https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12275

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E035 OF 2025** **PETER KURIA MWANIKI .................................... PETITIONER** **VERSUS** **HON. SUSAN WAKARURA KIHIKA .............. 1ST RESPONDENT** **UNITED DEMOCRATIC ALLIANCE .............. 2ND RESPONDENT** **THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ............................................ 3RD RESPONDENT** **RULING** 1. Before me are two Notices of Preliminary Objection. The first is by the 1st Respondent, Hon. Susan Wakarura Kihika, the Governor of Nakuru County, dated 22nd July 2025. The second is by the 3rd Respondent, the Independent Electoral and Boundaries Commission, dated 13th October 2025. The 2nd Respondent, the United Democratic Alliance, did not participate in these proceedings. 2. The Petitioner, Peter Kuria Mwaniki, filed a Petition dated 14th April 2025. He seeks, among other reliefs, a declaration that the 1st Respondent is in violation of Article 78(2) of the Constitution by holding dual citizenship while serving as a state officer, a declaration that the 1st Respondent, Hon. Susan Wakarura Kihika, is not a fit and proper person with due regard to her honesty,dignity,personal integrity, and suitability and hence, her election was inconsistent with the constitution and invalid, a declaration that the nomination and election of the 1st Respondent was unconstitutional, null and void ab initio, an order declaring the seat of Governor for Nakuru County vacant and pave way for the swearing in of the Deputy Governor as the Governor of the County Government of Nakuru, an order compelling the 3rd Respondent to initiate constitutional mechanisms for the removal of the 1st Respondent, costs and any other relief that this Honourable Court deems fit and just in the circumstances.. 3. The Preliminary Objections challenge the jurisdiction of this Court to entertain the Petition. The Respondents contend that the Petition is, in substance, an election petition disguised as a constitutional petition, filed outside the 28-day timeline prescribed by law, and that it violates the principle of exhaustion of remedies. They further contend that the Petition seeks to remove a Governor through processes not known in law, bypassing the constitutional framework established under Articles 181 and 182 of the Constitution and Section 33 of the County Governments Act. 4. The Petitioner, on his part, maintains that this is not an election petition but a challenge to the continued holding of State office, which constitutes a continuing constitutional violation that can be challenged at any time. He relies on the distinction established by the Court of Appeal in ***Bishop Donald Kisaka Mwawasi v Attorney General & 2 others [2014] KECA 561 (KLR)***, between eligibility to vie for office and eligibility to hold office. He also relies on the doctrine of continuing violation, as established in ***Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others [2018] eKLR***. 5. I have carefully considered all the pleadings, submissions, and authorities filed by all parties. 6. Before I delve into the substantive issues, I must pause to make a preliminary observation. This case presents this Court with a profound tension between two competing constitutional imperatives. On the one hand, there is the imperative of ensuring that those who hold public office are persons of integrity who meet the constitutional requirements for leadership. Article 78(2) of the Constitution is unequivocal: a person is not eligible for election or appointment to a State office unless the person is a citizen of Kenya and does not hold dual citizenship. This provision is not a mere technicality. It goes to the very heart of the sovereignty of the Republic of Kenya and the loyalty that State officers owe to the nation. As the Court of Appeal observed in Bishop Donald Kisaka Mwawasi v Attorney General & 2 others [2014] KECA 561 (KLR): ***"A dual citizen is eligible to seek nomination for election as a member of Parliament or member of county government and to stand as a Member of Parliament or county government in an election and also eligible to hold any State office. However, a dual citizen is disqualified upon election or appointment to a State office from assuming office before voluntarily and officially renouncing his other citizenship howsoever granted in accordance with Kenya Citizenship and Immigration Act unless as Article 78(3) provides, he has no ability under the laws of the other country to renounce citizenship of the other country."*** 7. Section 31 of the Leadership and Integrity Act reinforces this position. It provides: ***"(1) subject to Article 78(3) of the Constitution, a State officer who acquires dual citizenship shall lose his or her position as a State officer.*** ***(2) a person who holds dual citizenship shall, upon election or appointment to a State office, not take office before officially renouncing their other citizenship in accordance with the provisions of Kenya Citizenship and Immigration Act, 2011 (No. 12 of 2011)."