https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10695

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CONSTITUTIONAL PETITION NO. E013 OF 2026** **IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 22(1) OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF: CONTRAVENTIONS AND THREATENED CONTRAVENTIONS OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(2), 2(4), 3 (1), 10, 21(1), 47, 73,129,174,175, 184, 201 & 232 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF VIOLATION OF SECTION 8(1) (A) OF THE COUNTY GOVERNMENTS ACT, 2012 AND SECTION 14 OF THE URBAN AREAS AND CITIES ACT, 2011** **AND** **IN THE MATTER OF APPOINTMENT OF MEMBERS TO THE BOARDS OF THE MACHAKOS AND MAVOKO MUNICIPALITIES** **BETWEEN** **THE COUNTY ASSEMBLY OF MACHAKOS………………..PETITIONER** ***VERSUS*** **GOVERNOR, MACHAKOS COUNTY…………………….1ST RESPONDENT** **MARY MUTETE MWANZIA……………………………….2ND RESPONDENT** **ELIZABETH MITHE KIMANTHI……………………….....3RD RESPONDENT** **NYAMBANE JAPHETH ONDIEKI………………………...4TH RESPONDENT** **RULING** **Introduction & Background** 1. On 13th May 2026, the Petitioner (“the Assembly”) filed a petition challenging the 1st Respondent’s (“the Governor”) appointment of the 2nd, 3rd , and 4th Respondents(“the Respondents”) to the Machakos and Mavoko Municipal Boards. The Assembly avers that the Respondents’ appointments are unconstitutional and illegal because they were made without the Assembly's mandatory approval as required by law and thus seeks a declaration that their appointment is unlawful, null, and void and an order of *Certiorari* to quash *Gazette Notice No. 6571* by the Governor that effected their appointment. 2. Contemporaneously with the petition, the Assembly filed a Notice of Motion dated 12th May 2026. The application is expressed to be brought under **Articles 22, 48 and 259(1)** of the ***Constitution*** and **Part II Rules 4,8 and 10** of the ***Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013***. The application seeks firstly; a conservatory order to stay the implementation of the impugned *Gazette Notice* and secondly; an order to restrain the Respondents from assuming office, taking oath, or performing any functions as members of the Municipal Board pending the hearing and determination of the Petition. 3. This application is supported by grounds on its face and the supporting affidavit of the Assembly Clerk, Peter Mbatha, sworn on 12th May 2026. It is opposed through an affidavit sworn of the Wavinya Ndeti, the Governor Machakos County sworn on 26th May 2026. 4. On 4th June 2026 this court gave directions that the application would be canvassed by way of written submissions. The same were duly received. The Petitioner/Applicant was represented by Mr. Muthusi Advocate while the Respondents were represented by Mr. Willis Otieno Advocate. I see no need to reproduce the submissions here but I will be making reference to the same in my analysis and determination. **The Application** 1. The gravamen of this application is that the County Executive led by the 1st Respondent did not afford the County Assembly opportunity to vet and approve the 2nd, 3rd and 4th Respondents before appointing them to office as members of the respective municipality boards. According to the Applicant the 1st Respondent forwarded the names on 12th March 2026 and they were duly forwarded to the relevant committee which was the Urban Planning Committee hereinafter referred to as the Committee. The Committee began the vetting process, holding sittings on 15th, 20th and 22nd April 2026 and conducting public approval hearings on 23rdApril 2026. The Committee then completed vetting the nominees and approved them. It then prepared a report but before the Committee could forward the report to the full Assembly for debate and approval of the nominees, the 1st Respondent went ahead and formally appointed the Respondents by way of the impugned *Gazette Notice No. 6571* on 7th May 2026. 2. The Assembly contends that the Governor's action violates **section 8(1)(a)** of the ***County Governments Act (Chapter 265 of the Laws of Kenya)*** and **section 14** of the ***Urban Areas and Cities Act (Chapter 275 of the Laws of Kenya)***, which explicitly state that municipal board members must be appointed by the Governor with the approval of the Assembly. That the appointment having been made in contravention of the ***Public Appointments (County Assemblies Approval) Act (Chapter 265B of the Laws of Kenya) hence the law***, the same amounts to an overreach of executive authority, it undermines the Assembly's mandate of oversighting the Executive and is a violation of the principles of good governance, separation of powers, and the rule of law thus violating **Articles 10, 73, 129, 174, 175, and 232** of the ***Constitution.