https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12990

Mokaya v Independent Electoral & Boundaries Commission & 4 others (Constitutional Petition E191 of 2025) [2026] KEHC 12990 (KLR) (Constitutional and Human Rights) (20 August 2026) (Ruling) Neutral citation: [2026] KEHC 12990 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E191 of 2025 LN Mugambi, J August 20, 2026 Between Frankline Otieno Mokaya Petitioner and Independent Electoral & Boundaries Commission 1st Respondent Speaker of the National Assembly 2nd Respondent Speaker of the Senate 3rd Respondent The Hon Attorney General 4th Respondent The Hon Richard Momoima Onyoka 5th Respondent Ruling 1.The Notice of Motion dated 23rd June 2025 seeks the striking out of the 2nd Respondent as a Party in the instant suit on the ground that it has been improperly joined as a Party in this Petition. 2.In opposition to the Application, the Petitioner filed a Replying Affidavit dated 14th July 2025. The Applicant’s Case 3.The Application is supported by the affidavit of Samuel Njoroge, CBS, the Clerk of the National Assembly. He depones that there is misjoinder of the 2nd Respondent by contending that the 1st Respondent, the Independent Electoral and Boundaries Commission (IEBC) is the only institution constitutionally mandated to undertake the delimitation of boundaries of constituencies and wards. 4.The 2nd Respondent deposes that the role of the National Assembly in the delimitation process is limited to receiving IEBC’s report and considering it through the Departmental Committee on Justice and Legal Affairs as provided under the Independent Electoral and Boundaries Commission Act. 5.Further, that the Petitioner has not made any specific allegations against the Speaker of the National Assembly, nor demonstrated any identifiable legal interest or stake on the part of the Speaker in the subject matter of the Petition. The 2nd Respondent continues that the Speaker has no constitutional role in the delimitation of constituencies and wards and hence his joinder in the proceedings is improper. 6.Furthermore, the 2nd Respondent asserts that Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules empower the Court to strike out any party who has been improperly joined and maintained that no prejudice would be occasioned to the Petitioner should the Application be allowed. The Petitioner/Respondent’s case. 7.The Petitioner countered that the Application is misconceived, frivolous and intended to shield the Speaker of the National Assembly from constitutional accountability. The Petitioner deposed that the instant Petition was instituted in the public interest and seeks to vindicate the constitutional rights of the residents of Bobasi Constituency. 8.The Petitioner contends that under Article 1 of the Constitution, sovereign power belongs to the people and is exercised through various State organs, including Parliament. He maintains that the Speaker, as the Presiding officer of the National Assembly, bears constitutional responsibility in ensuring that Parliament faithfully discharges its constitutional mandate and oversight functions. He further avers that the Speaker cannot abdicate or disclaim constitutional responsibility by asserting that the obligation to review electoral boundaries rests solely with the IEBC. 9.The Petitioner depones that the National Assembly exercises oversight over independent commissions, including the IEBC, and that the Speaker is a necessary Party by virtue of his constitutional office under Articles 106 and 107 of the Constitution. He maintains that the Speaker represents the National Assembly in legal proceedings and that Parliament has a constitutional role in matters relating to electoral boundary review. Further, the Speaker is the administrative and political head of the National assembly and cannot dissociate himself from proceedings touching on constitutional responsibilities of the House, particularly in the failure to initiate or oversee timely boundary reviews. He therefore urges the Court to dismiss the application, contending that striking out the Speaker would undermine constitutional accountability and defeat the purpose of the petition. 10.Parties disposed of the Application by way of written submissions. The Applicant’s Submissions 11.The Applicant identified one issue for determination, namely whether the Speaker of the National Assembly is a necessary party to the Petition. The Applicant submitted that the Court has discretion under Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules to strike out any party who has been improperly joined. Reliance was placed on Kamwere v Speaker of the National Assembly & 5 Others (Petition E399 of 2021) [2023] KEHC 3978 (KLR) where the Court held that:-“Rule 5(d) of the Mutunga Rules provides as follows, regarding joined and striking out of parties: The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—i.order that the name of any party improperly joined, be struck out; and ii.that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.The Court has the discretionary power to either strike out any party that is improperly joined or add any person who ought to have been joined or whose presence in the proceedings is necessary for adjudication and settlement of a matter before the Court. This may be done on the application of either party or on the Court’s own motion. Joinder or striking out of a person or party may be done at any stage of the proceedings.” 