*** 8. On the other hand, there is the imperative of finality in elections. The Constitution and the Elections Act have established strict timelines for challenging the validity of an election. Article 87(2) of the Constitution provides: ***"Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission."*** 9. Further, section 76 of the Elections Act, enacted pursuant to Article 87(2), provides: ***"A petition to question the validity of an election shall be filed within twenty-eight days after the date of declaration of the election results and served within fifteen days of presentation."*** 10. These timelines are not arbitrary. They are designed to ensure that the electorate knows who their leaders are quickly and assuredly, and that uncertainty in electoral outcomes is minimized. As the court observed in ***Muiya v Nyagah & 2 others [2008] 2 KLR (EP) 493***: ***"The law states in no uncertain terms that presentation and service of a petition as the case is here, must be within 28 days from the date of publication in the gazette of the election result. On this strictness, this Court has one thing or two to say: Elections are serious matters of a State with its citizens. As elections are held, the outcome announced, the electorate must know their political leader quickly and assuredly. There must be limited or no uncertainty about this. Roles of elected representatives are many and diverse vis a vis their electors. To perform the roles well the elected must be sure of his post and the elector of his leader. And the sooner the better to give that certainty. So, either the election is accepted at once or if challenged, that challenge must be moved along to the end swiftly enough to restore certainty. And for that, election petitions are governed by this Act with its Rules in a very strict manner. Election petition law and the regime in general, is a unique one and only intended for elections. It does not admit to other laws and procedures governing other types of disputes."*** 11. The tension between these two imperatives lies at the heart of this case. The Petitioner asks this Court to enforce Article 78(2) of the Constitution, a provision of unquestionable constitutional importance. But he seeks to do so through a Petition filed three years after the election, bypassing the mechanisms established by law for challenging eligibility and for removing a Governor. The Respondents ask this Court to uphold the procedural and jurisdictional framework established by the Constitution and the Elections Act. 12. This Court must navigate this tension with care, respecting both the imperative of integrity in leadership and the imperative of finality in elections. The Court cannot ignore a constitutional violation simply because it is raised late. But neither can the Court disregard the constitutional and statutory framework that governs the resolution of electoral disputes. My task is to determine, within the bounds of the law, which of these imperatives must prevail in the circumstances of this case. 13. The principles governing Preliminary Objections are well settled. The locus classicus is ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, where the Court of Appeal held: ***"… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit."*** ***"It (a preliminary objection) raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*** 14. This principle has been consistently applied by Kenyan courts. The Supreme Court in ***Aviation & Allied Workers Union of Kenya v Kenya Airways Ltd & 3 Others [2015] eKLR*** pronounced: ***"Thus a preliminary objection may only be raised on a pure question of law. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts [and that] the facts are deemed agreed as they are prima facie presented in the pleadings on record."*** 15. I therefore determine whether the Respondents' Preliminary Objections raise pure points of law. The Petitioner argues that they do not, because they require factual findings on whether the 1st Respondent is actually a United States citizen and whether she has renounced that citizenship. The Respondents argue that they do, because they challenge the jurisdiction of this Court, which is a question of law. 16. I have considered both arguments carefully. The Petitioner relies on the principle that a Preliminary Objection cannot be sustained if it requires factual findings. The Petitioner argues that the Preliminary Objections require the Court to ascertain facts about the 1st Respondent's citizenship status and whether she has renounced her United States citizenship. However, the Respondents' Preliminary Objections challenge the jurisdiction of this Court. The Court does not need to determine whether the 1st Respondent is actually a dual citizen to decide whether the Petition is time-barred or whether the dispute should have been raised before the Independent Electoral and Boundaries Commission. The Court is being asked to determine whether it has the legal authority to hear the Petition at all. This is a pure point of law. 17. I find that the Preliminary Objections challenge the jurisdiction of this Court, which is a pure point of law. The Preliminary Objections therefore meet the Mukisa Biscuit threshold. 