https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10039

Mwamwiri v Speaker of the County Assembly of Mombasa & 2 others (Constitutional Petition E031 of 2025) [2026] KEHC 10039 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10039 (KLR) Republic of Kenya In the High Court at Mombasa Constitutional Petition E031 of 2025 J Ngaah, J July 10, 2026 Between Hon Athman Rama Mwamwiri Petitioner and The Speaker of the County Assembly Of Mombasa 1st Respondent The County Assembly Of Mombasa 2nd Respondent Hon Priscilla Mema Mumba 3rd Respondent Ruling 1.Before Court for determination is the Notice of Motion dated 25 August 2026, filed on even date; it is filed under Rules 18 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and Order 40 Rules 1, 2 and 10 of the Civil Procedure Rules. The application is supported by the Petitioner's own affidavit sworn on 25th August 2025, and is presented alongside the substantive Petition of even date. 2.The application seeks, principally, an interim order of injunction restraining the Respondents from preventing, barring, restricting or interfering with the Petitioner's performance of his duties as Leader of Majority Party in the Mombasa County Assembly, and an interim conservatory order preserving the status quo as it stood on 4th August 2025, both pending the hearing and determination of the Notice of Motion and, thereafter, the Petition. 3.The application is contested by all the Respondents. The 1st Respondent, the Speaker of the County Assembly of Mombasa, has filed a Replying Affidavit sworn on 8th September 2025, described on its face as a response to both the main Petition and the Notice of Motion. In it, the 1st Respondent denies the material allegations, avers that the Petitioner's removal was validly effected by his own political party in full compliance with Standing Order 15 of the Mombasa County Assembly Standing Orders, and raises threshold objections touching on this Court's jurisdiction, the doctrine of exhaustion, non-disclosure of material facts, and the competence of the Petitioner's advocates to act in the matter. The 2nd and 3rd Respondents, for their part, have filed a joint Replying Affidavit sworn on 8th September 2025 by Salim Juma, Clerk of the 2nd Respondent and duly authorised to depose on behalf of both Respondents, together with written submissions dated 2nd March 2026. In these, the 2nd and 3rd Respondents likewise deny liability, raise their own preliminary objection to this Court's jurisdiction founded on the Political Parties Act, 2011, and contend, further, that the Petitioner has failed to establish a prima facie case, that any harm he has suffered is neither irreparable nor properly attributable to them, and that the application is in any event barred by inordinate delay. 4.I have carefully considered the Notice of Motion, the grounds on its face, the supporting affidavit and annexures, the Replying Affidavit of the 1st Respondent and its annexures (including the minutes and signed resolution of the ODM County Assembly caucus, the Whip's letter of 4th July 2025, the Hansard extracts of 5th and 20th August 2025, and the House Business Committee records), the Replying Affidavit of the 2nd and 3rd Respondents and its annexures, the written submissions filed on behalf of the 2nd and 3rd Respondents, together with the pleadings in the main Petition. Petitioner’s case 5.The Petitioner's case, as pleaded in the Petition and elaborated in his supporting affidavit, is that he was at all material times the duly recognised Leader of Majority Party in the Mombasa County Assembly, having been appointed to that office by the ODM Party following his re-election as MCA for Likoni Ward in 2022. 6.He avers that on 5th August 2025 he was, without warning, informed through the Assembly Order Paper that he had been removed from that office and replaced by the 3rd Respondent. He contends that this was done without any prior notice to him, without a party caucus meeting ever having been convened, without the minutes of any such meeting, and without the written communication from the Majority Whip to the Speaker that Standing Order 15(5) mandates. 7.He deposes that upon learning of the purported removal, he wrote two letters dated 6th August 2025 to the Clerk of the 2nd Respondent demanding, respectively, Hansard reports of specified sittings and copies of the minutes, resolution, signed member list and House Business Committee attendance record said to underlie his removal, none of which have, on his account, ever been furnished to him. 8.He further relies on a letter dated 7th August 2025 from the Executive Director of ODM addressed to the 1st Respondent, directing that the status quo be maintained pending the party's own verification of what had transpired, and contrasts this with the 1st Respondent's letter of the same date asserting that the change had already taken effect and that the party's communication had been "overtaken by events". 