*** **The Reply** 1. In response, the Respondents first assail the competence of the petition and application by stating that the Assembly, as a state organ, does not have the *locus standi* to file a constitutional petition alleging the violation of fundamental rights and freedoms and that the Bill of Rights is meant for natural persons, not artificial or state organs such as County Assemblies. They cite the Court of Appeal decision in the case of **Meru County Government v Ethics & Anti-Corruption Commission [2018] KECA 720 (KLR)** to support this position. 2. The Respondents further depone that the Assembly failed to exhaust other avenues for dispute resolution before rushing to court; that state organs should first attempt amicable, out-of-court settlements for inter-governmental disputes; that the Assembly moved to court without any prior communication or attempt to seek a response from the office of the 1st Respondent, hence the suit is premature and intended to drag the court into a political contest. The Respondents refute the Assembly's claim that the approval process was ongoing and contends that the Assembly used unreasonable delaying tactics and that the Assembly only held four sittings between 1st April and 7th May 2026. The Respondents urge that state organs cannot act capriciously to interfere with the functioning of other government organs. It is also argued that moreover, the relevant Committee had already approved all the nominees and had prepared a report recommending their appointment and that since the 21-day statutory period for the Assembly to complete its approval process had lapsed, the appointment was deemed to have been approved and therefore, the 1st Respondent action of proceeding with the appointments was justified. The Respondents further state that public interest outweighs the interest of the Assembly in that delay in constituting the municipal boards would result in the loss of Kshs 1.8 billion in funding from the *World Bank* under the *Second Kenya Urban Support Programme (KUSP 2)*. They allege that the *World Bank* requires fully constituted Boards as a condition for funding and delaying the appointment would jeopardize this crucial funding meant to benefit the people of Machakos County. 3. For the above reasons, the Respondents urge the court to dismiss the application arguing that the Assembly stands to suffer no prejudice or loss. **Analysis and Determination** 1. As submitted by learned Counsel for the Respondents, the principles governing the grant of conservatory orders were outlined by the Supreme Court in the case of **Munya v Kithinji & 2 others [2014] KESC 30 (KLR)** where it stated: ***86.“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.*** ***87. The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:*** ***(i) the appeal or intended appeal is arguable and not frivolous; and that*** ***(ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.*** ***88. These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:*** ***(iii) that it is in the public interest that the order of stay be granted.*** ***89. This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution.’’*** 1. The apex court, also stated as follows in the case of **Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 others [2023] KESC 14 (KLR):** “***Thus, conservatory orders are not ordinary civil law remedies but are remedies provided for under the Constitution, the supreme law of the land. Indeed, the appeal emanates from the learned judge’s exercise of discretion under rule 23(1) of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012) and to that extent the Constitution itself. Article 23(3) of the Constitution empowers the court to, inter alia, grant conservatory orders.”*** 1. I have carefully considered the application, the affidavits, the rival submissions of learned Counsel for the parties, the cases cited and the law and in my view the issue that arises for determination at this stage is whether or not this court should grant the conservatory orders sought. 2. The Applicant submits that the application meets the threshold for the grant of a conservatory order and relies on the test set out by the court (Kariuki J,) in the case of **Suyianka & another v President of the Republic of Kenya & 2 others [2026] KEHC 1763 (KLR)**. In other words, it is contended that the Applicant has a prima facie case with a high probability of success based on the explicit requirements of the law in that **section 14(1)** of the ***Urban Areas and Cities Act*** mandates that municipal board members be appointed by the Governor with the approval of the Assembly. Further, that **section 4** of the ***Public Appointments (County Assemblies Approval) Act*** explicitly bars public appointments from being made unless approved by the relevant Assembly. 3. Responding to the Respondents’ claim that the Governor was legally justified to proceed with the appointments because the Assembly failed to conclude the vetting within the statutory 21 days, the Assembly submits that the law stipulates 21 sitting days and not calendar days. That sittings as defined under **Standing Order 2**, the Assembly had only utilized 4 sitting days when the Governor unilaterally rushed to publish the *Gazette Notice.