12.The Applicant submitted that the Petition discloses no cause of action against the Speaker of the National Assembly. The Petitioner only alleges that the Speaker of the National Assembly has violated Article 89 of the Constitution by failing to initiate or conduct boundary delimitation. Thus the inclusion of the Speaker of the National Assembly is constitutionally absurd, legally untenable and procedurally misconceived. 13.The Applicant argued that a Respondent in a constitutional petition must be a person alleged to have denied, violated, infringed or threatened to infringe a constitutional right or fundamental freedom as provided for in the case of Abdullahi v Director of Public Prosecutions & Another; Director of Criminal Investigations & Another (Interested Parties) (Constitutional Petition E102 of 2022) [2023] KEHC 19275 (KLR), where the Court held as follows: -The answer lies in the definition of ‘respondent’ under rule 2 of Constitution of Kenya (Protection of Rights &Fundamental Freedoms) Practice & Procedure Rules, 2013; which defines respondent as follows:―respondent means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom;” 14.The Applicant submitted that it was essential to determine whether the absence of the 2nd respondent from the Petition would prejudice the Petitioner’s case in terms of settling all the issues in dispute or in regard to the reliefs sought. Reliance was put on the case of Abdullahi v Director of Public Prosecutions & Another; Director of Criminal Investigations & Another (Interested Parties) (supra), where the court held that:-If a grievance arises from the decision of the DPP therefore, it is the DPP who would be the primary party in that litigation, hence a necessary party.That is what happened in the present case. The petition challenges the decision made by the DPP in authorizing his prosecution against the recommendation of the investigation officer.Reading the entire petition, there is absolutely no wrong-doing alleged against the Attorney General or any agency he represents. In my view, despite the DPP, being part of National Executive, it would not augur well for a proper functioning criminal justice system if the Attorney General were to be seen defending DPP decisions. First, let me dissect the dichotomy between the Director of Public Prosecutions and the Office of the Attorney General in the functioning of our constitutional order a little bit further in order to disembark the thinking that the Attorney General can be answerable in respect of an independent decision taken by the DPP in a criminal matter merely because it is the Attorney General’s mandate to represent the national government in court or in any other proceedings to which the national government is a party and in civil and constitutional matters in accordance with Government Proceedings Act’.Although the DPP’s office falls within the national executive under the Constitution, in exercise of its mandate, he is given constitutional independence from ‘government of the day’ in making his decisions concerning institution and/or prosecution of criminal offences and those decisions made by the DPP in discharge of his constitutional mandate are ‘not government decisions’ but presumably be arrived at meticulously in public interest and as such, only the DPP is rightfully placed to provide defend his decisions when a challenge is raised.” 15.The applicant submitted that Article 89(2) of the Constitution vests the exclusive and non-delegable mandate of reviewing and delimiting electoral boundaries in the Independent Electoral and Boundaries Commission (IEBC). It was argued that neither the Speaker nor the National Assembly exercises any constitutional, statutory or administrative authority over the delimitation process. According to the Applicant, the role of Parliament is confined to receiving the Commission's report and considering recommendations through the Justice and Legal Affairs Committee as provided under the Independent Electoral and Boundaries Commission Act. 16.The Applicant further submitted that the Petitioner has neither brought specific allegations against the Speaker of the National Assembly nor has he explained the interest that the Speaker holds in the matter. Therefore, his joinder in the matter is improper and premature. Furthermore, the Petitioner has failed to plead any constitutional or statutory obligation allegedly breached by the Speaker or demonstrate any conduct on his part capable of giving rise to constitutional liability. Additionally, the Petition improperly attributes to the Speaker functions that the Constitution expressly assigns to an independent constitutional commission, contrary to the doctrine of separation of powers. Article 94(1) establishes Parliament as the legislative authority of the Republic and Article 95(1) provides for representation of the people in the National Assembly. However, nowhere in the Constitution is the Speaker clothed with executive or technical authority to delimit constituencies or wards. Consequently, the Applicant urged the Court to invoke its powers under Rule 5(d) & Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and strike out the Speaker of the National Assembly from the proceedings with costs. The Petitioner/Respondent’s Submissions 17.The Petitioner identified two issues for determination, namely whether the 2nd Respondent should be struck out of the Petition and who should bear the costs of the application. 