[2022] KEHC 3313 (KLR)

Mbae v Speaker, County Assembly of Nakuru & another; others (Interested Party) (Constitutional Petition E004 of 2022) [2022] KEHC 3313 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3313 (KLR)

Republic of Kenya

In the High Court at Nakuru

Constitutional Petition E004 of 2022

JM Ngugi, HK Chemitei & TM Matheka, JJ

July 7, 2022

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 22, 23, 24, 38, 101, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTION 14, POLITICAL PARTIES ACT

Between

Peter Kibe Mbae

Petitioner

and

Speaker, County Assembly of Nakuru

1st Respondent

Attorney General

2nd Respondent

and

Registrar of Political Parties & 49 others

Interested Party

Section 14 of the Political Parties Act declared unconstitutional to the extent that it required a sitting member of a county assembly to resign as a precondition for switching political parties for purposes of general elections within 180 days preceding the date of the general elections

The petition challenged the constitutionality of section 14 of the Political Parties Act. The court issued a declaration that to the extent that section 14 of the Political Parties Act required a sitting member of a county assembly to resign from their respective seats as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional null and void and of no effect for violating article 38(3((c) as read with articles 4(2); 10, 19, 20 and 259 of the Constitution. The court held that it would have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election.

Reported by Kakai Toili

Constitutional Law- constitutionality of statutes - constitutionality of section 14 of the Political Parties Act - whether to the extent that section 14 required a sitting member of county assembly to resign as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional - what was the nature of the element of party discipline anticipated by the Constitution - Constitution of Kenya, 2010, articles 194(1)(e) and 103(1)(e); Political Parties Act, 2011, section 14. Constitutional Law- interpretation of the Constitution - canons of interpretation of the Constitution - interpretation of articles 38, 101 and 194 of the Constitution - whether articles 101(4) and (5) which described what happened when a vacancy arose in Parliament applied mutatis mutandis to vacancies in the county assemblies - what was a purposeful reading of the Constitution that harmonized article 194 on vacation of office of member of county assembly, article 101 on election of Members of Parliament and article 38 on political rights expected to do - Constitution of Kenya, 2010, articles 38, 101 and 194. Constitutional Law- fundamental rights and freedoms - political rights - where a member of county assembly resigned from the political party s/he used during his/her election within one hundred and eighty (180) days preceding the date of the general elections - whether political rights of the electorate in a ward would be violated if a ward was left with no representative as a result of the resignation - Constitution of Kenya, 2010, articles 38, 101, 103 and 194; Political Parties Act, 2011, section 14. Constitutional Law– locus standi – locus standi to seek an advisory opinion from the Supreme Court – whether a sitting member of a county assembly could request for an advisory opinion at the Supreme Court - Constitution of Kenya, 2010 articles 48 and163(6).Devolution- counties - county assemblies - resignation of members of county assemblies - what was the effect of mass resignations by members of county assemblies at the tail end of the electoral cycle - Constitution of Kenya, 2010, article 258; County Governments Act, 2012, sections 14 and 19.

Brief facts The petitioner was a sitting member of the County Assembly of Nakuru County (the County Assembly). He filed the instant petition seeking among others; a declaration that to the extent that section 14 of the Political Parties Act required a sitting member of the County Assembly and the National Assembly to resign from their respective seats as a precondition to moving from one political party to another for purposes of an election within the timelines set by the law and the Independent Electoral and Boundaries Commission (IEBC) for such change of membership ahead of a general election, that section was unconstitutional; and a reading in order in section 14 that a Member of Parliament or a county assembly who resigned from one political party to the other on the last day of the times lines set by the law and the IEBC for purposes of participation in a general election needed not thereby resign from and/or lose his seat by reason of such change of party membership.The petition was centered on an alleged unconstitutionality of section 14 of the Political Parties Act in light of articles 194(1) of the Constitution of Kenya, 2010 (Constitution) articles 38 and 101(4)-(5) of the Constitution as read together. In particular, the petitioner was aggrieved by the 1st respondent's interpretation of the material provisions. The 1st respondent as the Speaker of the County Assembly of Nakuru (the Speaker) interpreted article 194 as read together with section 14 as revealed in the communication made to the Nakuru County Assembly on February 22, 2022 (the impugned communication).The petitioner argued that the Speaker fell into error when he read article 194(1)(e) of the Constitution in isolation to require that any time a member of the County Assembly resigned from the party that sponsored him or her, the office of the member of the County Assembly fell vacant. Instead, the petitioner argued, when read together with articles 38 and 101(4)-(5) of the Constitution, article 194(1)(e) did not mandate that such a seat of the member of the County Assembly would fall vacant at the end of the electoral cycle when a by-election could not be held by virtue of article 101(5) of the Constitution. According to the petitioner, that was the necessary interpretation to preserve and promote the objects, purposes and principles of the Constitution.

Issues

Whether to the extent that section 14 of the Political Parties Act required a sitting member of county assembly to resign as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional.

Whether political rights of the electorate in a ward would be violated if a ward was left with no representative as a result of the resignation of the representative from the political party he used during the election within one hundred and eighty (180) days preceding the date of the general elections.

Whether articles 101(4) and (5) of the Constitution which described what happened when a vacancy arose in Parliament applied mutatis mutandis to vacancies in the county assemblies.

Whether a sitting member of a county assembly could request for an advisory opinion at the Supreme Court.

What were the canons of interpretation of the Constitution of Kenya, 2010?

What was the nature of the element of party discipline anticipated by the Constitution?

What was a purposeful reading of the Constitution that harmonized article 194 on vacation of office of member of county assembly, article 101 on election of Members of Parliament and article 38 on political rights expected to do?

What was the effect of mass resignations by members of county assemblies at the tail end of the electoral cycle?

Relevant provisions of the Law Constitution of Kenya, 2010Article 101 - Election of members of Parliament(1) A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.(2) Whenever a vacancy occurs in the office of a member of the National Assembly under Article 97(1)(c), or of the Senate under Article 98(1)(b), (c) or (d), the respective Speaker shall, within twenty-one days of the occurrence of the vacancy, give notice in writing of the vacancy to—(a) the Independent Electoral and Boundaries Commission; and(b) the political party on whose party list the member was elected or nominated.(3) A vacancy referred to in clause (2) shall, subject to clause (5), be filled in the manner prescribed by an Act of Parliament within twenty-one days of the notification by the respective Speaker.(4) Whenever a vacancy occurs in the office of a member of the National Assembly elected under Article 97(1)(a) or (b), or of the Senate elected under Article 98(1)(a)—(a) the respective Speaker shall, within twenty-one days after the occurrence of the vacancy, give notice in writing of the vacancy to the Independent Electoral and Boundaries Commission; and(b) a by-election shall be held within ninety days of the occurrence of the vacancy, subject to clause (5).(5) A vacancy referred to in clause (4) shall not be filled within the three months immediately before a general election.Article 194 - Vacation of office of member of county assembly(1) The office of a member of a county assembly becomes vacant—(a) if the member dies;(b) if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence;(c) if the member is removed from office under this Constitution or legislation enacted under Article 80;(d) if the member resigns in writing addressed to the speaker of the assembly;(e) if, having been elected to the assembly—(i) as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or(ii) as an independent candidate, the member joins a political party;(f) at the end of the term of the assembly; or(g) if the member becomes disqualified for election on grounds specified in Article 193(2).(2) Parliament shall enact legislation providing for the circumstances under which a member of a political party shall be deemed, for the purposes of clause (1)(e), to have resigned from the party.Political Parties Act, 2011Section 14 - Resignation from political party(1) A member of a political party who intends to resign from the political party shall give a written notice prior to his resignation to—(a) the political party;(b) the clerk of the relevant House of Parliament, if the member is a member of Parliament; or(c) the clerk of a county assembly, if the member is a member of a county assembly.(2) The resignation of the member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant House or county assembly.(3) The political party of which the person is a member, the member, or the clerk of the relevant House of Parliament or of a county assembly of which the person is a member shall notify the Registrar of such resignation within seven days of the resignation.(3A) Upon receiving the notification under subsection (3), the Registrar shall cause the name of such member to be removed from the membership list of that political party.(4) A person shall not be a member of more than one political party at the same time.

Held

Article 194(1)(e) of the Constitution was Kenya’s constitutionalized anti-defection or party-hopping law. In many countries throughout the world, anti-defection or party-hopping laws required any elected Member of Parliament or representative who left the party in which he or she was elected to also leave his or her seat in the legislative body and seek a new mandate from the electorate. The aim of the law was to instill party discipline by preventing political defections which could be prompted by reward of office or other similar unprincipled considerations. Article 194(1)(e) stipulated that a member of the county assembly who defected or changed his or her party from the one that sponsored him or her to the county assembly would lose his or her seat: the seat would become vacant upon such defection or switch of parties.

The legislation contemplated in article 194(2) as well as article 92(c), (d), (e) and (i) of the Constitution was the Political Parties Act that aimed at clarifying the party-hopping clause as well as effectuating the regulation of political parties. Articles 101(4) and (5) of the Constitution described what happened when a vacancy arose whether by resignation of a member or through defection or death. While the two provisions spoke directly about vacancies in the National Assembly and the Senate, they applied mutatis mutandis to vacancies in the county assemblies.

The locus standi to request for an advisory opinion vested on the National Government, any State organ, or any county government. The petitioner was not any of those. The petitioner could not be denied access to the court for the determination of the matters raised as it was a right that was guaranteed under article 48 of the Constitution. The original jurisdiction to determine issues of the interpretation and implementation of the Constitution and of threats to rights and fundamental freedoms, was vested in the High Court under article 165 of the Constitution.

It was not sufficient for a party to cursorily state in its submissions that a matter should have been submitted for an advisory opinion; a party ought to demonstrate from the set of facts how the matter was not suitable for that court, which was clothed with the constitutional mandate to interpret the Constitution. The petitioner had demonstrated that that was a matter for constitutional interpretation and not one suitably amenable to a request for an advisory opinion as envisaged by article 163(6) of the Constitution.

The Supreme Court did not have jurisdiction to declare any part of the Constitution as unconstitutional.

The provisions of article 2 of the Constitution were plain that the Constitution was the supreme law of Kenya and bound all. Its validity/legality could not be the subject of a challenge before the court or any State organ, the petition was not a challenge to any part of the Constitution. It was, instead, a call for the court to exercise its interpretive jurisdiction granted by article 165 of the Constitution to give an interpretation of the Constitution that harmonized articles 38, 101, and 194 of the Constitution in light of the interpretive commands given to the court by articles 4(2), 10, 19, 20 and 259 of the Constitution.

There was a penumbral and apparent conflict capable of judicial interpretive resolution between article 38 of the Constitution (on political rights of citizens) on the one hand and articles 101 and 194 of the Constitution as read together with section 14 of the Political Parties Act (aimed at achieving political parties’ discipline and overall good governance through a vibrant multi-party system) on the other hand.

The petitioner was not asking for any part of the Constitution to be declared unconstitutional. Constitutional provision sustained the other and none was greater than the other. That was what had been popularly known as the harmonization principle.

The facts of the petition were precise and the articles of the Constitution at issue specifically identified. The petition had described the factual issues and defined the legal issues at stake sufficiently to both notify the respondents the case at bar and to enable the determination by the court without the embarrassment which could be caused by vagueness.

The canons of constitutional interpretation were that: the Constitution had to be interpreted in a manner that promoted its purposes, values and principles and contributed to good governance. That was the express provision of article 259(1)(a) and (d). Those constitutional purposes, values and principles were expressly stated in the Preamble and in article 10 of the Constitution. They were also discoverable through purposive interpretation of the Constitution;

the Constitution had to be interpreted and be given a construction which was purposeful;

the Constitution had to be interpreted holistically; only a structural holistic approach breathed life into the Constitution in the way it was intended by the framers;

the Constitution had to be given a liberal and organic not a mechanistic and positivistic interpretation. It should not be interpreted as one would a mere statute;

the Constitution had provided its own theory of interpretation to protect and preserve its values, objects and purposes; and

in interpreting the Constitution, non-legal considerations were important to give its true meaning and values.

Articles 194(1)(e) and 103(1)(e) of the Constitution served the important constitutional value of instilling party discipline. The element of party discipline anticipated by the provisions of the Constitution was a two-edged sword: on one hand it worked to instill discipline on the party and its elected members to the county assembly; on the other hand, it was considered a boon to the electorates as it enhanced democracy both in the party and in the county assembly.

Knowing how political parties were managed, the Constitution gave room to the dissatisfied and or disgruntled member(s) to make a choice of either staying in the party or opting out. It would for instance have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election.

The Political Parties Act did not allow dual membership in political parties by an individual. The democratic space provided ensured that a member of the county assembly was either loyal to his sponsoring party or if not he conscientiously resigned from the party, otherwise, the member was deemed to have resigned from the political party. The other purpose of articles 194(1)(e) and 101(4) and (5) of the Constitution was the right to political representation.

Articles 194(1)(e) and 101(4) and (5) of the Constitution ensured that even if an elected member resigned from the party and thus lost his or her seat his electorate would have another chance of electing a new representative within 90 days as provided by the Constitution. It would violate the political rights of the electorate for the affected ward to be left with no representative for the remainder of the term in the event that their representative resigned from the political vehicle used during the election. The Constitution, however, contained the rider that no by-election should be conducted within three months to the general elections.

Articles 194(1)(e) and 101(4) and (5) of the Constitution enhanced the right to freedom and association. Article 38 of the Constitution provided for political rights, including the right to make political choices by forming, participating in, and campaigning for a political party. It also provided for the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors as well as the right to be registered as a voter, to vote, to be a candidate for public office, or office within a political party and to hold office if elected. Those eternal rights were sacrosanct and at all costs had to be enhanced and protected especially in Kenya’s young multi-party democracy.

