[2023] KEHC 25344 (KLR)

Munyitha v Speaker of the County Assembly of Kitui & another (Petition 6 of 2023) [2023] KEHC 25344 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25344 (KLR)

Republic of Kenya

In the High Court at Kitui

Petition 6 of 2023

RK Limo, J

November 7, 2023

N THE MATTER IF ARTICLES 1,2,10,1, 22,23,47,48,50 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ENFORCEMENT OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 15,16, AND 17 OF THE COUNTY ASSEMBLIES POWERS AND PRIVILEDGES ACT 2017 IN THE MATTER OF SECTIONS 3,2 & 5 OF THE FAIR ADMINISTRATION ACTION ACT, 2015 AN IN IN THE MATTER OF THE COUNTY ASSEMBLY OF KITUI STANDING ORDERS

Between

Hon Sammy Musili Munyitha

Petitioner

and

Speaker of the County Assembly Of Kitui

1st Respondent

County Assembly of Kituio

2nd Respondent

Ruling

1. The applicant herein has brought this Notice of Motion dated 28th July, 2023 citing various constitutional provisions to wit Article 22, 159(2) e, 165(3) (d) and 258 of the Constitution of Kenya and Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (‘‘Mutunga Rule’’). He seeks the following orders/reliefs:i.spentii.Spentiii.That pending the hearing and determination of this application inter partes, an interim conservatory order be and is hereby issued suspending the decision of the 2nd Respondent to prohibit the Petitioner from entering the precincts of the 2nd Respondent and participating in the activities of the 2nd Respondent and its committees.iv.That pending the hearing and determination of this application inter partes, an interim conservatory order be and is hereby issued suspending the decision of the 2nd Respondent to suspend the Petitioner for sixteen plenary sittings.v.That pending the hearing and determination of this application inter partes, an interim conservatory order be and is hereby issued suspending the decision of the 2nd Respondent to prohibit the Petitioner from entering the precincts of the 2nd Respondent and participating in the activities of the 2nd Respondent and its committees.

2. The applicant has cited the following ground in support of his application namely:a.That he is an elected member of County Assembly representing Kivou Ward in Kitui County Assembly and that he also serves as the chair of lands, infrastructure and Urban Development Committee in the County Assembly of Kitui.b.That on 19th July, 2023 the 2nd Respondent passed a resolution which inter alia suspended the petitioner from 16 sittings of the County Assembly and also banned the petitioner from entering the precincts of the Civil Appeal.c.That the decision taken by the 2nd Respondent is tainted by procedural illegalities as set out in the petition herein.d.That he has raised what he terms substantial and weighty issues that requires interpretation and application of the constitution as set out in his petition herein and feels he should be heard.e.That the decision of 2nd Respondent took effect immediately and that unless conservatory orders are issued as prayed the outcome of petition and ends of justice may be at risk and may be rendered nugatory.f.That the effect of the impugned decision is to deny the electorate of Kivou Ward representation in the Civil Appeal.g.That unless this Hon. Court urgently intervenes by granting interim conservatory orders, the effects of the impugned decision will not be reversed if the petitioner is successful in the petition.h.That the Respondents will not suffer any prejudice if conservatory orders are issued and that to the contrary the conservatory orders will serve the interest of public at large to allow for the determination of the issues raised in the petition.i.That the petition herein raises substantial and weighty issues of interpretation and application of the constitution as set out in the petition.

3. The applicant has sworn an affidavit in support of this application sworn on 28/07/2023 where he has majorly reiterated the above grounds adding that he was subjected to unfair administration action when Article 47 entitles him to a fair one. He claims that the impugned decision denied him internal mechanism of review or appeal adding that his rights to legal representation and to cross examination witnesses was denied.

4. The applicant has also touched on grievances contained in the body of his petition which for good reasons will not be considered at this stage because it would be premature and/or pre-emptive of the final determination of the petition.

5. The applicant has further supported this application through written submissions dated 28th September, 2023 done through Counsel.

