https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7765

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT EMBU** **(CORAM: R. MWONGO, J.)** **CONSTITUTIONAL PETITIONS E006 & E007 OF 2026** **IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 19, 20, 22, 23, 47, 48, 50, 73, 236, 159, 160,165, 174, 179 & 259 OF THE CONSTITUTION OF KENYA, 2010.** **IN THE MATTER OF: SECTION 35, 36, 38, 39 & 40 OF THE COUNTY GOVERNMENT ACT, NO. 17 OF 2012, LAWS OF KENYA.** **IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLES 19, 20, 22, 23, 47, 50, 159, 174, 175, 179 & 236 OF THE CONSTITUTION OF KENYA 2010, AND SECTION 40, COUNTY GOVERNMENT ACT, 2012** **IN THE MATTER OF: THE ALLEGED RESOLUTION FOR REMOVAL AND SUSPENSION OF THE COUNTY EXECUTIVE COMMITTEE MEMBERS (CECM) OF THE COUNTY GOVERNMENT OF EMBU, RAYMOND KINYUA & JAMAL ABDI RUNYENJE** **-BETWEEN-** **RAYMOND KINYUA…………………………….………..….1ST PETITIONER/APPLICANT** **JAMAL ABDI RUNYENJE………………………………..…2ND PETITIONER/APPLICANT** **-AND-** **THE SPEAKER, COUNTY ASSEMBLY OF EMBU….………………..1ST RESPONDENT** **THE CLERK, COUNTY ASSEMBLY OF EMBU……………….………2ND RESPONDENT** **THE COUNTY ASSEMBLY OF EMBU………………………………….3RD RESPONDENT** **RULING** **Procedural Background** 1. The Petitioners are the Embu County Executive Committee Members for Lands, and for Health, respectively. They have filed separate constitutional petitions seeking to stop a County Assembly resolution for them to step aside from their offices. The petitions are filed on the same day, against the same respondents, seeking the same reliefs. The counsel for the parties are also the same. At the hearing of the Preliminary Objection herein, it was agreed that the objection in both suits would be decided together. **Preliminary Objection (PO)** 1. The respondents filed a notice of preliminary objection dated 29th April 2026 on the following grounds: 1. That the application and the petition challenge the legal validity and enforcement of the County Assembly of Embu Resolution dated 22nd April 2026. This is not disputed and is apparent from prayers (a)(b)(c) and (d) of the Petition filed herein. 2. That Section 10 of the County Assemblies Powers and Privileges Act, Chapter 265C, Laws of Kenya, provides that; ***"No proceedings or decision of a county assembly or committee of powers and privileges acting in accordance with this act shall be questioned in any court"*** * 1. That accordingly and by law, this court has no jurisdiction to admit, hear and determine this Petition and the applications made thereon. 2. That the Petition herein challenges the removal process of a County Executive Committee Member under Section 40 of the County Governments Act, 2012.This is a time bound statutory and constitutional process and the Supreme Court of Kenya in **Mate & Another v Wambora & Others (2017) KESC 1, KLR**, has stated that the court has no jurisdiction to injunct the County Assembly in its ordinary motions on a time bound process. Accordingly, the court has no jurisdiction at this stage to issue the orders sought. The Supreme Court found in that decision that; ***"(15) The county assembly had been operating quite properly within the constitutional scheme of devolution and running its legislative processes within the ordinary safeguards of the separation of powers and consequently and quite legitimately outside the path of the ordinary motions of the judicial arm of state. On that basis, there was hardly any scope for the deployment of the court's conservatory orders more particularly without first hearing the petitioners"*** * 1. That accordingly, the petition is premature and no cause of action, as pleaded or at all, has crystallized and the petition should be struck out with costs. **The Applications against which the PO’s are filed** 1. The Petitioners/Applicants had each filed a notice of motion dated 24th April 2026 seeking the following orders: 2. Spent; 3. That pending *inter partes* hearing of this application, the Court be pleased to issue a Conservatory Order restraining and or stopping the 1st, 2nd, 4th Respondents or any member of the 3rd Respondent from implementing and/ or enforcing the recommendations of the report dated 22nd April 2026 and communicated to the County Secretary and Head of Public Service vide correspondence dated 23rd April 2026 pertaining the removal from office of the Petitioners/Applicants, pending the hearing of this Application 4. That pending *inter partes* hearing of this Application, this Honourable Court be pleased to stay the Ruling, resolution and/or recommendation made by the 3rd Respondent herein on 22nd April 2026 regarding the purported removal of the Applicants from office of the member of the County Executive Committee, and specifically establishment of the ad-hoc committee of the county assembly to investigate the petitioners. 