https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12081

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAROK** **CONSTITUTIONAL PETITION NO. E011 OF 2026** ***(CORAM: HON. CHARLES M. KARIUKI – J)*** **IN THE MATTER OF: ARTICLES 1, 10, 3, 10, 23, 47, 124, 165 (6), 174 (c), 185, 196, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: SECTIONS 10 & 14 OF THE COUNTY GOVERNMENT ACT AND** **IN THE MATTER OF: SECTION 15 OF THE COUNTY ASSEMBLIES’ POWERS AND PRIVILEGES ACT, 2017** **AND** **IN THE MATTER OF: STANDING ORDER NOS. 152, 153, 154, 155, 156, 157 & 158, 184, 185, 186, 187, 188, 189, 190, 191 & 192 OF THE NAROK COUNTY ASSEMBLY STANDING ORDERS** **AND** **IN THE MATTER OF: THE ILLEGAL AND UNPROCEDURAL REMOVAL AND REPLACEMENT OF THE NAROK COUNTY ASSEMBLY HOUSE LEADERSHIP & THE UNLAWFUL RECONSTRUCTION OF THE NAROK COUNTY ASSEMBLY COMMITTEES** **-BETWEEN-** **HON. KISOTU SALAASH NICKSON……………………………..………1ST PETITIONER** **HON. KOSKEY KIPRONO EZEKIEL…………………………………....2ND PETITIONER** **HON. DANIEL PARIKEN KILERAI………...……………………………3RD PETITIONER HON. KIPSANG MIBEI KENNEDY…………………..…………………..4TH PETITIONER HON. NKALUENA OLE KUYIONI…………………………….…………5TH PETITIONER HON. ISAAC SALAU DAPASH……………………..……………..………6TH PETITIONER HON. SAMWEL KIPKOECH TOWETT………………………………....7TH PETITIONER** **HON. YENKO MARGARET NENKAI………………….………………...8TH PETITIONER** **HON. OLORGESO MAIKA ELIUD……………………..………………...9TH PETITIONER HON. LINDA KATIMWA NTUTU…………….…………...…………….10TH PETITIONER** **HON. CHRISTINE M. LEMEN……………….…………………………..11TH PETITIONER HON. DOUGLAS TWALA MASIKONDE………………….…………...12TH PETITIONER** **HON. KIPNGENO CHEPKWONY……………………………………….13TH PETITIONER -VERSUS-** **THE SPEAKER, NAROK COUNTY ASSEMBLY………………….…..1ST RESPONDENT** **HON. DOMINIC SONKOI LEMEIN……………………….……………2ND RESPONDENT HON. WILSON MATEYA MURGUYIA………...………………………3RD RESPONDENT HON. DUNCAN BORE……………….………………………………..…..4TH RESPONDENT HON. SEME MICHAEL OLOLDIKIR………………………………….5TH RESPONDENT HON. KIMITI ERASTUS LEMISO……………………....………………6TH RESPONDENT** **HON. OLONUKU MANCHAU SHUMA………………………………..7TH RESPONDENT HON. DAVID LEKUTA SULUNYE…………………………….………..8TH RESPONDENT** **HON. IMMACULATE PISOI SONKOI………………………...………..9TH RESPONDENT HON. SIMON LENGUIYIA KILONGA………………………………..10TH RESPONDENT HON. SUPUKO LEAH NAIKANAE……………………………………11TH RESPONDENT HON. JOSPHINE SENEYIO TOROME……………...………………...12TH RESPONDENT HON. MERCY RESIATO KEIWA……………..……………………….13TH RESPONDENT HON. ALICE NANANA……………………………….…………..……..14TH RESPONDENT** **(THE 2ND -14TH RESPONDENTS ARE SUED COLLECTIVELY AS MEMBERS OF THE NAROK COUNTY ASSEMBLY COMMITTEE ON SELECTION)** **RULING** 1. **INTRODUCTION** 2. Before the Court for determination is the Respondents' Notice of Preliminary Objection dated 9th June 2026 challenging the competency of the Petition and the accompanying application. The objection raises two principal grounds. First, that this Court lacks jurisdiction because the dispute concerns the removal, replacement and recognition of leaders of the Narok County Assembly, matters which, according to the Respondents, fall within the exclusive jurisdiction of the Political Parties Disputes Tribunal (PPDT) under section 40 of the Political Parties Act, 2011. Secondly, that the Petition is sub judice by reason of the pendency of Narok High Court Constitutional Petition No. E010 of 2026. 3. The Petitioners oppose the Preliminary Objection, contending that it does not raise pure points of law within the meaning of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, as it is founded on disputed facts that** require evidentiary interrogation. They further argue that the dispute concerns constitutional and statutory violations allegedly committed by the Speaker and the Committee on Selection in the exercise of public power, thereby falling squarely within the supervisory and constitutional jurisdiction of this Court under Articles 22, 23, 165 and 258 of the Constitution. 4. Having carefully considered the pleadings, the rival submissions and the authorities cited, the Court is of the considered view that the Preliminary Objection may conveniently be determined under the issues set out below. 5. **PLEADINGS** 6. **The Notice of Preliminary Objection** 7. The Respondents, through the Notice of Preliminary Objection dated 9th June 2026, challenged the competence of both the Petition and the accompanying application on jurisdictional grounds. 