The rights were sacrosanct and at all costs must be enhanced and protected especially in our young multi-party democracy. The high handedness exercised by political parties has in effect stifled freedom of individuals to exercise their democratic rights and thus the Constitution had insulated them from such tendencies. In effect one had the liberty of resigning from such political party whose ideologies had changed or were no longer in tandem with what he believed in and was guaranteed the opportunity to seek fresh mandate from the electorates.

The road map of resigning from the political party had enough checks and balances to ensure that it was only those members of the county assembly that were serious who would want to take that route.

Kenya had elected the republican form of government and articles 38, 194(1)(e) and 101(4) and (5) of the Constitution encouraged growth and the aspirations of the founding fathers. That system of democracy granted the ultimate opportunity to the electorates to make their choice.

From history, Kenyans intended that; elected leaders were at liberty to switch parties according to their conscience;

the only penalty such an elected leader would suffer for switching parties would be to lose their elected seat;

both the electorate and the elected leader would have an opportunity to vet the (defected) elected leader’s new ideology (reflected in their new party) through a by-election; and

the by-election would protect the electorate both from having an elected leader whose vision and ideology no longer represented the electorate’s own vision and ideology as well as from remaining un-represented in the legislative body. That aligned with the very strong political rights entrenched in the Constitution at article 38: the right to political representation. The right enshrined in that article was protected even when an elected representative defected from their party or, if independent, joined a political party, by providing for a by-election within ninety days of the vacancy caused by the defection.

The Constitution explicitly envisioned that the only time that a by-election would not be held was the ninety days before a general election ring-fenced to ensure that the IEBC had sufficient time and resources to prepare for the general elections. The constitutional intention was that no ward, constituency or county would remain unrepresented in the county assembly or Parliament for more than ninety days. A purposeful reading of the Constitution was, therefore, one that cohered the disparate provisions of the Constitution to yield that result.

A purposeful reading of the Constitution was one that harmonized articles 194, 101 and 38 of the Constitution. Such a construction of the Constitution would optimally do at least four things at the same time; it had to maximize the constitutional goal of instilling party discipline (through the operationalization of the anti-defection clause);

it had to incentivize political parties to enhance internal democracy (through the opportunity for an elected official to seek re-election in a different party);

it had to minimize the risk of non-representation of the electorate due to the effect of the anti-defection clause to the least possible period which the Constitution envisaged as 90 days (through the by-election provisions); and

it had to remove the potential for legislative paralysis in the county assemblies or Parliament (by ensuring that the interpretation of articles 194, 101 and 38 of the Constitution did not lead to a possibility that the legislative bodies would be left inquorate for more than 90 days due to the effects of the anti-defection provision).

The constitutional interpretation proposed by the Speaker failed to achieve the four-fold goal of purposeful interpretation. Conversely, the interpretation suggested by the petitioner did. That was because, in addition to the constitutional history; the constitutional interpretation suggested by the Speaker in the impugned communication harmed the affected wards by denying them representation for more than 180 days contrary to the constitutional intention; and

the constitutional interpretation suggested by the Speaker in the impugned communication potentially harmed the county (and country) by precipitating a possible constitutional crisis through a paralysis of the County Assembly.

The constitutional interpretation preferred by the Speaker in the impugned communication would result in situations where a ward electorate was left unrepresented for a period of more than 180 days at the county assembly. That was because there could be no by-election in the period of 90 days immediately preceding the general elections by dint of article 101(5) of the Constitution. The interpretation suggested by the Speaker in the impugned communication would harm wards affected by members of county assemblies who chose or were compelled to switch parties within 180 days to the general elections. Such wards would remain unrepresented for the entire period of 180 days preceding the general elections.

The effect of the constitutional interpretation suggested by the Speaker, the constitutional conundrum it led to and the suggested alternative constitutional construction could be stated in the following series of twelve deductive statements: The impugned communication would require members of county assemblies wishing to switch parties to write to the Speaker of the County Assembly announcing their resignations from the parties which sponsored them to the County Assembly whereupon their seats would automatically fall vacant.

The Constitution, in article 101(4)(b), mandated the IEBC to arrange for a by-election to fill the vacancy within ninety (90) days (of the seats falling vacant).

The Constitution in article 101(5), provided that any such vacancy could not be filled within three months (that was 90 days) immediately before a general election.

(b) and (c) above meant that if a vacancy either in Parliament or county assembly arose within 180 days immediately before a general election that was the 90 maximum days for IEBC to organize for a by-election and the 90 days ring-fenced by the Constitution in article 101(4)(b), no by-election could be held.

The implication of (d) above was that if a vacancy arose within 180 days immediately before a general election, the ward, constituency or county in the case of member of county assembly, Member of Parliament, or senator respectively, would remain unrepresented for that period (of up to 180 days).

The Constitution, at article 101(4)(b) envisaged that the maximum period that a ward, constituency or county in the case of member of county assembly, Member of National Assembly, or senator respectively, could remain unrepresented was no more than 90 days.

A constitutional interpretation that yielded the outcome that an action (of resignation) taken by a of member of county assembly, Member of Parliament, or senator would result in a ward, constituency or county remaining without representation for a period exceeding 90 days was, therefore, impermissibly restrictive given the outer limits set by article 101(4)(b) of the Constitution.

The interpretation of article 194 of the Constitution and section 14 of the Political Parties Act given by the Speaker in the impugned communication would have the effect of bestowing on the members of the County Assembly who switched parties within the 180 days immediately preceding the general elections in 2022 with the ability and capacity to deny their wards representation for a period exceeding the maximum 90 days allowed by the Constitution. By the same token, such members of the County Assembly would have induced the democratic disability of non-representation on their ward electorate for a period of more than the 90 days which was constitutionally stipulated. Such an interpretation would, ipso facto, have the effect of needlessly diminishing the political rights guaranteed in article 38 of the Constitution of the electorate in the affected wards.

For that reason, an alternative interpretation of the Constitution was constitutionally required to forestall the possibility stipulated in (h) above.

The constitutionally-compliant interpretation which would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.

The constitutionally-compliant interpretation in (j) above would have to be operationalized through a read in order to section 14 of the Political Parties Act to provide that a Member of Parliament or a county assembly who resigned from one political party to another at the tail end of the electoral cycle (that was within 180 days immediately preceding the general elections) needed not resign from and/or lose his seat by reason of such change of party membership.

That the constitutional interpretation suggested by the petitioner as well as the relief suggested in (k) above would also forestall the possibility that mass resignations of members of county assemblies at the tail end of the electoral cycle when no by-elections could be held to re-fill the vacancies would lead to operational paralysis of the County Assembly as explained below.

What section 19 of the County Governments Act meant was that while section 14(2) of the County Governments Act insulated the validity of county assembly proceedings and actions despite there being a vacancy, the county assembly had to meet the quorum threshold in order to function or for its proceedings to be valid. If members of the county assembly resigned in big enough numbers to dip below the statutory third, then the county assembly would no longer be legally quorate and would be incapable of transacting business. The consequence would be that all the functions of the county assembly would come to a standstill.

It could be gleaned from section 14 of the County Governments Act that county assemblies were essentially run through committees. Therefore, since the County Assembly was generally run by committees, should there be mass resignation of members at the tail end of the electoral cycle, many committees or sub-committees would be paralyzed further compounding the Assemblies’ problems.

The incidence of mass resignations leading to mass vacancies in county assemblies if the interpretation assigned to the impugned communication held sway was more than a fantastical possibility; it was a plausible probability. The consequences and implications for such a probable event were so dire for the functioning of the County that the petitioner was right to invoke article 258 of the Constitution which obligated the court to act where there was a credible threat of violation of the Constitution. The probability of quorum hitched in the whole County Assembly as well as the various committees of the Assembly constituted sufficient, cogent threat of violation of the Constitution to warrant the court to prefer an interpretation of the constitutional provisions which was more in line with the Constitution’s overall purposes, objects and principles.

The constitutional interpretation taken in the impugned communication failed to cohere and harmonize all the constitutional provisions. In particular, that interpretation needlessly privileged article 194 of the Constitution and sought to have it trump over article 38 of the Constitution. That interpretation had the inimical effect of potentially harming both the ward electorate of a resigning member of the County Assembly (by leaving the ward unrepresented in the County Assembly for a period of up to 180 days – and beyond the constitutionally sanctioned maximum 90 days) as well as the whole County (by paralysing the operations and functions of the County Assembly or its committees should there be mass resignations dipping the numbers below a third of the members of the County Assembly).

The only interpretation that was constitutionally sound as derived from a faithful application of the canon of constitutional interpretation applicable in Kenya was one that avoided the constitutional harm by reading the Constitution holistically and in a way that aggrandized its purposes, objects and principles. That interpretation was one that would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days. Differently put, the constitutionally-compliant interpretation was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.

The constitutionally-compliant interpretation was not the one taken by the impugned communication and section 14 of the Political Parties Act. Therefore, both the impugned communication and section 14 were constitutionally deficient.

The interpretation to article 194(1)(e) of the Constitution as read with section 14 of the Political Parties Act taken by the Speaker in the impugned communication negated and derogated from the objects and purposes of articles 101(4) and 38 of the Constitution in view of the outer limits set in article 101(5) of the Constitution and in view of the theory of constitutional interpretation commanded by article 259(1)(d) as read together with articles 4(2); 10; 19; and 20 of the Constitution.

To cure the unconstitutionality inherent in section 14 of the Political Parties Act, the court had jurisdiction to read in a proviso to section 14 of the Political Parties Act to provide that a vacancy did not arise after the last day for changing parties set by IEBC before a general election or within the 180 days preceding a general election so as to bring that statute in line with the Constitution. The instant matter was a proper case for reading in to save the legislative scheme from a declaration of unconstitutionality. Besides, the curative measure suggested was not fundamentally at odds with the intent of the legislation in question.

Petition allowed.

Orders

Declaration issued that to the extent that section 14 of the Political Parties Act required a sitting member of the County Assembly to resign from their respective seats as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the section was unconstitutional null and void and of no effect for violating article 38(3((c) as read with articles 4(2); 10, 19, 20 and 259 of the Constitution.

A reading in order to section 14 of the Political Parties Act was issued to the effect that a member of county assembly who switched from one political party to another; or from a political party to become an independent member; or from being an independent member to join a political party within one hundred and eighty (180) days immediately preceding the general elections needed not thereby resign from and/or lose his seat by reason of such change of party membership. The read in order would be a proviso to section 14(4) and would read: “except that a sitting member of the county assembly who intends to resign or has resigned from a political party which sponsored him to the county assembly under subsection (1) within the final one hundred and eighty (180) days immediately preceding the General Elections shall not be deemed to be a member of two political parties at the same time.”

Conservatory order issued directed to the 2nd to 50th interested parties restraining them from declaring as vacant a seat of any member of the respective county assemblies who moved from one political party to another or who was independent but joined a political party; or who was a member of a political party but resigned to become independent within one hundred and eighty (180) days immediately preceding the general elections scheduled for August 9, 2022.

Each party was to bear its own costs.

Citations CasesKenya Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR); [1976-80] 1 KLR 1272 - (Explained)

Communications Commission of Kenya & 5 others v Royal Media Services Limited, Nation Media Services Limited & 5 others Petition 14, 14A, 14B & 14C of 2014; [2015] KESC 13 (KLR) - (Explained)

In the Matter of Kenya National Commission on Human Rights [2014] 2 KLR 356 - (Explained)

In the Matter of Interim Independent Electoral Commission [2011] 2 KLR 223 - (Explained)

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] 3 KLR 718 - (Explained)

In the Matter of the Speaker of the Senate & another Advisory Opinion Reference 2 of 2013; [2013]eKLR - (Explained)

Institute of Social Accountability & another v National Assembly & 4 others Petition 71 of 2013; [2015] eKLR - (Explained)

Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & Attorney General Petition 29 of 2014; [2014] KESC 4 (KLR) - (Explained)

Law Society of Kenya v Attorney General & another Petition E327 of 2020; [2021]eKLR - (Explained)

Matemu, Mumo v Trusted Society of Human Rights Alliance & 5 others Civil Appeal 290 of 2012; [20112] eKLR - (Explained)

Mboya, Apollo v Attorney General & 2 others Petition 472 of 2017; [2018] KEHC 6933 (KLR) - (Explained)

Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others Petition 2B of 2014; [2014] eKLR - (Applied)

Mwau, John Harun v Independent Electoral and Boundaries Commission & another Petition 26 of 2013; [2013] eKLR - (Explained)

National Gender and Equality Commission v Cabinet Secretary, Minister of Interior and Coordination of National Government & 2 others Petition 12 of 2016; [2016] KEHC 4985 (KLR) - (Explained)

Ngodi, Kennedy Irungu & another v Mary Waithera Njoroge & 11 others Petition E369 of 2020; [2021] eKLR - (Explained)

Omondi, William v Independent Electoral & Boundaries Commission & 2 others Petition 288 of 2014; [2014] KEHC 3655 (KLR) - (Explained)

Speaker of the National Assembly & another v Senate & 12 others Civil Appeal E084 of 2021; [2021] KECA 282 (KLR) - (Explained)

UgandaTinyefuza v Attorney General [1997] UGCC 3 - (Explained)South AfricaDemocratic Movement v President of the Republic of South Africa and others (African Christian Democratic Party and others Intervening; Institute for Democracy in South Africa and another as Amici Curiae) (No 2) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002). - (Explained)StatutesKenya Constitution of Kenya, 2010 articles 2(4); 3; 4(2);10; 24(1)(2)(c); 38(3)(c); 48; 92(c)(d)(e)(i); 99(1)(c); 101(4)(b)(5); 103(e)(i); 156; 159; 163(6); 165(3)(d)(4); 177(1); 183; 186; 187; 189(2); 193(1)(c)(i);194(1)(e)(2); 235; 255 - 258; 259(1)(d) - (Interpreted)

County Governments Act, 2012 (Act No 17 of 2012) sections 14(2)(a); 19 - (Interpreted)

Elections Act, 2011 (Act No 24 of 2011) sections 14, 19(3) - (Interpreted)

Political Parties Act, 2011 (Act No 11 of 2011) sections 14(2)(3)(4); 14A(1)(c) - (Interpreted)

AdvocatesNone mentioned

Judgment

A. Introduction: The Petition and its Context 1. The petitioner herein is a sitting Member of the County Assembly of Nakuru County. He has brought the petition in both his personal capacity and in the public interest. The 1st respondent is the Speaker of the County Assembly of Nakuru. The 2nd respondent is the State Office in the National Government established under article 156 of the Constitution. The 1st interested party is the Registrar of Political Parties. The 2nd interested party is the Independent Electoral and Boundaries Commission (IEBC) while the 3rd and 4th interested parties are Speakers of the Senate and National Assembly respectively. Lastly, the 5th to 50th interested parties are the speakers of the County Assemblies in the Republic of Kenya.

