https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10679

Ndambuki & 4 others v Speaker, Machakos County Assembly & 2 others (Constitutional Petition E002 of 2026) [2026] KEHC 10679 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 10679 (KLR) Republic of Kenya In the High Court at Machakos Constitutional Petition E002 of 2026 NIO Adagi, J July 2, 2026 IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 22 (1) OF THE CONSTITUTION OF KENYA (2010) AND IN THE MATTER OF: CONTRAVENTIONS AND THREATENED CONTRAVENTIONS OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 1, 2(2), 3(1), 10(2), 19, 20, 21, 27, 47, 174, 175 AND 201 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ELECTION OF THE CHAIRMAN OF THE BUDGET AND APPROPRIATIONS COMMITTEE OF THE MACHAKOS COUNTY ASSEMBLY Between Dominic Ndambuki 1st Petitioner Nicholas Nzioka 2nd Petitioner Stephen Mwanthi 3rd Petitioner Winnie Mutua 4th Petitioner Phoebe Koki 5th Petitioner and Speaker, Machakos County Assembly 1st Respondent Clerk, Machakos County Assembly 2nd Respondent Machakos County Assembly 3rd Respondent Ruling The application 1.This ruling is on the Petitioners’ (hereinafter referred to as “the Applicants”) notice of motion application dated 18th February 2026 seeking for orders that: - 1.Spent 2.Spent 3.As an interim measure of protection, a conservatory order does issue stopping the Respondents from effecting changes in the leadership of Machakos County Budget and appropriation Committee pending the hearing and determination of the Petition. 4.As an interim measure of protection, a conservatory order does issue that the leadership of Machakos County Budget and appropriation Committee of Machakos County Assembly as constituted before the elections held on the 9th February, 2026 and 16th February, 2026 to continue discharging the functions of the committee pending the hearing and determination of this application. 5.As an interim measure of protection, a conservatory order does issue that the leadership of Machakos County Budget and appropriation Committee of Machakos County Assembly as constituted before the elections held on the 9th February, 2026 and 16th February, 2026 to continue discharging the functions of the committee pending the hearing and determination of the Petition. 2.The application is supported by the affidavit of Dominic Ndambuki, the 1st Applicant which basically repeats the averments contained in the grounds on the face of the application. The Applicants contends that: -a.The Petitioners are a majority of the members of the Machakos County Assembly Budget and Appropriations Committee.b.The Standing Orders of the Machakos County Assembly establishes the Budget and Appropriations Committee as a committee of the House vested with the responsibility of overseeing the county budget and appropriations.c.Membership of the Committee is drawn from members of the County Assembly and presently the Committee has 11 membersd.The Standing Orders further provides that the chairman and vice chair of the Committee are to be elected by members of the committee by a majority of the votes of the members present.e.The 2nd Respondent issued a Notice calling for election of members of the Committee to be conducted on 9th February 2026.f.The Petitioners being members of the Committee and other members duly convened at the appointed place and voted for the persons to be elected chairman and vice chairman respectively.g.At the said meeting, the members voted for the Vice Chairman by unanimous vote while the vote for Chairperson resulted in a tie since one member was not present.h.As a result of the tie in voting, the members present resolved to push the voting of chairman of the Committee to be held on 16th February 2026 at 10 a.m.i.The 2nd Respondent being the administrative support of the Committee provided Hansard and minute taking services at the Committee meeting where the voting was taking place.j.On 16th February 2026 the members of the Committee convened to cast a vote for chairman in which election, the Hon. Dominic Ndambuki was elected as the Chairperson of the Committee by five votes of the members present.k.The acting Chairperson of the Committee instead of recording the vote of the members present resolved to arbitrarily end the meeting thereby undermining the wish and will of the members present as cast in the voting.l.In violation of the Constitution, the 1st Respondent has refused and failed to respect the votes of the members of the Committee by ignoring the persons elected as committee leaders at the meeting of 16th February 2026.m.To further demonstrate their ill intention to undermine the will of the member of the Committee, the Respondents have opted to de-whip some members of the Committee with a view to change the composition of the Committee and force a fresh vote that favours their position.n.The Petitioner has a legitimate expectation that the Respondents shall at all times be guided by the laws of the Republic in executing their mandates and that they shall at all times be guided by the Constitution, statutory provisions, the Fair Administrative Action Act and the Standing Orders of the Machakos County Assembly.o.Of the immediate concern to the Petitioner in the absence of the interim conservatory orders sought, the success of this application will be rendered nugatory while at the same time expose the Applicants to violation of their