to prosecute, pursuant to; section 35 of the Anti-Corruption and Economic Crimes Act and 5(4)(e) of the Office of Directorate of Public Prosecution Act 2013.

57. The 2nd Respondent averred that, the 1st petition revolves around the terms and conditions of the bail set by trial courts, in matters to which they are not parties. That if the 1st Petitioner is aggrieved, it should seek for revision or appeal to the High Court, for review, variation or setting aside of the impugned conditions. That, in fact, the Governors of; Nairobi, Samburu and Kiambu Counties have already exercised this right under section 123(3) of the Criminal Procedure Code by applying for revision, while, the Governors of Samburu and Kiambu appealed to the Court of Appeal.

58. That in setting the terms of bail, the trial court could not ignore the charges the Governors were facing and the fact that, the respective County Office is a crime scene, in that, it contains the physical evidence pertaining to the criminal investigations and, that potential witnesses work there. Further, the restricted access to office was not limited to the physical office, the other Sub-county offices and the Governors ‘official residence, but includes the Governor’s performance of duties.

59. Similarly, the restriction to access to the office does not signify that the accused is guilty of the offences and neither does it amount to violation of their right to be presumed innocent or constructive dismissal, as held in the case of; Ferdinand Ndung’u Waititu Babayao v Republic (2019).

60. The Respondent argued that, the provision of section 62(1) and (6) of ACECA and Article 181 of theConstitution deal with two separate circumstances and that, the legislation contemplated under Article 181(2) of theConstitution, on the procedure of removal of a Governor from office, is different from the terms imposed on restriction to access office.

61. That, there is no uncertainty with respect to the duration of the Governor to access office and/or resumption of office upon completion of the trial, as it is expressly provided for under section 62(1) and (3) of ACECA that, cases shall be determined within 24 months. In addition, the Court of Appeal held in the cases of; Waititu and Lenolkulal that, the Governors still remain in the office, despite the limited access to their offices. Further, that bail terms are imposed on a case to case basis and the constitutional mandates of Governors and MPs and MCAs differ, in that, MPs and MCA are representatives of their Constituents and they do not exercise executive power like the Governors who are Chief Executive Officer.

62. It was contended that the 2nd Respondent’s, action of authorising and supervising access to office is in compliance with the bail conditions issued by the trial court. Thus the orders sought in the 1st petition to bar it, is intended to curtail the independence of each Institution and renege on the significant gains attained in the fight against corruption.

63. The 2nd Respondent similarly opposed the 2nd petition vide a replying affidavit dated; May 27, 2021, sworn by the County Commander of Taita Taveta County, CP Said Kiprotich Mohamed who deposed that he received directives from the 2nd Respondent on; December 6, 2019, to apprehend the 2nd Petitioner in relation to corruption related offences. That, after establishing that, the 2nd Petitioner was travelling by road in the general direction of the Coast region, he instructed Police Officers to mount a roadblock at Ikanga area of; Voi Sub-County and they intercepted, arrested him and he was later charged.

64. The allegation that, the 2nd Respondent cooperated with the officers were refuted, and averred that, he resisted arrest, insulted the officers, attempted to intimidate them and injured a Senior Police Officer, as evidenced by a report of at Wilson Airport Police Station vide OB No 12 of December 6, 2019. That, the 2nd Petitioner was duly informed of the reason of his arrest and requested to comply with lawful arrest but he become more violent. That, reasonable force was used to restrain the 2nd Petitioner in the circumstances of the case. That it is fallacious for him to claim his arrest was crude, violent or unlawful.

65. The 3rd Respondent opposed the 2nd petition vide a replying affidavit dated; May 6, 2021, sworn by Simon Cherpka, an Assistant Director Forensic Investigation and literally reiterated that, the 3rd Respondent carried out investigations in the subject matter, pursuant to section 11(1)(d) of and 35 of the Ethics and Anti-Corruption Commission Act (EACCA and forwarded recommendations to the 1st Respondent to charge several individuals including the 2nd Petitioner.

66. That there was no evidence that the petitioner was denied his rights as an arrested person up to his arraignment in court. Further, it was averred that, the 2nd Petitioner has misapprehended the doctrine of legitimate expectation and the provision of; section 52 of the National Police Service Act 2011, which did not apply in the circumstances of this matter. That, public policy and the law does not allow people under investigations to be informed of the reasons of their arrest prior to their impending arrest.

67. Further, under section 180 of the Evidence Act investigative agencies require to be given an opportunity to investigate books of a bank account without informing a suspect to prevent interference with the investigative process. He stated that, the issue of privacy and prior notification of applications for search warrants is pending before the Supreme Court and taking into consideration the principle of hierarchy of court, the court ought to give deference to the Supreme Court awaiting the outcome of the issues.

68. It was averred that, granting of bail terms was discretionary on a case by case basis and that the 2nd Petitioner cannot seek to import the circumstance in the case of; Republic v Zacharia Okoth Obado (2018) eKLR, in this case on the basis that, 2nd Petitioner was Governor facing grave and serious charges.

69. The 4th Respondent did not file any response to the consolidated petition. However, the 5th Respondent opposed the petition vide a replying affidavit dated; May 4, 2021, sworn by Benson Mutura, the Speaker of Nairobi City County Assembly, who deposed that, he was a stranger to the allegations in the petition.

70. He refuted the allegation that, he was under pressure to assume the office of the Governor of the Nairobi City County and that the order sought at paragraph 13 of the 2nd Petitioner’s affidavit cannot be effected as the 2nd Petitioner had been impeached and a substantive Deputy Governor sworn in.

71. Further, owing to leadership wrangles that existed during the period in question, the 5th Respondent filed a reference; Reference Number 1 of 2020 in the Supreme Court of Kenya seeking an advisory opinion on various issues, some of which relate to this petition and which are still pending. That, this court should not usurp the power and functions of; constitutional and statutory bodies, as its role is to ensure fidelity of theConstitution is maintained and upheld.

72. The 6th Respondent, the 1st and 2nd Interested parties did not file any responses to the Petition. However, the 2nd Petitioner filed a supplementary affidavit dated; May 12, 2021; in response to the replying affidavits filed the 1st and 3rd Respondents. He deposed that, the averments in the subject affidavit are of a general nature and of no probative value, as they contain inadmissible hearsay.

73. He denied lodging a nebulous claim before the court and argued that he demonstrated his constitutional rights had been infringed. He further denied the allegation that, he resisted arrest and attacked an unnamed arresting officer and deposed that, the 1st Respondent indirectly affirmed that the police officers used force against That due to the brutal arrest he suffered medically. He produced medical reports (MSM 1) in support of his averment.

74. The 2nd Petitioner averred that, he has suffered immensely at the hands of the trial court which has breached; Article 25 and 50 of theConstitution by being biased against him and allowed a continuous breach of his constitutional rights.

75. That he is apprehensive that, the ends of justice will not be met. Further the criminal process against him is meant to serve a collateral purpose of depriving him of his right as a Governor of Nairobi City County and fodder for the purported impeachment.

76. That the trial court in the orders made on; December 11, 2020, purported to import the pronouncements of; Ngugi J and Ngenye J directing him to be barred from office, when there was no such pronouncements and proceedings and that he had never been sued before either of the two Honourable judges or barred from accessing his office.

77. He argued that, despite the 1st Respondent’s allegations that, it will be prejudiced if the prayers sought in the petition were granted, the 1st Respondent has failed to particularize or point out the specific and degree of alleged prejudice. That, on the contrary he will be prejudiced as his constitutional rights will be violated.