8. They contended that the dispute, which concerns the removal and election of leaders of the Narok County Assembly, including the Deputy Majority Leader, Minority Leader, Deputy Minority Leader, Majority Whip and Minority Whip, falls within the exclusive jurisdiction of the Political Parties Disputes Tribunal under section 40 of the Political Parties Act, 2011, as it relates to disputes between members of political parties and political coalitions. They further argued that the issues raised concern internal political party affairs, County Assembly Standing Orders, and legislative procedures, matters which lie outside the jurisdiction of the High Court. 9. Additionally, the Respondents asserted that the Petition is sub judice by virtue of the pendency of High Court Constitutional and Human Rights Petition No. E010 of 2026, which allegedly raises substantially similar issues, thereby exposing the Court to the risk of issuing conflicting decisions. Consequently, they urged the Court to decline jurisdiction and dismiss the proceedings. 10. **SUBMISSIONS.** 11. **The Petitioners’ Submissions** 12. The Petitioners submitted that the Respondents’ Notice of Preliminary Objection is incompetent because it does not raise pure points of law as required by the well-established principles governing preliminary objections. They relied on **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** as reaffirmed in **Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] eKLR,** for the proposition that a preliminary objection must raise a pure point of law, proceed on the assumption that the pleaded facts are correct, require no ascertainment of disputed facts or exercise of judicial discretion, and, if successful, dispose of the suit. They further cited the Supreme Court decision in **Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] KESC 34 (KLR),** which endorsed the **Mukisa Biscuit** principles, and **Dismas Wambola v Cabinet Secretary, Treasury & 5 Others [2017] eKLR,** where the court emphasised that a preliminary objection can only succeed where there is no dispute as to the material facts. 13. The Petitioners argued that the Respondents had fundamentally mischaracterised the Petition by portraying it as an internal political party dispute. In contrast, the actual complaint challenges the Speaker's unilateral communication of 19th May 2026, purporting to alter the leadership of the Narok County Assembly, without resolutions, meetings, or votes by the sponsoring political parties or coalitions, as required by section 10 of the County Governments Act and Standing Orders 15 and 16. They further contended that the Petition also challenges the unlawful reconstitution of Assembly committees by the Committee on Selection, alleging violations of numerous Standing Orders through the usurpation of powers, unlawful creation and dissolution of committees, irregular appointment of committee chairpersons, disproportionate committee membership, and failure to adhere to the statutory framework governing committee composition. According to the Petitioners, these are the issues pleaded in the Petition, not the factual narrative advanced by the Respondents in their submissions. 14. The Petitioners maintained that the Respondents improperly sought to introduce contested factual matters through written submissions, alleging the existence of political party meetings, resolutions, and internal party decisions that were neither pleaded nor supported by affidavit evidence. They submitted that such disputed factual assertions cannot sustain a preliminary objection. In support, they relied on **Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] KEHC 7276 (KLR),** which adopted earlier authorities including **Erastus Wade Opande v Kenya Revenue Authority & Another, Kisumu HCCA No. 46 of 2007; Nancy Wambui Gatheru v Peter W. Wanjere Ngugi, Nairobi HCCC No. 36 of 1993; Ngang'a & Another v Owiti & Another [2008] 1 KLR (EP) 749; Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR; Avenue Car Hire & Another v Slipha Wanjiru Muthegu, Civil Appeal No. 302 of 1997; and Muchami Mugeni v Elizabeth Wanjugu Mungara & Another, Civil Appeal No. 141 of 1998,** all of which affirm that submissions are not evidence and cannot be used to introduce or prove contested facts. 