6. On the question of jurisdiction, the Applicant cites the doctrine of separation of powers and submits that the court has power to check the constitutionality of decisions and processes of other arms of government and that that power is not stripped by Section 10 of the County Assemblies Powers and Privileges Act. The Applicant has cited the Court of Appeal decision in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013 eKLR). In that case, an appeal arose from a Petition filed in the High Court questioning the constitutionality of the appointment of Mr. Mumo Matemu, as the chairperson of the Ethics and Anti-Corruption Commission. The Court of Appeal discussed the doctrine of Separation of Powers and held that courts are entitled to interrogate or review decisions and processes of other state organs and provided a standard of review. In this case, the question before court was whether the appointment was in compliance with the object and purpose of the Ethics and Anti-Corruption Act. In the end the Court of Appeal held that the High Court misapplied the rationality test in adopting a standard of review antithetic to the doctrine of separation of powers. The decision, the court held as follows;“We respectfully suggest that such ambiguous application of doctrines can undermine proper judicial inquiry. It is therefore our considered view, that the superior court below misapplied the doctrine of separation of powers in its standard of review. We are of the view that had the court applied the rationality test in light of the principle of separation of powers, its analysis no less its result would have been different. We note here that the rationality test is a judicial standard fashioned specifically to accommodate the doctrine of separation of powers, and its application must generally reflect that understanding."

7. The Applicant has also cited the case of National Gender and Equality Commission versus Majority Leader, County Government Assembly of Nakuru & 4 Others: Jubilee Party & Another (Interested Parties) (2019) eKLR in support of his submission that this court has jurisdiction to entertain this matter. In the above cited decision, the court took the position that the doctrine of separation of powers does not immunize the other arms of government from judicial interrogation. The court went on to find that it possessed jurisdiction to hear the petition where there is a challenge on the constitutionality of a resolution passed by the County Assembly of Nakuru. The Petitioner had alleged that the resolution reached a perpetuated discrimination.

8. On the prayers sought, the applicant seeks conservatory orders stating that if they are not granted he will not be able to discharge his responsibilities as the elective representative of the people of Kivu in the County Assembly of Kitui. He submits that the subject matter of the Petition should be preserved and he has relied on the Supreme Court’s decision in Gitaru Peter Munya vs Dickson Mwenda Kithinji (2019) eKLR where Court stated that conservatory orders….........“should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”

9. The Respondents have opposed this application through a replying affidavit sworn by learned counsel Mercy Mbinya sworn on 15th September, 2023 and written submissions by Counsel.

10. The Respondents defend the Applicant’s suspension stating that the decision was arrived at following a resolution that was passed by the 2nd Respondent on 19th July 2023. They also aver that the decision to discipline was taken in accordance with the County Assemblies Powers and Privileges Act 2017 (CAPP) and the Kitui County Assemblies Standing Orders following concerns raised by Hon. Bernard Mwangangi Munyasya pertaining to the applicant’s breach of privilege and unethical conduct. The deponent gives a chronology of the procedure leading the suspension as follows;i.That a complaint was lodged by Ms Grace Musombo, a clerk of the Committee on Lands, Infrastructure and Urban Development on 13th April 2023 against the Applicant.ii.Consequently, the matter was referred to the Committee on Powers and Privileges and on 10th May 2023 it was tabled before the committee which resolved to call six witnesses including Applicant for interrogation on 18th May 2023. iii.That on 11th May 2023, the Applicant was issued a letter asking him to appear before the committee on 18th May 2023iv.That on 18th May 2023, the committee received the complainant’s testimony together with that of the Applicant herein together with the testimonies of two other witnesses.v.That two additional witnesses were called and they appeared before the committee on 15th June 2022,vi.That thereafter, the committee prepared a report which was forwarded to the Office of the Clerk on 17th July 2023 for onward transmission to the 2nd Respondent and the committees’ resolution to suspend the applicant was communicated on 24th July 2023.

11. The Respondents also have raised a preliminary objection on this application on the following grounds namely;i.This Honourable Court lacks jurisdiction to hear and determine the Notice of Motion dated 28th July 2023 and the Petition dated 28th July 2023 as it would amount to impeding the internal procedures of the County Assembly carried out in accordance with the County Assemblies and Privileges Act.ii.The Court lacks jurisdiction to hear and determine this matter, reason being that it flies in the face of the doctrine of separation of powers.