fundamental rights and freedoms, right to equal benefit of the law, right to fair administrative action, objects and principles of devolution as guaranteed by the Constitution.p.It is in the interest of Justice that the order sought is granted so as to protect the Constitutional foundations of the Bill of Rights, the constitutional principles and values. The Response 3.The Respondents have opposed the application vide the Replying Affidavit sworn on 20th November 2024 by Peter Mbatha, the acting Clerk of the County Assembly of Machakos, the 2nd Respondent sworn on his behalf and on behalf of the 1st and 3rd Respondents. The Respondents depone that the application sought conservatory orders to stop the Respondents from effecting changes in the leadership of' the Budget and Appropriations Committee ("the Committee") and to maintain the leadership of the Committee as was before the elections held on 9th and 16th February 2026 until the determination of the Petition. 4.The Committee is a select committee of the 3rd Respondent established under Standing Order 186 of the Machakos County Assembly Standing Orders ("the Standing Orders") and consists of 9 members including the Chairperson thus from the onset the Committee does not have eleven (I1) members as stated by the Applicants. 5.Whenever a vacancy arises in the office of Chairperson or Vice-Chairperson of a select committee, the 2nd Respondent is required in line with Standing Order 159(2) of the Machakos County Assembly Standing Orders to appoint a place, date and time for the meeting of a committee to conduct an election. 6.The Respondents while adhering to governance values in Articles 10, 201 and 232 together with the objects of devolution in Articles 174 and 175 organized and enabled the Applicants and other Honourable members of the Committee to conduct a credible election or their Chairperson and Vice-Chairperson on the 9th February 2026. 7.There was no delay or failure on the part of the Respondents to facilitate and assist Honourable Members to conduct the said election. The Honourable Members conducted the election of the Vice-Chairperson by a unanimous vote as stated by the Petitioner at paragraph 4 of the Petitioners Notice of Motion. 8.Upon closure of the voting exercise of the Chairperson and counting of the ballot papers, the result of the ballot was announced to be a tie and Standing Order 159(10) that guides that in the case of a tie from votes cast, the 2nd Respondent shall hold a further ballot until one candidate receives a majority of votes. 9.Further, on the issue of a tie in an election, section 20(2)(b) of the County Governments Act No. 17 of 2012 states that whereas question if proposed for decision results in a tie, the question is lost. The tie in the vote for the Chairperson of the Committee justified the 2nd Respondent to conduct further ballots until a Chairperson was elected to the Committee. A further notice for an election to take place on 16th February 2026 was issued. 10.In absence of any cogent justification, the Petitioners have failed to discharge their burden to prove that the Respondents are culpable of any wrong doing in as far as the conduct of the elections is concerned. 11.The 2nd Respondent's main role in the elections herein is to make the necessary preparatory arrangements for the conduct of an election, including the issuance of notices of meetings of the Committee showing the date, time, venue and agenda of a meeting. There is no evidence that this role was neglected. On the contrary, the Petitioners/Applicants' application states under paragraph 6 that the 2nd Respondent provided administrative support where the voting was taking place. 12.Upon election, the Chairperson-elect assumes office and the roles of Chairperson which are enshrined in Standing Order 160 to preside at meetings, perform functions and exercise powers assigned by the Committee, resolutions of the Assembly or legislation and to be the spokesperson of the Committee. 13.Although the Petitioners/Applicants aver that there was a credible election that took place on 16th February 2026, the alleged election is not substantiated by any Hansard report, minutes or other supporting documents to identify the real bone of contention before this Honourable Court. The Applicants have laid their burden of proof with the Respondents whereas the Respondents have demonstrated their regard for expeditious, efficient, lawful and procedurally fair administrative action in the voting exercise by the Committee. Therefore, the Respondents have upheld Article 47 of the Constitution. 14.The 1st Respondent has no direct role in respect to the voting exercises by the members of the Committee. The Petitioners' allegation in paragraph 9 of the application that the 1st Respondent has ignored the "committee leaders" is as vague as it is baseless since there is only one position under contention in the Petitioners' pleadings, that is the Chairperson's position and there is no proof for such allegation nonetheless. 15.The 1st Respondent is charged with the maintenance of order in the Assembly under Standing Order 94, however, if there is disorder the same must be reported to be acted upon. The Applicants merely rushed to court with no justification at all. Similarly, they did not lodge any complaint or report to be considered by the 1st and 2nd Respondents thus violating the doctrine of exhaustion. Pursuant to Standing Order 94, the Applicants could have reported any disorder in the Committee to the House which they did not and chose to prematurely proceed to Court. 