* The Applicant argues that neither the ***Urban Areas and Cities Act*** nor the ***Public Appointments (County Assemblies Approval) Act*** contains any provisions or riders allowing for automatic appointment or assumption upon lapse of time. That while the Respondents produced a signed report from the Committee on Urban Planning and Development, they failed to present Hansard records proving that the report was ever formally tabled, debated or approved by the full House. 4. The Applicant submits that if the conservatory orders are not granted, the Respondents will proceed to take oath, assume office and execute official functions. That the petition seeks an order of *certiorari* to quash the *Gazette Notice* and declare the appointments null and void and allowing unapproved nominees to occupy office in the interim would compromise the integrity of the suit and render the final judicial outcome meaningless. 5. The Assembly underscores that the separation of powers is a sacrosanct constitutional principle and preventing the Executive from usurping the legislative mandate of oversight serves the broader public interest in preserving good governance. It submits that granting the orders protects **Article 201** of the ***Constitution*** on principles of public finance by ensuring public funds are not irregularly expended on salaries or operational costs for illegally appointed officers. The Assembly concludes by submitting it has fully discharged its burden of proof for the interim stage and prays that the court extends the conservatory orders to maintain the *status quo* until the main petition is fully heard and determined. 6. On their part, the Respondents submit that the Assembly has completely failed to demonstrate a prima facie case with a likelihood of success for reasons that the names of the nominees were duly submitted to the Assembly, approval hearings were conducted and the relevant Committee formally considered and approved the nominees, going as far as preparing a report approving their appointments. That the statutory timeline allocated for the full Assembly to conclude the approval process had already lapsed by the time the appointments were gazetted and the Respondents submit that the Assembly explicitly admitted to conducting only four sittings despite the nominations being submitted much earlier. The Respondents argue that a constitutional organ cannot rely on its own institutional delay, inaction or failure to discharge a statutory duty to paralyze the functions of another constitutional office and that under **Articles 10, 129, and 232** of the ***Constitution***, all State organs must act reasonably and efficiently. 7. From the pleadings and submissions, I note that it has not been denied that the 1st Respondent did not wait for the vetting and approval to go through its full course before appointing the 2nd, 3rd and 4th Respondents and gazetting the appointments. The legality of the appointments and the validity of the gazette notice would then be a pertinent issue for determination in the Petition as would the issue of whether the public interest would supercede the Applicant’s constitutional role of oversighting the Executive. However, the learned counsel for the Respondents has raised issues of procedural law which this court must consider even before it can determine whether or not the Applicant has demonstrated a prima facie case as would warrant this court to grant it the conservatory orders sought. 8. The first issue is in regard to the doctrine of exhaustion. The Respondents assert that this court was moved prematurely and should exercise judicial restraint as the Assembly did not issue any prior correspondence to the Governor, seek clarification regarding the legal foundation of the appointments, or attempt any administrative or institutional dialogue before rushing to court. They rely on inter alia the Court of Appeal’s decision in **Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR)** and this court’s decision in **Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR)**to highlight that where clear external dispute resolution procedures exist, they must be strictly exhausted first. 9. The Respondents submit that multiple specialized bodies exist to mediate intergovernmental disputes such as the Council of Governors, the County Assemblies Forum, and the Intergovernmental Relations Council and that moving to court without attempting an out-of-court settlement directly violates national resolutions that discourage adversarial litigation between state agencies. 10. The Assembly counters this by submitting that that this is not an alternative dispute resolution matter but a direct violation of law and that under **Article 185(3)** of the ***Constitution*** and **section 8** of the ***County Governments Act***, the Assembly is legally bound to exercise its oversight and vetting mandates and it cannot sit back or engage in informal dialogue when the Executive acts in flagrant disregard of statutory procedures. 