15. On the plea of sub judice, the Petitioners submitted that the objection likewise fails because the determination of whether two suits concern the same parties and substantially the same issues requires examination of the pleadings and evidence, making it unsuitable for determination by way of a preliminary objection. They relied on **Sunit Singh Varma & Another v Uniken Limited & 2 Others [2022] KEELC 782 (KLR),** where the court held that sub judice must ordinarily be raised through a substantive application supported by evidence rather than by preliminary objection. They also cited **DJC v BKL (Civil Suit E021 of 2021) [2022] KEHC 10189 (KLR)** for the proposition that section 6 of the Civil Procedure Act only permits a stay of proceedings rather than striking out a suit, and **Kathumo v Nzuki & Another [2023] KEELC 434 (KLR),** where the court held that proof of sub judice requires evidentiary material and cannot be established through submissions alone. In any event, the Petitioners contended that Petition No. E010 of 2026 concerns only the Speaker's communication regarding leadership changes, whereas the present Petition additionally challenges the legality of the reconstitution of County Assembly committees, rendering the two proceedings distinct. 16. On jurisdiction, the Petitioners argued that the High Court is properly seized of the matter because the Petition alleges violations of the Constitution, the County Governments Act, the County Assemblies Powers and Privileges Act, and the Narok County Assembly Standing Orders by constitutional office holders. They submitted that Articles 22, 23, 165(3), 165(6), 258 and 259 of the Constitution confer jurisdiction upon the High Court to determine whether constitutional organs have acted in violation of the Constitution or the law. They relied on **Judicial Service Commission v Speaker of the National Assembly & 8 Others [2014] eKLR**, where the Supreme Court held that courts are empowered to determine whether constitutional organs have acted inconsistently with the Constitution. They further relied on **In the Matter of the Speaker of the Senate & Another [2013] KESC 7 (KLR**), in which the Supreme Court held that courts have jurisdiction to determine whether legislative bodies have complied with constitutional and procedural requirements, while recognising the need for judicial restraint and respect for the separation of powers. 17. The Petitioners further submitted that although courts ordinarily respect the autonomy of legislative bodies, they retain jurisdiction where constitutional or statutory procedures are violated. In that regard, they relied on **Republic v National Assembly Committee of Privileges & 2 Others ex parte Ababu Namwamba [2016] KEHC 7396 (KLR),** where the court held that Parliament and County Assemblies must comply with the Constitution and their own Standing Orders, and on **Moyo & Others v Zvoma & Another (SC 28/10) [2011] ZWSC 10,** which invalidated the election of the Speaker of Parliament for failure to comply with constitutional and procedural requirements. They also cited **Patrick Karani v Kennedy O. Ng'ondi, MCA, Speaker of the Nairobi City County Assembly & Another; Robert Alai & 20 Others (Interested Parties), Nairobi High Court Petition No. E207 of 2024,** in which the High Court assumed jurisdiction to determine the legality of changes made to County Assembly committees and granted conservatory orders. 18. Accordingly, the Petitioners maintained that the dispute is not an internal political party disagreement falling within the jurisdiction of the Political Parties Disputes Tribunal but a constitutional challenge to the legality of actions undertaken by the Speaker and the Committee on Selection. They urged the Court to find that the Preliminary Objection fails to satisfy the Mukisa Biscuit threshold, dismiss it with costs, and allow the Petition to proceed to hearing on its merits. 19. **The Respondents’ Submissions** 20. The Respondents submitted that the High Court lacks jurisdiction to entertain the Petition because the dispute concerns the removal, replacement, recognition and communication of County Assembly leadership positions within the Narok County Assembly, matters that fall squarely within the mandate of the Political Parties Disputes Tribunal (PPDT) under section 40 of the Political Parties Act, 2011. They argued that jurisdiction is determined by the pleadings and the true nature of the dispute, rather than by the reliefs sought, relying on **Mohammed v Abofae & 10 Others, Commercial Case No. E003 of 2023 (2023) KEHC, and Ngengi Muigai v George Kang’ethe Waruhiu & 6 Others [2021] eKLR**, where the court adopted the South African Constitutional Court's principle that jurisdiction is discerned from the pleadings, including the supporting affidavits. 