16.There is no evidence to support the allegations that the Respondents have any direct or indirect ill-willed intention either individually or in collaboration, to alter the composition of the Committee to suit whatever the petitioners/applicants allege would be favourable to the Respondents. 17.The application does not meet the threshold for this Court to grant conservatory orders since the Applicants have not demonstrated: a prima facie case with a likelihood of success; a likelihood that they will suffer prejudice or that there will be any violation or threat of violation of their rights. 18.That this Court cannot interfere with the elections of Committee of a County Assembly where the dispute is a tie. It is upon the Honourable Members to persuade each other until there is a winner. 19.There is no vacuum in presiding the Committee as the Vice-Chairperson was elected by a unanimous vote as stated by the Petitioner at paragraph 4 of the Applicants’ Notice of Motion and even in the absence of the Vice-Chairperson the Honourable Members present can elect one of them to preside pursuant to Standing Order 168. 20.The Respondents have continued to schedule business for the Committee, including the election of Chairperson, to which the Applicants herein have absconded attending meetings after filing this petition denying the Committee quorum to transact business The Respondents attached notices of agenda for Committees, Order papers and attendance registers. 21.In the interest of public interest, there is no need for this Court to grant the conservatory orders sought in the application as that would introduce a new status quo. 22.The Applicants ought to pay costs to the Respondents for filing the frivolous application herein and wastage of public resources and time. 23.The continued non-performance of the Applicants’ functions in the Committee and non-compliance with the procedures set out in the Standing Orders and other laws are unconstitutional, unlawful and null and void. Standing Order 159(2) gives a time-frame of 7 days for filling of a position whenever a vacancy occurs in the office of Chairperson or Vice-Chairperson in the Committee. Directions 24.Parties were directed to file and exchange their respective submissions to the instant application. 25.In summary, the Applicants submitted that the Standing Orders of the Machakos County Assembly explicitly provide that the Chairman and Vice-chairman of the Budget and Appropriations Committee are to be elected by a majority vote of the members present. The Applicants duly convened and conducted elections on 9th February 2026 and 16th February 2026, during which the leadership was elected. The Respondents' refusal to recognize the elected leadership and their attempts to de-whip members to force a fresh vote are unconstitutional and unlawful and has ripple effect in service delivery to the people of Machakos County. The grant of the conservatory orders sought in the Notice of Motion dated 18th February 2026 are necessary to protect the Applicants' Constitutional rights, preserve the integrity of the democratic processes within the Machakos County Assembly, and uphold the principles and values enshrined in the Constitution of Kenya, 2010. 26.In summary. the Respondent submitted that the application does not meet the threshold for this Court to grant conservatory orders since the Applicants have not demonstrated: a prima facie case with a likelihood of success; a likelihood that they will suffer prejudice or that there will be any violation or threat of violation of their rights. The Respondents pray that the application be dismissed with costs and that the interim conservatory order be vacated. Analysis and Determination 27.I have carefully considered the Applicants’ application dated 18/02/2026, the Respondents’ replying affidavit sworn on 20th November 2024, the parties’ rival submissions and the applicable provisions of the laws. The only issue for my determination is whether the application is merited and if it is, what directions ought to be given on the Petition. 28.The Applicants at this point seek for orders that as an interim measure of protection, a conservatory order does issue that the leadership of Machakos County Budget and Appropriation Committee of Machakos County Assembly as constituted before the elections held on the 9th February, 2026 and 16th February, 2026 to continue discharging the functions of the committee pending the hearing and determination of the Petition. They contend that on 9th February 2026, them being members of the Committee and other members, duly convened at the appointed place and voted for the persons to be elected Chairman and Vice chairman respectively. At the said meeting, the members voted for the Vice Chairman by unanimous vote while the vote for Chairperson resulted in a tie since one member was not present. 29.As a result of the tie in voting, the members present resolved to push the voting of Chairman of the Committee to be held on 16th February 2026 at 10 a.m. The 2nd Respondent being the administrative support of the Committee provided Hansard and minute taking services at the Committee meeting where the voting was taking place. 