5. That pending *inter partes* hearing and determination of the substantive Petitions, this Honourable Court be pleased to issue a Conservatory Order restraining and or and or stopping the 1st, 2nd, and 4th Respondents or any member of the 3rd Respondent from implementing and/ or enforcing the recommendations of the report dated 22nd April 2026 and communicated to the County Secretary and Head of Public Service vide correspondence dated 23rd April 2026 pertaining the removal from office of the Petitioners. 6. That pending *inter partes* hearing and determination of the substantive Petition, this Honourable Court be pleased to stay the Ruling, resolution and/or recommendation made by the 3rd Respondent herein on 22nd April 2026 regarding the purported removal of the Applicants from office of the member of the County Executive Committee, and specifically establishment of the ad-hoc committee of the county Assembly to investigate the petitioner. 7. That costs of this application be provided for. 8. The applicants contend that County Assembly of Embu wrote to the County Secretary and the Head of Public Service informing them of a resolution by the 3rd respondent that the petitioners step aside from their responsibilities as Embu county executive committee member for lands, mining, housing, physical planning and urban development and Embu county executive committee member, Health (1st and 2nd petitioners respectively). The reason for this resolution was cited as gross violation of the constitution among others. 9. In the case of the 1st petitioner, the alleged violation regarded mismanagement of public land in Kirimari Ward, which issue was debated in the County Assembly but he was not summoned to answer the same. He was accused of failing to implement the resolution of the assembly on this issue and the effect of this was that the public land title number Embu/Municipality/1112/367 was alienated. 10. In the case of the 2nd petitioner, he was accused of gross violation of the constitution and failure to implement provisions of the Embu County Health Act, 2024. He, too, was not summoned thereon. He stated that he ought to have been invited by the County Assembly for purposes of oversight regarding execution of his duties but this was not done. He refers to sections 18 and 22 of the County Assemblies Powers and Privileges Act. He stated that he learned of the resolution by the respondents on social media and subsequently, he saw the letter to the Head of Public Service copied to him. 11. The applicants contended that the respondents have constituted themselves as complainant, investigator, prosecutor, adjudicator and executor, in total disregard of Article 50 of the Constitution. That under the circumstances, the actions of the respondents should be held as *void ab initio*. They stated that it is necessary that the respondents’ execution of their actions be stopped through this application pending hearing of the substantive petitions. **Replying Affidavit** 1. The Clerk of the County Assembly of Embu filed a replying affidavit stating that the County Assembly of Embu executed its mandate under Article 185 of the Constitution and Section 8 of the County Government Act. That the resolutions to remove the applicants were reached in line with the roles of the applicants as office holders, whose actions are subject to oversight by the County Assembly. He stated that the petitions and the applications filed are bad in law and they should be held to be fatally incompetent. 2. He cited Section 10 of the County Assembly Powers and Privileges Act which ousts the jurisdiction of this court to entertain the petition and applications. He defended the respondents’ actions to remove the applicants, citing Section 40 of the County Governments Act, and the case of **Mate & another v Wambora & another [2017] KESC 1 (KLR)**. In his view, the petitions are premature as no cause of action has been pleaded or crystallized. He urged the court to interpret the Constitution in a manner that contributes to good governance as guided under Article 259(1)(d) of the Constitution. **Oral Submissions** 1. Counsel for the respondents supported the preliminary objection by relying on the provisions of the County Assemblies Powers and Privileges Act which provide that the resolutions of County Assemblies cannot be challenged in any court. That section 10 of the said law has not been held as unconstitutional hence there is presumption of its constitutionality. That the court has no jurisdiction until the final process by the County Assembly is reached. Reliance was placed on the case of **Mate & Another v Wambora & Others (Supra)** in which the Supreme Court held that county assembly timelines cannot be interrupted. He stated that the petitions are premature and as it is, the process has several facets. After the resolution, the petitioners are to be heard and they may even be acquitted. That a constitutional audit can be done once the County Assembly’s decision becomes final. 