18. The law on jurisdiction is equally well settled. As the Supreme Court held in **Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR**: ***"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. “*** 19. The Court of Appeal in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)*** held: ***"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."*** 20. If this Court lacks jurisdiction, it must "down its tools" and proceed no further. I must therefore carefully examine whether the Petition falls within the jurisdiction of this Court, or whether it is barred by other constitutional and statutory provisions. 21. The Constitution and the Elections Act establish a comprehensive framework for resolving electoral disputes. Article 88(4)(e) of the Constitution provides: ***"The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament, and, in particular, for—the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results."*** 22. Section 74(1) of the Elections Act provides: ***"Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results*."** 23. Section 4(e) of the Independent Electoral and Boundaries Commission Act provides: ***"The functions of the Commission are—the settlement of electoral disputes including disputes relating to or arising from nominations, but excluding petitions and disputes subsequent to the declaration of election results."*** 24. Disputes regarding the eligibility of a candidate for nomination must be raised before the Commission in the first instance. In ***Mutabi v Thiriku & 4 others [2022] KEHC 13678 (KLR),*** the court held: ***"Pre-election disputes such as those regarding suitability and eligibility for nomination of candidates, must be resolved by the IEBC in the first instance....... The High Court's jurisdiction can only be triggered once the IEBC makes a decision on the issue....... The jurisdiction of this court ought not to be invoked until that process is exhausted."*** 25. After an election, Article 87(2) of the Constitution and Section 76 of the Elections Act provide that a petition challenging the election of a person, other than a presidential election, must be filed within 28 days of the declaration of election results. This timeline is strict. The Court of Appeal in ***Ferdinand Ndung'u Waititu v Independent Electoral & Boundaries Commission & 8 others [2014] KECA 615 (KLR)*** affirmed: ***"These time strictures regarding election matters do not apply to the Court of Appeal only. As I have set out above, the filing of a petition concerning an election petition, with the exception of a presidential election petition, must be done within 28 days of declaration of the results. That is the law according to Article 87 (2) Constitution. Similar provision is also found at section 77 of the Elections Act."*** 26. Lord Denning J. in ***Macfoy v United Africa Co. Ltd (1961) 3 All E.R.*** held: ***"If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad, you cannot put something on nothing and expect it to stay there. It will collapse."*** 27. Once a Governor is in office, Article 181 of the Constitution and Section 33 of the County Governments Act provide the exclusive procedure for removal. The Governor can be removed only on specified grounds, and only through a process that begins with a resolution by the County Assembly supported by two-thirds of all its members, followed by an investigation and determination by the Senate. 28. The Court of Appeal in ***Speaker of the National Assembly v Karume [1992] KECA 42 (KLR***) established the principle of exhaustion of remedies: ***".......Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed."*** 29. The Petitioner's argument is grounded in the distinction established by the Court of Appeal in Bishop Donald Kisaka Mwawasi v Attorney General & 2 others [2014] KECA 561 (KLR). As quoted above, the Court of Appeal held that a dual citizen is eligible to seek nomination for election but is disqualified upon election from assuming office before voluntarily and officially renouncing foreign citizenship. The Petitioner contends that this distinction means that the 1st Respondent may have been eligible to vie for office, but was disqualified from assuming office, and that her continued holding of office without renunciation is a continuing constitutional violation.The Petitioner also relies on Section 31 of the Leadership and Integrity Act. The Petitioner further relies on the doctrine of continuing violation, as established in Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others [2018] eklr. 30. The Petitioner argues that as long as the 1st Respondent continues to hold office while allegedly ineligible, the violation is ongoing and ripe for judicial intervention. The Petitioner also relies on the expert affidavit of Jephnei Orina, a dual-qualified advocate in Kenya and the United States. The deponent states: ***"Under Texas law, specifically Texas Constitution Article Art. V, 21, 30 Tex. Gov't Code § 41.001, § 44.002, the position of Assistant District Attorney ('ADA') is reserved exclusively for United States citizens."