9.On this footing, the Petitioner contends that his removal violated Standing Order 15 of the Mombasa County Assembly Standing Orders, Section 10 of the County Governments Act, 2012, Article 57(1) of the ODM Constitution, and his rights under Articles 27, 35, 38, 47 and 50 of the Constitution, and he seeks, by way of interim relief, an order preserving his continued exercise of the office pending the final determination of the Petition. 1st respondent’s case 10.The 1st Respondent's account, as set out in his Replying Affidavit, differs sharply from that of the Petitioner both as to the material facts and as to the propriety of these proceedings. 11.He deposes that Members of the County Assembly belonging to the ODM Party met on 3rd July 2025 at Committee Room 1 of the County Assembly and resolved, by a vote of 24 out of 32 ODM members, to remove the Petitioner from the office of Leader of Majority Party and to elect the 3rd Respondent in his place. He exhibits the minutes of that meeting, an attendance list, and a signed resolution bearing the names, national identity card numbers and signatures of the 24 members said to have voted for the change. 12.He further deposes that this decision was communicated to him, in his capacity as Speaker, by a letter dated 4th July 2025 signed by Hon. Priscilla Mema Mumba in her then capacity as Majority Party Whip, purportedly in fulfilment of Standing Order 15(5), and that the substance of that communication was subsequently placed before the full Assembly on 5th August 2025 as an item of House business. 13.On the question of the discrepant dates appearing in the record, the 1st Respondent explains that his communication to the Assembly on 5th August 2025 erroneously referred to a party meeting held on 18th February 2025, which he describes as an inadvertent error, and that the correct date, 3rd July 2025, was placed on record and clarified during the proceedings of the County Assembly of 20th August 2025, when the Majority Whip addressed the House on the point. It should also be noted, and is apparent from the Hansard of 5th August 2025 exhibited by the 1st Respondent himself, that the 3rd Respondent already sat and spoke in that day's sitting as "The Leader of Majority Party (Hon. Mumba)", seconding a Motion in that capacity. 14.The 1st Respondent denies having played any part in the decision to remove the Petitioner, maintaining that his sole role was to communicate, as a matter of formal House business, a decision that had already been made internally by the majority of ODM members. He avers that the Petitioner himself sat on the House Business Committee that scheduled the item for the sitting of 5th August 2025, and exhibits the notice, agenda and signed attendance list of that Committee's meeting of the same date bearing the Petitioner's name. 15.He further exhibits a letter dated 9th July 2025 from the Secretary of ODM Mombasa County to the Clerk of the 2nd Respondent, acknowledging receipt of the Whip's communication and the attached signatures, and expressly recognising "the independence of the House" and that ODM members of the Assembly "are at liberty to choose whom they so wish to lead the ODM team in the Assembly", subject to compliance with Assembly and party procedures. He contrasts this with the later letter of 7th August 2025 relied upon by the Petitioner, which he says was addressed to the wrong office altogether, since he had no role in what he describes as "a pure ODM Party affair", and was in any event overtaken by events that had already crystallised over a month earlier. 16.On jurisdiction, the 1st Respondent's position, advanced on the advice of his advocates, is threefold: first, that the dispute is purely an intra-party affair between the Petitioner and ODM, properly falling within the exclusive jurisdiction of the Political Parties Disputes Tribunal under Section 40 of the Political Parties Act, 2011; second, that the Petitioner has not exhausted the internal dispute resolution mechanisms of the ODM Constitution, in particular Article 86 thereof, before approaching this Court, offending the doctrine of constitutional avoidance; and third, that the Petitioner has failed to join ODM, the party alleged to have made the impugned decision, as a party to the proceedings, leaving the Respondents unable to answer for a decision they did not make. 17.On the access-to-information limb of the Petition, the 1st Respondent avers that the request of 6th August 2025 was addressed to the Clerk, who is not a party to the suit, and was in any event premature, the 21-day period prescribed under Section 9(1) of the Access to Information Act, 2016 not having lapsed by the time the Petition was filed on 25th August 2025; and that the proper recourse for an aggrieved requester under Section 14(1)(a) of that Act lies with the Commission on Administrative Justice, not this Court. 