78. In response to the replying affidavit filed by the 3rd Respondent, the 2nd Petitioner stated that, the averments therein were broad generalizations with no probative value to rebut his averments as there was no response to the antecedents of his arrest and subsequent events.

79. The consolidated petition was canvassed vide filing of submissions. The 1st Petitioner identified (8) issues for determination by the Court being:a.Whether this Honorable Court has jurisdiction to hear and determine the 1st Petition.b.Whether the Petition is Res Judicata and sub-judice.c.Whether the bail terms of 'stepping aside from office' imposed on Governors facing corruption charges in court are lawful and constitutional.d.What is the scope of the meaning of "crime scene" in the context of barring Governors facing criminal charges from accessing their offices?e.Whether an order of bail barring a Governor from accessing office while facing a criminal trial contravenes Articles 38 (3) (c) and undermines the presumption of innocence doctrine.f.Criminal Prosecution Based on Collective Criminal Responsibility.g.Equality Before the Law.h.Presumption of Innocence.

80. On jurisdiction, the 1st Petitioner submitted that, the petition was properly lodged under; Article 22, 23 and 258 of theConstitution. That under Article 165 (3)(d) of theConstitution, the High Court has jurisdiction to hear any question in respect to interpretation ofthe Constitution.

81. That, the 1st Petitioner is a person within the meaning of Article 22 and 258 of theConstitution and under section 20 of the County Governments Act, No 17 of 2012, and that, its function include; providing a forum for consultation amongst County Governments; considering matters of common interest to County Governments; dispute resolution between counties within the framework provided under the Act among other functions.

82. That, the present petition was instituted on behalf of the County Governors and in public interest to promote democratic principles and ensure that injustice is not occasioned on County Governors being denied accessing their offices when facing criminal charges by the Respondents. Further, Article 22 and 258 (1) of theConstitution has lifted the veil on the locus standi doctrine and allowed every person the right to institute court proceedings claiming that, a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or contravened.

83. In response to On the issue of Res judicata, the 1st Petitioner relied on the cases of; Republic vs Registrar of Societies of Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others (2017) eKLR and Thiba Min Hydro Co. Ltd vs Josphat Karu Ndwiga (2013) eKLR where the High court stated that, the test for determining the application of the doctrine of; Res-judicata is provided for under section 7 of the Civil Procedure Act, (Cap 21) Laws of Kenya. Further reliance was placed on the cases of; Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others [2014] eKLR and Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR.

84. The 1st Petitioner argued that the petition raises substantial questions of law such as whether the indefinite suspension of Governors from office amounts to constructive removal. That the facets of Article 181, Article 24 (a) and Article 38(3) (c) of theConstitution have never been determined by any Court in Kenya.

85. The 1st Petitioner reiterated that, the law does not provide for stepping aside of a governor but provides an elaborate removal procedure under Article 181 of theConstitution and the County Government Act and relied on the case of; Alfred N Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 others, and Monica Cyombua Gitari & another vEmbu County Government & 3 others (2015) eKLR

86. Further, that it is Parliament and not the Courts that should enact legislation to provide for the mechanics of the process; how it will be done and the duration. That pending the enactment of the legislation, the 1st Respondent and the Courts should be prohibited from issuing unconstitutional and illegal decrees and rulings which tend to prejudice the 1st Petitioner.

87. The 1st petitioner referred to the Oxford dictionary to define 'a crime scene' and submitted that it is, ring fenced and protected for purposes of collating and collecting evidence. The 1st Petitioner reiterated its averments on the issue of whether the order to bar a Governor from accessing office was only tied to the physical office at the County Government headquarters or it covered access to all county Government offices in the all the sub-counties and wards, and the averments on the issue of accessing office.

88. The 1st Petitioner further submitted that, Article 38(3)(c) of the Constitution provides for the right of a person to hold office once elected, and can only be impeached if they are suspected to have committed a crime under national or international law, and that impeachment does not require a conviction in a Court of law.

89. On the issue of equality before the law, it was the 1st Petitioner’s contention that, Section 62 (6) of Anti-Corruption and Economic Crimes Act 2013, provides that, suspension from office did not apply with respect to an office if theConstitution limits or has grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated. These includes; Members of Parliament, MCAs, and Governors who are all elected through universal suffrage. Therefore, subjecting Governors only to the stepping aside bail term amounts to unfair treatment contrary to Article 27 of theConstitution

90. The 2nd Petitioner identified 20 issues for determination but collapsed them into 7 issue as follows:a.Whether the Petitioners arrest and detention on December 6, 2019 as complained of was unconstitutional and unlawful in the circumstances.b.Whether the arrest and detention of the Petitioner on December 6, 2019 was a violation of his fundamental rights and freedoms .c.Whether Section 62(6) of Anti-Corruption and Economic Crimes Act applied to the Petitioner as Governor of Nairobi City County to exempt him from stepping aside his office as such Governor.d.Whether the Petitioner was discriminated against by the 1st, 3rd, and 6th Respondents as an elected, sitting Governor of Nairobi City County in the setting of bail terms in Nairobi Criminal Cases ACEC 31 of 2019 (now Cr ACEC No 1 of 2020), and ACEC 32 of 2019. e.Whether the entire Nairobi City County constituted or constitutes a scene of crime to justify the 6th Respondent's Order and bail term to bar the Petitioner from accessing the Nairobi City County offices.f.Whether in directing and overseeing the arrest of, and mounting Criminal prosecution against the Petitioner the 1st Respondent acted in a manner constituting a violation of Article 157(11) of theConstitution, and a breach of Section 9 of the Leadership and integrity Act.g.Whether the Petitioner is entitled to the orders sought in the Petition.h.Who is to bear the costs of the proceedings.

91. It was submitted that, pursuant to Article 165 as read with Article 23 of theConstitution the Court has jurisdiction to determine the consolidated petitions and the specific issues in the 2nd petition. The decision of the Supreme Court of Uganda inPaul Ssemoierere Olum & Another Vs Republic Constitutional Appeal no 1 of 2002) [2004] UGSC 10) was cited where it was stated that, the Court’s jurisdiction in interpretation of theConstitution was unlimited and unfettered.

92. The 2nd petitioner also cited the Court of Appeal cases ofIP Veronica Gitahi & Another v Republic [2017] eKLR and Republic vTitus Neamau Musila Katitu [20I8] eKLR where the Court stated that, Police should undertake their responsibilities in a non-violent way and that use of force must be in accordance the Sixth Schedule of the National Police Service Act.

93. That, the arrest of the 2nd Petitioner having been covered heavily by the media, contravened his right to dignity under Article 28 of theConstitution. He quoted the cases of; Kiiza Besir,e v Civil Aviation Authority & Anor (Civl Suit No 732 OF 2016) [2019] UGHCCD 39 (March 15, 2019), [[ULII]; and Gerald Macharia Githuka vs Republic Criminal Appeal No 119 of 2004. M W K v another v Attorney General & 3 others [2017] eKLR, on the value of human dignity and Daniel Owoka Manduku v Director of Public Prosecutions & 2 others [2019] eKLR where the Court noted that arrests of holders of high office had become a public spectacle and stated that, every Kenyan should be arrested with dignity and be given a chance to apply for bail before or immediately upon arrest.