12. The Respondents in their written submissions through counsel have further expressed opposition to this application.

13. On jurisdiction, the Respondents have relied on the doctrine of separation of powers and have submitted that entertaining this petition would amount to supervising the work of the 2nd Respondent. They have cited the cases of Republic versus National Assembly Committee of Privileges & 2 Other ex-parte Ababu Namwamba (2016) eKLR where restriction of judicial interference in parliamentary proceedings was highlighted. It has also been submitted that the 2nd Respondent has power bestowed upon it under Sections 15, 16 and 17 of the County Assemblies Powers and Privileges Act (CAPP) to conduct the inquiry as it did on the complaint against the Applicant’s behavior. Further, that there is no complaint on the procedure adopted by the 2nd Respondent in the process to warrant this court’s interference

14. On whether conservatory orders should be granted, the Respondents submit that granting the orders at this stage would result in declaring the decision by the 2nd Respondent unconstitutional before the hearing and determination of the Petition. The Respondents have also cited the Supreme Court’s decision in Gitaru Peter Munya vs Dickson Mwenda Kithinji (2019) eKLR in respect to the considerations to be taken by the court while issuing conservatory orders. They submit that the Applicant has failed to establish that he has an arguable case and adding that, issuance of conservatory orders would result in disturbance in the County Assembly and that, it would make it difficult to conduct disciplinary processes if the orders sought are issued.

15. This Court has considered this application and the grounds raised. I have also considered the response. Two issues have emerged which requires determination. The same are: -i.Whether this court has jurisdiction to entertain this application and in extension the petition herein.ii.Whether there is basis to grant conservatory orders.

16. I will begin with the pertinent issue of jurisdiction because jurisdiction is everything. If this court lacks jurisdiction, it is required to down tools and leave the matter to other constitutional bodies to handle it.

17. Jurisdiction is either conferred by law that is either by constitution or through legislation. A court cannot arrogate itself powers to adjudicate over a dispute or mandate over a matter. The conferment of those powers or jurisdiction must be express.

18. The Supreme Court in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR expressed itself as follows on the question of jurisdiction;“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings....................... Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.’’

19. Article 165 (3) (d) of the Constitution provides for the jurisdiction of the High Court. It is provided that the High Court shall have the jurisdiction to;....................d) Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government..."

20. The Respondents contend that this Court lacks jurisdiction to determine this Petition. It is their case that by dint of the doctrine of separation of powers, this Court should not be quick to interfere with the applicant’s suspension from attending sixteen sittings at Kitui County Assembly as doing so would amount to supervision of workings of the 2nd Respondent.

21. The Applicant takes a different view. He asserts that this court has jurisdiction to check the constitutionality of decisions taken by the 2nd Respondent. Specifically, the Applicant contests the resolution passed by the 2nd Respondent on 19th July suspending him from sixteen sittings in the county assembly on the grounds that the decision was tainted with procedural irregularities.

22. Now the question to be addressed by this court is, does the doctrine of separation of powers inhibit this court’s constitutional power to examine and interrogate the resolution passed by the 2nd Respondent on 19th July 2023? The Respondent gist of submissions is based on the provisions of Sections 10 of the County Assemblies Powers and Privileges Act (CAPP). The provision provides as follows;“No proceedings or decision of a county assembly or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court."

23. They have also cited Section 15 (4) of the County Assemblies Powers and Privileges Act together with County Assembly of Kitui Standing Order No. 152 B which provides that the functions of the Committee on Powers and Privileges are;i.inquire into the conduct of a member whose conduct is alleged to constitute a breach of privilege in terms of section 16 of the County Assembly Powers and Privileges Act, 2017; andii.perform such other functions as may be specified in the said Act.

24. The big question therefore, is whether a County Assembly or any committee of the Court of l in light of the above provisions is immune to the dictates of the Constitution and other legislative provisions like Fair Administrative Actions Act No. 4 of 2015 particularly when it comes to subjecting a man to a disciplinary or an administrative action. Put another way does the doctrine of Separation of Powers give immunity to a County Assembly or any other body exercising quasi-judicial powers to sidestep or disregard the dictates of the constitution? The answer to that in my considered view is in the negative.

25. The Supreme Court in the case of Justus Kariuki Mate & another vs Martin Nyaga Wambora & another (2017) eKLR and held that despite the doctrine of separation of powers there are instances that warrant judicial intervention. It held as follows;“…no arm of Government is above the law. This being a constitutional democracy, the Constitution is the guiding light for the operations of all State Organs. The Court’s mandate, where it applies, is for the purpose of averting any real danger of constitutional violation."

26. The Supreme Court then proceeded to formulate the following considerations by courts to be taken into account while exercising their jurisdiction;i.each arm of Government has an obligation to recognize the independence of other arms of Government:ii.each arm of Government is under duty to refrain from directing another Organ on how to exercise its mandateiii.the Courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgmentiv.for the due functioning of constitutional governance, the Courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;v.in the performance of the respective functions, every arm of Government is subject to the law.