18.Finally, the 1st Respondent takes the point that the Petition was drawn and filed by an advocate who, on his information, is a full-time employee of the Parliamentary Service Commission serving in the Senate, and who is accordingly barred from private practice by Section 26 of the Leadership and Integrity Act and Section 23 of the Conflict of Interest Act, rendering the filing of the Petition unlawful and raising a conflict of interest given the Senate's oversight role over county assemblies. 2nd and 3rd Respondents’ case 19.The 2nd and 3rd Respondents did not file separate responses but instead filed a joint Replying Affidavit sworn on 8th September 2025 by Salim Juma, who describes himself as Clerk of the 2nd Respondent, well versed with the facts of the case and authorised to swear the affidavit on behalf of both the 2nd and 3rd Respondents, together with written submissions dated 2nd March 2026 drawn and filed by the 2nd Respondent's advocate. 20.The 2nd Respondent's position, as deposed to by its Clerk, is that it is not privy to the Petitioner's standing or leadership within his political party, this being an internal matter between the Petitioner and his party, and that neither the 2nd nor the 3rd Respondent played any role in the decision to remove the Petitioner from the office of Leader of Majority Party, that being a role of the political party which nominated or elected the member concerned; upon communication by the Speaker of the House, the 2nd Respondent's role is confined to adopting that communication, without input of its own, given that its membership is drawn from several political parties. 21.He deposes, in terms materially consistent with the account given by the 1st Respondent, that pursuant to County Assembly of Mombasa Standing Order No. 15, the Majority Party Whip communicated to the 1st Respondent, on 4th July 2025, the decision to remove the Petitioner from office, which was thereafter communicated to the House on 5th August 2025; that the underlying decision had itself been made by members of the ODM party in the County Assembly at a meeting held on 3rd July 2025, at which 24 of the 32 ODM members voted in favour of the Petitioner's removal; and that upon that communication being made to him, the 1st Respondent in turn communicated the change in leadership to the 2nd Respondent, which adopted it as a matter of course, without any input of its own, consistent with the multi-party composition of the Assembly. 22.On the request for information, the 2nd Respondent confirms that it received the Petitioner's letter dated 7th August 2025 on 8th August 2025, but maintains, in agreement with the 1st Respondent, that the twenty-one-day period allowed for response under Section 9 of the Access to Information Act, 2016 had not lapsed by the time the present application was filed, rendering the application premature, misconceived and an abuse of the court process on that limb. 23.The 2nd Respondent maintains that the process leading to the Petitioner's removal was lawful and procedural and in accordance with Standing Order 15, that upon the communication being made the 3rd Respondent was duly sworn in as Leader of Majority Party of the County Assembly, and that the orders sought in the Notice of Motion have accordingly been overtaken by events. It is further averred that the Petitioner's case is, in substance, premised on the legality of the internal communications between the 3rd Respondent, as Whip, and the 1st Respondent, a matter he ought properly to have challenged through the dispute resolution mechanisms established under the Political Parties Act, including recourse to the Political Parties Disputes Tribunal, rather than by way of these proceedings; that any claim founded on the right to fair administrative action ought properly to lie against the ODM Party as the decision-making body and not against the Respondents, who merely communicated and gave administrative effect to that decision; and that, ODM not being a party to the suit, the Petition, so far as it concerns the 2nd and 3rd Respondents, is reduced to an academic exercise. 24.The 2nd Respondent further avers that the Petitioner has not come to Court with clean hands, invoking the equitable maxim that he who comes to equity must come with clean hands, and asserting that the Petitioner failed to disclose that he was himself present, and recorded as such on the attendance sheet, at the meeting of the County Assembly Business Committee at which the item concerning his removal was scheduled for the House; and, further, that he was aware of the ODM caucus decision from as early as 3rd July 2025, when the meeting took place, yet did not file the present application until 26th August 2025, a delay said to be inordinate, unexplained, and demonstrative of a lack of diligence disentitling him to the equitable relief sought. 