2. The Petition is dated 25/02/2022. It seeks the following prayers:(i)A declaration that to the extent that section 14 of the Political Parties Act requires a sitting Member of the County Assembly and the National Assembly to resign from their respective seats as a precondition to moving from one political party to another for purposes of an election within the timelines set by the law and the Independent Electoral and Boundaries Commission for such change of membership ahead of a General Election, the said section is unconstitutional null and void and of no effect for violating article 38(3)(c) as read with article 24(1) & (2)(c) of the Constitution.(ii)A reading in order in section 14 of the Political Parties Act that a Member of Parliament or a County Assembly who resigns from one political party to the other on the last day of the times lines set by the law and the Independent Electoral and Boundaries Commission for purposes of participation in a general Election need not thereby resign from and/or lose his seat by reason of such change of party membership.(iii)A conservatory order directed to the 2nd to 50th interested parties from declaring as a vacant a seat of any member who moves from one political party to the other on the date set by the Independent Electoral and Boundaries Commission as the final date for verification and closure of party membership registers for purposes of the general election scheduled for 09/08/2022. (iv)Costs of the incidental to this petition.(v)Such other or further order as the court may deem just and expedient.

3. The petition is centred on an alleged unconstitutionality of section 14 of the Political Parties Act in light of articles 194(1) of the Constitution on the one hand and articles 38 and 101(4)(5) of the Constitution as read together on the other hand. In particular, the petitioner is aggrieved by the 1st respondent’s interpretation of article 194 of the Constitution as read together with section 14 of the Political Parties Act as revealed in the 1st respondent’s Communication made to the Nakuru County Assembly on 22/02/2022 (hereinafter, “the Impugned Communication”). That Impugned Communication was issued with respect to Members of the County Assembly of Nakuru who wished to contest for elective offices in the forthcoming general elections sponsored by Political Parties other than the parties that sponsored them to the County Assembly in the current session. The petitioner contends that while the impugned communication was silent on the impact of such interpretation of the law on the provisions of article 38 of the Constitution, its effect is to substantially derogate from those rights.

4. The petitioner argues that the 1st respondent fell into error when he read article 194(1)(e) of the Constitution in isolation to require that any time a member of the County Assembly resigns from the party that sponsored him or her, the office of the Member of the County Assembly falls vacant. Instead, the petitioner argues, when read together with Articles 38 and 101(4)-(5) of the Constitution, article 194(1)(e) of the Constitution does not mandate that such a seat of the Member of the County Assembly falls vacant at the end of the electoral cycle when a by-election cannot be held by virtue of article 101(5) of the Constitution. This, the Petitioner says, is the necessary interpretation to preserve and promote the objects, purposes and principles of theConstitution.

5. The petition is supported by the affidavit of the petitioner dated 25/02/2022. In it, the petitioner contends that the Impugned Communication reproduced the provisions of article 194(1) of the Constitution and sections 14(2) & (3) of the Political Parties Act. He contends, further, that same was framed to suggest that Members of the County Assembly of Nakuru who wished to contest for elective office in the forthcoming General Elections to be held on August 8, 2022 on parties other than the parties that sponsored them to the County Assembly, must not only resign from the said parties that sponsored them but that they will also automatically lose their respective seats as Members of County Assembly or Members of Parliament.

6. The petitioner has two other apprehensions about the 1st respondent’s Impugned Communication. The first is that he says that the Impugned Communication was silent on the impact of the interpretation of the law it had given on the provisions of article 38 of their Constitution on political rights. The petitioner's second apprehension is that such resignation may have deleterious consequences on the electorate and our Republican system of Government by dint of article 101(5) of the Constitution and other election timelines as dictated by law.

7. The petitioner believes the intention of section 14 of the Political Parties Act in terms of advancing political party democracy and discipline is good. He, however, argues that the section is constitutionally deficient to the extent that it does not make provision for the unique circumstances that attend to a transitional period (window) in the election cycle set out in the timelines communicated by the Independent Electoral and Boundaries Commission (IEBC). This is in regard to settlement of the register of members for political parties’ nomination and registration of candidates for purposes of General Elections.

8. The petitioner also believes that section 14 of the Political Parties Act is constitutionally deficient to the extent that it does not make reasonable provision that accommodates sitting Members of Parliament and County Assemblies whose sponsoring political parties change manifestoes and ideologies for purposes of the next General Election. When such change is inconsistent with the conscience and ideology of elected members, such members may thereby desire to seek re-election on another party with a compatible manifesto and ideology, the Petitioner argues.

9. The petitioner further believes that section 14 of the Political Parties Act is constitutionally deficient to the extent that it requires a Member of Parliament or the County Assembly to resign from and thereby lose his seat simultaneously with changing his political party for purposes of a transition for General Elections. He contends that such circumstances do not permit or offer an opportunity for re-filling of the seat hence exposing the constituents to non-representation for the remainder of the term of the respective Houses of representation (Parliament or the County Assembly).

10. The petitioner also believes that there being no opportunity to re-fill the seat, a constitutional crisis may arise especially where a critical number of representatives change political parties hence affecting the conduct of such critical business of the Assembly such as passage of the Budget, the Finance and the Appropriations Bills.

11. The petitioner believes that the appropriate remedy that delicately balances the noble intentions of Section 14 of the Political Parties Act is a reading in order as proposed in his Petition.

12. The 50th interested party (Speaker, County Assembly of Nairobi) filed its affidavit dated 22/3/2022 sworn by Gavin Castro, the acting clerk of the Nairobi City County Assembly in support of the petition. He believes that the impugned communication results in gross misinterpretation of article 194(1) of the Constitution and section 14(2) and (3) of the Political Parties Act.

13. The 50th interested party opines that the Impugned Communication interpreted both sections to mean that where a Member of a County Assembly joins another political party other than the one that sponsored them, then they are deemed to have not only resigned from the party that sponsored them but should also vacate their political seats. Additionally, the 50th interested party believes that the Impugned Communication is an infringement of article 38 of the Constitution which states that every citizen has a right to make political choices.

14. The 50th interested party contends that the 1st respondent failed to consider the provisions of article 101 which provides for a vacancy in the office of a Member of National Assembly (which is also applicable to the office of a Member of County Assembly). In the view of the 50th interested party, article 101 states that in the event the vacancy falls three (3) months to the General Elections, a by-election cannot be held and that, therefore, the seat will remain unoccupied until after the General Elections. Further, in the view of 50th interested party, the 1st respondent’s interpretation would mean that the various constituencies remain unrepresented until the General Elections are conducted and a member of the assembly is elected.

15. The 50th interested party says that the 1st respondent also failed to consider that a member could move to a different political party because the party that sponsored them changed their manifestos and ideologies that might be inconsistent with the members’ conscience and ideologies. He contends further that article 259 of the Constitution states that the Constitution should be interpreted in a manner that promotes its purpose, values and principles; advances the rule of law and human rights and fundamental freedoms in the bill of rights; permits the development of the law and contributes to good governance but the 1st Respondent has failed to do so.

16. Accordingly, the 50th interested party believes the remedies sought by the petitioner are merited and he urges this Court to grant the same to prevent a constitutional crisis more so in an election year.

17. The 22nd interested party (the Speaker of the County Assembly of Nyahururu) also appeared through counsel but did not file any affidavit. Counsel, however, informed the court that the 22nd interested party fully supported the petition.

B. The Application for Conservatory Orders and Preliminary Objections to the Petition 18. Contemporaneously with the petition, the petitioner filed an application for conservatory orders dated 25/02/2022. That application was opposed by the respondents and the 1st & 2nd interested parties. In addition, the 1st Respondent and the 2nd interested parties raised preliminary objections to the petition.

19. In a ruling dated 18/03/2022, this court (Ngugi J sitting as a single judge) granted conservatory orders pending the hearing of the petition and dismissed the preliminary objections raised against the petition. In ruling that the petition was ripe and fit for hearing by the court, the judge also certified that the Petition raises a substantial question of law in terms of article 165(4) of the Constitution to warrant it to be referred to the Honourable Chief Justice for the empanelment of an uneven number of judges to hear and determine it.

20. The Honourable Chief Justice empanelled the present bench in her directions dated 31/03/2022.

C. The Responses to the Petition 21. The petition was opposed by the 1st respondent (Speaker of the County Assembly of Nakuru); the 2nd respondent (the Honourable Attorney General); the 1st interested party (The Registrar of Political Parties); and the 2nd interested party (the IEBC). All the other Interested Parties (other than the 22nd and 50th interested parties being the Speakers of the County Assemblies of Nyandarua and Nairobi respectively) did not participate in the proceedings even though they were duly served.

22. The 1st respondent filed a replying affidavit sworn on 10/03/2022. In it, the 1st respondent confirms that he made the Impugned Communication in the County Assembly during its sitting on 22/02/2022, in his capacity as the Speaker. He says that the Impugned Communication relates to when a member of a County Assembly resigns from the party that sponsored him or her to the County Assembly; and further that the Impugned Communication is an express or implied meaning and effect of article 194(1)(e) of the Constitution of Kenya while read together with section 14 of the Political Parties Act.

23. The 1st respondent contends that the impugned communication is not, by itself, a declaration of a vacancy in the seats of the members who have resigned from one political party. His understanding, he says, is that there is a difference between “a vacancy arising” and “declaration of the vacancy”. He contends, further, that a vacancy arises in the membership of the County Assembly when a member resigns from the political party that sponsored him or her to the County Assembly or when a member is deemed, on inference by conduct, to have resigned from the party.

24. It is the 1st respondent’s view that article 194(1) of the Constitution of Kenya, 2010 provides for anticipated events when a vacancy in the membership of County Assembly may occur. Additionally, under article 194(2), Parliament is vested with powers to enact legislation providing circumstances under which a member of a political party shall be deemed to have resigned.

25. The 1st respondent says that unless a statutory notice has been issued like in his case a 21-day notice of a vacancy arising, one cannot say that the Speaker has declared the position vacant although the vacancy may have actually arisen.

26. According to the 1st respondent, his communication was made following members of the County Assembly expressing their resignation in writing from the political party that sponsored them to the County Assembly during the 2017 General Elections. He opines that section 14 of the Political Parties Act does not limit the right of an individual to political freedom or association as it does not stop a sitting member of County Assembly from joining a political party of their choice.

27. The 1st respondent believes that section 14 of the Political Parties Act only embosses consequences or effects of article 194(1)(e) of the Constitution to the effect that a vacancy will arise if a member resigns or is deemed to have resigned from the political party that sponsored the member to the County Assembly. Additionally, he believes that article 103 of Constitution of Kenya, 2010 applies to a vacancy arising in the membership of Member of Parliament.

28. The 1st respondent also believes that the Constitution foresees vacancies arising three months to the general election due to resignation of members from one political party to another or an Independent Member joining a political party. In his view, the Constitution does not require a by-election as result and therefore the affected ward or constituency would have to remain unrepresented till after the General Election.

29. The 2nd respondent opposed the petition vide grounds of opposition dated 26/01/2022. The grounds of opposition, reproduced verbatim, are as follows:1. That the petition is frivolous, mischievous and an abuse of the court.2. That the petition offends the provisions of articles, 194, 101(5), 255, 256 and 257 of Constitution.3. That the petition be dismissed with costs.

30. The 2nd respondent also filed further grounds of opposition dated 27/04/2022. the grounds of opposition, reproduced verbatim, are as follows:1. That the petition has failed to meet the test of specificity, of the actual violation to warrant the orders sought, as was held in Mumo Matemu v Trusted Society of Human e Rights Alliance and 5othersCACA No 290 of 2012 [20I12] eKLR , where the court, while relying on the locus classicus on constitutional petitions, Anarita Karimi Njeru v Republic [1976-80] KLR 1272, held that:“However, our analysis cannot end at that level of generality. It was the High Court's observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court...”.

2. That the petition herein violates the principle of Constitutional avoidance as set out by the Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, and therefore should be dismissed forthwith. It raises issues that should be before the Supreme Court for an Advisory Opinion, if any party with the requisite locus requires the same;

3. That the petitioner herein is proposing amendment to the impugned section and inviting this Court to engage in an exercise of judicial overreach by legislating:

4. That the amendment to the law proposed by the petitioner fly in the face of articles 103(1)(e) and 194(1)(e) of the Constitution, hence the same fail the test of constitutionality;

5. That the petitioner herein has not demonstrated before the honourable court how the 2nd respondent has violated their constitutional rights;

6. That the prayer under paragraph 37(C) seeking conservatory orders is fatally defective as the petition fails the test or conservatory orders established in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR by the Supreme Court where one is required to prove that he will suffer real prejudice as a result of the alleged violation of the Constitution.

7. That the petition herein, if allowed, will interfere with the statutory and constitutional mandate of various constitutional bodies, as it seeks compel them to depart from the express letter of the Constitution:

8. That the petition is defective both in form and in substance and is therefore unmerited and brought in bad faith.

9. That it is in the public interest and in the interest of justice that the current application and petition be dismissed with costs as the same is an abuse of court process.