94. Further that, the manner in which the 2nd Petitioner was handled during his arrest violated section 9 of the Public Officers Ethics Act, Article 29(a) (c) (d) and (f) of theConstitution and Article 5 of the Universal Declaration of Human Rights, 1949. The cases of; Standard Newspapers Limited & another v Attorney General & 4 others [2013] Eklr and Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau No 83653 & 3 others [2016] eKLR, were relied on.

95. It was submitted that 2nd Respondent cannot override the 2nd Petitioner’s constitutional right in conducting an arrest and that, the Court has a duty to uphold theConstitution. The cases of; Republic v Ahmad Abolfathi Mohammed & another [2019] Eklr and Republic v Ismail Hussein Ibrahim [2018] Eklr, were cited and the sum of Kshs 50,000,000, sought for as damages.

96. The 2nd Petitioner reiterated that, section 62 of Anti-Corruption and Economic Crimes Act provides for the suspension of Public and State Officers charged with corruption offences but sub-section (6) exempts the 2nd Petitioner as a Governor, in that, his removal is subject to; Article 181(1) of theConstitution, and therefore the orders from the order of stepping aside does not apply.

97. That all statute passed by legislature enjoy a presumption of legality and relied on the case of; Susan Wambui Kaiuru & others vs Attorney-General & Another (2012) eKLR; Kenya Human Rights Commission v Attorney General & another [2018] eKLR and Hamdarddawa Khano vs Union of India AIR. [1960] 554 and as interpreted in the case of; Republic vs Kenya School of Law [2019] eKLR.

98. Further that, the Court of Appeal in; Ferdinand Ndung'u Waititu Babayao vs Republic [2019] eKLR did not deal with the constitutionality of section 62(6), as the appellant therein had not been suspended from office. That, the impugned section should be read in tandem with Article 181 of theConstitution that a constitutional office holder should not be constructively removed by way of criminal processes.

99. That he stood to be prejudiced by the Respondent’s interpretation and application of the said section that, led to the 6th Respondent infringing on his constitutional rights under Article 27(1), 50(1) and 25(c) of theConstitution. Reliance was placed on the cases of; Nelson Andayi Havi v Law Society of Kenya & 3 others [2018] eKLR; Council of County Governors v Attorney General & another [2017] eKLR; Law Society of Kenya v Kenya Revenue Authority & another [2017] eKLR; Federation of Women Lawyers Kenya (FIDA) v Attorney General & another [2018] eKLR; and Elias Kibathi v Attorney General [2020] eKLR.

100. The 2nd Petitioner submitted that the orders issued by the trial court and in particular in relation to bail terms were discriminatory in that other governors charged with criminal offences for example Governor Okoth Obado in Republic v Zacharia Okoth Obado & 2 others [2018] eKLR was not barred from accessing office nor was he ordered to collect his personal effects. Therefore, in that regard, his rights under Article 27(1), 27(4), and 27(5) of theConstitution of Kenya have been violated. He quoted the decision of in; Council of Governors v Salaries & Remuneration Commission [2018] eKLR and Law Society of Kenya v Attorney General & National Assembly [2016] eKLR where it was stated that. unreasonable differential treatment was a violation of theConstitution and was unjustifiable and irrational.

101. Further, that the order barring him from accessing his office violated his right to be presumed innocent until proven guilty and effectively condemned him unheard and constructively ousted him from office, thus violating Article 50(2)(a) of theConstitution.

102. It was reiterated that, the bail terms barring the 2nd Petitioner from office was in violation of; Article 49 (1) (h) of theConstitution, as he was entitled to cash bail and in the alternative bond terms without further conditions, and that the bail terms were not justified, in relation to the to the primary purpose of bail in; Republic v Robert Zippor Nzilu (2018) eKLR.

103. Further, the trial Court failed to invoke the provisions of section 16 of the Witness Protection Act and section 4(1)(c), 5(1)(a) and 8(1)(2) of the Victim Protection Act to protect witnesses, if it perceived that they were under threat from the 2nd Petitioner. He cited the case of International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR. That, the 1st Respondent did not discharge the burden of proof on the constitutionality of the 2nd Petitioner’s prosecution. The case of; Diamond Hasham Lalii and another vs Attorney General and 4 others [2018] Eklr, was relied on.

104. It was further contended that the court is entitled to intervene to truncate the unconstitutional proceedings where Article 157(11) is violated. Reliance was placed on the cases of; R v OPP & 2 Others Exparte Nomoni Saisi [2016] eKLR and Paul Nganga Nyaga vs Attorney General & 3 others (2013) eKLR.

105. On the award of damages, it was submitted that the 2nd Petitioner had proved that his arrest was executed unlawfully by means of excessive force and the court ought to vindicate his rights. He placed reliance on the case of; Lucy Wanjiku Mukaru(suini as the leial representative of Mukaru Niania-Deceased) v Attorney General [2018] eKLR; John Atelu Omilia& another v Attorney General & 4 Others [2017] eKLR and M W K v another v Attorney General &3 others [Supra] where the Courts awarded; Kshs 15,000,000, Kshs 2,000,000 and Kshs 4,000,000, for violations of the Petitioner’s rights.

106. The 1st and 3rd Respondents filed submissions on the 1st petition and identified eleven (11) issues for determination as follows: -a.Whether or not it is unconstitutional for the DPP to prefer a charge against an accused person that is based on collective criminal responsibility;b.Whether or not the EACC, the NPS and or the DPP have constitutional or statutory powers to bar Governors from holding office;c.Whether or not the EACC, the NPS and or the DPP have constitutional or statutory powers to authorize Governors to access office;d.Whether or not barring Governors from accessing office while they face criminal charges amounts to selective application of the law;e.Whether or not a judge or a magistrate has constitutional powers to bar a Governor from holding office;f.Whether or not an order barring a Governor from office during the pendency of a criminal trial is antithetical to the doctrine of presumption of innocence;g.Whether or not a denial of access to the office amounts to constructive removal of a Governor from office;h.Whether or not requiring a Governor not to access his office upon being charged violates Article 38(3) (c) of theConstitution;i.Whether there exists a legislation for the removal of a Governor from Office; whether or not there are gaps in the implementation of Article 181(2) and Article 38 (3) (c) that Magistrates Act, 2015; (sic), theConstitution of Kenyaj.Whether or not the Supreme Court of Kenya needs to issue any guidelines on the implementation and application of Article 38 and Article 181 of theConstitution;k.Whether or not a permanent injunction can issue against EACC, the NPS and or DPP to bar them from making any application before a judge or a magistrate to prevent Governors from holding office.

107. The Respondents retreated that, this court does not have jurisdiction to entertain the consolidated petition for reasons that, the issues therein are, res judicata and sub judice., having been sufficiently litigated and determined on merit in the High Court, Court of Appeal, in the cases of; Moses Kasaine Lenolkulal vs Director of Public Prosecutions (2019), Ferdinand Ndungu Waititu Babayao & 12 Others vs Republic (2019), Moses Kasaine Lenolkulal vs Republic (2019) and Ferdinand Ndung’u Waititu Babayao vs Republic (2019) eKLR pending before the Supreme Court.

108. That, the Honorable Court should decline to exercise jurisdiction as it would be against the principle of justiciability, as defined in the Black’s Law Dictionary 9thEd and decided in the cases of; Patrick Ouma Onyango & 12 Others vs AG & 2 Others Misc. Application 677 of 2005 cited inCoalition for Reform and Democracy (CORD) & 2 Others vs Republic of Kenya & Another [2015] e KLR.