21. According to the Respondents, the Petition arises from internal disagreements within the Kenya Kwanza and Azimio La Umoja coalitions following resolutions passed by the respective coalition members removing and replacing the Deputy Majority Leader, Majority Whip, Minority Leader and Minority Whip pursuant to Standing Orders 15 and 16 of the Narok County Assembly Standing Orders. They submitted that the Petitioners' grievance concerns the Speaker's acceptance of communications transmitted by the Deputy Whips after the substantive Whips allegedly declined to communicate the parties' resolutions. In their view, the dispute concerns compliance with internal political party processes and County Assembly Standing Orders rather than the enforcement of constitutional rights, and therefore constitutes a classic internal political party dispute reserved for the PPDT. 22. To support this position, the Respondents relied extensively on judicial authorities emphasising the doctrine of exhaustion and judicial restraint in internal political disputes. They cited **John Musakali v Speaker, County Assembly of Bungoma & 4 Others [2015] eKLR**, where the High Court held that disputes concerning the removal and replacement of County Assembly minority leaders are internal political party matters that must first be resolved through the Political Parties Disputes Tribunal. They also relied on Born Bob Marren v Speaker of the County Assembly of Narok, Constitutional Petition No. 1 of 2014, where the court declined jurisdiction because the dispute arose from elections conducted under County Assembly Standing Orders and the mechanisms established under the Political Parties Act had not been exhausted. Similar reliance was placed on **Republic v County Assembly of Migori ex parte John Owino, Judicial Review No. 1 of 2014,** which held that courts should defer to the will of the majority of party members regarding the election of County Assembly leaders, and Jeremiah Lomorukai v County Government of Turkana & Others, Petition No. 11 of 2014, where the court observed that the removal or replacement of majority and minority leaders is an internal political process governed by Standing Orders and political party procedures, warranting judicial restraint. 23. Regarding the challenge to the reconstitution of House committees, the Respondents submitted that committee membership depends on party leadership and political party decisions and therefore falls equally within the jurisdiction of the PPDT. They relied on **Dominic Ndonye Maithya & 3 Others v Machakos County Assembly Speaker & 2 Others [2017] eKLR**, where the court held that removal from County Assembly committees is an internal matter governed by Standing Orders and protected by the doctrine of separation of powers and statutory immunities accorded to County Assemblies under the County Governments Act and the Powers and Privileges Act. They further cited **Clare Moraa Obino & 2 Others v Chief Whip, Majority Party & 6 Others [2021] eKLR**, where the High Court held that disputes concerning removal from County Assembly committees fall within the internal political party dispute resolution mechanisms and the jurisdiction of the PPDT under section 40 of the Political Parties Act. The Respondents further invoked **Geoffrey Muthinja Kabiru & Another v Samuel Munga Henry & 1756 Others [2015] eKLR** on the principle that statutory dispute resolution mechanisms must be exhausted before resorting to court. 24. The Respondents further argued that the Petitioners cannot invoke constitutional provisions merely to circumvent the statutory dispute resolution framework. In that regard, they relied on the decision of the Supreme Court in **Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR,** which held that parties should not disguise ordinary statutory disputes as constitutional petitions to invoke the jurisdiction of superior courts improperly and that the dispute resolution bodies established under statute must be given the first opportunity to determine such disputes. 25. The Respondents also submitted that the Petition is barred by the doctrine of sub judice under section 6 of the Civil Procedure Act because it concerns substantially the same issues pending before the High Court in Petition No. E010 of 2026. They argued that both petitions arise from the same events surrounding the communication, recognition and replacement of County Assembly leaders and the consequent changes in committee membership following the Speaker's actions on 19th May 2026. Although the earlier petition was instituted through the political parties while individual members filed the present petition, they contended that the litigants are effectively the same persons or their representatives and are litigating over the same subject matter. In support, they relied on **Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR,** where the Supreme Court explained that the purpose of the sub judice doctrine is to prevent multiplicity of suits, avoid conflicting decisions and curb abuse of the court process by requiring later proceedings involving substantially the same issues and parties to be stayed or dismissed. The Respondents maintained that the filing of the present petition after a preliminary objection had been raised in Petition No. E010 of 2026 constituted an abuse of the court process and urged the court to uphold the preliminary objection and dismiss the Petition with costs. 