18.The Petitioner submitted that the Speaker of the National Assembly was properly joined as a Respondent as per the court’s finding in the case of Judicial Service Commission v Speaker of the National Assembly & 8 Others [2014] eKLR, where the Court held that:-….. In determining this issue, we consider the place of the Speaker in relation to the operations of the National Assembly. The position and functions of the Speaker are provided for in general terms in the Constitution. Article 97 provides for the composition of the National Assembly, and at Article 97(1) (d), indicates that the National Assembly includes the Speaker, who is an ex-officio member. Article 107 provides that it is the Speaker of the respective Houses of Parliament who shall preside at sittings of the Houses, with the Speaker of the National Assembly presiding at joint sittings of both Houses. 19.Whilst relying on the same decision, the Petitioner in determining who should be named as a Respondent in a Petition submitted that the Court observed that the Speaker is the principal officer and representative of the National Assembly responsible for safeguarding its privileges, regulating its proceedings, determining parliamentary business and communicating its decisions by stating that:-....The specific roles are better spelt out or emerge from the National Assembly (Powers and Privileges) Act, the Standing Orders and Parliamentary practice. To illustrate, under the National Assembly (Powers and Privileges) Act, it is the Speaker who is given power to safeguard the privileges of the National Assembly by the issue of such orders as are necessary for the better carrying out of the provisions of the Act, and issue a Code of Conduct for Members under section 9. Under the Standing Orders, it is the Speaker who determines the business of the House, restrains disorderly conduct and restricts debate (Standing Orders 98, 102, 103 - 107, 112); and whether motions tabled by Members of Parliament are admissible. If they are in violation of the Constitution or an Act of Parliament, he may propose changes or rule that they are inadmissible. Indeed, nothing is done within the National Assembly that does not have the approval of the Speaker. 20.Further reliance was placed on Hon. Augustine Lyatonga Mrema v Speaker of the National Assembly & Another (no citation given) where the High Court of Tanzania recognized the Speaker as the constitutional head and representative of Parliament responsible for the conduct of parliamentary business as follows:-So far for the authority above, and what is sought to be protected, is what goes on in the National Assembly, while on active duty. But allow me to pose a mischievous question, for the National Assembly to deserve immunity, what goes [on] in there? I am sure, the MPs know better, but we reasonably know, that the National Assembly, is the power house for the legislation of law, see Article 64 of the Constitution. And a molder of policy of State, under the guiding Parliamentary Standing Orders, 1988, promulgated under Article 89(1) and (2) of the Constitution, under the Chairmanship of the Hon. Speaker, who in this case, is the impleaded party. And the Speaker thereof is impleaded, or impleadable, because by virtue of Article 84 of the Constitution, and Section 12(2) of the Act, I view him, to have such duties as follows:a.He is first, the spokesman and representative, of the National Assembly;b.He is the custodian of the Powers and Privileges of the Assembly;c.Chief functionary and Constitutional head;d.He is required under Section 12(2) of the Act, to discharge duties of a Judicial, or interpretative character, having finality attached to the same; andThe Speaker is the Chairman of the Assembly and in that capacity, he maintains order in its debates, decides such questions, as may arise, on points of order, puts questions, and declares, the determination of the Assembly. The speeches, participation, debates, immunized, being the base of the essence of parliamentary system of government, that MPs express themselves without fear of legal consequences – but the orders and rules of parliament being under control of the Speaker of the Assembly. 21.The Petitioner submitted that the National Assembly is not a juristic person capable of acting independently of the Speaker and that proceedings questioning the constitutional conduct of Parliament are properly instituted against the Speaker as its representative. It was further submitted that Rule 5 of the Mutunga Rules provides that constitutional petitions should not be defeated merely by reason of misjoinder or non-joinder of parties. 