2. The applicants’ counsel stated that the preliminary objection is based on a misrepresentation. That the resolution is signed by the Clerk of the County Assembly copying the petitioners. In the communication to the petitioners, they were informed that the County Assembly had met and resolved to adopt a motion to compel the petitioners to “step aside” from office pending investigation. 3. He stated that the term ‘step aside pending investigations’ is foreign to the County Governments Act and County Assemblies Powers and Privileges Act. That there is a resolution already reached and the same is unconstitutional. He stated that section 10 of the County Assemblies Powers and Privileges Act does not override Article 22-23 of the Constitution, thus, the resolution can be challenged based on its constitutionality. That the remedies include issuance of a conservatory order to stop violation of the petitioners’ rights. 4. He submitted that in the case of **Mate & Another v Wambora & Others (Supra)**, the process was not in stages such that one stage was being stopped; in **Mwangaza v County Assembly of Meru [2024] KEHC 10991 (KLR)**, the process was actually stopped. That conservatory orders can be issued at any stage of the process which violates constitutional rights. He stated that section 10 of the County Assemblies Powers and Privileges Act cannot override the Constitution. That resolution asks the Governor to enforce the resolution of the petitioners to “step aside,” a status unknown in law. 5. The respondents further submitted that the resolution was reached under section 40 of the County Governments Act which provides for removal of a member of CEC and the stages and processes involved. It states that a committee is the constituted and the petitioners would be heard before that committee before any removal or final decisions are made. Referring to the case of **Mate & Another v Wambora & Others (Supra)** they stated that the court stated that the County Assembly was required to debate and the final decision could be challenged. In their view, the matter is ripe for court once a final decision has been reached following all the requisite processes. **Issue for determination** 1. The issue for determination is whether the preliminary objection has merit. **Analysis and Determination** 1. In order for a preliminary objection to succeed, it must raise a point of law which, once determined, has the ability to determine the substantive suit. This was established in **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696** thus: ***“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** 1. In this case, the preliminary objection is challenging the jurisdiction of the court to determine the applications and petitions filed, on the basis of ripeness. The respondents argue that the matters raised in the applications and the petition are a result of initial stages of process of removal of the CEC Members. That the process is far from over and that the petitioners ought to have waited until the process was concluded before moving the constitutional court for recourse. It is also the respondents’ argument that they intend to carry on with the rest of the process, thus, that the petitioners/applicants have jumped the gun. 2. On their part, the applicants argue that their fate has already been sealed and that the Governor has already been advised to take the necessary action against them. That the process was already completed and their best place to seek recourse is in court. 3. Section 10 of the County Governments Act provides as follows regarding removal of a member of the executive committee: ***“(1) Deleted by Act No. 11 of 2020, s. 14.*** ***(2) A member of the county assembly, supported by at least one-third of all the members of the county assembly, may propose a motion requiring the Governor to dismiss a county executive committee member on any of the following grounds —*** ***(a) gross violation of the Constitution or any other law;*** ***(b) incompetence;*** ***(c) abuse of office;*** ***(d) gross misconduct; or*** ***(e) if convicted of an offence punishable by imprisonment for at least six months.*** ***(3) If a motion under subsection (2) is supported by at least one-third of the members of the county assembly—*** ***(a) the county assembly shall appoint a select committee comprising five of its members to investigate the matter; and*** ***(b) the select committee shall report, within ten days, to the county assembly whether it finds the allegations against the county executive committee member to be substantiated.*** ***(4) The county executive committee member has the right to appear and be represented before the select committee during its investigations.*** ***(5) If the select committee reports that it finds the allegations—*** ***(a) unsubstantiated, no further proceedings shall be taken; or*** ***(b) substantiated, the county assembly shall vote whether to approve the resolution requiring the county executive committee member to be dismissed.