11. In **Muthinja *(supra)***, the Court of Appeal held that “*It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”* **Articles 189(3) & (4)** of the ***Constitution*** provides as follows: ***“(3) In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.*** ***(4) National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.”*** 1. The **Intergovernmental Relations Act(Chapter 265F of the Laws of Kenya)**was enacted ***“….to establish a framework for consultation and co-operation between the national and county governments and amongst county governments; to establish mechanisms for the resolution of intergovernmental disputes pursuant to Articles 6 and 189 of the Constitution, and for connected purposes****.”* This ***Act*** gives effect to this constitutional requirement and **section 31** thereof compels the National and County Governments to "***apply and exhaust the mechanisms for alternative dispute resolution provided under this Act... before resorting to judicial proceedings****”* 2. I have considered this issue carefully and my finding is that strictly speaking this case is not one that is affected by the doctrine of exhaustion. Nowhere is it stated that disputes concerning procedural lapses in the approval of nominees to public offices must be subjected to alternative mechanisms of dispute resolution before they can be brought to court. No such mechanism is provided for in the law. As such I am not persuaded that the cases cited in support of this argument come to the aid of the Respondents and in my considered view, that argument cannot hold. Be that as it may, **Article 159(2)c of the Constitution** enjoins this court to promote alternative forms of dispute resolution and where parties are agreeable the court would give them an opportunity to explore an amicable resolution of their dispute and indeed the 1st Respondent is willing to negotiate the matter with the Applicant. 3. The second issue raised by the Respondent touches on the competency of this application and the Petition. The Respondents have challenged the Applicant’s standing, pointing out that the Applicant cannot bring proceedings for violation of rights as those rights belong to natural persons which the Applicant is not. The Applicant admits this but contends that the same is a procedural oversight which is curable under **Article 159(2)(d)** of the ***Constitution***; that judicial authority must be guided by substance rather than technicalities and that rules of procedure are meant to be "handmaidens of justice" not barriers to it. The Applicant submits that a minor procedural misstep should not be used to dismiss a petition where blatant constitutional violations are evident. Counsel for the Applicant places reliance on the cases of; * ***Wandi v Muchira [2025] eKLR Petition (Application) E029 of 2024 [2025] KESC 40 (KLR),*** * ***Mbaraka Issa Kombe v Independent Electoral and boundaries Commission & 2 Others [2018] eKLR Election Petition Appeal No. 3 of 2017.*** * ***Francis James Ndegwa v Tetu Dairy Co-operative society limited [2016] eKLR*** 1. I have considered the rival arguments carefully. In the case of ***Meru County Government(supra)***case, the court of appeal dealing with a similar issue held as follows: ***Is the Appellant a Person Under the Bill of Rights?*** ***37. This question is central to the fate of this appeal. The appellant contends quite correctly, that the definition of person? contained in the interpretative Article 260 of the Constitution “includes a company, association, or other body of person s whether incorporated or unincorporated.” To the appellant way of thinking, it is a person both from that definition, and from a plain reading of section 6 of the Country Government Act, No. 17 of 2012 which provides that;*** ***(1) As an entity exercising constitutional authority, a County Government shall be a body corporate with perpetual succession and shall have all power necessary for the discharge of its functions.”*** ***38. As such body corporate a county government is capable of various functions and may enter into contract, acquire, purchase or lease any land, as well as delegate any of its functions to its officers, decentralized units or other entities within the county. (Sub section 2).*** ***39. That county government is a legal person and therefore capable of the various powers and functions prescribed by law is in fact not contested by the Commission which submits that;*** ***"It is not in dispute that, whereas the Meru County Government is a legal person, it is also an institution of devolved governance, and therefore, an organ of the State.”*** ***40. The Commission relies on the same Article 260 of the Constitution which contains the following definitions; of „state? and „state organs?