27. In giving the above guidelines the Supreme Court referred the following decisions:-a.James Opiyo Wandayi v. Kenya National Assembly & 2 Others, [2016] eKLR, where the issue was whether the actions of the Speaker, in disciplining the Member of Parliament for Ugunja Constituency, met the threshold of fairness and proportionality, as well as of the discharge of general administrative powers under Article 47 of the Constitution. Odunga, J. (as then was) stayed the decision of the Speaker of the National Assembly, which had suspended the parliamentarian for the remainder of the session. He held that the doctrine of separation of powers does not avail, where it is alleged that the Constitution has been violated. The applicant’s case was that the provisions of the relevant Standing Orders were unconstitutional to the extent that they did not meet the threshold of fairness and proportionality provided for under Article 47 of the Constitution.b.In Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 others [2015] eKLR, the High Court examined the extent to which a Court may inquire into the conduct of parliamentary proceedings. The Court held that, as Article 165(3) (d) clothed it with powers to determine the constitutionality of a given act, the doctrine of separation of powers does not preclude it from examining acts of the Legislature or the Executivec.The Court of Appeal, in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance & 2 Others [2013] eKLR, adopted the High Court’s dicta, in the following terms:“[Separation of powers] must mean that the courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the Executive sufficient latitude to implement legislative intent. Yet, as the respondents also concede, the Courts have an interpretive role – including the last word in determining the constitutionality of all governmental actions...” [emphasis supplied].

28. In Appollo Mboya v. AG & 2 others (2018) eKLR, the court held as follows;“According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the other organs of the State in check by ensuring that their actions comply with the law, including, where applicable, the constitution. Ouster clauses prevent courts from carrying out this constitutional function…......The primary duty of the courts is to uphold the Constitution and the law “which they must apply impartially and without fear, favour or prejudice.” And if in the process of performing their constitutional duty, courts intrude into the domain of other branches of government, that is an intrusion mandated by the constitution. What courts should strive to achieve is the appropriate balance between their role as the ultimate guardians of the Constitution and the rule of law including any obligation that parliament is required to fulfill in respect of the passage of laws, on the one hand and the respect which they are required to accord to other branches of government as required by the principle of separation of powers, on the other hand”

29. In light of the Supreme Court’s decision above, and the other cited authorities, it is apparent in my view that the doctrine of separation does not preclude this court from inquiring into allegations of the breach of the Applicant’s/Petitioner’s fundamental rights in this case. However, I am also alive to the position that a court should not be quick to make that interference and that every case ought to be decided on its own merit. A blanket statement that the doctrine of separation of powers prohibits the court Court’s jurisdiction is therefore erroneous. This jurisdiction is given power to intervene under Articles 22 (1) and 165 of the Constitution. This court therefore, has jurisdiction to hear and determine this Application and Petition herein.

(ii)Whether there is basis to grant the applicant conservatory orders 30. The Respondents contends that the orders sought in this application are unconstitutional but in light of Rule 23(1) of Mutunga Rules touching on conservatory orders the contrary position is apparent.

31. The Supreme Court has described the nature of Conservatory Orders and set out the principles that Courts should use in adjudicating cases where a Conservatory Order is prayed for at the interlocutory stage. This was done in Gitirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Others [2014] eKLR where the Court held:“Conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the “prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success’ in the applicant’s case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes...The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:i.the appeal or intended appeal is arguable and not frivolous; and thatii.unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:iii.That it is in the public interest that the order of stay be granted.This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.’’

32. The Petition is centered on the allegation violation of Article 47 of the Constitution that the Respondents violated the Applicant’s rights to fair administrative action during the disciplinary hearing carried out by the Committee of Powers and Privileges. The Applicant also takes issue with the procedure followed during the voting process when the committee’s report was tabled before the 2nd Respondent.

33. For the hearing, the Applicant alleges that he was given short notice to attend the disciplinary. He alleges at paragraph 6 of his Supporting Affidavit that he was invited for the hearing on 17th July 2023 while it was taking place the following day on 18th July 2023. He further alleges that he was not informed of his rights of review or internal appeal, legal representation, examination or calling of witnesses and that he was not given information, materials and evidence relied upon in the making of the decision to suspend him. He also alleges that there was impartiality on the part of the 1st Respondent who chaired the disciplinary proceedings and also chaired the house proceedings when the report was tabled before the 2nd Respondent. The applicant further faults the process leading to adoption of the committee’s report by the house. He alleges that he was denied an opportunity to address the house and further, that the vote was hurried and despite a call of division by several members a direct roll call vote was not taken. The applicant avers that the orders sought will protect the public interest of the people of Kivou whom he acts as their representative in the County Assembly.