30.On 16th February 2026 the members of the Committee convened to cast a vote for Chairman in which election, the Hon. Dominic Ndambuki was elected as the Chairperson of the Committee by five votes of the members present. 3.1The acting Chairperson of the Committee instead of recording the vote of the members present resolved to arbitrarily end the meeting thereby undermining the wish and will of the members present as cast in the voting. In violation of the Constitution, the 1st Respondent has refused and failed to respect the votes of the members of the Committee by ignoring the persons elected as committee leaders at the meeting of 16th February 2026 thus necessitating the filing of this instant application and the Petition. 32.On the other hand, the Respondents aver that the Budget and Appropriation Committee of Machakos County Assembly Committee is a select committee of the 3rd Respondent established under Standing Order 186 of the Machakos County Assembly Standing Orders ("the Standing Orders") and consists of 9 members including the Chairperson thus from the onset the Committee does not have eleven (I1) members as stated by the Applicants. 33.Whenever a vacancy arises in the office of Chairperson or Vice-Chairperson of a select committee, the 2nd Respondent is required in line with Standing Order 159(2) of the Machakos County Assembly Standing Orders to appoint a place, date and time for the meeting of a committee to conduct an election. 34.The Respondents while adhering to governance values in Articles 10, 201 and 232 together with the objects of devolution in Articles 174 and 175 organized and enabled the Applicants and other Honourable members of the Committee to conduct a credible election or their Chairperson and Vice-Chairperson on the 9th February 2026. 35.There was no delay or failure on the part of the Respondents to facilitate and assist Honourable Members to conduct the said election. The Honourable Members conducted the election of the Vice-Chairperson by a unanimous vote as stated by the Petitioner at paragraph 4 of the Petitioners Notice of Motion. 36.Upon closure of the voting exercise of the Chairperson and counting of the ballot papers, the result of the ballot was announced to be a tie and Standing Order 159(10) that guides that in the case of a tie from votes cast, the 2nd Respondent shall hold a further ballot until one candidate receives a majority of votes. 37.Further, on the issue of a tie in an election, section 20(2)(b) of the County Governments Act No. 17 of 2012 states that whereas question if proposed for decision results in a tie, the question is lost. The tie in the vote for the Chairperson of the Committee justified the 2nd Respondent to conduct further ballots until a Chairperson was elected to the Committee. A further notice for an election to take place on 16th February 2026 was issued. 38.In absence of any cogent justification, the Applicants have failed to discharge their burden to prove that the Respondents are culpable of any wrong doing in as far as the conduct of the elections is concerned. 39.The 2nd Respondent's main role in the elections herein is to make the necessary preparatory arrangements for the conduct of an election, including the issuance of notices of meetings of the Committee showing the date, time, venue and agenda of a meeting. There is no evidence that this role was neglected. On the contrary, the Applicants' application states under paragraph 6 that the 2nd Respondent provided administrative support where the voting was taking place. 40.The legal principles and precedents for consideration in a prayer for the grant of conservatory orders were established in the case of Gatirau Peter Munya –vs- Dickson Mwenda Githinji & 2 others SC Application No 5 of 2014 [2014] eKLR; the Supreme Court established the “Munya test” to the effect that before a court grants an order for conservatory orders, the Applicant must satisfy the court that;a.the intended case is arguable and not frivolous;b.unless the order is granted, the outcome of the case would be rendered nugatory; andc.it is in the public interest that the order be granted. 41.On the first test, the jurisdiction of this Court is limited to examining and evaluating the material placed before it, to determine whether the Applicants have made out a prima facie case to warrant grant of conservatory orders. 42.The claim by the Applicants is that the 1st Applicant, Dominic Ndambuki was elected as the new Chairperson on the 16th February 2026, however this has not been substantiated since the Applicants have not attached any Hansard record or minutes to prove that this was the case. The Applicants diligently extracted the minutes for the meeting held on 9th February 2026 but failed to pursue the minutes for the meeting held on 16th February 2026 with no justifiable reason. Thus, the Applicants have failed to discharge their burden to prove the proceedings of the impugned meeting. 43.Accordingly, this court is of the view that the Applicants have not placed before this court any evidence to show that the leadership of Machakos County Budget and Appropriation Committee of Machakos County Assembly as constituted before the elections held on the 9th February, 2026 and 16th February, 2026 has been by commission or omission of the Respondents not able to discharge its functions. PARA 4 4.The bone of contention in the application involves the elections held by the 3rd Respondent to elect a new Chairperson and Vice Chairperson whereby the Standing Orders aptly lays out the procedure to be followed by the Respondents in such circumstance. 