22.The Petitioner further submitted that Article 1 of the Constitution 2010 vests sovereign power in the people and provides that such power is exercised through Parliament and other constitutional organs. Accordingly, the Speaker bears constitutional responsibility for ensuring that Parliament faithfully performs its legislative and oversight functions. It was argued that Parliament has an oversight role over independent commissions, including the Independent Electoral and Boundaries Commission, and that the Speaker cannot evade constitutional accountability by asserting that delimitation of electoral boundaries is solely the mandate of the Commission, nor can he shift his constitutional responsibility to exercise sovereign power on behalf of the people to the 1st Respondent. 23.The Petitioner further argued that Articles 93, 94 and 95 of the Constitution establish Parliament as the institution through which the people exercise sovereign authority, while Articles 106 and 107 constitutionally mandates it to preside over the affairs of the National Assembly. It was submitted that Article 89 contemplates parliamentary participation in the boundary review process and that the Speaker is therefore a necessary party in proceedings challenging the failure to undertake electoral boundary review. The Petitioner maintained that excluding the Speaker from the proceedings would defeat the purpose of the constitutional Petition, which seeks accountability from all relevant constitutional office holders and State organs. 24.The Petitioner consequently urged the Court to dismiss the Application with costs on the ground that it is founded on a misapprehension of the Constitution and undermines the constitutional responsibility of the National Assembly as exercised and presided over by the 2nd Respondent. Analysis and Determination 25.Having regard to the respective positions taken by the Parties, there is only one issue for determination, namely: Whether the Speaker of the National Assembly is improperly joined in the Petition and should be struck out. 26.The Applicant raised the issue of misjoinder of the 2nd respondent contending that there is no cause of action that has been pleaded against it. 27.The law on joinder of parties and striking out of improperly joined parties is found in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 under Rule 5 which states as follows:-The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties-i.Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.ii.A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.iii.Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—i.order that the name of any party improperly joined, be struck out; andii.that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.iii.where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents. 28.The principle that misjoinder cannot ruin a cause of action that is properly before the Court was underscored by the Supreme Court in Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) where it was held as follows:Be that as it may, order 1 rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for misjoinder or non-joinder and that what the court should be bothered with is the determination of the rights of the parties; that rule reads as follows: No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.To the extent that this rule is applicable to the petitions such as the one before court, we can confidently say that regardless of whether the 1st respondent has been properly joined to this suit, this court is in good stead and ideally placed to ‘deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. 29.That notwithstanding, the Court in Youth Limited v Kihiko & another; Kenya Railways Corporation (Intended Defendant) [2024] KEELC 1413 (KLR) observed thus:Courts have held that a party is necessary to a suit where it is shown that the legal reliefs sought would directly affect the person sought to be joined, to avoid a multiplicity of suits or where it is shown that the Defendant cannot effectually set a defence unless that person is joined in it. This position was set out in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows:A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person. 30.The Court of Appeal also quoted its earlier decision in Meme v Republic (2004) KLR637 wherein it held that joinder will be permissible:a.Where the presence of the party will result in the complete settlement of all the question involved in the proceedings;b.Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: andc.Where the joinder will prevent a likely course of proliferated litigation.” 31.As to the meaning of cause of action, this phrase simply describes the existence of facts that would give rise to a claim that is properly founded in law. In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017]eKLR the Court explained thus:A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus — "By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief.” In the case of Drummond Jackson v. British Medical Associations & Ors., Lord Pearson stated as follows:-“........... the expression “reasonable cause of action” ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when......... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors; held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions. 32.The Court went further to state as follows:… The pith and marrow of it is that where on a consideration of only the allegations in the pleading the court concludes that a cause of action with some chance of success is shown then that pleading discloses a reasonable cause of action. Person, J in Drummond Jackson v British Medical Association, the definition of a cause of action was determined as an act on the part of the Defendant which gives the Plaintiff his cause of complaint…. 