109. Further, that the issues raised in the consolidated petition are hypothetical, speculative, academic and of advisory nature, subject to the jurisdiction of the Supreme Court under Article 163 (6) of theConstitution and therefore there is no real constitutional issues for determination by this court. The cases of; Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others [2016] eKLR; Matalinga and Others vs Attorney General cited in the case ofJesse Kamau & 25 Others vs Attorney General [2010] eKLR and Njoya and Others vs Attorney-General and Others [2004] 1 EA 194 (HCK), were relied on.

110. It was argued that the right to hold office is not absolute, and may be limited under Article 24 of theConstitution, as stated in the case of; Republic vs Fredrick Ole Leliman & 4 Others [2016] eKLR. Further that, Governors are subject to theConstitution, section 30 (3) of the County Government Act and all legislation that govern the management of public finance and cannot be shielded from prosecution in relation to breach of the same, as that, will be contrary to the National Values and Principles of Governance under theConstitution which include integrity and accountability of all State and Public Officers pursuant to Article 10 of theConstitution.

111. That all the charges against any of the Governors have been brought against them in their individual and not collegial capacity and that the concept of collective responsibility does not to apply in cases of personal liability or individual culpability. The Court of Appeal’s decision in; Martin Nyaga Wambora & 3 Others vs. Speaker of the Senate & 6 Others [2014] Eklr and Shane Darcy, ‘Collective Responsibility and Accountability under International Law’ page xvi were cited. Further, opposing of bail, and/or denial thereof does not violate the presumption of innocence. The cases of; Rex vs. Hawken (1944) 2 DLR 116, Republic vs Fredrick ole Leliman & 4 Others (supra), and Republic vs Zacharia Okoth Obado [2018] e KLR, was relied on.

112. The Respondent submitted that, there is no need for specific legislation to give effect to the provision of; Article 24(1) of theConstitution on the limitations of rights and fundamental freedoms or any other law. The Respondents dismissed the 1st Petitioner’s argument that, only the Supreme Court of the Republic of Kenya can make laws under Article 163 (6) of theConstitution and the Supreme Court Act 2011, by way of guidelines to fill the alleged gaps in the implementation and application of Article 181 (2) and (38) (3) (c) of the Constitution, as read with Article 24 (1) of theConstitution.

113. Further based on the decision of; Moses Kasaine Lenolkulal vs Republic [2019] eKLR the Court of Appeal emphasized the need for the High Court courts to take into account, the national values and principles of governance and the Chapter 6 principles on leadership and integrity, when applying provisions of theConstitution.

114. That, the 1st and 3rd Respondents have absolutely no control over the media and cannot therefore be faulted over media reports touching on the case. Even then, courts have held generally that, adverse publicity, if at all, by itself cannot influence the mind of a judge since judges are expected to apply their minds to the law and facts as presented before them. Reliance was placed on the cases of; Republic vs Attorney General & 3 Others ex parte Kamlesh Mansukhlal Damji Pattni Miscellaneous Civil Application 305 of 2012; William SK Ruto & Another vs Attorney General & 6 Others, Thuita Mwangi & 2 Others vs Ethics and Anti-Corruption Commission & 3 Others and Dream Camp Kenya Ltd vs Mohammed Eltaff and 3 Others.

115. The 1st Respondent filed separate submissions on the 2nd petition and identified ten (10) issued for determination being:a.Whether the 3rd Respondent is mandated to seek a suspect's consent prior to investigating its bank accounts.b.What amounts to reasonable force that may be employed during the arrest of a suspect.c.Whether the 1st Respondent acted ultra vires in instituting criminal proceedings against the Petitioner.d.Whether the 1st Respondent is required to summon a suspect prior to directing the institution of criminal proceedings.e.Does the 1st Respondent direct arrests.f.What amounts to bad faith in instituting criminal proceedings and whether the charges against the Petitioner were an abuse of court process.g.Whether the bond term barring the petitioner from accessing the office during pendency of trial was unconstitutional.h.Legality of the Petitioner's arrest and prayers for general and exemplary damages.i.Whether the trial court was bound to stay a matter in the absence of stay orders in Petition 34 of 2019. j.Whether the question of bias averred by the suspect is the subject of this petition.

116. On the first issue, it was submitted that, the right to privacy envisaged under theConstitution is not absolute and can be limited pursuant to Article 24 of theConstitution. That, the EACC under Section 23 of the ACECA has the powers, privileges, and immunities of a Police officer to apply and utilize the provisions of the Criminal Procedure Code, during and in the conduct of their investigations which would also include the power to obtain ex-parte search warrants both under Section 118 and Section 29 of the ACECA.

117. It was contended that the purpose of search warrants is to protect persons from an illegal search and to ensure that safeguards are put in place to curtail abuse as was held in in the case of Ownza Ombati t/a Nchogu, Omwanza & Nyasimi Advocates V Director of Criminal Investigations Department Emmanuel Kanyungu & 3 others (2017) eKLR. Further that, the warrants are obtained ex-parte when the matter is in the investigation stage in line with Article 24 of the Constitution as stated in Mape Building & General Engineering vs AG & 3 Others.

118. That in the case of the 2nd Petitioner, an application to investigate the petitioner’s accounts was made under sections 118 of the Criminal Procedure Code, section 180 (1) of the Evidence Act and sections 23 and 29 of the Anti-Corruption and Economic Crimes Act which sections do not require that notice be given to suspects prior to investigating their accounts.

119. Further the investigations in question are in respect to allegations of corruption and misappropriation of public funds by the 2nd Petitioner, which prejudices rights of millions of Kenyans and hence sufficient reason to curtail the petitioner’s person right. Reliance was placed on the case of;Hardy Enterprises & 3 others v EACC and 2 others ACEC Petition 36 of 2019and the decision of the Constitutional Court of South Africa in Berstein vs Bester No (1996) (2) SA 751 where it was stated that:'The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy, this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of a civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.'

120. On the 2nd issue, the 1st Respondent submitted that, section 21 of the Criminal Procedure Code, allowed the Police or a private person to arrest a person suspected of committing an offence by any means necessary. Further, the Sixth Schedule of the National Police Service Act 2011, provides that, Police may at first use non-violent means and force, and when such non-violent means are ineffective, may use force proportionate to; the objective to be achieved; seriousness of the offence and resistance of the person.

121. The Respondent relied on the American case of; Graham v Connor, 490 US 386 (1989) to submit that, Courts are called upon to decide whether the force employed by a Police officer was reasonable or unreasonable on a case-by-case basis, taking into account; the severity of the crime, whether the suspect posed a threat, and whether the suspect was resisting or attempting to flee.

122. On the 3rd issue, it was reiterated that, the 1st Respondent’s mandate under Article 157(6) and (10), of theConstitution is to institute and undertake criminal proceedings before any court and cannot be arrogated. The provisions of Section 6 of the Office of the Director of Public Prosecutions Act, 2013 and the cases of; Nairobi High Court Misc. Civil Application No 249 of 2012, Republic V The Director of Public Prosecution Ex-Parte Victory Welding Works Limited And Another, Thuita Mwangi & Anor vs The Ethics and Anti-Corruption Commission & 3 Others Petition No 153 & 369 of 2013, and David Kipruto Chingi & another v Director of Public Prosecutions & 2 others [2016] eKLR were cited, where the Court of Appeal stated that, the 1st Respondent is an Independent office and that courts should not interfere with State organs unless there was violation of theConstitution.

123. That the decision to charge or not entails the evidential and the public interest test and requires an objective and independent analysis of the case, taking into account; due regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The case of; Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] e KLR was relied on.