*** ***"State?, when used as a noun, means the collectivity of offices, organs and other entities comprising the government of the Republic under this Constitution;*** ***'State organ' means a commission, office, agency or other body established under this Constitution?;”*** ***41. As far as legal capacity is concerned in the sense of being capable of holding property; of suing and being sued, the county governments are as much persons in a loose sense as the national government which has like capacities. These have been recognized in statute law including by the Government Proceedings Act, Cap 40 Laws of Kenya. The point of departure between the parties herein which is the gravemen of this appeal, is whether by reason of being a person, a county government can sue for violation of the rights and fundamental freedoms enumerated in the Bill of Rights in respect of itself.*** ***42. It would be axiomatic that if by reason only of having capacity to sue a county government would also be in a position to sue and enforce rights in the Bill of Rights, then by parity of reasoning, the national government and indeed the State would be equally entitled to do so. But can this be? We think that the answer lies in the opening words of Article 260 of the Constitution which precedes the various meanings to be attached to a selection of term with the words;*** ***"In this Constitution, unless the context requires otherwise – ...” (our emphasis)*** ***43. We take it that the Constitution itself does recognize that depending on context, the interpretation of terms is provides may differ in meaning or be limited in application. And we do think that when it comes to the Bill of Rights, the context must dictate that the rights and fundamental freedoms cannot possibly attach to a county government. Indeed, the content of the Bill of Rights is by definition largely anthromorphic and deals with human rights as such. There would thus be an absurdity for a county government to purport to directly claim or seek to enforce for itself the rights and freedoms listed therein. It bears recalling that the entire human rights edifice lies on theoritical framework built in large part on the natural law theories which treat human rights as a human attribute flowing directly and inescapably from the humanness of the right holders. The learned authors of International Human Rights; Law, Policy and Process 4th Ed. [2009] (Weissbrodt; Ni Aolain; FitzPatrick and Newman) while addressing the theoretical foundations of human rights, make that connection in these terms;*** ***"Natural law served as the principal basis for the development of natural rights theory. According to the natural rights theory, individuals have certain immutable rights as human beings. The Universal Declaration of Human Rights reflects natural rights thinking in pronouncing in Article 1: “All human beings are born equal in dignity and in rights.” According to natural rights theory, these rights may be derived from divine sources or some other universal principle of human nature.*** ***....*** ***One advantage of the natural law and natural rights theories is that they can explain why human beings have certain inviolable rights and why those rights must be protected. For example, natural law supports the norm of equality as derived from a belief in a common human nature of all people.”*** ***44. Professor Julius Stone in Human Law & Human Justice Universal Law Publishing Co. (1965) traced modern human rights to natural law and its central thesis that individual human beings are endowed with certain rights flowing from the laws of nature as follows at (p89-90);*** ***" The principal aim of society, said Blackstone, opening his pages in Vattelian fashion, „is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature ...? And he also tells us that „this law of nature being coeval with mankind and dictated by God himself, is of course, superior in obligation to any other .... No human laws are of any validity if contrary to this.*** ***....*** ***When the Declaration of Independence recited as self-evident men's endowment with the rights of life, liberty and the pursuit of happiness, and that the people were entitled to replace any government destructive of these rights, it marked the beginning of a spectacular career of natural law in American constitutional development. In the books, as well as in the Federal and State „Bills of Rights?, the doctrine persisted explicitly throughout the century. When its revolutionary phase was over, it still continued to operate, endowing traditional legal rights with the authority of natural rights, and these natural rights in turn with the force and immutability of a rigid constitution.”*** ***45. He then went on to assert these thoughts as informing and reflected in the fundamental human rights documents in Anglo-Saxon experience including the Magna Carta, the Petition of Right (1927) the Habeas Corpus Acts, the American Declaration of Independence and the Constitution of the United States of America. These documents formed the backdrop for the Universal Declaration of Human Rights and are echoed in many modern libertarian constitutions, including our own.