25.Building on these averments, the written submissions filed on behalf of the 2nd and 3rd Respondents raise, as a threshold matter, an objection to this Court's jurisdiction, contending, by reference to Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, that the dispute concerns an internal political party leadership position, that the impugned decision was made by members of the Petitioner's own political party pursuant to internal party processes, and that the dispute accordingly falls outside this Court's jurisdiction and lies, if anywhere, within the internal dispute resolution mechanisms of the party or before the Political Parties Disputes Tribunal established under Section 40 of the Political Parties Act, 2011. It is further submitted, with reference to Republic v Susan Kihika & Others [2014] eKLR, that whereas the Tribunal has power to hear and determine disputes of this kind, it does not have power to issue the orders sought in a judicial review application, that power being reserved to this Court alone under Article 22(3) of the Constitution, Section 8(1) and (2) of the Law Reform Act and Order 53 of the Civil Procedure Rules; but that, the Petitioner not having approached this Court by way of judicial review, the orders he seeks could, in the submission of the 2nd and 3rd Respondents, properly be issued by the Tribunal itself, such that this Court lacks jurisdiction ab initio and the application ought to be struck out on this ground alone. 26.On the merits, the submissions proceed, by reference to the three-limbed test in Giella v Cassman Brown & Co Ltd [1973] EA 358 as elaborated in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR, to contend that the Petitioner has failed to establish a prima facie case. It is submitted that the office of Leader of Majority Party is not a constitutional or statutory office but a political party leadership position, created and governed by the Political Parties Act, the Constitution, internal party rules and party decisions, the holder serving at the pleasure of the party and not under any fixed legal tenure protected by law; reliance is placed on Francis Gitau Parsimei & 2 Others v National Alliance Party & 4 Others [2012] eKLR, where the leadership of a party caucus was treated as a matter internal to the party's own governance, to submit that no legally enforceable right capable of protection by interim order arises from the mere loss of such office. It is further submitted, with reliance on Republic v Kenya Revenue Authority ex parte Yaya Towers Ltd [2008] eKLR, that judicial remedies lie only against the actual decision-maker, and that, the undisputed evidence showing the decision to remove the Petitioner to have been made by ODM members at the caucus meeting of 3rd July 2025, with the 3rd Respondent merely communicating that decision in her capacity as Whip and the 2nd Respondent merely giving it administrative effect as required by the Standing Orders, no prima facie case can arise against either of them. 27.On irreparable harm, the submissions rely on Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR for the proposition that injury which can be quantified and compensated by an award of damages is not irreparable, and on Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] eKLR for the proposition that an injunction will not issue where damages afford an adequate remedy. It is submitted that the harm pleaded by the Petitioner — loss of a leadership position, political influence, allowances and privileges, and reputational or political inconvenience — is temporary, quantifiable and compensable, whereas the institutional harm that would follow from reinstating the Petitioner by interim order, including the creation of dual and competing centres of leadership, paralysis of decision-making within the majority party, confusion in the House and its committees, and the undermining of discipline and cohesion on the majority side, is incapable of compensation in damages and would imperil the County Assembly's ability to discharge its constitutional and statutory mandate. 28.Finally, and independently of the foregoing, the 2nd and 3rd Respondents submit that the application is in any event barred by inordinate and unexplained delay. Invoking the equitable maxim that equity aids the vigilant and not the indolent, and relying on Giella v Cassman Brown & Co Ltd, Mbuthia v Jimba Credit Finance Corporation & Another [1988] eKLR and John Kamau Mucuha v The Ripples Ltd [1993] eKLR, it is submitted that the Petitioner, having been aware of his removal from as early as 3rd July 2025, has offered no plausible or satisfactory explanation for the delay before filing the present application on 26th August 2025; that this delay has, in the interim, allowed the County Assembly to reorganise its leadership and continue its legislative business; and that it is, on its own, a sufficient and independent ground upon which the application ought to be dismissed.On this footing, the 2nd and 3rd Respondents pray that the Notice of Motion be dismissed with costs. 