34. On their part, the Respondents have denied the allegations of bias. They aver that the applicant never made a request to for an opportunity to examine the witnesses or have legal representation. With regards to the time given to the applicant, the Respondents aver that the applicant was invited to the meeting on 18th May 2021 while the hearing took place on 18th July 2023. The issues raised in the petition are therefore, pertinent and contested.

35. It is apparent that applications of this nature invariably mainly touches on the issues raised in the petition and responses thereto. It is at times tricky for a court to interrogate the application in isolation without interrogating the petition itself and the responses. And there lies the danger of delving on merit of the petition albeit prematurely. A Court must therefore, navigate on thin a line by restricting only into whether a prima facie case has been made out by a petitioner without going into the merits of the main case itself. Courts have navigated along this lines before and principles have been set.

36. In Board of Management of Uhuru Secondary School vs. City County Director of Education and 2 Others (2015) eKLR, the Court navigated through the said route and in issuing conservative orders. They are as follows:i.The Applicant ought to demonstrate an arguable Prima facie case with a likelihood of success, and that in the absence of the Conservatory Orders sought, he is likely to suffer prejudice as a result of the violation or threatened violation of the Constitutionii.Once the Applicant has established to the Court's satisfaction a prima facie case with a likelihood of success, the Court is then to decide whether a grant or denial of the Conservatory relief will enhance the constitutional values and objects of the specific right or freedom of the Bill of Rightsiii.Thirdly, flowing from the first two principles is whether if an interim Conservatory Order is not granted, the Petition or its substratum will be rendered nugatory. It is indeed the business of the Court to ensure and secure as far as possible that any transitional motions before the Court do not render nugatory the ultimate end of justiceiv.The Court must consider Conservatory Orders also in the face of public interest dogma; andv.Finally, the Court is to exercise its discretion in deciding whether to grant or deny a Conservatory Order. The Court must consequently consider all relevant material facts and avoid immaterial matters. The Court will consider the applicant's credentials, the prima facie correctness of the availed information, whether the grievances are genuine, legitimate, and deserving, and finally, whether the grievances and allegations are grave and serious or merely vague and reckless.’’

37. In Centre for Rights Education and Awareness (CREAW) & 7 Others vs Attorney General [2011] eKLR the Court is reminded itself that it should not make a definite and conclusive finding of either fact or law at the preliminary stage and held as follows;“...It is important to point out that the arguments that were advanced by Counsel and that I will take into account in this ruling relate to the prayer for a Conservatory Order in terms of prayer 3 of the Petitioner’s Application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a Conservatory Order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the Conservatory Order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.’’

38. The Supreme Court has also rendered itself in respect to Conservatory Orders and set out the principles that Courts should use in adjudicating cases where Conservatory Orders are prayed for at the interlocutory stage. This was in Gitirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Ors [2014] eKLR where the Court held:“Conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as the “prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success’ in the applicant’s case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes...The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:i.the appeal or intended appeal is arguable and not frivolous; and thatii.unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:iii.That it is in the public interest that the order of stay be granted.This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.’’

39. The question I have considered carefully is whether the issues raised in the petition herein raises a prima facie case or are frivolous. The former in my view seems to be having traction.In this matter, a procedural issue has been raised by the applicant with regards to the manner in which the disciplinary process was undertaken. A disciplinary process is an administrative action governed by Article 47 of the Constitution which provides that every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. There are conflicting narratives on the period of time the applicant was given to prepare for the hearing as well as the whether his constitutional rights were upheld during the hearings. Procedural fairness is not a trivial issue in my view as it lays a basis of how potential disciplinary hearings should be conducted in the future by the Respondents or any other organ of government.

40. This Court also finds that the substratum of the petition will dissipate unless it is preserved vide conservatory orders. This is because by the time the petition is determined the issues raised might have been overtaken by events. The people of Kivou Ward might be affected adversely and therefore, public interest is in favour of conservatory orders at least on the interim.

41. In the premises, this court finds merit in this application and is allowed in the following terms:i.Pending the hearing and determination of the petition herein conservatory orders are hereby issued suspending/staying the decision of 2nd Respondent prohibiting the petitioner from entering the precincts of the 2nd Respondent and participating in the activities of the 2nd Respondent and its committees.ii.Costs in the petitionThe main petition shall be fixed for mention for directions forthwith.

DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF NOVEMBER, 2023. HON. JUSTICE R. LIMO - JUDGE