31. The 1st Interested party opposed the petition vide their grounds of opposition dated 27/04/2022. The grounds of opposition, reproduced verbatim, are as follows:1. That the petition has not appreciated the import and the context of article 92 of the Constitution.2. That section 14 of the Political Parties Act, 2011 is harmless given the substance of articles 103(e)(i) and 194(e)(i) of the Constitution.3. That the petition creates room for the possibility of collision among the provisions of Constitution contrary to what was observed in the case of the Institute of Social Accountability &another v National Assembly & 4others [2015] eKLR:“Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No 1 of 1997 (1997 UGCC 3)). We are duly guided by the principles we have outlined and we accept that while interpreting the impugned legislation alongside the Constitution, we must bear in mind our peculiar circumstances. Ours must be a liberal approach that promotes the rule of law and has jurisprudential value that must take into account the spirit of the Constitution.” 4. That the impugned Section actually advances enjoyment of political rights and does limit the same.

5. The petition does not advance the substance and spirit of the Constitution and thus fails the test of public interest hence should be dismissed with costs for being an abuse of the court process.

32. The petition is also opposed through the 2nd interested party’s replying affidavit dated 10/03/2022 sworn by Crispine Otieno Owiye, its Director, Legal and Corporate Affairs. The 2nd interested party contends that the IEBC has no mandate under the Constitution and statute to declare any elective seat vacant and to that extent the prayer for a conservatory order as against the IEBC is misguided, misdirected and most importantly an order which is being sought in vain.

33. The 2nd interested party further contends that under article 194(1)(i) of the Constitution of Kenya, 2010 the office of a Member of County Assembly inter alia becomes vacant once a member of a political party resigns from the respective political party. Therefore, the IEBC argues that from the plain reading of that provision of the Constitution the seat becomes vacant by operation of the law.

34. The 2nd interested party says that under article 38 of the Constitution of Kenya, 2010, the petitioner, just like any other Kenyan Citizen has a right to make political choices and it is inconceivable how the provisions of article 101(5) of the Constitution limits his rights to exercise political choices. The 2nd interested party further contends that the provisions of article 101(5) of the ition of a Member of Parliament shall not be filed within three (3) months immediately before a General Election. To the 2nd interested party, this provisions apply mutandis mutandis to the vacancy in the office of a Member of County Assembly.

35. It is, additionally, the 2nd interested party’s case that article 101(5) of the Constitution of Kenya, 2010 reflects the reality that it would, on average, take a period exceeding three (3) months to conduct a by-election from the date when an elective seat becomes vacant.

36. According to the 2nd interested party, the argument by the petitioner that the house business will be crippled if there are multiple resignations of members from their respective sponsor parties is merely speculative and does not warrant issuance of a conservatory order. It is the 2nd interested party’s case that even in instances where a vacancy occurs in the office of a Member of a County Assembly and a by-election is envisaged under the law the role of the IEBC kicks in only once a notice by the Speaker of the County Assembly is issued in the prescribed form as provided for under section 19(3) of the Elections Act, 2011.

37. The 2nd interested party says that the petitioner has not made out any grievances against the IEBC in his petition and the petition merely serves a nuisance value of bogging down the Commission with unnecessary litigation. The 2nd interested party contends further that the issues raised in the petition relate to regulation and governance of affairs of political parties, a subject which is not within the mandate of the IEBC. He urges the court to order that the name of the IEBC be struck out from petition to enable it to focus on its mandate while noting that strict timelines apply to the preparation of the forthcoming general elections.

D. The Parties’ Submissions 38. On 28/04/2022, the court gave directions that the petition would be canvassed by way of written submissions followed by oral highlighting if necessary. Thepetitioner filed submissions in support of the petition. The 1st & 2nd respondents as well as the 1st & 2nd interested parties filed submissions in opposition to the petition. The 22nd interested party did not file submissions but its counsel, Mr. Mathea (whose brief was held by Mr Mburu) appeared in court and indicated that the 22nd interested party fully supported the submissions filed on behalf of the petitioner.

39. On the date set for oral highlighting, all the parties present indicated to the court that they did not wish to make oral highlights as their submissions faithfully represented what they needed to say. The only party that substantively addressed thecourt was the petitioner’s advocate who brought to the court’s attention the Court of Appeal’s decision inJudges and Magistrates Vetting Board & Attorney General v Kenya Magistrates & Judges Association[2014] eKLR on the question whether the court has jurisdiction to grant the relief of reading in to a statute to bring it into consonance with the Constitution.

40. The petitioner’s submissions are dated 11/05/2022. He submits that article 159(2)(e) of the Constitution requires courts to be guided by the principle that the purpose and principles of the Constitution shall be promoted. It is his case that when one applies or interprets the Constitution or any other law, article 10 of the Constitution requires the person to be guided by the national values and principles of governance which include the principle of democracy.

41. It is, further, the petitioner’s submission that article 259(1) requires the Constitution to be interpreted in a manner that promotes its purposes, values and principles. The petitioner argues that any other interpretation which does not promote the Constitution’s purposes, values and principles is itself unconstitutional. The petitioner argues that any law which is inconsistent with the Constitution is void to the extent of the inconsistency under article 2(4) of the Constitution. Additionally, the petitioner urges that under article 165(3)(d) of the Constitution, this court is vested with the jurisdiction to determine questions regarding constitutionality of laws or actions.

42. The petitioner rejects the argument by the 2nd respondent that the court’s interpretation of constitutional provisions and the determination of constitutionality of statutory provisions would amount to an invitation to this court to engage in an exercise of judicial overreach by legislating. He argues that the petition, in unambiguous terms, describes the threat to his individual rights and the general public and it cannot be faulted for non-specificity.

43. The petitioner further rejects the 2nd respondent’s argument that this matter should be before the Supreme Court for an advisory opinion. In this regard, the Petitioner makes two arguments: First, that the locus standi to bring a request for advisory opinion to the Supreme Court pursuant to article 163(6) of the Constitution is vested in the national government, any state organ or any county government and he does not fall in any of the these categories. Second, the petitioner argues that the Supreme Court has no original jurisdiction to determine issues of threat to rights and fundamental freedoms or the interpretation and application of the Constitution which, he says, are key in the petition.

44. The petitioner urges thiscourt to consider and come to the conclusion that the purpose of article 101(4)(b) of the Constitution is not to limit the general constitutional purposes of enhancing democracy and good governance, and that therefore it should not be interpreted in a way that defeats these purposes. He submits that this court shall have to determine at least three issues surrounding the question:a.First, whether the application of article 194(1)(e) as read with section 14 of the Political Parties Act, during the time preceding the closure of party registers for the purpose of conducting general elections, has the effect of negating the purposes of article 101(4) which is to ensure that the people do not remain unrepresented for a longer period than necessary and article 38 of the Constitution which guarantees political rights.b.Second, whether the purpose of article 101(5) can be reconciled with the right of the representation of the people and the right of individuals to political rights as enshrined in article 38 of the Constitution.c.Third, the petitioner says that the court will need to determine whether the likely paralysis of the legislative bodies all over the country for lack of quorum, which would occur if Members of Parliament and County Assemblies were to change parties in large numbers is envisaged by the Constitution or whether it is legally acceptable given that article 259(1)(d) requires the Constitution to be interpreted in a manner that contributes to good governance.

45. It is the petitioner’s submission that articles 4(2) and 38 of the Constitution provides for the foundation of democracy and the freedom to join, belong, or exit a political party. He submits further that together they are aimed at ensuring that there is good governance in the Republic and they are key in interpreting any other provision that is incidental to actualization of democracy or political rights of individuals.

46. Additionally, it is the petitioner’s case that article 194(1) of the Constitution provides for instances when the office of the Member of County Assembly falls vacant. These instances include when such a member, having been elected to office as a member of a political party, resigns from the party or is deemed to have resigned from the party or where a member elected as an independent candidate joins a political party.

47. The petitioner submits further that the Political Parties Act at section 14(4) prohibits a person from being a member of more than one political party at the same time. Additionally, section 14A(1)(c) of the Act provides that when a person joins another political party he or she shall be deemed to have resigned from the party he or she previously belonged to.

48. The petitioner argues that, therefore, both article 194(1)(e) of the Constitution and section 14A of the Political Parties Act are aimed at avoiding a situation where a representative of the people is elected based on a specific ideology and then once she is elected she discards the ideology and adopts another which the electorate might not have elected her for.

49. According to the petitioner, article 101 of the Constitution provides for the filling of a vacancy in the office of a Member of a County Assembly but such a vacancy cannot be filled within the three (3) months immediately before General Elections. It is, further, the petitioner’s view that the purpose of article 101(4)(b) is to ensure that the IEBC has time to prepare for the General Elections and to avoid a situation where public resources would be used to conduct a by-election and the elected representative does not have time to serve the electorate because of the brevity of time she is in office. Additionally, it is the petitioner’s view that it is not and it cannot be the purpose of the said provision to create vacancies which cannot be filled for a period of up to six (6) months.

50. The petitioner also submits that the respondents should show how the problem of lack of quorum in the legislative houses would be solved in case the membership falls below the requisite quorum of the houses. He argues that article 258 of the Constitution allows a person to institute court proceedings, claiming that the Constitution is threatened with contravention.

51. In its submissions, the 1st respondent maintains that the petitioner has not demonstrated a prima facie constitutional case worth suspending or staying the continued operation of section 14 of the Political Parties Act. He cites National Gender and Equality v Cabinet Secretary, Minister of Interior and Coordination of National Government & 2 others [2016] eKLR.

52. The 1st respondent submits that he did not declare any seat vacant in the impugned communication. He argues that he merely advised the members on the natural consequences of section 14 of the Political Parties Act as read together with article 194 of the Constitution of Kenya, 2010, on the consequences of a member resigning from one political party to another. It is, further, the 1st respondent’s position that the declaration of vacancy was another statutory procedure under the Elections Act through a notice pursuant to section 19(1) and (3).

53. The 1st respondent also argues that section 14 of the Political Parties Act does not require a member to resign from being a member of the County Assembly so that they can eligibly join another political party – but that the section merely “emboss[es] and reiterate[s] the legal and constitutional consequence of a member moving from one party to another, which is essentially creating a vacancy in the membership.”

54. It is the 1st respondent’s view that a vacancy will constitutionally arise in the membership of the County Assembly and that section 14(5) and 14A of the Political Parties Act gives more clarification on when a member is deemed to have resigned from a political party.

55. According to the 1st respondent, the Constitution does not anticipate vacancies arising during the transitional period of the County Assembly and that ordinarily whenever a vacancy arises for whatever reason in the membership, a by-election should be held to fill up the vacancy. Additionally, the 1st respondent states that whereas the Constitution does not have an express provision in relation to the membership of the County Assembly as it does for Members of Parliament, the court is to be guided by the decision in Kennedy Irungu Ngodi &another v Mary Waithera Njoroge & 11 others [2021] eKLR that article 101 of the Constitution applies mutatis mutandis to the position of Members of County Assemblies.

56. It is the 1st respondent’s submission that under article 194 of the Constitution, a vacancy will arise if a member resigns from the political party that sponsored him to the County Assembly. It is the further 1st respondent’s submission that as per the provisions of section 14(4) of the Political Parties Act, a person shall not be a member of more than one political party at the same time. Additionally, the 1st respondent submits that it would be a narrow approach to conclude that section 14 of the Political Parties Act limits the petitioner’s political right to join a political party.

57. In response to the claim that there is a risk of potential paralysis of the legislative body, the 1st respondent urges this court to be guided by section 14(2)(a) of the County Government Act, 2011 which provides that County Assembly proceedings are valid despite there being a vacancy in its membership at the particular time. He submits that the petition herein is unmerited and should be dismissed with costs as it has the effect of amending the basic structures of the Constitution.

58. In its submissions dated May 24, 2022, the 2nd respondent argues that the instant petition is not a “proper” constitutional petition but a veiled attempt by the petitioner to get this court to issue an advisory opinion on the operation of section 14 of the Political Parties Act, which finds its footing in articles 103(1)(e) and 194(1)(e) of the Constitution vis a- vis article 38 of the Constitution.

59. It is the 2nd respondent’s view that the Supreme Court is the court vested with the jurisdiction to issue advisory opinions under article 163(6) of the Constitution. He relies on the Supreme Court’s decision in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate Sup Ct Appl No 2 of 2012, [2012] eKLR [para 25]. It is, further, the 2nd respondent’s view that the present Petition is a silent call for this court to suspend the operations of articles 103(1)(e) and 194(1)(e) towards the end of the Parliamentary term to allow politicians and elected leaders find new vehicles to drive into the new term.

60. According to the 2nd respondent, it is the petitioner’s intention to convince this court to turn a blind eye to the violation of an express provision of the Constitution and to qualify a legislation which finds its footing in express constitutional provisions. Additionally, the 2nd respondent states that the petitioner waited for the last possible minute to bring the instant petition despite the impugned section having been in operation since 2012.

61. The 2nd respondent opines that any elected member who waits for the tail end of the five-year parliamentary term to decamp, is not only disingenuous in the decamping but also works toward benefitting unfairly, wasting time and potentially destabilizing the operations of the county.

62. The 2nd respondent submits that under article 2(3) of the Constitution, the validity or legality of the Constitution is not subject to challenge by or before any court or other state organ and cites John Harun Mwau v Independent Electoral and Boundaries Commission &another [2013] eKLR to accentuate that point.

63. The 2nd respondent argues that an advisory opinion would suffice if it is unclear to the petitioner on how the provisions of articles 103(1)(e) and 194(1)(e) of the Constitution interrelate. The 2nd respondent argues, further, that article 163(6) of the Constitution limits the locus standi to seek an advisory opinion only to national government, any state organ or any county government in respect to any matter concerning county government.

64. The 2nd respondent also submits that section 14(3) of the Political Parties Act was called to question in William Omondi v Independent Electoral & Boundaries Commission & 2 others [2014] eKLR, where the court took upon itself to discuss the purpose of section 14 of that Act in its entirety. The court opined that the section was inserted in the law to instil discipline among party members and to stop the untidy practice of party-hopping towards the end of the nomination process leading to an election. It also went ahead to set out guiding principles for courts in deciding on the constitutionality of a provision of the law.