29.I addressed the question of conservatory orders in an earlier ruling rendered on the respondents’ application to set aside a conservatory order that I had issued pending the hearing and determination of this application. In that ruling, I noted that it is not in dispute that a conservatory order may be granted at an ex parte stage pending the hearing and determination of an application for such an order while a constitutional petition, within which the application has been filed, is pending determination. Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 makes provision for such an order. It reads as follows:23.(1)Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an application for conservatory or interim orders.(2)Service of the application in sub rule (1) may be dispensed with, with leave of the Court.(3)The orders issued in sub rule (1) shall be personally served on the respondent or the advocate on record or with leave of the Court, by substituted service within such time as may be limited by the Court. 30.In Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR) (2 April 2014) (Ruling) the Supreme Court had the following to say on what conservatory orders entail in a constitutional petition and when they ought to be granted:“86.“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, 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.” 30.It is not in dispute that both the petitioner and the 1st respondent are in agreement that the removal of the petitioner as the majority leader of the County Assembly of Mombasa County is the majority party affair. However, the petitioner has denied that the party ever met, deliberated or resolved to remove him as the majority leader in the assembly. In proof of this fact, he has exhibited on his affidavit in support of the application, a copy of a letter from his party duly signed by Oduor Ong’wen, the Executive Director of the Orange Democratic Movement Party who, like the applicant, has denied knowledge of any change of leadership of the party in the County Assembly. The letter is dated 7 August 2025 and is addressed to the 1st respondent. It reads as follows:“Dear sir,Re: Purported Ouster Of The Leader Majority - County Assembly Of MombasaThe abovementioned matter refers.It has been brought to our attention through a communication dated 5th August 2025 of the ongoing schemes to make changes in the office of the Leader of Majority Party in the County Assembly of Mombasa.As we attempt to ascertain the propriety or otherwise of the issues at play, we urge the status quo be maintained. This will also avail us the opportunity to convene a stakeholders meeting within the next two weeks to address any underlying issues.We look forward to your cooperation on this matter.Yours sincerely,SignedOduor Ong’wenExecutive DirectorThe letter was copied to clerk, County Assembly of Mombasa, the majority leader and the majority chief whip of the Assembly. 30.The petitioner’s party described the ouster of the petitioner as “purported ouster”. It is also apparent from the letter that it does not make any reference to the meeting or meetings that are said to have been held for the removal of the petitioner as the assembly leader; rather, he refers to “the ongoing schemes to make changes in the office of the Leader of Majority Party in the County Assembly of Mombasa.” 31.The 1st respondent did not take this letter kindly as the depositions in his affidavit in response to the motion and the petition would show. The respondent swore, inter alia, as follows:“43.The letter dated 7th August 2025 from the Executive Director of ODM Party which the Petitioner refers to at paragraph 64 of the petition was of no legal consequence because of the following reasons:i.The letter was addressed to me yet as the Petitioner rightly points out had no role in the removal of the Petitioner from office. a pure ODM Party affair. The letter by the Executive Director was addressed to the wrong person and was therefore of no legal consequence.ii.In any event. in the discharge of his duties as the Speaker of the County Assembly of Mombasa. I cannot be directed by the Executive Director of the ODM Party. Therefore, even assuming that I had a role in the Petitioner's removal, I could not take orders from the Executive Director of the ODM Party. The Petitioner’s allegation that I disregarded communication from the Executive Director is made without appreciating that the Executive Director of ODM Party cannot direct THE Speaker on how to discharge his duties.iii.The letter was overtaken by events since it was dated and received by me on 7th August 2025, long after the Petitioner had been removed from office on 3rd July 2025: after the 1st Respondent had been notified of the removal on 4th July 2025 in accordance with Standing Order 15(5): and after the removal of the Petitioner from office had been communicated to the County Assembly on 5th August 2025. The only status quo obtaining at the material time and which could be maintained as at that date was for the 3rd Respondent