*** ***46. Another scholar, Professor Amartya Sen in this The Idea of Justice (2009) (Penguin Books) also makes that essential and fundamental connection as follows at p 357;*** ***"What exactly are human rights? Are there, as is often asked, really such things? There are some variations in the ways in which the idea of human rights is invoked by different people. However, we can see the basic concerns behind these articulations by examining not only the contemporary practice of utilizing the concept, but also the history of its use over a very long period. That substantial history includes the invoking of „inalienable rights? in the American Declaration of Independence and similar affirmations in the French declaration of the „rights of man? in the eighteenth century, but also the relatively recent adoption by the United Nations of the Universal Declaration of Human Rights in 1948.”*** ***47. We are thus firmly persuaded that in its historical origins, conceptually and doctrinally, the Bill of Rights in our Constitution enumerates rights that are essentially human rights and so are claimable essentially by individuals. Indeed, under the general provisions relating to the Bill of Rights, the Constitution at Article 19(2) and (3) declares the centrality of the individual person as the owner of rights and by juxtaposition contrasts with the State, as follows;*** ***19(2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.*** ***(3) The rights and fundamental freedoms in the Bill of Rights-*** ***(a) belong to each individual and are not granted by the State;*** ***(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter; and*** ***(c) are subject only to limitations contemplated in this Constitution.” (our emphasis)*** ***48. These rights are spoken of together and often interchangeably with fundamental freedoms and the context is clearly personal and individualized. The Constitution at Article 21(4) commands the State to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.*** ***49. These obligations flow from international and regional human rights treaties, conventions and other covenants which all speak of human rights and fundamental freedoms of individuals. It is no surprise indeed that Article 25, in declaring the fundamental rights and freedoms that may not be limited, the „super rights? if one please, that are non-derogable, contains a list that is self-evidently personal and can only belong to individuals in their natural human capacity. The entire corpus of rights is of the same character in tone, content and context and proceeds overwhelming from an individual, human personalized perspective.*** ***50. When it comes to enforcement of the Bills of Rights, however, the Constitution in Article 22(1) provides for locus by first acknowledging that every person has the right to institute court proceedings claiming that a right or fundamental freedoms in the Bill of Rights has been denied, violated or infringed, or is threatened. This acknowledges the primacy of the individual as the first claimant and enforcer of the Bill of Rights in respect of himself. Besides the implicated individual, however, the Constitution literally flings open the gates of locus standi, long held shut by narrow minimalist approaches, in the next sub-Article;*** ***22.(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-*** ***(a) a person acting on behalf of another person who cannot act in their own name;*** ***(b) a person acting as a member of, or in the interest of, a group or class of person s;*** ***(c) a person acting in the public interest; or*** ***(d) an association acting in the interest of one or more of its members.”*** ***51. Our understanding of this provision is that whereas only individual persons bear rights and can be victims of violation of such rights, either in singular or in plurality, say as a group or a class of persons, when it comes to enforcing the Bill of Rights, the litigant need not be a person directly affected. Thus one may sue on behalf of a person unable to act in their own name, such as a child, and one may also sue in representative capacity or in the public interest. Moreover, an association may move the Court on behalf and in the interest of its members.*** ***52. For purposes of enforcement, therefore, all one needs establish is that he or she is a person capable of suing and Article 21 must, consistently and in conformity with the contextual command of Article 260, be so construed as to include persons other than individual human persons in the construction of the persons who can enforce rights even though, against contextually, such non-individuals may not be themselves holders or wielders of rights and fundamental freedoms under the Bill of Rights.