45.Standing Order 159(2) of the Standing Orders requires the 2nd Respondent to appoint a place, date and time for the meeting of a committee to conduct an election and there was no delay or failure on the part of the Respondents to facilitate and assist honourable members of the Committee to conduct the said election. There is no evidence that this role was neglected. 46.This court finds that the Respondents have not demonstrated that they have a prima facie case since the application only contains unsubstantiated claims without any supporting evidence. The Applicants have also failed to show that their rights and those of the people of Machakos County have been violated in any way to warrant a suit against the Respondents 47.On the second and third test, the court is required to evaluate the pleadings and determine whether the denial of conservatory orders would prejudice the Applicants. The Applicant must demonstrate that unless the conservatory orders are granted, there is real danger that could be prejudicial to him or her. 48.In the instant case, the Applicants have not demonstrated that they have been prejudiced in any way by action or omission of the Respondents. In any case, the election of the Vice Chairperson on 9th February 2026 was valid thus the Committee is able to proceed without any prejudice to transact its business without resorting to court. There is no need for any conservatory order in the circumstances. 49.The Applicants have chosen to run to court as the first port of call while the 1st Respondent is charged with the maintenance of order at the County Assembly of Machakos under Standing Order 94 thus the Applicants could have lodged any complaint. Similarly, the Applicants could have chosen another internal mechanism to utilize Section 9(1)(e) of the County Governments Act to present any issue for discussion to the House. The Applicants did not present any issue raised in the application to the House or any other forum other than to petition this Court prematurely on allegations that their Constitutional rights had been threatened or violated. 50.In Speaker of the National Assembly vs Karume [2008]1 KLR the court held that where a statute has established a dispute resolution mechanism, it ought to be followed. Also, in Samson Chembe Vuko vs Nelson Kilumo & 2 Others [2016] eKLR the Court while citing inter alia the above decision upheld a similar opposition as in this case. 511.Further, in Mutanga Tea & Coffee Company Ltd vs Shikara Limited & Another {2015} eKLR, the Court of Appeal re-stated the same position. 52.The question therefore that begs for an answer is whether the dispute resolution mechanism established under the Machakos County Assembly Standing Order 94 and Section 9(1)(e) of the County Governments Act is competent to resolve the issues raised in the application and Petition. Our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute. See The Speaker of National Assembly vs James Njenga Karume {1992} KLR. It is also settled that the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]; a remedy is considered available only if the applicant can make use of it in the circumstances of his case. See Dawda K. Jawara vs Gambia, ACmHPR 147/95-149/96- A decision of the African Commission of Human and Peoples' Rights. Disposition 53.Having fully considered the dispute disclosed in Petitioners’ application herein and the County Assembly of Machakos Standing Order 94 and Section 9(1)(e) of the County Governments Act, I am clear in my mind that the mechanism established under the said provisions of law can afford the Petitioners an effective remedy. In any event, the Petitioners have not demonstrated that they cannot get an effective remedy under the dispute resolution mechanism established under the said provisions of law. A remedy will be effective if it is objectively implemented, taking into account the relevant principles and values of administrative justice present in the Constitution and our law. The “deepest norms” of the Constitution should determine whether the dispute involves explicit Constitutional adjudication, or whether it could safely be left to the statutory provisions. In this regard, I am persuaded beyond doubt that the adjudication of the issues complained herein can safely be left to the statutory provisions. 54.In view of my analysis herein above, it is my conclusion that the Applicants/Petitioners ought to have exhausted the available mechanism under County Assembly of Machakos Standing Order 94 and Section 9(1)(e) of the County Governments Act before approaching this court. Therefore, I find that the application and petition both dated 18th February 2026 offend the doctrine of exhaustion. 55.Consequently, the temporary conservatory orders issued herein on 5th March 2026 and any subsequent orders issued thereafter are hereby set aside. The application and the Petition filed by the Petitioners herein are hereby dismissed with no orders as to costs. RULING DATED & SIGNED AT MACHAKOS THIS 2ND JULY 2026NOEL ADAGIJUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 2ND JULY 2026In the presence of :Ms. Chani h/b for Mr. Willis Otieno for ApplicantsMs. Kombe h/b for Mr. Muthusi for RespondentsMillygrace- Court Assistant