124. On the 5th issue, it was submitted that under Article 157 (4) of theConstitution the 1st Respondent’s mandate does not go beyond the institution of criminal proceedings and directing the Inspector-General of Police or any other investigative agency to conduct investigations into any alleged criminal conduct. That the only exception where the 1st Respondent can direct for the arrest of person(s) is when charges have been instituted in Court where the 1st Respondent, in furtherance of the prosecution’s case can apply to the court for warrants of arrest to be issued against a person who has not appeared before court to take plea or upon taking plea, has absconded from the jurisdiction of court.

125. On what amounts to bad faith in instituting criminal proceedings and whether the charges against the 2nd Petitioner were in bad faith, it was the 1st Respondent’s submission that, the 2nd Petitioner did not prove bad faith in instituting the charges. The case of MacMillan Bloedel Ltd v Galiano Island Trust Committee was cited, where it was stated that bad faith is: -.'dishonesty, fraud, bias, and conflict of interest, and discrimination, abuse of power, corruption, oppression, unfairness, and conduct that is unreasonable, conduct based on an improper motive, or undertaken for an improper, indirect or ulterior purpose or where a prosecution were commenced or discontinued in consideration of the payment of a bribe'

126. Further the Court’s power to review a decision is concerned with the decision making process and not the merits of the decision itself, as held in the case of; Meixner & Another vs Attorney General [2005] 2 KLR 189. Further in the case of; Kuria & 3 Others vs Attorney General [2002] 2 eKLR the Court held that, a prerogative order should only be granted where there is an abuse of the process of law. That, the case of; Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] e KLR, enumerated the elements of abuse of office.

127. It was argued that, the prayers in the 2nd petition are unfounded, frivolous and unmerited and should be dismissed sua sponte. That, the Courts only granted damages for pre-trial incarceration where there have been gross violations of human rights including torture. The case of; Gitobu Imanyara & 2 others v Attorney General [2016] e KLR, was cited where the Court held that, damages for constitutional violations is limited to what is appropriate and just according to the facts and circumstances of a particular case, in that, the primary purpose of a constitutional remedy is not compensatory or punitive but to vindicate the rights violated and to prevent or deter any future infringements.

128. Finally, the issue of bias cannot be raised as the trial in the lower court has not commenced and in any event, the issue has been comprehensively dealt with in Petition E005 of 2021, High Court Petition No E004 OF 2021, High Court ACEC Misc Criminal Application No E008 OF 2021 and High Court Misc. Criminal Application No E094 OF 2021 and therefore, should be struck out. Further, that the recusal of a judicial officer or any accusation of bias is not a matter to be taken lightly as stated by the Supreme Court in Petition No 34 of 2014 - Gladys Boss Shollei vs Judicial Service Commission & another.

129. The 2nd Respondent identified 10 issues for determination as follows:a.Jurisdiction of this Court and locus standi of the Petitionerb.The petition is a collateral challenge to the decision made by the courts of concurrent and appellate jurisdiction of this Honourable Court and an abuse of the court processc.Res judicatad.Whether the restricted access to office condition of bail is lawful and constitutionale.Whether the restricted access to office condition of bail contravenes the Political Rights of Governors under Article 38 of theConstitution undermines the presumption of innocence.f.Whether the is uncertainty in the lawg.Whether there is paralysis and/or confusion in the countiesh.Equality before the lawi.Criminal prosecution based on collective criminal responsibilityj.Whether the Respondents have the powers to bar governors from holding office.

130. It is noteworthy that, the 2nd Respondent’s submissions on the issues of; jurisdiction, Res judicata, restricted access to office or stepping aside and/or removal from office and the doctrine of presumption of innocence, were similar to those made by the 1st Respondent.

131. In a nutshell it was submitted that, the 1st petition is in the nature of advisory opinion subject to Supreme Court of Kenya jurisdiction. That, its only recourse is to seek joinder in an existing case to champion their cause and articulate their interests, if they intend to challenge bail terms. That the issues herein are res judicata as they have already been heard and determined by other courts of concurrent and appellate jurisdiction.

132. That the 1st Petitioner is disguising the true parties herein, by using their organizational outfit and have merely added the National Police Commission and the Office of the Attorney General, in an attempt to circumvent the binding decisions of the Appellate Court and re-litigate settled issues, so as to prevaricate the principle of res-judicata. Reliance was placed on the case of; Okiya Omtatah Okoiti v Communications Authority of Kenya & 14 others [2015] eKLR.

133. That bail terms and conditions have a constitutional underpinning under Article 49(1)(h) of theConstitution which guarantees the right to bail but the right is not absolute and can be denied where there are compelling reasons so to do as stated, R v Joktan Mayende & 3 others [2012] eKLR. Further, the restriction to access the office, rightly encompassed the limiting of the performance of executive functions.

134. That, it is travesty of justice and against the public interest if a Governor is allowed to continue to presiding over County affairs including the funds he is alleged to have embezzled and take advantage of his position to, directly or indirectly, unlawfully benefited therefrom. The case of; Alfred N Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 others [2016] eKLR, was distinguished as the Governor therein had not been arrested, charged nor was he under trial and that the court observed that, the issue of vacating office was premature nor ripe for consideration or determination by any Court.

135. On the issue of witness protection, the Respondent relied on decision, inKKK v Republic [2017] e KLR, where the Court held that, Courts should adopt a path that ensures prosecution of the offences in a manner that is least restrictive of enjoyment of the accused's right to bail including taking of witness protection measures to guarantee no interference of the complainant or other witnesses by the accused.

136. That, a MP is a representative of a Constituency in the National Assembly and does not exercise executive power. That if an MP was charged with abuse of office and related offence, nothing bars the Court from limiting the MP' s access to the office as a condition for bail. The case of; Council of Governors & Others vs The Senate Petition No 413 of 2014, where the court has held that, the buck stops with the Governor in the management of County resources and therefore they take personal responsibility for the reasonably foreseeable consequences of any actions or omissions, including misuse of public funds, arising from the discharge of the duties of the office of the governor.

137. Furthermore, it was contended that the Petitioner's argument that the concept of a CEO in relation to a Governor is a political leadership such that a breach of Section 30 of the County Governments Act by the Governor attracts a political process was misguided. That, impeachment and prosecution are distinct and that the two processes are constitutional mandates of two distinct and Independent institutions; Senate, and law enforcement agencies, respectively and that the processes can run simultaneously.

138. Further, not all serious violations of theConstitution or the law attract penal consequences but will be a ground for misconduct, incompetence or other ground for removal from office. Consequently, an impeachment process and criminal investigations are not co-extensive.

139. The 2nd Respondent in its submissions to the 2nd petition identified five (5) issues for determination as follows:a.Jurisdiction to hear and determine an issue that is res judicata.b.Whether the Court of Appeal decisions in Moses Kasaine Lenolkulal vs Director of Public Prosecutions [2019] eKLR and Ferdinand Ndungu Waititu Babayao & 12 others vs Republic [2019] eKLR are judgments in rem such that they bind this Court based on the doctrine of precedent.c.Whether the orders sought would interfere with the legitimate discretion of the court while considering bail applications.d.Whether the 3rd Respondent violated rights of the Petitioner as pleaded.e.Issue of right to privacy and investigation

140. On the issue of jurisdiction, the 2nd Respondent joined issues with the other Respondents to submit that, it is as res judicata, as determined in the cases referred to herein. That the decisions in the cases of; Moses Kasaine Lenolkulal vs Director of Public Prosecutions [2019] eKLR and Ferdinand Ndungu Waititu Babayao & 12 others vs Republic [2019] e KLR are judgement in rem, binding in respect of the issue. Further reference was made to the cases of; Pattni vs Ali & Anor (Isle of Mann (Staff of Government Division) (2006) UKPC 51, quoted with approval in Abukar G Mohamed vs Independent Electoral and Boundaries Commission (2017) eKLR and in Geoffrey M Asanyo & 3 others vs Attorney­General [2020] eKLR, on the doctrine of stare decisis. That the court should down its tools as jurisdiction was everything as was state in the case of; Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd (1989) eKLR.