*** ***"In my professional experience, both as a US licensed attorney and a practitioner, it is legally impossible for a non-U.S. citizen to be appointed or to serve as an Assistant District Attorney, whether in Dallas County or any other county in Texas."*** ***"If the 1st Respondent indeed served in that capacity, then she must have been a U.S. citizen at the material time."*** 31. The Petitioner's argument is legally compelling. The Bishop Mwawasi distinction is valid. Section 31 of the Leadership and Integrity Act supports it. The doctrine of continuing violation is well established. The expert affidavit provides a strong evidentiary basis for the claim that the 1st Respondent was a United States citizen. 32. The 1st Respondent argues that despite the Petitioner's framing, the Petition is, in substance, an election petition challenging the validity of her election. She points to the reliefs sought, which include a declaration that the election was unconstitutional and null and void ab initio, and an order declaring the seat vacant. She also points to the timing of the Petition, filed three years after the election, and the fact that the Petitioner admits the facts were in the public domain before the 2022 election. The 1st Respondent relies on **Muiya v Nyagah & 2 others [2008] 2 KLR (EP) 493** for the principle that election petition law is unique and does not admit to other laws and procedures governing other types of disputes. 33. The 1st Respondent also relies on the strict timelines established in Article 87(2) of the Constitution, Section 76 of the Elections Act, and Rule 10(1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017. She relies on Mary Wambui Munene v Peter Gichuki King'ara & 2 others [2014] eKLR for the principle that an election petition filed outside the statutory period is void ab initio. The 1st Respondent further relies on the principle of exhaustion of remedies. The Petitioner had the opportunity to raise the issue of her eligibility before the election with the Independent Electoral and Boundaries Commission under Article 88(4)(e) and Section 74 of the Elections Act. He also had the opportunity to file an election petition within 28 days under Article 87(2) and Section 76 of the Elections Act. He did neither. 34. The 1st Respondent also argues that the Petition is not properly before this Court because it is, in essence, an election petition and no election court has been properly constituted. Rule 6 (2)(3)of the Elections (Parliamentary and County Elections) Petition Rules, 2017 requires: ***"The Chief Justice may, in consultation with the Principal Judge of the High Court, designate judges for the purpose of sub-rule 1(a). The Chief Justice shall publish the name of the Judge designated under sub-rule (2), in the Gazette and in at least one newspaper of national circulation."*** 35. The 1st Respondent contends that there is no evidence on record that the judicial officer presiding over this matter was ever designated and gazetted in accordance with Rule 6. She relies on Ferdinand Waititu v Independent Electoral & Boundaries Commission & Others [Nairobi Election Petition No. 1 of 2013], cited with approval in Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & another [2013] eKLR, where the court held: ***"The Rules also contemplate that several steps must be taken prior to the actual hearing of the Petition. For instance, the Rules require, among other things, that the Chief Justice gazettes, by name, the Judge or Magistrate who has authority to hear an Election Petition*."** 36. The 1st Respondent also argues that the Petition seeks her removal through processes not known in law, bypassing Articles 181 and 182 of the Constitution and Section 33 of the County Governments Act. She relies on ***Martin Nyaga Wambora v County Assembly of Embu & 37 others [2014] eKLR,*** and ***Sonko v County Assembly of Nairobi City & 11 others [2022] eKLR***. 37.The 1st Respondent's arguments are compelling. The reliefs sought, including a declaration that the election is null and void ab initio, are a direct challenge to the validity of the election itself. The Petitioner's own evidence was in the public domain before the election. He cannot now bypass the statutory framework for resolving electoral disputes. 38. The 3rd Respondent, the Independent Electoral and Boundaries Commission, argues that the Petition is an election petition disguised as an ordinary constitutional petition. It submits that the constitutional and statutory timelines for filing election petitions following the August 2022 Nakuru County gubernatorial election have lapsed. 