65. Additionally, it is the 2nd respondent’s submission that the petitioner completely ignores the provisions of article 194(1)(e) which contemplates one losing their elective seat upon resignation from the sponsoring party. The 2nd respondent argues, further, that the petitioner disregards the provisions of article 194 of Constitution which mandates Parliament to legislate on political parties.

66. In conclusion, it is the 2nd respondent’s submission that the present petition is defective and the prayers sought cannot be granted by this court as the same are in the form of an advisory opinion, which is a preserve of the Supreme Court. For the aforesaid reasons, he urges this court to dismiss the petition herein.

67. In its submissions dated April 27, 2022, the 1st interested party submits that superior courts have numerously pronounced themselves on the principles to be adopted when interpreting the Constitution. According to the 1st interested party, one of these principles is one requiring the holistic interpretation of the Constitution. The 1st interested party relies on the cases of In the Matter of Kenya National Commission on Human Rights [2014] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2015] eKLR.

68. The 1st interested party urges the court to address its mind to the criteria at paragraph 105 in Nairobi High Court Petition No E327 of 2020 Law Society of Kenya v Attorney General &another [2021] eKLR while determining whether a provision of a statute is unconstitutional. Additionally, the 1st interested party submits that section 14 of the Political Parties Act 2011 exists to serve various good governance masters including the Constitution of Kenya.

69. The 1st interested party submits that article 3 of the Constitution, stipulates that sovereign power is delegated to state organs which are duty bound to perform their functions in accordance with the Constitution. It is the 1st interested party’s argument that for one to qualify to be elected to the National Assembly, in line with article 99(1)(c) of theConstitution, they must have been nominated by a political party or be an independent candidate supported by at least one thousand registered voters in the constituency.

70. The 1st interested party argues further that such a member would lose their seat in line with the terms set out under article 103(1)(e) of the Constitution which includes where a member of the National Assembly that is a member of a party resigns from the party or is deemed to have resigned within the meaning of the legislation and where a member of the National Assembly who was elected as an independent candidate joins a political party.

71. According to the 1st interested party, Parliament implemented article 92 of the Constitution through enactment of the Political Parties Act, 2011. The 1st interested party makes reference to the final report by the Constitution of Kenya Review Commission at page 136 and 148 (k) and states that Kenyans did not create any exceptions as to the effects of a member defecting from a political party that sponsored the member to Parliament or County Assembly.

72. The 1st interested party argues that article 38(3)(c) of the Constitution demands that at the point of running for office, one must belong to a political party. Additionally, it is the 1st interested party’s argument that articles 103 and 194 of the Constitution demand that during the life of Parliament or County Assembly for one to continue being a member of the house, they must continue being members of the party that sponsored them to the Parliament or Assembly.

73. The 1st interested party insists that section 14 of the Political Parties Act is aimed towards promoting political rights not limiting them and that articles 38, 103 and 194 must therefore be read together. The 1st interested party relies on The Institute of Social Accountability &another v National Assembly & 4others[2015] eKLR.

74. In conclusion, the 1st interested party argues that there is an exemption to the requirement that a member resigns when it comes to parties that are under a coalition as illustrated at section 14A(6) of the Political Parties Act, 2011 which stipulates that subsection (1)(c), (d) and (e) shall not apply to a member of a political party which enters or proposes to enter into a merger or a coalition with another political party. The 1st interested party urges the Court to dismiss the present petition in its entirety.

75. The 2nd interested party’s submissions are dated May 25, 2022. In them, the 2nd interested party submits that the crux of the petition is the constitutionality of the provision of section 14(5) of the Political Parties Act, 2011 which provides for incidences when a member of a political party is deemed to have resigned from the previous political party. In fact, the 2nd interested party might be referring to an older version of the Political Parties’ Act before its amendment in 2022. The relevant sections of the Act dealing with incidences when a member may be deemed to have resigned from a Political Party are now found in section 14A of the Act.

76. Further, it is the 2nd interested party’s view that the Impugned Communication was merely to notify members of the meaning and effects of section 14 of the Political Parties Act and article 194(1)(e)(i) of the Constitution of Kenya, 2010. That effect, the 2nd interested party insists, is that the office of the Member of the County Assembly becomes vacant if a member resigns from the sponsor political party or is deemed to have resigned from the political party. It also relies on The Institute of Social Accountability &another v National Assembly & 4others [2015] eKLR.

77. The 2nd interested party submits that section 14 of the Political Parties Act is enacted in furtherance of the provisions of article 38(1) and article 193(1)(c)(i) of the Constitution of Kenya. It is the 2nd interested party’s view that under article 38(1) of the Constitution, a citizen has a right and freedom to join and participate in activities of political parties. It is additionally its view that section 14 of the Political Parties Act does not in any way limit the petitioner’s right to make political choices by resigning from his political party to join another.

78. According to the 2nd interested party, section 14 of the Political Parties Act merely provides the procedure of resigning and does not provide any sanctions for the resignation of the petitioner from the sponsoring political party. Instead, the 2nd Interested Party argues, the consequences of such resignation from a political party are provided for under article 194(1) of the Constitution. It argues that, therefore, the constitutionality of the said article cannot be challenged as per the provisions of article 2(3) Constitution and that this court lacks jurisdiction to entertain such a prayer.

79. The 2nd interested party argues that the scenario imagined by the petitioner where there is a lack of quorum of the legislative body if a high enough number of members resign from political parties or die can only be addressed by amending the Constitution and not through judicial interpretation by the court. The 2nd interested party relies on Apollo Mboya v Attorney General & 2others [2018] eKLR.

80. The 2nd interested party further argues that in most elections the electorate is more influenced by the candidate's party identity than by his or her personal reputation. Therefore, in fairness to the electorate, a defector should be made to seek a fresh mandate from the people. It cites the South African Constitutional Court’s decision in Democratic Movement v President of the Republic of South Africa andothers (African Christian Democratic Party andothers Intervening; Institute for Democracy in South Africa andanother as Amici Curiae) (No 2) (CCT23/02) [2002] ZACC 21; 2003 (1) SA 495; 2002 (11) BCLR 1179 (4 October 2002).

81. In conclusion, it is the 2nd interested party’s argument that the petition herein lacks merit and the same should be dismissed with costs.

E. The Constitutional/Legal Problem Stated in the Petition Contextualized and the Issues Presented 82. To properly understand the constitutional issue presented by the petitioner, it is imperative to begin with the various constitutional and statutory texts involved.

83. At the centre of this petition isarticle 194 of the Constitution. It provides as follows:(1)The office of a member of a county assembly becomes vacant-(a)if the member dies;(b)if the member is absent from eight sittings of the assembly without permission, in writing, of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence;(c)if the member is removed from office under this Constitution or legislation enacted under article 80;(d)if the member resigns in writing addressed to the speaker of the assembly;(e)if, having been elected to the assembly-(i)as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or(ii)as an independent candidate, the member joins a political party;(f)at the end of the term of the assembly; or(g)if the member becomes disqualified for election on grounds specified in article 193(2).(2)Parliament shall enact legislation providing for the circumstances under which a member of a political party shall be deemed, for the purposes of clause (1)(e), to have resigned from the party.

84. The particular sub-article of concern is article 194(1)(e). This is Kenya’s constitutionalized anti-defection or party-hopping law. In many countries throughout the world, anti-defection or party-hopping laws require any elected Member of Parliament or representative who leaves the party in which he or she was elected to also leave his or her seat in the legislative body and seek a new mandate from the electorate. The aim of the law is to instil party discipline by preventing political defections which may be prompted by reward of office or other similar unprincipled considerations. As is textually clear, article 194(1)(e) of the Constitution stipulates that a Member of the County Assembly who “defects” or changes his or her party from the one that sponsored him or her to the County Assembly will lose his or her seat: the seat will become vacant upon such “defection” or “switch” of parties.

85. The legislation contemplated inarticle 194(2) as well asarticle 92(c); (d); (e); (i) of the Constitution is the Political Parties Act, No 11 of 2011 aimed at clarifying the party-hopping clause as well as effectuating the regulation of Political Parties. For purposes of this Petition, the relevant provision in the Political Parties Act is section 14. It provides as follows:(1)A member of a political party who intends to resign from the political party shall give a written notice prior to his resignation to-a)the political party;b)the clerk of the relevant house of parliament, if the member is a member of Parliament; orc)the clerk of a county assembly, if the member is a member of a county assembly.(2)The resignation of the member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant House or county assembly.(3)The political party of which the person is a member, the member, or the clerk of the relevant House of Parliament or of a county assembly of which the person is a member shall notify the Registrar of such resignation within seven days of the resignation.(3A) Upon receiving the notification under subsection (3), the Registrar shall cause the name of such member to be removed from the membership list of that political party.(4)A person shall not be a member of more than one political party at the same time.

86. According to thepetitioner, the constitutional problem presented in the petition is revealed when one considers the effect articles 101(4) and (5) of the Constitution imports to the effect of shifting from a sponsoring party divined by article 194(1)(e)(i) of the Constitution. Article 101(4) and article 101(5) of the Constitution describe what happens when a vacancy arises whether by resignation of a member or through defection or death. While the two provisions speak directly about vacancies in the National Assembly and the Senate, it is trite (and all parties agree) that they apply mutatis mutandis to vacancies in the County Assemblies. Article 101 of the Constitution provides as follows:(1)A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.(2)Whenever a vacancy occurs in the office of a member of the National Assembly under article 97(1)(c), or of the Senate under article 98(1)(b), (c) or (d), the respective Speaker shall, within twenty-one days of the occurrence of the vacancy, give notice in writing of the vacancy to-athe Independent Electoral and Boundaries Commission; andb.the political party on whose party list the member was elected or nominated.(3)A vacancy referred to in clause (2) shall, subject to clause (5), be filled in the manner prescribed by an Act of Parliament within twenty-one days of the notification y the respective Speaker.(4)Whenever a vacancy occurs in the office of a member of the National Assembly elected under article 97(1)(a) or (b), or of the Senate elected under article 98(1)(a)-a)the respective Speaker shall, within twenty-one days after the occurrence of the vacancy, give notice in writing of the vacancy to the Independent Electoral and Boundaries Commission; andb)a by-election shall be held within ninety days of the occurrence of the vacancy, subject to clause (5).(5)A vacancy referred to in clause (4) shall not be filled within the three months immediately before a general election.

87. According to the petitioner, the problem revealed in the constitutional interpretation suggested by the 1st respondent in the impugned communication is two-fold. First, the petitioner argues that the effect would be that if a Member of the County Assembly chooses to switch parties at the tail-end of the electoral cycle, his or her ward would remain unrepresented for up to six months since no by-elections can be held during that period. The petitioner believes that this would be an “unconstitutional state” because it would mean that the affected ward would remain unrepresented for a period longer than envisaged in the Constitution which is three months. Second, the petitioner is apprehensive that if many Members of the County Assembly do indeed switch parties at the tail end of the electoral cycle, it could affect the operations of the County Assembly in two ways: either by denying it quorum to transact any business if a large enough number of Members switch parties or at the very least by denying critical committees of the County Assembly sufficient membership to transact business necessary for the running of the County.

88. Consequently, this petition presents a single substantive issue: Does the “restrictive” reading ofarticle 194(1)(e) as read with section 14 of the Political Parties Act (as suggested in the Impugned Communication by the 1st respondent) negate the objects and purposes of article 101(4) and article 38 of the Constitution in view of the outer limits set in article 101(5) of the Constitution and in view of the theory of Constitutional interpretation commanded by article 259(1)(d) as read together with articles 4(2); 10; 19 and 20 of the Constitution? Differently put: Is the interpretation assigned to article 194(1)(e) by section 14 of the Political Parties Act aligned to articles 4(2); 10; 19; 20; and 38 of the Constitution? Should the court read in a proviso to section 14 of the Political Parties Act to provide that a vacancy does not arise after the last day for changing parties set by IEBC before a general election or within the 180 days preceding a general election so as to bring that statute in line with the Constitution?

89. We will deal with the substantive issue in the section below. Before then, however, there are three preliminary/jurisdictional issues raised by the respondents and interested parties which are potentially dispositive that we must deal with first.

90. The three preliminary issues are the following:aFirst, should the substantive question have been presented as a request for an Advisory Opinion before the Supreme Court rather than as a constitutional controversy before the High Court?b)Second, is the petitioner asking the court to declare a part of the Constitution Unconstitutional a relief which is not available under our constitutional scheme?c)Third, is the petition sufficiently specific as required by our rules and decisional law?

91. Next, we deal with the three preliminary issues in seriatim.

F. Should the Petition have Been Brought as a Request for an Advisory Opinion to the Supreme Court? 92. The 2nd respondent argues that the court does not have jurisdiction because, in essence, the petitioner is asking the court to interpret a legal uncertainty in such a manner as to promote the rule of law and the public interest.” The 2nd respondent argues that this is the preserve of the Supreme Court under article 163(6) of the Constitution.

93. It is the 2nd respondent’s view that the petitioner is seeking an advisory opinion from this court. The 2nd respondent submits that that power is vested in the Supreme Court vide article 163(6) of the Constitution. The 2nd respondent submits that the Petition is an interplay between the people’s right to representation and the petitioner’s right to shift political parties at the tail end of the parliamentary term. It is the 2nd respondent’s position that this issue goes to the core of the County Assembly’s ability to legislate in the final months of the parliamentary term, before the same is dissolved in readiness for general elections.

94. The 2nd respondent submits that the petition raises a legal uncertainty whose unravelling would be in the public interest. Further the 2nd respondent argues that the petition is not about the unconstitutionality of section 14 of the Political Parties Act but about suspending article 103(1)(e) and 194(1)(e) of the Constitution to allow politicians and elected leaders to “find new vehicles to drive to the new term.” The 2nd respondent argues such an action would amount to this court turning a blind eye to the violation of express provisions of the Constitution put in place to strengthen political parties as the basic units of democracy and bring back sanity to Kenyan politics.