*** ***53. So understood, we see no conflict between what we have explained and what the Kisumu bench held in the COUNTY ASSEMBLY OF KISUMU case (supra). That Bench, while commenting on the very judgment of Manjaja. J, subject of this appeal, which had been cited to them as authority for the proposition that the Kisumu County Assembly Service Board could not by suit enforce its constitutional rights against another State organ, reasoned thus;*** ***19. We know of no constitutional or statutory provision restraining a State organ from enforcing its constitutional rights against another State organ. What Majanja J. said in the case of The County Government of Meru v. The Ethics and Anti-Corruption Commission (supra) which counsel for the appellants relied on in support of their contention, was that the Meru County Government as a State organ could not lodge a claim under Article 22 to enforce against another State organ its fundamental rights to privacy, freedom of information, property and fair administrative action under Articles 31, 35, 40 and 47 respectively. The 1st respondent in this matter never sought any relief under the Bill of Rights in the Constitution. It is the 2nd respondent, a natural person and a joint petitioner in the petition, who sought relief under Article 22 of the Constitution which is in the Bill of Rights. The relief the 1st respondent sought in the petition was that the Kisumu County Assembly had no constitutional or statutory authority to disband, dissolve or suspend the Kisumu County Assembly Service Board. The persuasive authority in that case is therefore distinguishable.*** ***20. In the circumstances, we cannot see why the Kisumu County Assembly Service Board cannot challenge an unlawful act that threatens its very existence. We therefore hold that a State organ can enforce its constitutional rights against another State organ. Accordingly this ground of appeal also fails.” (Our emphasis)*** ***54. We respectfully agree with the sentiments expressed in that case. State organs can indubitably file suit inter se to protect various rights, capabilities, competencies and privileges accorded to them by the Constitution. What they cannot in and of themselves do, is to purport to claim for themselves and enforce for themselves qua State organs, the rights enumerated in the Bill of Rights. Such rights as we have stated, and the Kisumu Bench as well, belong only to individuals as natural persons who only can enforce or protect them in person or through any other persons be they natural or juristic.[My emphasis]*** 1. From the above, it is clear that whereas the Assembly can sue to remedy violations or threatened violations of the constitution and to protect its constitutional powers or privileges, the Assembly, as a state organ, cannot claim the rights in the Bill of Rights for itself under **Article 22 of the Constitution** as those rights belong to individuals and natural persons. 2. In this petition, the Applicant, a state organ, claims that its power of oversight as provided in **Article 185(3) of the Constitution** has been violated. It has however brought the Petition and this application under Article 22 which the Court of Appeal has emphatically held it cannot do hence rendering the application and the petition defective. Counsel for the Applicant has urged this court to overlook this defect as a procedural lapse curable under Article 159(2)c of the Constitutional. It is my finding that this case cannot, with due respect, be equated to the cases cited by Counsel for the Applicant. In the case of **Wandi v Muchira (Supra)** and the case of **Mbaraka Issa Kombe V Independent Electoral and Boundaries Commission** the defect was merely on the title of the petition and hence did not go to the root of the dispute. The Supreme Court therefore treated it as a minor irregularity which could be corrected without causing injustice. The defect in this case however goes to the capacity of the Applicant to bring these proceedings. It is not merely a defect in the title of the proceedings. Even had the application been brought in the names of individuals the defect would not have been cured given that what is sought to be protected is a constitutional power or privileged which cannot be invoked under **Article 22 of the Constitution**. Such violation can only be claimed by the Assembly but not by individuals outside of it unless by way of the jurisdiction of this court under **Article 165(3)(d)** of the Constitution. This application clearly concerns a claim of contravention of rights in the Bill of Rights which, as was stated in the case of **Meru County Government v Ethics & Anti-Corruption Commission (**supra**),** the Applicant has no capacity to claim for itself. The conservatory order cannot therefore issue unless the application is amended. **Disposition** 1. **The upshot is that the application fails and it is dismissed for being incompetent.** 2. **Costs follow the course but given the relationship between the parties the order that best commends itself to this court is that each party shall bear its own costs of the application.** Orders accordingly. **Ruling dated, signed and delivered virtually through Microsoft Teams on this 16th day of July. 2026.** **E. N. MAINA.** **JUDGE.** **IN PRESENCE OF:** Ms Kombo for Muthusi Advocate for Petitioner/Applicant Ms Chani for Willis Otieno Advocate for 1st to 4th Respondents Court Assistant/Interpreter – Miriam