33.In the same way, the Court in Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676 citing a number of authorities with approval noted as follows:That the application discloses no reasonable cause of action or defence in law. In DT Dobie & Co. (Kenya) Limited v Muchina & Another [1982] KLR, the Court of Appeal defined reasonable cause of action to mean “an action with some chance of success when allegations in the plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer… 34.The 2nd Respondent’s position is that the Petitioner has not demonstrated with exactitude why the 2nd Respondent (Speaker of the National Assembly) is a party in these proceedings. The 2nd Respondent argued that the Petitioner neither mention it in the Petition nor supporting affidavit. Further, the Petitioner has not sought any relief against the 2nd Respondent. That the Petitioner seeks a declaration that the rights and fundamental freedoms of the constituents of Bobasi Constituency have been infringed under Article 89 of the Constitution by the 1st Respondent. Further the Petitioner prays for the Court to compel the 1st Respondent to delimit Bobasi Constituency and form Bobasi Borabu and Bobasi Chache towards equalizing the value, weight and importance of the vote and representation of the constituents of Bobasi Constituency. The 2nd Respondent thus contends that there is no cause of action against it hence it should be struck out. 35.The 1st Respondent, the Independent Electoral and Boundaries Commission (IEBC) is established by Article 88 of the Constitution. One of its core constitutional mandates, expressly set out in Article 88 (4) (c)The delimitation of constituencies and wards. 36.Article 89 provides in material part:(2)The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.(3)The Commission shall review the number, names and boundaries of wards periodically. 37.It is therefore evident that the IEBC is constitutionally established to undertake delimitation of boundaries. 38.Nevertheless, the 2nd Respondent oversight responsibility over any Independent Commission such IEBC is spelt under Article 254 the Constitution. Article 254 (2) is relevant. It provides:254 (2)- At any time, the President, the National Assembly or the Senate may require any commission or holder of an independent office to submit a report on a particular issue.254 (3)Every Report required from a Commission or holder of an independent office under Article shall be published and publicized. 39.The Petition is founded on alleged violation of Article 89 of the Constitution by the 1st Respondent through prolonged failure to discharge that constitutional function. The Petitioner accuses the 1st Respondent of having failed to exercise its mandate thereby violating the rights of constituents of Bobasi Constituency. Whether that allegation will be ultimately proved has to await a determination on merits but at pleading stage, the facts if established, would found a cause of action against the 1st Respondent. 40.The 2nd Respondent does not play a direct role in respect delimitation but it has role in ensuring accountability in regard to an Independent Commission such as 1st respondent. The National Assembly or the Senate, may call for a specific report on any issue from an independent commission. If and when evidence of systemic failure on the part of the 1st Respondent is tendered, the question would then arise whether in light of overarching oversight role assigned by the Constitution to the 2nd Respondent including seeking reports on any specific issue, the 2nd Respondent exercised or failed to exercise its Constitutional mandate under Article 254 (2) of the Constitution by ensuring accountability on 1st respondent. Under Article 2 (4) of the Constitution, violation of the constitution includes an act or omission in contravention of the Constitution. If there is systemic failure on the part of the 1st Respondent to undertake constitutional responsibility and a corresponding omission on the part of the body that is empowered to ensure accountability in performance of the specific constitutional duty, the Petitioner cannot be faulted for maintaining a suit against the two bodies for the Court to determine if there has been failure in compliance by both in respect of their Constitutional mandates. 41.In constitutional litigation, the Court is not limited by the pleadings of the parties or reliefs sought, its focus is to consider the issues holistically and give appropriate reliefs under Article 23 if there is any infringement of the Constitution. The mere fact that the 2nd Respondent is not mentioned in regard to any reliefs does not of itself, constitute a sufficient ground of striking it out of this suit at an interlocutory stage in a Petition of this nature. 42.In view of the foregoing reasons, I find the Application dated 23/6/2025 seeking to strike out the 2nd Respondent from these proceedings to be devoid of merits. 43.Accordingly, it is hereby dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH AUGUST, 2026..............................L N MUGAMBIJUDGE