95. The 2nd respondent relies on In the matter of the Principle of Gender Representation in the National Assembly and SenateSupreme Court Application Number 2 of 2012 [2012] eKLR paragraph 25 where the court set the objective of an Advisory Opinion to be:“to unravel a legal uncertainty in such a manner as to promote the rule of law and public interest.”

96. Further, the 2nd respondent cites In the Matter of the Hon Speaker of the Senate & another[2013] eKLR holding that a matter for an advisory opinion:Must be one of great public importance [which] bears novelty and ill fits the conventional dispute settlement scheme… [a matter] that raises a variety of structural, management and operational challenges unbeknown to traditional dispute settlement …. [that] must therefore be urgent, portending a paralysis to the institution concerned unless it is resolved immediately.

97. The other parties did not submit on this issue.

98. The petitioner’s position is that the 2nd respondent’s argument is untenable for two reasons.

99. First, the petitioner would not have the locus standi to bring a request for an advisory opinion because the Constitution, at article 163(6) provides that the “Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.” The petitioner correctly argues that clearly the locus standi to a request for an advisory opinion vests on “the national government, any state organ, or any county government.” The petitioner is not any of those.

100. Second, the petitioner is also correct that that the argument is untenable as it is tantamount to removing the petitioner from the seat of justice and contrary to the test under article 48 of the Constitution on access to justice, as those parties who can bring the request for an advisory opinion have not demonstrated any interest in the matter. To reach the conclusion that the matter is a fit one for an advisory opinion and decline to exercise jurisdiction, then, is to deny the petitioner an opportunity to have a constitutional grievance determined by a court of law as guaranteed by article 48 of the Constitution.

101. Third, the original jurisdiction to determine issues of the interpretation and implementation of the Constitution and of threats to rights and fundamental freedoms, is vested in the High Court under article 165 of the Constitution.

102. the petitioner herein has set out the specific set of facts that gave rise to this petition. He has pointed out the effect of the impugned communication and his understanding of the overall effect of the Implementation of section 14 of the Political Parties Act. More importantly he has pointed out the threat to his rights as an elected Member of County Assembly, and to his constituents, in particular with respect to:Sitting Members of Parliament and County Assemblies whose sponsoring parties change manifestos and ideology for purposes of the next general elections in a manner inconsistent with the conscience and ideology of the said members who may thereby desire to seek re-election in another party with compatible manifesto and ideology.To that extent the petitioner has demonstrated that these are issues that affect the rights of the petitioner and those of his constituents.

103. Article 258 of the Constitution provides for the right of every person to institute court proceedings claiming that this Constitution has been contravened or is threatened with contravention. That right can be exercised by the person in their own interest or in the interest of other persons. In this case the petitioner’s position is that his own political rights, or the political right of constituents who find themselves in the circumstances he has described, face the risk of violation of their rights as provided for under article 38 of the Constitution.

104. The 2nd respondent merely submits that this matter ought to go to the Supreme Court for an Advisory Opinion but does not demonstrate what makes it so unique as to be a matter suitable for the Supreme Court’s Advisory Opinion jurisdiction. It is not sufficient for a party to cursorily state in its submissions that a matter should have been submitted for an Advisory Opinion; A party ought to demonstrate from the set of facts how the matter is not suitable for this court, which is clothed with the constitutional mandate to interpret the Constitution.

105. The Supreme Court recognised this in Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others[2014] eKLR in the Concurring opinion of Njoki SCJ:While the values and principles embodied in the Constitution must always be promoted while interpreting the Constitution, the clear language of the Constitution ought also to be heeded. Justice Bhagwati expressed the vital importance of considering the purpose and intention of the framers of the Constitution inIndia v Sankalchand Himatalal Sheth AIR 1977 SC 250 and which resonate with my view in the present matter as far as the clear language of section 23 is concerned:"When the court interprets a Constitution, it breathes life into the inner Words used in the founding document. The problem before the Constitutional Court is not a mere verbal problem. The court cannot interpret a provision of the Constitution by making a fortress out of the dictionary. The significance of the constitutional problem is vital, not formal. It has to be gathered not simply by taking the words to dictionary but by considering the purpose and intention of the framers as gathered from the context and the setting in which the words occur".

106. In the present petition, the petitioner has evidently demonstrated that this is a matter for constitutional interpretation and not one suitably amenable to a request for an Advisory Opinion as envisaged by article 163(6) of the Constitution.

G. Is the Petition Requesting the Court to Declare a Portion of the Constitution Unconstitutional? 107. The 2nd respondent further argues that the petition is really requesting the court to declare part of the Constitution (in particular article 194(1) unconstitutional). The 2nd respondent argues, correctly, that this court does not have jurisdiction to declare any part of the Constitution as unconstitutional as many precedents have held.

108. The petition places before this court three articles of the Constitution for consideration: Article 194(1)(e) as to when the position of a Member of County Assembly falls vacant, article 104(1) and 105 on what ought to happen when this vacancy arises.

109. The statutory and constitutional scenario that calls for the examination of these provisions of the Constitution arises from the set of facts set out in this petition. When the honourable speaker made the impugned communication, it became clear that:i.If thepetitioner had intended to resign on that day, article 194(1) would require that the office of a Member of the County Assembly becomes vacant if the member who is a member of a political party resigns from the party or is deemed to have resigned from the party, in accordance withsection 14 of the Political Parties Act.ii.Undersection 14 of the Political Parties Act, the member is required to give written notice to his party, or clerk of the County Assembly, his resignation would take effect upon the receipt of that notice by the political party or the clerk to the County Assembly.

110. So in this Petition upon the receipt of the petitioner’s resignation letter by either his party or the clerk to the County Assembly, the petitioner’s resignation as a Member of the County Assembly would become effective, and he would be considered to have resigned. According to the impugned communication, a vacancy would arise by virtue of that resignation.

111. The information of his resignation would be delivered to the Registrar of Political Parties within seven (7) days ie by 29th February, 2022, the Registrar would cause his name to be removed from the membership list of the political party.

112. Within 21 days of the occurrence of the vacancy, the Honourable Speaker is required to give notice of that vacancy to the IEBC, as per article 101(4) of the Constitution.

113. Within 90 days of the occurrence of the vacancy, IEBC is required to hold a by-election as per article 101(4)(b). However, any vacancy that occurs shall not be filled within three (3) months before a General Election as per article 101(5) of the Constitution.

114. According to the petitioner this meant that if he rendered his resignation on February 22, 2022(as called for by the Impugned Communication), the time lines set out by the Constitution would result in the denial of his right to vie for any elective position or his electorate would remain unrepresented for 180 days before the General Elections.

115. This scenario is made necessary by the arithmetic written into the constitutional scheme as follows:a.The ninety (90) days required by article 101(4)(b) would lead us to May 22, 2022(ie 90 days from February 22, 2022– the day of the Impugned Communication).b.Consequently, the IEBC would have to conduct a by-election on or before the May 22, 2022. c.Since by dint of article 177(1)(a) of the Constitution, the elections for Members of the County Assembly must be held on the second Tuesday of August of the fifth year which falls on August 9, 2022, the first day of the prohibited 90 days under clause 101(5) is the May 9, 2022. d.Clearly, what (a) to (c) above mean is that the two (2) periods overlap: the period allowed for filing of a vacancy, and the period prohibited for the filing of a vacancy. More importantly, it means that for the Petitioner, there is no possibility that he could vie in a by-election to seek a fresh mandate.e.The cumulative effect is that the petitioner’s seat will remain vacant from February 22, 2022 to August 9, 2022. Consequently, this means that the petitioner’s electorate will remain unrepresented for that period of time as well.

116. The question then is, is the petitioner, by pointing out this anomaly asking this court to declare any provisions of theConstitution, unconstitutional? We think not.

117. While the 2nd petitioner is correct that the provisions of article 2 of the Constitution are plain that the Constitution is the Supreme Law of our Republic and binds all of us; and further that its validity/legality cannot be the subject of a challenge before the court or any state organ, the Petition is not a challenge to any part of the Constitution. It is, instead, a call for the court to exercise its interpretive jurisdiction granted by article 165 of the Constitution to give an interpretation of the Constitution that harmonizes articles 38, 101, and 194 of the Constitution in light of the interpretive commands given to the Court by articles 4(2); 10; 19; 20 and 259 of the Constitution. As this court (sitting as a single Judge) observed in the ruling on conservatory orders dated 18/03/2022, “there is a penumbral and apparent conflict capable of judicial interpretive resolution between article 38 of the Constitution (on political rights of citizens) on the one hand and articles 101 and 194 of the Constitution as read together with section 14 of the Political Parties Act (aimed at achieving Political Parties’ discipline and overall good governance through a vibrant multi-party system) on the other hand…”

118. To our understanding, therefore, the petitioner is not asking for any part of the Constitution to be declared unconstitutional. If that were the case, then, Lenaola J.’s words in John Harun Mwau v IEBC &another [2013] eKLR would be applicable:…it is also a well-established principle of constitutional interpretation that each constitutional provision sustains the other and none is greater than the other. This is what has now been popularly known as the harmonization principle.

119. Instead, the petitioner requests that the court harmonizes the meanings and imports of the various articles of the Constitution at the centre of this petition as they find their implication in section 14 of the Political Parties Act. Hence, the eternal words in the persuasive Ugandan case, Tinyefunza vs AG, Constitutional Appeal No. 1/1997 are applicable. There, the court stated:…..The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony the rule of completeness and exhaustiveness, and the rule of paramountcy of the written constitution.

120. As we have demonstrated above (in section I of this judgment), what the petitioner requests is for the court to pronounce itself on how the different parts of the Constitution can be read harmoniously. He does not pit any article against the other.

H. Is the Petition Fatally Unspecific to Warrant its Being Struck Out? 121. The 2nd respondent also states, without the providing arguments or grounds, that the petition is not specific enough as required by our rules and case law.

122. In the further grounds of opposition filed on the April 20, 2022, the 2nd respondent stated that the petition fell short of the test of specificity set out in Anarita Karimi Njeru v Republic [1979] eKLR. The 2nd respondent cited the Court of Appeal’s exposition of the rule inMumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.

123. In the Mumo Matemu, case the Court of Appeal reformulated the test in Anarita Karimi Njeru case thus:“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point."

124. So does this petition comply with the principle requiring that constitutional petitions are pleaded with reasonable precision?

125. The facts of this petition are precise; and the articles of the Constitution at issue specifically identified. The facts demonstrate that the complaint flows from the Impugned Communication by the Honourable Speaker to the Members of the County Assembly of Nakuru, and his interpretation of section 14 of the Political Parties Act read together with article 194(1)(e) of the Constitution; to the effect that any resignation from the party that sponsored him to the County Assembly would lead to the loss of his Member of the County Assembly seat, because upon resignation the seat would fall vacant, the Speaker would communicate to IEBC, the seat would be declared vacant. And further that due to the fact that it was at the tail end of the electoral cycle, and because of the time lines leading to the general elections three things would happen:i)He would lose his elective seat in the County Assembly.ii)The electorate of his ward would not have representation in the County Assembly for the six (6) months leading to the General elections; andiii)The County Assembly stood the risk of paralysis if many other Members made the same choice to resign (as argued below in section I of this Judgment).

126. The Petitioner also points out that these eventualities could arise out of circumstances not of his making where the party that sponsored him to the County Assembly has changed its ideology and he would no longer be bound to stay with it. Being forced to stick with the party in those circumstances, would amount to unreasonable restrictions to the exercise of his right to freedom of conscience and association because of the imminent risk of losing his seat.

127. The petitioner has demonstrated that it is his political rights and the political rights of his constituents under article 38 of the Constitution that will be denied. That his rights to political choices, to association, to his conscience stand threatened and or restricted and the people he represents face the risk of not having any representative due to the fact that the seat will not be fillable by dint of the operation of article 101(5) of the Constitution.

128. From the foregoing it is evident that the petition has described the factual issues and defined the legal issues at stake sufficiently to both notify the respondents the case at bar and to enable the determination by this court without the embarrassment which could be caused by vagueness.

I. Is Section 14 of the Political Parties Act Constitutionally Deficient? 129. As stated above, the main issue presented in this Petition is whether section 14 of the Political Parties Act as presently drafted is constitutionally deficient if articles 194, 101 and 38 of the Constitution are given the interpretation that both harmonizes the different Articles by reading them holistically and also takes into account the objects, purposes and principles of the Constitution as required by our established Canon of constitutional interpretation.

130. The deductive argument for the alleged unconstitutionality of section 14 of the Political Parties Act has been stated in a series of twelve statements in paragraph 154 of this judgment below. In this section, we do the constitutional analysis in order to come to a reasoned conclusion whether the petitioner’s argument is constitutionally sound. In order to properly address the issue, we propose, first, to lay out the established Canon of constitutional interpretation the court will deploy in unravelling the constitutional question presented.