141. The 2nd Respondent submitted that, granting the orders sought, would have the resultant effect of, depriving trial Courts of their legitimate jurisdiction to exercise discretion, in appropriate cases, based on certain peculiar facts and would be tantamount to interfering with the decisional independence or adjudicative function of trial Courts contrary to; Article 160 (1) of theConstitution.

142. Finally, it was reiterated that, the Respondent is mandated to investigate bank accounts per section 180 of the Evidence Act. And that there was no breach of the 2nd Petitioner’s right to privacy, as stated in the case of; Evans Odhiambo Kidero & 9 others vs Chief Magistrates of Milimani Laws Courts & 6 others [2020] eKLR, where it was held that requiring a notice to issue would defeat the purpose of the investigations.

143. The 5th Respondent identified two issues for the Court to determine, namely:a.The Applicability of Section 62(6) of the Anti-Corruption and Economic Crimes Act (ACECA) as a bail term in the Petitioner's case;b.Whether denial of access from office amounts to removal from office.

144. It was submitted that, the application of; Section 62(6) of the ACECA, has been prosecuted in numerous cases. That, in the case of Moses Kasaine Lenolkulal v Director of Public Prosecutions (2019) eKLR, it was stated that, the section had to be read together with national values and principles of governess provided for it theConstitution and in Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others (2013) eKLR, it was stated that the actions taken under the section was justifiable under Chapter 6 of theConstitution and the overall purpose of the Act.

145. It was contended that denial of access to office, was a measure aimed at protecting the public interest, and the values stated in Article 10 and Chapter Six of theConstitution, and did not amount to removal. The case of Moses Muteithia & 5 others v Jacob Muthomi Kireira & 4 others, was cited. That, the' suspension 'of a Governor from office was unlikely to paralyze the operations of the county as the law provides for what happens in the absence of the same under Articles 181 and 182 of theConstitution and section 32(2) of the County Governments Act, as was held by the Court of Appeal in Ferdinand Ndung'u Waititu Babayao v Republic (2019) eKLR.

146. The 6th Respondent and the 1st and 2nd Interested parties did not file any submissions. However, the submissions were highlighted by the Advocates for the respective parties, with the Interested parties tendering oral submissions. The 2nd Interested party in the 2nd petition, submitted, that section 62(6) of ACECA which was enacted in the year 2003 should and should be read in conformity to the Article 10 and Chapter 6 of theconstitution.

147. It was argued that any law which was inconsistent to theConstitution was invalid and that section 62(6) is discriminatory as it gives exemption to some State officers. That viewed against the values and principles contained in theConstitution, the section is inconsistent with theConstitution but should not be used to shield the Governors against the general public interest. The Interested party in the 1st petition relied on the 2nd Respondent’s submissions.

Analyis and Determination 148. After considering the pleadings and submissions thereon, we have identified the following issues for determination: -a.Whether the court has jurisdiction to determine the issue of whether or not Governors charged with criminal offences should step aside.b.Whether the 1st Petitioner has locus standi to institute the 1st petition.c.Whether the bond terms imposed by the trial barring the Governors from accessing their offices, and/or stepping aside amounts to constructive removal, are discriminatory and therefore unlawful and unconstitutional vis a vis section 62(6) and Article 181 as read with Article 182 of theConstitution.d.Whether the issue under paragraph (c) above are res judicatae.Whether the 2nd Petitioner’s right to privacy, dignity, equality before the law and none-discrimination were violatedf.Whether the Petitioner are entitled to the prayers sought.g.Who will bear the costs?

149. We note that, the 1st issue on jurisdiction was raised by 1st and 3rd Respondents by way of preliminary objection referred to herein. Directions were given to the effect that the preliminary objections would form part of the responses to the petition. To briefly recap the argument advanced, it is submitted that, the issue in relation to the bail term requiring the Governors charged to step aside, has already been dealt with by the High court, Court of Appeal and is pending before the Supreme Court of Kenya. That, the 1st petition was advisory in nature, which was within the exclusive jurisdiction of the Supreme Court of Kenya and was further not justiciable.

150. However, before we deal with that issue of jurisdiction, we note that, it is closely related to the third and fourth issues we have herein and are of the view that, we deal with them together, albeit first to determine whether this court has jurisdiction to hear the consolidated petition.

151. Be that as it were, we note that, pursuant to; Article 165(3) (d) and 258 of theConstitution, this court can to hear and determine any question on the interpretation of theConstitution. The provisions of Article 165(3) provides, inter alia, that:'Subject to Clause (5), the High Court shall have-a)Unlimited original jurisdiction in criminal and civil mattersb)Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;c)Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of person from office, other than a tribunal appointed under Article 144;d)Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of -i.The question whether any law is inconsistent with or in contravention of this Constitution;ii.The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this constitution;iii.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; and.'

152. Similarly, Article 23 (1) of theConstitution of Kenya stipulates that: -'(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.'

153. Similarly, it is now trite law that, jurisdiction is everything and where the issue is raised, it must be determined at the earliest, for if the court were to find that, it has no jurisdiction, then it has no other option but to down its tools, as held by; Nyarangi JA in the case of; Owners of the Motor Vessel Lillian 'ss' versus Caltex Oil (Kenya) Ltd [1989] KLR, that: -'Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had 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.'

154. Having considered the aforesaid and the issues raised in the consolidated petition, we take the view that, the consolidated petition raises constitutional issue and the court is properly moved by the Petitioners. Therefore, this court, has jurisdiction to hear and determine the issues raised. As such the Respondents contention that the 1st petition is purely of advisory in nature, is not tenable. We must also for record purposes point out that the 5th Respondent, had filed a reference to The Supreme Court of Kenya, beingReference No 1 of 2020, The Honorable Speaker Nairobi City County assembly & another v The Hon Attorney General & 3 Others [2021] eKLR and were referred back to this court for determination and to hold otherwise, will amount to denial of justice to the petitioners.

155. We shall now turn to the issue of locus standi raised by 1st and the 3rd Respondents again by was of a preliminary objection. It is argued that, the 1st Petitioner not being a party to any criminal proceedings and/or charged with any criminal offence in the trial court(s), cannot litigate on behalf of the Governor (s) charged in their individual capacity. However, the 1st Petitioner contended that, Articles 22, 23 and 258(1) and 259 of theConstitution and section 20 of the County Governments Act, and its function gives them the mandate to advance matters of common interest to County Government.

156. Further, that the petition was brought in public interest to promote democratic principles and to ensure that injustice is not occasioned to the County Governors. The 1st Petitioner implored upon the court not to give a restrictive interpretation of locus standi and find that the 1st Petitioner it has locus standi to institute the 1st petition.

