https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7189

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MARALAL** **CONSTITUTIONAL PETITION NO. E001 OF 2026** **IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 21 (1), 22, 23, 27(1), (3), (6) AND (8), 165, 174, 175 (a) (c), 176(2) and 185 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF APPOINTMENT OF SAMBURU COUNTY VILLAGE COUNCILS MEMBERS CONTRARY TO THE PROVISIONS OF CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTLAL RIGHTS AND PROTECTION OF RIGHT TO EQUALITY AND FAIR REPRESENTATION OF THE PEOPLE OF WAMBA WEST WARD.** **IN THE MATTER OF SAMBURU COUNTY VILLAGE UNITS DELIENATION ACT, 2015** **AND** **IN THE MATTER OF SECTION 53 OF THE COUNTY GOVERNMENTS ACT, NO 17 OF 2012** **AND** **IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT, NO. 19 OF 2012** **AND IN THE AMTTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013** **BETWEEN** **HON. FRANCIS LEMARTILE ……..…………….. PETITIONER/APPLICANT** **-VERSUS-** **SAMBURU COUNTY PUBLIC SERVICE** **BOARD …………………………..…………..………..…….. 1ST RESPONDENT** **THE COUNTY GOVERNMENT OF** **SAMBURU ……………………………………………….…. 2ND RESPONDENT** **COUNTY SECRETARY, COUNTY GOVERNMENT** **OF SAMBURU ………………………………………….….. 3RD RESPONDENT** **THE SPEAKER, COUNTY ASSEMBLY OF** **SAMBURU …………………………………..……………INTERESTED PARTY** **RULING** 1. This court has been moved through a Notice of Motion dated 19.2.2026, where the Applicant seeks orders that; 2. ***That this Honourable Court be pleased to certify the instant application as urgent and be heard ex-parte in the first instance.*** 3. ***A conservatory order to issue suspending the appointment of the village councils members of Wamba West ward by the 1st Respondent and their subsequent assumption of officer pending the hearing and determination of this application.*** 4. ***A conservatory order to issue suspending the appointment of suspending appointment of the village councils members of Wamba West ward by the 1st Respondent and their subsequent assumption of office pending the hearing and determination of this Petition.*** 5. ***Pending the hearing and determination of the application and Petition, a conservatory order to issue restraining the 2nd and 3rd Respondents from assigning the village council members and carrying on duties as and related to and/or incidental to village council.*** 6. ***The costs of this application be in the cause.*** 7. The application is premised on grounds that; 8. ***Respective village administrators competitively appointed five (5) village council members with the approval of the residents from each of the 11 villages from Wamba West Ward with seats proportionate such as to ensure that the membership of the Village Councils have of the gender balance.*** 9. ***On or about October 2025, the village administrators from Wamba West ward forwarded the list of village council members to the 2nd and 3rd Respondents for consideration.*** 10. ***During appointment village administrators considered the special category of marginalized groups, gender balance including persons with disabilities and the youth as required in the Constitution and the requirements provided under Section 53 (3) of the County Governments Act, 2012.*** 11. ***On or about the 7th October 2025, the 3rd Respondent, County Secretary, County Government of Samburu sent a list of nominated members of village councils including for Wamba West ward. However, the list submitted by the 3rd Respondent was different from the list submitted by the village administrators.*** 12. ***The initial list of Fifty-Five (55) members from the Eleven (11) villages who were competitively appointed and submitted to the 3rd Respondent was significantly altered/changed with new members introduced and about 25 members removed from the list.*** 13. ***On 3rd December 2025, the Interested Party, County Assembly of Samburu through the clerk, published a notice confirming receipt of nomination of Village unit councils from the 3rd Respondent and inviting members of the public to submit memorandum or petitions on suitability of nominees to the Committee on Public Service Administration, Social Welfare, Justice and Legal Affairs. The list of nominees was attached.*** 14. ***On 3rd December 2025 a resident from Wamba West ward having noted a different/erroneous list submitted by the 3 rd Respondent to the County Assembly alleging they are the nominees sent a Petition to the Committee on Public Service Administration, Social Welfare, Justice and Legal Affairs highlighting the names duly removed from the list and replaced with new members who were not competitively approved.*** 15. ***The Committee on Public Service Administration, Social Welfare, Justice and Legal Affairs deliberated on this issue as between the Petitioner and the 2nd & 3rd Respondents. It was resolved that the initial list of competitively appointed village councils be adopted instead of the list amended by the 3rd Respondent. The 2nd and 3rd Respondents agreed that the initial list submitted by the village administrators be approved by the committee.*** 16. ***The Interested Party approved the initial list of Wamba West ward and subsequently prepared the final report which was adopted and forwarded to the 2nd and 3rd Respondents for appointment.*** 17. ***The final list containing names of the members of the 11 village councils forwarded by the 2nd and 3rd Respondents to the 1st Respondent for appointment was erroneous and that it had introduced twenty-five (25) new members who were neither appointed by the village administrators nor approved by the County Assembly of Samburu at the material time.*** 18. ***These published names were therefore not validly appointed by village administrators or approved by the County Assembly of Samburu as drawn from the initial list submitted by the village administrators and hence the 2nd and 3rd Respondents illegally, procedurally and unlawfully amended the initial list introducing 25 strange names for the position of village council members in respect of Wamba West Ward.