to continue serving as the Leader of Majority Party because she was the newly elected Leader of Majority Party.iv.The Executive Director of ODM Party ought to have invoked the dispute resolution mechanisms of the party to resolve the dispute surrounding the removal of the Petitioner from the office of the Leader of Majority Party rather than writing to me who had nothing to do with the removal.v.Under Article 20(1) of the Constitution of the ODM Party. the Secretary General is the party spokesperson and the only person who is authorized to communicate on behalf of the ODM Party. The Executive Director had no authority to write to me on behalf of the ODM Party and his letter was inconsequential. Annexed herewith and marked as "AK 4" is a true copy of the ODM Party Constitution.” 30.As noted in my earlier ruling the question whether the “meeting held on 3rd July 2025” to which the 1st respondent has made reference in his letter is what the executive director of the Orange Democratic Movement party had in mind when he spoke of the “the ongoing schemes” is a question that can only be determined after the hearing of the petition. 31.However, the 1st respondent’s statement on oath with respect to the executive director’s letter reveals that the question whether the pre-requisite protocols were taken for the removal of the petitioner and whether any meeting was held in which it was resolved that the petitioner should be ousted as the leader of the majority is valid question on which this Honourable Court has to make a determination. 32.There is on record an application for cross-examination of the 1st respondent on depositions made in his affidavit on the very question of whether any party meeting or meetings were convened to deliberate on the change of leadership of the majority party in the County Assembly. 33.If it turns out that indeed no such meeting took place, then the question whether the respondents or any of them would proceed, or was entitled to proceed, as if a meeting had taken place and, further, based on that presupposition, effect changes in the assembly on the leadership of the majority party, would be a valid question for determination by this Honourable Court. 34.A question was raised on the court’s jurisdiction to determine the petition; it is apt at this point to lay that question to rest. 35.The 1st Respondent's characterisation of this dispute as a "purely intra-party affair" is not, with respect, self-evidently correct on the pleadings before me. The Petitioner does not confine his complaint to the propriety of the ODM caucus decision as such; he complains, in addition, of the manner in which that decision was communicated to and acted upon by the 1st and 2nd Respondents, entities exercising public power under Article 178 of the Constitution and the County Governments Act, and of the consequential administrative acts taken against him in his public capacity, including the termination of his personal assistant's contract and the withdrawal of privileges attaching to the office. Whether those downstream acts are properly amenable to constitutional and judicial review notwithstanding the intra-party origin of the underlying decision, and whether Section 40 of the Political Parties Act ousts this Court's jurisdiction over such acts, are live and arguable questions that this Court is better placed to determine after full submissions at the hearing of the Petition, rather than at this interlocutory stage. 36.Similarly, the objection concerning the standing of the Petitioner's advocate to practise, resting as it does on materials procured from professional and social-media databases whose accuracy and currency have not been tested, together with the objection concerning premature resort to the Commission on Administrative Justice on the access-to-information limb, raise mixed questions of fact and law more properly resolved after the parties have had a full opportunity to be heard. 37.For the reasons given, I am satisfied that the applicant has made out case for grant of the interim reliefs pending the hearing of the main petition. Accordingly, the notice of motion is allowed in the following terms:(a)An interim order of injunction is hereby granted, restraining the Respondents either by themselves, agents, servants and/or employees, from preventing, barring, restricting and/or interfering with the petitioner's/applicant's performance, discharge and/or execution of his duties as the Leader of Majority, Mombasa County Assembly, whatsoever and/or howsoever pending the hearing and determination of the Petition herein.(b)A Conservatory Order is hereby granted to protect, preserve and/or conserve the status of the petitioner/applicant as the Leader of Majority. Mombasa County Assembly as prevailed as at 4th August, 2025 pending the hearing and determination of the Petition herein.(c)Costs will abide the outcome of the petition. SIGNED, DATED AND DELIVERED ON 10 JULY 2026NGAAH JAIRUSJUDGE