157. Having considered the arguments by the respective parties, we are in agreement with the submissions by the 1st Petitioner, that Articles 22 and 258(2)(b) and (d) expended the scope of locus standi and that anybody may bring proceedings before the Court on violation and or threat of violation of fundamental rights and freedoms, therefore a broader interpretation will ensure that, constitutional rights enjoy the full measure of protection. In this, we find support in the case of; Priscila Nyokabi Kanyua vs Attorney General &Another [2010] e KLR.

158. Similarly, we note that, in the case of; Mumo Matemu vs Trusted Society of Human Rights Alliance & 5others Civil Appeal No 290 of 2012 the Court of Appeal thus stated: -'Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of theConstitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process.In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus stand to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of theConstitution'

159. The Court went on to state that: -'Today, by dint of Articles 22 and 258 of theConstitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest'.

160. The Supreme Court of Kenya, in the same case of; Mumo Matemu vs Trusted Society of Human Rights &5 Others [2014] e KLR, stated that, the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. That, Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the Courts, contesting any contravention of the Bill of Rights, or theConstitution in general and in order to avoid frivolous suits.

161. The Court stated further that, in cases such as John Wekasa Khaoya v Attorney-General, High Ct Pet No 60 of 2012 have set out parameters to guide the filing of causes in the public interest. These include: (i) the intended suit must be brought in good faith, and must be in the public interest; and (ii) the suit should not be aimed at giving any personal gain to the applicant.

162. We find that, the 1st Petitioner is a person within the meaning of Articles 22 and 258 of theconstitution and its functions under section 30 of the County Governments Act entitles it to bring action on behalf of its members as provided for under sub Article (2) (b) and (d).

163. We shall now consider issues number (a), (c) and (d). we have considered the same and hold the view that, they constitute the main issue herein being; whether the orders of the trial court(s) directing the Governors charged with criminal anti -corruption related matters not to access their offices during the period of the trial, amounts to constructive removal from office, are discriminatory against the members of the 1st Petitioner, and therefore unconstitutional and/or are res judicata.

164. The arguments of the respective parties on these issues are already summarized herein through their response, submissions and declaratory prayers. In our considered view, the starting point, is to determine whether these issues are res judicata.

165. The principles guiding the court on res judicata are set out in section 7 of the Civil Procedure Act, which provides that, no court shall try any suit or issue in which the matter is directly and substantially in issues has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claims.

166. We also note that, the subject issue has been settled by the Supreme Court of Kenya in the case of; John Florence Maritime Services Limited & Another vs Cabinate Secretary. Transport and Infrastructure &3 Others [2021] e KLR, where the Court stated that: -'(59)For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.(See Uhuru Highway Developers Limited vs Central Bank of Kenya & Others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 Others Civil Appeal 110 of 2011 (2013) eKLR)'[82] If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of theConstitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other'.

167. Having stated the law as it is, we find that the question that arises is whether the issues under consideration are res judicata. In arguing to the same, the Respondents referred to this court to the cases of; Moses Kasaine Lenolkulal and Ferdinand Ndungu Waititu Babayao which were canvassed in the superior courts. We have considered the issues raised in the subject cases and find that basically, they were raising similar issues as herein.

168. The issues in Moses Kasaine Lenolkulal in the High Court was by way of revision against the decision of the trial court barring the same from accessing his office during the period of his trial. The High Court in HC CRREV No 25 of 2019 upheld the trial court’s decision and on appeal to the Court of Appeal in Criminal Appeal no 109 of 2019, reported as Moses Kasaine Lenolkulal v Republic [2019] e KLR, the Court of Appeal found that the bail terms did not remove the appellant from office, but merely required compliance with constitutionally sanctioned terms that of necessity limited his access to county offices until determination of the trial.

169. Similarly, the issue in Ferdinand Ndungu Waititu Babayao & 12 others v Republic [2019] e KLR , in the High Court , was by way of revision, against the decision of the Trial Court in barring him from accessing the County office until the case is heard and determined , in dismissing the application and upholding the trial courts determination, the Court stated that whereas the applicant remained innocent until otherwise proven , it would be a mockery , to the letter and the spirit of theConstitution if the same was allowed to go back to the office to continue with dealings that they are alleged to had committed against the law.

170. Waititu, proceeded to the court of Appeal in Ferninand Ndungu Waititu Babayao v Republic [2019] e KLR, where the Court, stated that looking at the statutory functions and responsibilities of the county governor, the bond terms were not likely to paralyze the operations of the county and that the judge did not purport to remove or suspend the appellant from office and therefore the provision of section 62(6) of ACECA was not applicable.

171. Undeterred Waititu, moved to the Supreme Court of Kenya in Petition no 2 of 2020, reported in Waititu (Petition no 2 of 2020) V Republic [2021] KESC 11(KLR), where again the issues of removal from office based on bond conditions was before the Court and the Supreme Court of Kenya., rendered itself on the issues before us as follows;'67. The bail condition that has attracted the appellant’s wrath is condition No 1 where the trial court stated: 'The 1st accused shall not access his office until this Criminal case is heard and determined.'68. Does this condition amount to removal of office? As we earlier held, the grounds on which a County Governor may be removed from office are as set out under article 181 of theConstitution which provides:'(1) A county governor may be removed from office on any of the following grounds–A. gross violation of this Constitution or any other law;b.Where there are serious reasons for believing that the county governor has committed a crime under national or international law;c.Abuse of office or gross misconduct; ord.Physical or mental incapacity to perform the functions of office of county governore.Parliament shall enact legislation providing for the procedure of removal of a county governor on any of the grounds mentioned in clause (1)'.69. Article 182 states the circumstances under which the office of the County Government shall be declared vacant by providing that;'182. (1) The office of the county governor shall become vacant if the holder of the office—a.Dies;b.Resigns, in writing, addressed to the speaker of the county assembly;c.Ceases to be eligible to be elected county governor under article 180 (2);d.Is convicted of an offence punishable by imprisonment for at least twelve months; ore.Is removed from office under this Constitution'.70. Did limiting the appellant’s access to the County offices of Kiambu pending the determination of trial equate to his removal from office as contemplated under article 181 of theConstitution? The answer to this is in the negative. Barring a Governor from accessing his office pending his trial on corruption charges cannot be equated to a removal from office. The trial court merely attached a condition to the bail granted for the Appellant not to access his office and did not order his removal from office. Removal from office has to be undertaken by the procedure set out in section 33 of the County Governments Act. It is agreed that the said procedure was only invoked, not through the Ruling of the trial court but by notice to the Speaker of the Kiambu County Assembly which led to the eventual removal of the appellant as Governor.71. What of the argument that the appellant was subjected to constructive removal? In his submission, the appellant relied on Black’s Law Dictionary (9th Edition) to argue that the bail terms made his working conditions so intolerable that he felt as if he was being compelled to leave office. That was a curious submission because the reason for the order not to access his office was made to safeguard the integrity of the criminal trial during its pendency and no more.72. Furthermore, as was stated in Alhaj Muiahid Dukub, discretion by a trial court may be exercised to limit the enjoyment of bail if the accused was likely to interfere with witnesses or suppress the evidence against him. We see no reason to fault the trial court in exercise of that discretion noting the specific circumstances of the case facing the appellant and where his office may be the source of incriminating evidence and staff under him being witnesses. If the appellant was dissatisfied by any condition in the bail Ruling, the proper procedure was to seek a review at any stage of his trial and show that the condition was no longer efficacious and ought to be lifted.73. In conclusion on this issue, it is our opinion that the appellant clutched onto the misguided notion of constructive removal, a mirage, when all he had to do was focus on bail terms and conditions and use lawful means to challenge the same. Removal was later conducted, and he is no longer in office. The trial court’s Ruling cannot therefore be said to be the basis for his eventual removal, and as a basis for challenging the bail Ruling.74. Having found that the bail terms did not amount to removal of office, the appellant has not advanced other reasons to show that the bail conditions imposed were unconstitutional, unreasonable or unattainable'.