131. The petitioner has rightfully exhorted the court to use the Canon of constitutional interpretation divined by the Constitution and developed by our decisional law in determining the matter before it. In particular, the following precepts of the Canon of constitutional interpretation of our Transformative Constitution, as developed in our jurisprudence, are important to the task at hand:a)First, the Constitutionmust be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance. This is the express provision of article 259(1)(a) and (d). These constitutional purposes, values and principles are expressly stated in the Preamble and in article 10 of the Constitution. They are also discoverable through purposive interpretation of the Constitution as outlined below.b)Second, the Constitution must be interpreted and be given a construction which is purposeful. The Court of Appeal put it most felicitously in Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12others (Civil Appeal E084 of 2021) [2021] KECA 282 (KLR): -43…..As explained by Vincent Crabbe in his text Legislative Drafting: Volume 1 at pages 231 to 233 ….. Construction of a legal provision on the other hand is wider in scope than interpretation, and is directed at the legal effect or consequences of the provision in question. …..a Constitution is in this respect different from an Act of Parliament, and describes it as a living organism capable of growth and development. In his words “a constitution is a mechanism under which laws are made, and not a mere Act which declares what the law should be”45. We are persuaded by this explanation, and indeed the approach suggested therein has been adopted by the Kenyan courts. A holistic and purposive interpretation of the Constitution that calls for the investigation of the historical, economic, social, cultural and political background of the provision in question has been consistently affirmed by the courts.48. A purposive interpretation on the other hand acknowledges that the meaning of language is imprecise, and measures words against contextual, schematic, and purposive considerations. Aharon Barak in the text,“Purposive Interpretation in Law” at page 111 explains that:“According to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose).”49. As such, the purposive interpretation avoids the shortcomings of the literal approach, namely absurd interpretations or those that appear to run counter to the purpose and functioning of the legislative regime.c.Third, the Constitution must be interpreted holistically; only a structural holistic approach breathes life into the Constitution in the way it was intended by the framers. Hence, the Supreme Court has stated inIn the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No 1 of 2012; [2014] eKLR thus (at paragraph 26):“But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances."d.Fourth, the Constitution must be given a liberal and organic not a mechanistic and positivistic interpretation. It must not be interpreted as one would a mere statute. The Supreme Court pronounced itself on this principle In Re Interim Independent Election Commission [2011] eKLR, para [86] thus:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the preamble, in article 10, in chapter 6, and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the courts.e.Fifth, the Constitution has provided its own theory of interpretation to protect and preserve is values, objects and purposes. As the Retired CJ Mutunga expressed in his concurring opinion in InIn re the Speaker of the Senate & nother v Attorney General & 4others, Supreme Court Advisory Opinion No 2 of 2013; [2013] eKLR. (paragraphs 155-157):(155)In both my respective dissenting and concurring opinions, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, Sup Ct Appl No 2 of 2012; and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai and 4 othersSup Ct Petition No 4 of 2012, I argued that both the Constitution, 2010 and the Supreme Court Act, 2011 provide comprehensive interpretative frameworks upon which fundamental hooks, pillars, and solid foundations for the interpreting our Constitution should be based. In both opinions, I provided the interpretative coordinates that should guide our jurisprudential journey, as we identify the core provisions of our Constitution, understand its content, and determine its intended effect.(156)The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the court as the searchlight for the illumination and elimination of these legal penumbras.f.Sixth, in interpreting Constitution of Kenya, 2010, non-legal considerations are important to give its true meaning and values. The Supreme Court expounded about the incorporation of the non-legal considerations and their importance in constitutional interpretation in the Communications Commission of Kenya & 5others v Royal Media Services Limited & 5others [2014] eKLR. It stated thus:(356)We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on chapter four – The Bill of Rights – of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of the Constitution that pronounce on its theory of interpretation. A brief narrative of the historical, economic, social, cultural, and political background to articles 4(2), 33, 34, and 35 of our Constitution has been given above in paragraphs 145-163. (357)We begin with the concurring opinion of the CJ and President in Gatirau Peter Munya v Dickson Mwenda Kithinji &2 others, Supreme Court Petition No 2B of 2014 left off (see paragraphs 227-232). In paragraphs 232 and 233 he stated thus:[232]…References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.[233]It is possible to set out the ingredients of the theory of the interpretation of the Constitution: the theory is derived from the Constitution through conceptions that my dissenting and concurring opinions have signalled, as examples of interpretative coordinates; it is also derived from the provisions of section 3 of the Supreme Court Act, that introduce non-legal phenomena into the interpretation of the Constitution, so as to enrich the jurisprudence evolved while interpreting all its provisions; and the strands emerging from the various chapters also crystallize this theory. Ultimately, therefore, this court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of various interpretative frameworks dully authorized. The overall objective of the interpretative theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya.

132. Consequently, to return to the main question before us, as this Canon of constitutional interpretation counsels, it behoves us to begin by analysing the objects, purposes and principles of the Constitution that are served by the relevant provisions of the Constitution which are at the centre of this petition.

133. We begin with article 194(1)(e) and article 101(4) and (5) of the Constitution.

134. All the parties are in agreement that article 194(1)(e) (and the analogous article 103(1)(e) of the Constitution serve the important constitutional value of instilling party discipline. We, too, agree with that reading. It is an issue of notoriety that in our nascent multi-party democracy politicians have been known to move from one party to another prior, during and after the elections, otherwise known as party-hopping. Indeed, many commentators rightly state that Kenya’s political parties are generally seasonal and “owned” by individuals and or groups of persons and thus they at times dictate what they want or desire.

135. The framers of the Constitution were both aware of this political reality and saw it as a constitutional problem to be solved. They did this by providing the guidelines for party defections. In other words, the Constitution provided a clear procedure to be followed. This generally brings order in the parties and by extension to the County Assemblies. The positive part is that once one subscribes to the ideals of a party then it becomes onerous to opt out unless due process provided by the law is adhered to.

136. While at this, it is the expectation that the party and its respective organs, in the course of an electoral term, would ensure that it maintains the ideology and the manifesto which the candidates espoused during the campaign period and made the electorates believe in. Any change of ideologies mid-stream would be considered a betrayal to the electorates and by extension the elected leaders and may cause haemorrhage to the party through resignations. This would definitely not augur well for the success and sustainability of the party.

137. The element of party discipline anticipated by the provisions of the Constitution is therefore a two edged sword: On the one hand it works to instil discipline on the party and its elected members to the County Assembly; on the other hand, it is considered a boon to the electorates as it enhances democracy both in the party and in the County Assembly. Knowing how political parties are managed, the Constitution clearly gave room to the dissatisfied and or disgruntled member or members to make a choice of either staying in the party or opting out. It would for instance have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election.

138. At the same time the Political Parties Act does not allow dual membership in political parties by an individual. This democratic space provided ensures that a Member of the County Assembly is either loyal to his sponsoring party or if not he conscientiously resigns from the party otherwise the member is deemed to have resigned from the political party.

139. The other purpose of these constitutional provisions is the right to political representation. The above provisions ensure that even if an elected member resigns from the party and thus loses his or her seat his electorate would have another chance of electing a new representative within 90 days as provided by the Constitution. It would violate the political rights of the electorate for the affected ward to be left with no representative for the remainder of the term in the event that their representative resigns from the political vehicle used during the election. As pointed out above, the Constitution, however, contains the rider that no by-election shall be conducted within three months to the general elections.

140. The same constitutional provisions enhance the right to freeedom and association. Article 38 of the Consitution provides for political rights, including the right to make political choices by forming, participating in, and campaigning for a political party. It also provides for the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors as well as the right to be registered as a voter, to vote, to be a candidate for public office, or office within a political party and to hold office if elected.

141. These eternal rights are sacrosanct and at all costs must be enhanced and protected especially in our young multi-party democracy. The high handedness exercised by political parties has in effect stifled freedom of individuals to exercise their democratic rights and thus the Constitution has insulated them from such tendencies. In effect one has the liberty of resigning from such political party whose ideologies have changed or are no longer in tandem with what he believed in and is guaranteed the opportunity to seek fresh mandate from the electorates.

142. At the same time one may suggest that the provision of the law has “check mated” politicians who are meant to frustrate the growth of political parties. Put another way, the road map of resigning from the political party has enough checks and balances to ensure that it is only those members of the County Assembly that are serious who would want to take this route.

143. Our country has elected the republican form of government and thus the above provisions of the law encourage growth and the aspirations of the founding fathers. This system of democracy grants the ultimate opportunity to the electorates to make their choice.

144. These constitutional purposes are borne out by the constitutional history. During the writing of the Constitution of Kenya, 2010, many Kenyans were concerned about the role of political parties in our governance structure as well as the need to ensure that political parties play a stabilizing role in Kenya’s politics. The final Constitution of Kenya Review Commission (CKRC( Report had the following to say about the role of Political Parties:Political parties, as institutions of democratic and republican governance, are very important and should be regarded as constitutional organs that should be provided for in and regulated by the Constitution. They are categories of institutions that should be clearly defined and their role and functions elaborated in the Constitution in the same way that the other three organs of State (Judiciary, Parliament and the Executive) are spelt out.The responsibilities of these organs should be clearly spelt out in the Constitution on and activities ought to be properly provided for in and regulated by the Constitution with details provided by a law founded on the Constitution. The Commission therefore recommended that the Constitution should entrench political parties. The provisions should include the right to form or join parties, regulation of the conduct of political parties, which seek to contest elections, and State financing of political parties.The Commission takes the view that because Kenya entered the new phase of democratization only a decade ago, people should not be discouraged from forming political parties or from associating politically. The Commission, therefore, does not support any restriction on the number of political parties (for the reason given above), although we agree that too many parties are undesirable.However, the Constitution or the law on political parties should set conditions for forming and registering parties to effectively regulate them. We consider that the number of parties will decrease if it is no longer necessary for presidential and parliamentary candidates to be nominated by political parties, as we have recommended in the chapter on Electoral System and Process. The number of parties will also decrease if stringent conditions are set for registering of parties (as we recommend below).The Commission recognises that democracy means that citizens have the freedom to form political parties at their own discretion and that the State should respect the people’s right to associate. The law on political parties and elections should set up a mechanism to protect national unity, peace, security, the rule of law, justice, democracy and human rights from powerful sectarian or ethnic forces that can easily subvert these principles and values, for which our country has been constituted.

145. The CKRC, then, had the following recommendation at page 148 of the Report:(i)Members of Parliament and local government representatives who decide to cross the floor or defect from their sponsoring parties should seek a fresh mandate from the electorate; and(ii)Participation in a coalition government should not per se constitute defection.

146. What emerges from this constitutional history is that Kenyans, informed by the painful history of de jure and de facto one party state, were keen to etch a robust role for political parties in Kenya’s governance structure. Kenyans wanted a clear framework for making the country a multi-party democracy. Indeed, so important was this principle to them that they included article 4(2) of the Constitution in the following terms:The Republic of Kenya shall be a multi-party democratic state founded on the national values and principles of governance referred to in article 10.

147. It is also clear from the same constitutional history that Kenyans wanted to ensure party discipline by entrenching an anti-defection law in the Constitution. What is clear, though, is that Kenyans also saw the need for their political leaders to switch parties when their consciences so dictated and sought to balance that principle with the policy objective of ensuring party discipline while ensuring the electorate was not short-changed by having a representative who has changed ideology on which he or she was elected remain in office. Kenyans calibrated this balance by allowing an elected leader to switch parties but providing that such a leader would lose their seat in the legislative body and then seek a fresh mandate from his or her electorate. From this history, then, we can conclude that Kenyans intended that:a.Elected leaders were at liberty to switch parties according to their conscience;b.The only penalty such an elected leader would suffer for switching parties would be to lose their elected seat;c.Both the electorate and the elected leader would have an opportunity to vet the (defected) elected leader’s new ideology (reflected in their new party) through a by-election.d.The by-election would protect the electorate both from having an elected leader whose vision and ideology no longer represents the electorate’s own vision and ideology as well as from remaining un-represented in the legislative body.

148. This fourth factor in (d) above is important because it aligns with the very strong political rights entrenched in the Constitution at article 38: the right to political representation. The right enshrined in that article is protected even when an elected representative defects from their party or, if independent, joins a political party, by providing for a by-election within ninety days of the vacancy caused by the defection.

149. The Constitution explicitly envisions that the only time that a by-election will not be held is the ninety days before a General Election ring-fenced to ensure that the IEBC has sufficient time and resources to prepare for the General Elections. From this exposition, it is possible to conclude that the constitutional intention is that no ward, constituency or county would remain unrepresented in the County Assembly or Parliament for more than ninety days. A purposeful reading of the Constitution is, therefore, one that coheres the disparate provisions of the Constitution to yield that result.

150. It is readily obvious, then, that a purposeful reading of the Constitution is one that harmonizes articles 194, 101 and 38 of the Constitution. Such a construction of the Constitution would optimally do at least four things at the same time:a.First, it must maximize the constitutional goal of instilling party discipline (through the operationalization of the anti-defection clause);b.Second, it must incentivize political parties to enhance internal democracy (through the opportunity for an elected official to seek re-election in a different party);c.Third, it must minimize the risk of non-representation of the electorate due to the effect of the anti-defection clause to the least possible period which the Constitution envisages as 90 days (through the by-election provisions); andd.Fourth, it must remove the potential for legislative paralysis in the County Assemblies or Parliament (by ensuring that the interpretation of the three provisions above do not lead to a possibility that the legislative bodies would be left inquorate for more than 90 days due to the effects of the anti-defection provision).

151. In our view, the constitutional interpretation proposed by the 1st respondent fails to achieve this four-fold goal of purposeful interpretation. Conversely, the interpretation suggested by the petitioner does. In addition to the constitutional history explored above, we say so for the following two reasons alluded to above:a.First, the constitutional interpretation suggested by the 1st respondent in the Impugned Communication harms the affected Wards by denying them representation for more than 180 days contrary to the constitutional intention; andb.Second, the constitutional interpretation suggested by the 1st Respondent in the Impugned Communication potentially harms the County (and Country) by precipitating a possible constitutional crisis through a paralysis of the County Assembly.

152. We briefly explore each of these potential harms in turn.

153. As the petitioner argues, the constitutional interpretation preferred by the 1st respondent in the Impugned Communication would result in situations where a Ward electorate is left unrepresented for a period of more than 180 days at the County Assembly. As analysed above, this is because there can be no by-election in the period of 90 days immediately preceding the General Elections by dint of article 101(5) of the Constitution. The interpretation suggested by the 1st respondent in the Impugned Communication would, therefore, harm Wards affected by Members of County Assemblies who choose or are compelled to switch parties within 180 days to the general elections. This is because such Wards would remain unrepresented for the entire period of 180 days preceding the general elections.