*** 19. ***Consequently, the 1st Respondent is processing employment letters using the illegally, procedurally and unlawfully amended list for appointment into the village council which is not properly constituted and lacks the requisite mandate to conduct its business thereby raising the urgency of this Application.*** 20. ***25 members who were in the original list of Wamba West ward village councils have been removed by 2nd and 3rd Respondents replacing with new names who are not appointed by village administrators or approved of county assembly of Samburu thereby affecting the representation of the constituents of the ward.*** 21. ***The 1st 2nd and 3rd Respondents are in contravention of Articles, 2, 3, 10, 21, 27, 174, 175 (a, c) 176(2) and 185 of our Constitution, 2010 as the final list submitted does not meet the two-thirds gender threshold, usurped the powers of the County Assembly to approve and the powers of the village administrators to appoint.*** 22. ***The orders sought have are in the interest of justice, are justifiable and founded on law.*** 23. The motion is further supported by an affidavit deposed by Francis Lemartile, a Member of the County Assembly and resident of Wamba West Ward who reiterates what is stated in the grounds upon which the application is founded. 24. The Respondents neither filed any response to the application nor made any physical or virtual appearance in the matter, therefore the Notice of Motion remains unopposed. During hearing of the application, Mr Lenkida, learned counsel for the Respondents’ prayer on the date scheduled for hearing was for the court to allow the application as prayed in terms of prayer 3 and 4. 25. The jurisdiction of issuance of the orders sought is enacted in Article 23 of the constitution which provides thus; ***23. (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.*** ***(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts 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.*** ***(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—*** ***(a) a declaration of rights;*** ***(b) an injunction;*** ***(c) a conservatory order;*** ***(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;*** ***(e) an order for compensation; and*** ***(f) an order of judicial review.*** 1. Principles of granting conservatory orders were stated in the case of the ***Board of Management of*** ***Unuru Secondary School v City County Director of Education and 2 Others [2015] eklr*** where the court stated that; ***“…principles for grant of conservatory orders as:*** ***“(i) (ii) (iii) (iv) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice. The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.”*** 1. In ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, S.C. Application No 5 of 2014[2014] eklr*** the Supreme Court stated that; ***“*** ***[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 Applicant’s case for orders of stay.”*** 1. Therefore, the Applicant was required to demonstrate existence of an arguable case with a likelihood of success. A prima facie case was defined in ***Mrao v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125*** where it was stated that; ***“ In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.”*** 1. Looking at affidavit evidence relied on and annextures thereto, there is evidence of the initial list and an amended one. It is not disputed that the two lists differ. Some names on the initial list are missing, while on the second list some different names have been introduced. It is the requirement of Section 53 of the County Government Act that a Village Council is chaired by a Village Administrator who appoints eligible Village elders to be approved by the County Assembly. 2. The gravamen herein is the stated appointment of Village elders by the Village Administrators for Wamba West Ward, names that were forwarded for approval but the list was altered and some new names introduced, the resultant effect being that 25 members were removed from the initial list. Although the initial list was to be adopted from the resolution of the committee on Public Service Administration, Social Welfare, Justice and Legal Affairs, the 25 names removed were not published for appointment meaning that some published names for employment were not validly appointed. 3. Since the list for appointment may be in contravention with the law the Applicant has an arguable case. 4. Secondly, the Applicant should demonstrate that irreparable harm shall be suffered. There must be real proof that unless orders sought are not granted orders sought in the Petition will be rendered nugatory hence calling for the preservation of the substratum. In ***Stanley Kangethe Kinyanjui v Tony Keller & 5 others in Civil Application No 31 of 2012 [2013] eklr, EA*** stated that what is sought to be stayed will not reasonably be compensated with damages to the party aggrieved. 5. I note that if appointment letters are issued and other people take up the appointment before the question is addressed, then the compensation by damages will not be adequate. 6. As to whether it is of public interest, this is a matter that affects the broader community since the selection was to be done by the Village Administrators competitively, therefore, it seeks to enhance constitutional values (see the ***Nubian Rights Forum & 2 Others v Attorney General & 8 others (Interested Parties) [2020]eklr*)** 7. From the foregoing and noting that the application is unopposed I grant orders that; 8. ***A conservatory order to issue suspending the appointment of the village Council Members of Wamba West Ward by the Respondents and their assumption of office pending hearing and determination of the Petition.*** 9. ***A conservatory order to issue restraining the 2nd and 3rd Respondents from assigning the stated Village Council Members and carrying on duties and related to and/or incidental to Village Council pending hearing and determination of Petition.*** 10. ***Orders as to costs to abide the Petition.*** 11. It is so ordered **Dated, signed and delivered virtually this 19th May, 2026** **HON L. MUTENDE** **JUDGE**