172. We have extensively quoted the judgement of The Supreme Court of Kenya, and take the view that it answers all the issues which were raised in the two consolidated petitions before us in the negative , that is to say that the bond terms requiring the members of the 1st Petition did not amount to constructive removal from office and that there is specific procedure set in law for removal of the members of the 1st Petitioner including the 2nd Petitioner from office, it is also clear from the determination of the Supreme Court, that the issues raised in the petition before us is specifically as regards the implication of the bond terms, which has nothing to do with the operation of section 62(6) of ACECA .

173. In conclusion we find that, the issue of constructive removal of the petitioners have been conclusively determined by the Supreme Court, and being a judgement of the supreme court which is binding upon us on the doctrine of stare decisis and being a judgement in rem, the matters raised are therefore res-judicata, which oust the jurisdiction of this court to try the issues raised in the petitions before us, which are directly or substantially the same, as those raised and answered by the supreme court .

174. We shall turn to the other issues raised by the 2nd Petitioner in relation to the manner in which he was arrested, detained, transferred and eventually arraigned in court. Having considered the arguments advanced on the same. We are of the view that, these are contested issues, that will require to be proved through evidence, so that the court can be able to come to a determination and if need be, have a basis on which to award damages if it finds as such.

175. The 2nd Respondent has only made general allegations, on the nature of his arrest and subsequently being charged in court, a trial which is still on going and there is no evidence tendered before us to, to support the allegations that his trial is for ulterior purposes by the respondents and that the same have been raised before the trial court, and are unable to find that the trial is unlawful, as such the 2nd Petitioner is at liberty to raise them in the trial court and/or any other court which will be able to test the same by way of cross examination.

176. As regard to the issue of violation of the 2nd petitioner’s constitutional right to privacy and in particular the search conducted on his bank accounts, the issue has been a subject of other cases and in particular the case of; Ethics and Anti-Corruption Commission v Tom Ojienda, SC, t/a Prof Tom Ojienda & Associates & 2 others; Law Society of Kenya (Amicus curiae), the Supreme Court of Kenya stated as follows: -'(15)We have considered these rival submissions. It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance. In the circumstances, in the interest of justice and to provide guidance, a clear and authoritative statement of this Court on the issues raised is imperative. Consequently, we allow this application and direct that pending the hearing and final determination of the applicant’s appeal—No 30 of 2019, the effect of the High Court and Court of Appeal decisions in this matter is hereby stayed. Neither party to this appeal, nor any other person shall use, apply or in any way rely upon them until the said appeal is heard and determined'.

177. Be that as it may, we find that, the power of the investigating agencies to investigate a person’s bank account are provided for under the provisions of inter alia; sections 178 to 180 of the Evidence Act which stipulated as follows: -'178. Restriction on compelling production of banker’s book A banker or officer of a bank shall not, in any proceedings to which the bank is not a party, be compellable to produce any banker’s book the contents of which can be proved under this Chapter of this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the court made for special cause.

178. Inspection of bankers’ books (1) On the application of any party to proceedings a court may order that such party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes, of such proceedings. (2) An order made under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before it is to be obeyed, unless the court otherwise directs. [Rev 2012] CAP 80 Evidence 55 [Issue 1] (3) For the purposes of subsection (1), 'proceedings' includes any proceedings in Tanzania or Uganda. [LN 22/1965. ]

179. Warrant to investigate (1) Where it is proved on oath to a judge or magistrate that in fact, or according to reasonable suspicion, the inspection of any banker’s book is necessary or desirable for the purpose of any investigation into the commission of an offence, the judge or magistrate may by warrant authorize a police officer or other person named therein to investigate the account of any specified person in any banker’s book, and such warrant shall be sufficient authority for the production of any such banker’s book as may be required for scrutiny by the officer or person named in the warrant, and such officer or person may take copies of any relevant entry or matter in such banker’s book. (2) Any person who fails to produce any such banker’s book to the police officer or other person executing a warrant issued under this section or to permit such officer or person to scrutinize the book or to take copies of any relevant entry or matter therein shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding two thousand shillings or to both such imprisonment and fine.

180. Further, sections 23 and 29 of ACECA, states that:(1)The Secretary or a person authorized by the Secretary may conduct an investigation on behalf of the Commission.(2)Except as otherwise provided by this Part, the powers conferred on the Commission by this Part may be exercised, for the purposes of an investigation, by the Secretary or an investigator.(3)For the purposes of an investigation, the Secretary and an investigator shall have the powers, privileges and immunities of a police officer in addition to any other powers the Secretary or investigator has under this Part.(4)The provisions of the Criminal Procedure Code (Cap 75), the Evidence Act (Cap 80), the Police Act (Cap 84) and any other law conferring on the police the powers, privileges and immunities necessary for the detection, prevention and investigation of offences relating to corruption and economic crime shall, so far as they are not inconsistent with the provisions of this Act or any other law, apply to the Secretary and an investigator as if reference in those provisions to a police officer included reference to the Secretary or an investigator. [Act No 7 of 2007, Sch, Act No 18 of 2014, Sch.]29 (1).The Commission may, with a warrant, enter upon and search any premises for any record, property or other thing reasonably suspected to be in or on the premises and that has not been produced by a person pursuant to a requirement under the foregoing provisions of this Part. (2) The power conferred by this section is in addition to, and does not limit or restrict, a power conferred by section 23(3) or by any other provision of this Part.

181. Similarly the provisions of; section 118 of the CPC states that: -'Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.

182. In that regard based on the aforesaid we unable to arrive to a conclusion that the 2nd Petitioner right to privacy were violated.

183. Now turning to the specific prayers to the Petition we find that, based on the analysis and findings aforesaid that, the issues raised in the petitions are res judicata, and/or should be canvassed in the trial court and /or any other court and our finding that there was no violation of the Petitioner rights as pleaded, we are unable to grant any of the prayers seeking for declaratory orders.

184. In the same vein, having held that the issues relating to the arrest, detention and subsequent trial of the 2nd Petitioner require evidence in proof thereof, we are unable to address the prayer seeking for damages

185. 203. The upshot of the aforesaid is the consolidated petition is dismissed.

186. As regards costs we find that whereas costs follow the event, taking into account the circumstances of this petition, the nature of the litigation being of public interest, the parties involved and the findings of the court, the court exercises its discretion and order that each party do meet its own costs.

187. It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 6TH DAY OF MAY 2022. GRACE L. NZIOKAJUDGEJ. WAKIAGAJUDGEE. N. MAINAJUDGEIn the presence of;Mr. Muteti in Petition 312 of 2020 for the 1st RespondentMs. Munyao holding brief for Mr. Wanyama for the PetitionerMs. Kibogi for EACC (2nd Respondent).Mr. Wambugu holding brief for Ms. Chimya for AG & IG (3rd Respondent/IP respectivelyPetition No. 38 of 2019Mr. H. Kinyanjui for the PetitionerMr. Kinaya for DPPMr. Kihera holding brief for Ms. Chimya for 2nd Respondent/A.G (3rd/4th Respondent respectively.Mr. Wambugu for EACC (3rd Respondent)Mr. Kokebe for the 5th RespondentMr. Shikanya – LSK (2nd) IP