154. The effect of the constitutional interpretation suggested by the 1st respondent, the constitutional conundrum it leads to, and the suggested alternative constitutional construction can be stated in the following series of twelve deductive statements:a.First, the impugned communication would require Members of County Assemblies wishing to switch parties to write to the Speaker of the County Assembly announcing their resignations from the parties which sponsored them to the County Assembly whereupon their seats would automatically fall vacant.b.Second,the Constitution, in article 101(4)(b), mandates the IEBC to arrange for a by-election to fill the vacancy within ninety (90) days (of the seats falling vacant).c.Third, the Constitution, in article 101(5), provides that any such vacancy cannot be filled within three months (ie 90 days) immediately before a general election.d.Fourth, (b) and (c) above mean that if a vacancy either in Parliament or County Assembly arises within 180 days immediately before a general election ie the 90 maximum days for IEBC to organize for a by-election and the 90 days ring-fenced by the Constitution in article 101(4)(b), no by-election can be held.e.Fifth, the implication of (d) above is that if a vacancy arises within 180 days immediately before a general election, the ward, constituency or county in the case of Member of County Assembly, Member of Parliament, or Senator respectively, will remain unrepresented for that period (of up to 180 days).f.Sixth, yet, the Constitution, at article 101(4)(b) envisages that the maximum period that a ward, constituency or county in the case of Member of County Assembly, Member of Parliament, or Senator respectively, can remain unrepresented is no more than 90 days.g.Seventh, a constitutional interpretation that yields the outcome that an action (of resignation) taken by an of Member of County Assembly, Member of Parliament, or Senator would result in a ward, constituency or county remaining without representation for a period exceeding 90 days is, therefore, impermissibly restrictive given the outer limits set by article 101(4)(b) of the Constitution.h.Eighth, the interpretation of article 194 of the Constitution and section 14 of the Political Parties Act given by the 1st respondent in the impugned communication would have the effect of bestowing on the Members of the County Assembly of Nakuru who switch parties within the 180 days immediately preceding the general elections of September 8, 2022 with the ability and capacity to deny their wards representation for a period exceeding the maximum 90 days allowed by the Constitution. By the same token, such Members of the County Assembly would have induced the democratic disability of non-representation on their ward electorate for a period of more than the 90 days which is constitutionally stipulated. Such an interpretation would, ipso facto, have the effect of needlessly diminishing the political rights guaranteed in article 38 of the Constitution of the electorate in the affected wards.i.Ninth, for that reason, an alternative interpretation of the Constitution is constitutionally required to forestall the possibility stipulated in (h) above.j.Tenth, the constitutionally-compliant interpretation which would ensure that a ward, constituency or county will not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days is one that does not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.k.Eleventh, the constitutionally-compliant interpretation in (j) above would have to be operationalized through a read in order to section 14 of the Political Parties Act to provide that a Member of Parliament or a County Assembly who resigns from one political party to another at the tail end of the electoral cycle (ie within 180 days immediately preceding the general elections) need not resign from and/or lose his seat by reason of such change of party membership.l.Twelfth, that the constitutional interpretation suggested by the Petitioner as well as the relief suggested in (k) above will also forestall the possibility that mass resignations of MCAs at the tail end of the electoral cycle when no by-elections can be held to re-fill the vacancies would lead to operational paralysis of the County Assembly as explained below.

155. We are also of the view that the constitutional interpretation suggested by the 1st respondent could potentially harm the entire County by paralysing the operations of the County Assembly for the 180 days immediately preceding general elections.

156. To explain this harm, it is necessary to first of all put into context the role, duties, functions and responsibilities of the county government as spelt out by the provision of section 6 of the County Government Act which states that;(1)A county government shall be responsible for any function assigned to it under the Constitution or by an Act of Parliament.(a)Without prejudice to the generality of subsection (1), a county government shall be responsible for—(b)county legislation in accordance with article 18 of the Constitution; exercising executive functions in accordance with article 183 of the Constitution;(c)functions provided for in article 186 and assigned in the fourth schedule of the Constitution;(d)any other function that may be transferred to county governments from the national government under article 187 of the Constitution;(e)any functions agreed upon with other county governments under article 189 - (2) of the Constitution; and(f)establishing and staffing its public service as contemplated underarticle 235 - of the Constitution.(2)A county government may seek assistance from the Kenya Law Reform Commission in the development or reform of county legislation under subsection (2)(a).

157. Additionally, section 8 thereof provides that;(1)The county assembly shall—(a)vet and approve nominees for appointment to county public offices as may be provided for in this Act or any other law.

158. These provisions of the County Government Act demonstrate the critical functions played by County Assemblies in our devolved constitutional scheme. They include consideration and passage of critical bills for the operation of the County Government such as the Finance and Appropriations Bills. Any potential paralysis in the County Assembly risks the performance of these critical functions. Multiple resignations at the tail end of the electoral cycle would yield to paralysis of the legislative body for lack of quorum. This is because of the operation of section 19 of the County Governments Act.

159. The Petitioner argues that section 14(2) of the County Governments Act protects the County Assembly from this possible risk. Section 14(2) of the County Government Act provides that the County Assembly proceedings are valid despite:a)There being a vacancy in its membership at that particular time; orb)The presence or participation at the particular time of a person not entitled to be present at, or to participate in the proceedings of the county assembly.

160. Does this inoculate the County Assembly of the potential paralysis the petitioner apprehends? In short, it does not. Section 14(2) protects the proceedings of the County Assembly where there are vacancies in the County Assembly but for the proceedings to be valid, the County Assembly must still be quorate. The quorum requirements for the County Assembly are provided for in section 19 of the County Governments Act. It simply provides: The quorum of a County Assembly is one third of all the members of the County Assembly.

161. What section 19 means is that while section 14(2) of the County Governments Act insulates the validity of County Assembly proceedings and actions despite there being a vacancy, the County Assembly must still meet the quorum threshold in order to function or for its proceedings to be valid. In other words, if Members of the County Assembly resign in big enough numbers to dip below the statutory third, then the County Assembly would no longer be legally quorate and would be incapable of transacting business. The consequence would be that all the functions of the County Assembly would come to a standstill.

162. The Petitioner also plausibly argues that aside from the possibility that the whole County Assembly could be paralyzed if more than two-thirds of the members resigned by dint of the interpretation assigned by the impugned communication, even where the County Assembly remains with a depleted number but capable of reaching the quorum for transacting business, it might still be bogged down by insufficient numbers to form critical committees.

163. That County Assemblies are essentially run through Committees can be gleaned from section 14 of the County Government Act 2012 which states that:(1)A county assembly—(a)………..(b)subject to standing orders made under paragraph (a), may establish committees in such manner and for such general or special purposes as it considers fit, and regulate the procedure of any committee so established.(3)In considering any appointment for which approval of the county assembly is required under the Constitution, an Act of Parliament or county legislation—(a)the appointment shall be considered first by a committee of the county assembly;(b)the committee’s recommendation shall be tabled before the county assembly for approval; and(c)the proceedings of the committee and the county assembly shall be open to the public.(4)The county assembly shall in establishing committees under this section ensure that each member of the county assembly is appointed to at least one committee.(5)A county assembly may jointly with another county assembly, establish committees consisting of members of both county assemblies.(6)If a county assembly establishes a joint committee with another county assembly, the election of members and regulation of the conduct of the business of the joint committee shall be as agreed between the two county assemblies.(7)Until a county assembly makes its standing orders under subsection (1), the standing orders of the National Assembly shall, with the necessary modifications, apply to that county assembly.(8)Without limiting the generality of subsection (1), the standing orders made under this section shall provide for the matters specified in the Second Schedule.

164. It, therefore, follows that since the County Assembly is generally run by committees, should there be mass resignation of Members at the tail end of the electoral cycle, many committees or sub committees shall be paralyzed further compounding the assemblies’ problems.

165. We do think that the incidence of such mass resignations leading to mass vacancies in County Assemblies if the interpretation assigned to the impugned communication holds sway is more than a fantastical possibility; it is a plausible probability. The consequences and implications for such a probable event are so dire for the functioning of the County that the petitioner is right to invoke article 258 of the Constitution which obligates the court to act where there is a credible threat of violation of the Constitution. The probability of quorum hitches in the whole County Assembly as well as the various committees of the Assembly constitutes sufficient, cogent threat of violation of the Constitution to warrant the court to prefer an interpretation of the constitutional provisions which is more in line with the Constitution’s overall purposes, objects and principles.

166. In conclusion, this analysis demonstrates that the constitutional interpretation taken in the impugned communication fails to cohere and harmonize all the constitutional provisions. In particular, that interpretation needlessly privileges Article 194 of the Constitution and seeks to have it trump over article 38 of the Constitution. That interpretation has the inimical effect of potentially harming both the Ward electorate of a resigning Member of the County Assembly (by leaving the Ward unrepresented in the County Assembly for a period of up to 180 days – and beyond the constitutionally sanctioned maximum 90 days) as well as the whole County (by paralysing the operations and functions of the County Assembly or its committees should there be mass resignations dipping the numbers below a third of the members of the County Assembly).

167. It follows, therefore, that the only interpretation that is constitutionally sound as derived from a faithful application of the Canon of constitutional interpretation applicable in Kenya is one that avoids these constitutional harms by reading the Constitution holistically and in a way that aggrandizes its purposes, objects and principles. That interpretation is one that would ensure that a ward, constituency or county will not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days. Differently put, the constitutionally-compliant interpretation is one that does not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election.

168. As we have alluded to above, this constitutionally-compliant interpretation is not the one taken by the impugned communication and section 14 of the Political Parties Act. It follows, therefore, that both the Impugned Communication and section 14 of the Political Parties Act are constitutionally deficient. To that extent, they are null and void and must be brought into alignment with the Constitution. We do so in the disposition section below.

J. Conclusions and Disposition 169. In this judgment, we have reached the following consequential conclusions:a.First, this court has jurisdiction to consider and determine the petition as presented by the petitioner herein. in particular, the court has concluded that:i.One, that the petition as brought is not a request for an Advisory Opinion in disguise (which should have been presented as an Advisory Opinion before the Supreme Court). The petition presents a live constitutional controversy capable of resolution by the High Court under its interpretive jurisdiction in article 165 of the Constitution.ii.Two, that the petition as presented is not a request by the petitioner for the court to declare any part of the Constitution unconstitutional. Instead, the petition properly invokes the High Court’s interpretive jurisdiction to bring the different parts of the Constitution in harmony with each other through purposeful reading which the court is commanded by the Constitution to utilize.iii.Three, the petition, as presented, is sufficiently specific – both factually and on the identified constitutional precepts – to give adequate notice to the respondents what is at stake and to enable the court to reasonably frame issues for resolution.b.Second, after due analysis, the court has concluded that section 14 of the Political Parties Act as presently drafted is constitutionally deficient when articles 194, 101 and 38 of the Constitution are given the interpretation that both harmonizes the different articles by reading them holistically and also takes into account the objects, purposes and principles of the Constitution as required by our established Canon of constitutional interpretation as well as articles 4(2); 10, 19, 20 and 259 of the Constitution. Differently put, the interpretation assigned to article 194(1)(e) by section 14 of the Political Parties Act is not aligned to articles 4(2); 10; 19; 20; and 38 of the Constitution and, to the extent of that mis-alignment, null and void.c.Third, as a logical extension of (b) above, the interpretation to article 194(1)(e) of the Constitution as read with section 14 of the Political Parties Act taken by the Speaker of Nakuru County (the 1st respondent) in his Communication made to the Nakuru County Assembly on February 22, 2022 negates and derogates from the objects and purposes of article 101(4) and article 38 of the Constitution in view of the outer limits set in article 101(5) of the Constitution and in view of the theory of Constitutional interpretation commanded by article 259(1)(d) as read together with articles 4(2); 10; 19; and 20 of the Constitution.d.Fourth, to cure the unconstitutionality inherent in section 14 of the Political Parties Act as demonstrated above, the court has jurisdiction to read in a proviso to section 14 of the Political Parties Act to provide that a vacancy does not arise after the last day for changing parties set by IEBC before a general election or within the 180 days preceding a General Election so as to bring that statute in line with the Constitution. We have also concluded, in line with the holding by the Court of Appeal in Judges & Magistrates Vetting Board & Attorney General v Kenya Magistrates & Judges Association [2014] eKLR, that this is a proper case for reading in to save the legislative scheme from a declaration of unconstitutionality. Besides, we have also concluded that the curative measure suggested is not fundamentally at odds with the intent of the legislation in question.e.Fifth, we have concluded that this was patently a public interest litigation and that the most appropriate order to make regarding costs is that each party should bear their own.

170. The final orders of the court, therefore, will be the following:i.A declaration hereby issues that to the extent that section 14 of the Political Parties Act requires a sitting Member of the County Assembly to resign from their respective seats as a precondition to switching from one political party to another for purposes of general elections within one hundred and eighty (180) days preceding the date of the general elections, the said section is unconstitutional null and void and of no effect for violating article 38(3((c) as read with articles 4(2); 10, 19, 20 and 259 of the Constitution.ii.A reading in order to section 14 of the Political Parties Act hereby issues to the effect that a Member of County Assembly who switches from one political party to another; or from a political party to become an independent member; or from being an independent member to join a political party within one hundred and eighty (180) days immediately preceding the general elections need not thereby resign from and/or lose his seat by reason of such change of party membership. The read in order shall be a proviso to section 14(4) and shall read: “except that a sitting Member of the County Assembly who intends to resign or has resigned from a political party which sponsored him to the County Assembly under subsection (1) within the final one hundred and eighty (180) days immediately preceding the general elections shall not be deemed to be a member of two political parties at the same time.”iii.A conservatory order hereby issues directed to the 2nd to 50th interested arties restraining them from declaring as vacant a seat of any member of the respective County Assemblies who moves from one political party to another or who was independent but joins a political party; or who was a member of a political party but resigned to become independent within one hundred and eighty (180) days immediately preceding the general elections scheduled for 09/08/2022. iv.This being a public interest litigation, each party will bear its own costs.

171. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 7TH DAY OF JULY, 2022. .......................................................JOEL NGUGIJUDGEHILLARY CHEMITEIJUDGET. MUMBUA MATHEKAJUDGE