*** ***(6) If a resolution under subsection (5)(b) is supported by a majority of the members of the county assembly—*** ***(a) the speaker of the county assembly shall promptly deliver the resolution to the Governor; and*** ***(b) the Governor shall dismiss the county executive committee member.”*** *[Emphasis added]* 1. In the letter dated 23rd April 2026 written by the County Clerk to the County Secretary and Head of Public service, the last part of it states as follows: “*NOW THEREFORE, THIS ASSEMBLY RESOLVES:* *1. THAT, the County Executive Committee Member for Lards, Mining, Housing, Physical Planning and Urban Development be required to step aside from office forthwith to allow for independent, impartial, and thorough investigations into the alleged gross violation of the Constitution and other relevant laws.* *2. THAT, an Ad-hoc Committee of the County Assembly be established and mandated to undertake investigations into the matter and report back to the Assembly within 60 days with findings and recommendations;* *3. THAT, the County Governor do, pursuant to Section* *30(2) of the County* *Governments Act 2012, take the necessary administrative action to enforce this resolution and ensure continuity of service delivery.* *You are required to implement the resolutions forthwith*.” 1. A replica letter is written in respect of the 2nd Petitioner who is the County Executive Committee Member for Health. 2. The letters invite the County Governor to take administrative action within her powers conferred under section 30(2) of the County Governments Act. This power of the Governor in the removal process is found at section 10(6) and it is only to be invoked after section 10(5)(b) has been satisfied. The process, threshold and timelines for removal have been well defined therein and it all ends with action by the Governor to dismiss the County Executive Member. Prior to that, the select committee to investigate the alleged misconduct has to report on its findings within 10 days. 3. In the present case, the resolution refers to an ad-hoc committee – not a select committee- to investigate the allegations and report within 60 days. This is contrary to the provisions of Section 10(3) (a) and (b) of the County Governments Act. In the same resolution, the Governor is asked to take administrative action against the applicants. In my view, the process applied appears to involve a somewhat conclusive position of quasi-removal by “stepping aside” with or without complying with the requirements of the relevant statutory process. An end is achieved by a shortcut unknown to the law. 4. The respondents have argued that the process is pending, yet it is clear that there is finality in the wording of the resolution as to removal by “stepping aside”. They have argued that the matter would be ripe to be considered by this court once the process is completed. The process itself, considering the resolution, is concluded since the final action of administrative intervention by the Governor has already been invoked. Therefore, in the respondents’ very words, the jurisdiction of the court applies after the process is completed. **Conclusions and Disposition** 1. In my view, it is only when a resolution is properly made under section 10 (5) (b) that the said resolution can be delivered to the Governor and then such resolution can be privileged. Only such a resolution duly delivered to the Governor is capable of protection by privilege. This was not such a resolution. 2. The jurisdiction of this court on constitutional matters, specifically in this case involving the powers of a state organ, is drawn directly from the Constitution under Article 165(3) (d & e) as follows: “***Subject to clause (5), the High Court shall have-*** ***(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*** ***(iv) a question relating to conflict of laws under Article 191; and*** ***(e) any other jurisdiction, original or appellate, conferred on it by legislation***.” *[Emphasis added]* 1. Looking at the prayers sought through the applications vis-a-vis the manner in which the correspondence dated 23rd April 2026 is drawn, the jurisdiction of this court is properly invoked and in place. 2. In light of the foregoing discussion, the preliminary objection must fail. The matter shall be set down for hearing expeditiously. 3. Further directions shall be given concerning conservatory orders and the pending matters on 10th June, 2026. 4. Orders accordingly. **Delivered, dated and signed at Embu High Court this 3rd day of June, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. MWONGO** **JUDGE** **Delivered in the presence of:** 1. Kiragu Wathuta for Petitioner 2. Ms. Leven holding brief for Njenga for Respondents 3. Francis Munyao - Court Assistant