39. The 3rd Respondent submits that the Petitioner, as a citizen of Kenya and registered voter in Nakuru County, had an opportunity to raise the issues alleged in the petition with the 3rd Respondent for determination before the August 2022 Nakuru County gubernatorial elections pursuant to Article 88(4)(e) of the Constitution, Section 4(e) of the Independent Electoral and Boundaries Commission Act, and Section 74 of the Elections Act. He also had the opportunity to file a petition to challenge the election of the 1st Respondent as the Governor for Nakuru County.The 3rd Respondent argues that the Petitioner is guilty of laches as the alleged facts upon which the petition is based were, as admitted by the Petitioner, in the public domain before the 2022 Nakuru County gubernatorial election.The 3rd Respondent further submits that the Petition is an invitation to the Court to exercise powers vested in the County Assembly of Nakuru under Article 181 of the Constitution as read together with Sections 15 and 33 of the County Governments Act. 40. The 3rd Respondent argues that the Petition violates the principle of exhaustion of remedies. It relies on ***Speaker of the National Assembly v Karume [1992] KECA 42 (KLR***) and the ***Digital Migration Case [2014] eKLR*** for the proposition that where there is a clear procedure for the redress of any particular grievance, that procedure should be strictly followed. 41. The 3rd Respondent also relies on the principle established in ***Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR*** that jurisdiction flows from the Constitution or legislation, and a court cannot arrogate to itself jurisdiction exceeding that conferred by law. It also relies on ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)*** for the proposition that jurisdiction is everything. 42. The 3rd Respondent's arguments are also compelling. The Petitioner had clear remedies available to him at different stages of the electoral process. He failed to pursue them. He cannot now come to this Court three years later seeking to bypass the entire framework established by law. 43. I must reconcile these competing arguments. The Petitioner's reliance on the Bishop Mwawasi distinction and the doctrine of continuing violation raises important constitutional questions. But these principles cannot be applied in a vacuum. They must be applied within the framework established by the Constitution and the Elections Act for resolving electoral disputes. 44. The Court of Appeal in Bishop Mwawasi itself acknowledged the distinction between eligibility to vie and eligibility to hold office. But that distinction does not mean that a challenge to the validity of an election can be brought at any time. The challenge must still be brought within the framework established by law. If the Petitioner wanted to challenge the 1st Respondent's eligibility to be elected, he had 28 days to do so. He did not. If the Petitioner wanted to challenge the 1st Respondent's continued holding of office without renunciation, the proper forum is the County Assembly of Nakuru under Article 181 of the Constitution and Section 33 of the County Governments Act. 45. The doctrine of continuing violation cannot be used to circumvent the strict timelines for election petitions. The Petitioner's own evidence was in the public domain before the 2022 election. The Petitioner could have raised this issue at the time. He cannot now use the doctrine of continuing violation to revive a challenge that is three years late. 46. The principle of exhaustion of remedies is also applicable. The Petitioner had clear remedies available to him at different stages of the electoral process. He could have raised the issue before the election with the Independent Electoral and Boundaries Commission. He could have filed an election petition within 28 days. He could have petitioned the County Assembly to consider removal under Article 181 of the Constitution and Section 33 of the County Governments Act. He did none of these. He instead comes to this Court three years later, seeking to bypass the entire framework established by law. 47. I must also consider the relief sought. The Petitioner asks this Court to declare the election unconstitutional and null and void ab initio, and to declare the seat vacant. This is a serious remedy that goes to the heart of the democratic process. It cannot be granted lightly or outside the framework established by law.The Supreme Court in ***Sonko v County Assembly of Nairobi City & 11 others [2022] eKLR*** was clear that the process of removing a Governor is categorized into two stages, and that the organ vested with the mandate at first instance to move a motion for the removal of a County Governor is the County Assembly. This Court cannot bypass that process. 48. For the reasons stated above, I find that the preliminary objections dated 13th October 2025 and 22nd July 2025 are merited and are therefore upheld. Consequently, the Petition dated 14th April 2025 is hereby struck out with no order as to costs. **Dated, signed, and delivered at Nakuru this 30th day of July, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A Ochieng holding brief for Ojienda for 1st Respondent Tugei for 2nd and 3rd Respondent N/A for the Petitioner