26. **ISSUES FOR DETERMINATION** 27. The following issues arise for determination: 28. **Whether the Notice of Preliminary Objection dated 9th June 2026 meets the legal threshold of a valid preliminary objection.** 29. **Whether this Court lacks jurisdiction to entertain the Petition by virtue of section 40 of the Political Parties Act, 2011 and the doctrine of exhaustion.** 30. **Whether the Petition is barred by the doctrine of sub judice under section 6 of the Civil Procedure Act.** 31. **ANALYSIS AND DETERMINATION** 32. **Whether the Preliminary Objection raises pure points of law** 33. The law governing preliminary objections is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, Law JA stated that: *"A preliminary objection consists of a pure point of law which has been pleaded or which arises by clear implication from the pleadings..."* 1. Sir Charles Newbold P added that a preliminary objection cannot be raised where any fact has to be ascertained or where the Court is called upon to exercise judicial discretion. 2. The Supreme Court reaffirmed those principles in **Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] KESC 34 (KLR),** while in **Dismas Wambola v Cabinet Secretary, Treasury & 5 Others [2017] eKLR** the Court emphasised that a preliminary objection is only available where there exists no dispute regarding the underlying facts. 3. The Respondents contend that the dispute concerns internal political party decisions made pursuant to Standing Orders 15 and 16 following resolutions passed by members of the Kenya Kwanza and Azimio coalitions. The Petitioners, however, expressly deny the existence of those resolutions and maintain that no meetings, votes or resolutions authorising the impugned leadership changes ever took place. They further contend that the Speaker unilaterally altered the Assembly leadership and that the Committee on Selection unlawfully reconstituted Assembly committees contrary to the Standing Orders. 4. It is therefore evident that the parties fundamentally disagree on the factual foundation upon which the objection is premised. Determining whether resolutions were passed, whether meetings occurred, who communicated them, and whether the impugned actions were undertaken pursuant to valid political party processes are questions that require evidence. 5. Equally, the Respondents introduced factual assertions through written submissions regarding meetings allegedly held on 12th and 15th May 2026. Such factual assertions are not evidence. As Odunga J. observed in **Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] KEHC 7276 (KLR),** adopting numerous earlier authorities including **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR**, submissions cannot substitute evidence. 6. The Court therefore finds that significant portions of the Preliminary Objection are anchored on disputed facts incapable of determination without evidentiary inquiry. To that extent, the objection does not satisfy the threshold established in **Mukisa Biscuit.** 7. **Whether this Court lacks jurisdiction** 8. Jurisdiction is everything. Without it, a court must immediately down its tools. This principle was authoritatively stated in **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1.** 9. The Respondents argue that the dispute falls within section 40 of the Political Parties Act because it concerns removal and replacement of County Assembly leadership and committee membership. They rely upon **John Musakali v Speaker, County Assembly of Bungoma & 4 Others [2015] eKLR; Born Bob Marren v Speaker of the County Assembly of Narok, Constitutional Petition No. 1 of 2014; Republic v County Assembly of Migori ex parte John Owino, Judicial Review No. 1 of 2014; Jeremiah Lomorukai v County Government of Turkana & Others, Petition No. 11 of 2014; Dominic Ndonye Maithya & 3 Others v Machakos County Assembly Speaker & 2 Others [2017] eKLR; Clare Moraa Obino & 2 Others v Chief Whip, Majority Party & 6 Others [2021] eKLR and Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR.** 10. Those authorities undoubtedly affirm the doctrine of exhaustion and the need for courts to refrain from entertaining disputes that are purely internal political party contests reserved for the PPDT. 11. However, jurisdiction is determined not merely by the labels attached to a dispute but by the substance of the pleadings. See **Mohammed v Abofae & 10 Others, Commercial Case No. E003 of 2023 (2023) KEHC** and **Ngengi Muigai v George Kang'ethe Waruhiu & 6 Others [2021] eKLR.** 12. Having examined the Petition before Court, it is apparent that the Petitioners do not merely challenge political party decisions. They allege that the Speaker exercised powers not conferred by the Constitution, the County Governments Act or the Standing Orders; that there existed no valid resolutions authorising the impugned changes; and that the Committee on Selection acted ultra vires in restructuring committees contrary to statutory provisions and Standing Orders. 13. Those allegations raise constitutional and administrative law questions concerning legality, procedural fairness and the exercise of statutory power by constitutional office holders. 14. Article 165(3)(d) of the Constitution expressly empowers the High Court to determine whether anything done under the authority of the Constitution or any law is inconsistent with or in contravention of the Constitution. 15. In **Judicial Service Commission v Speaker of the National Assembly & 8 Others [2014] eKLR,** the Supreme Court held that courts possess jurisdiction to determine whether constitutional organs have acted contrary to the Constitution. 16. Likewise, in **In the Matter of the Speaker of the Senate & Another [2013] KESC 7 (KLR),** the Supreme Court held that although courts should exercise restraint in matters concerning legislative processes, they retain jurisdiction to determine whether constitutional and statutory procedures have been violated. 17. Whether the Speaker acted within the powers conferred by statute and whether the Committee on Selection complied with mandatory Standing Orders are not issues that fall exclusively within the PPDT. They concern the legality of actions taken by public bodies exercising constitutional and statutory authority. 18. The Court therefore finds that the Petition discloses constitutional questions which prima facie invoke the jurisdiction of the High Court. Whether the Petition will ultimately succeed is a matter to be determined after hearing evidence. 19. Consequently, this Court is not persuaded that it lacks jurisdiction at this preliminary stage. 20. **Whether the Petition is sub judice** 21. Section 6 of the Civil Procedure Act prohibits courts from proceeding with matters where the issues are directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title. 22. The Supreme Court in **Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others (Interested Parties) [2020] eKLR** explained that the doctrine seeks to prevent multiplicity of proceedings and conflicting judicial decisions. 23. However, whether two proceedings involve substantially identical parties, issues and reliefs can only be established after comparing the pleadings in both suits. 24. The Petitioners dispute that the present Petition is identical to Petition No. E010 of 2026 and contend that the earlier Petition concerns only the Speaker's communication whereas the present Petition also challenges the legality of the reconstitution of Assembly committees. 25. Determination of those competing positions necessarily requires examination of pleadings and evidence from the two proceedings. 26. In **Sunit Singh Varma & Another v Uniken Limited & 2 Others [2022] KEELC 782 (KLR),** the Court correctly held that where evidence is necessary to establish sub judice, the issue is unsuitable for determination by way of preliminary objection. 27. Similarly, in **Kathumo v Nzuki & Another [2023] KEELC 434 (KLR),** the Court held that sub judice should ordinarily be raised by a substantive application supported by evidence rather than through a preliminary objection. 28. The Court respectfully agrees with those decisions. Since the Respondents' plea of sub judice requires evidentiary comparison of pleadings and determination of contested facts, it cannot properly be determined as a pure point of law within the framework of a preliminary objection. 29. The plea of sub judice therefore fails. 30. **DISPOSITION** 31. ***The Court finds that the Notice of Preliminary Objection dated 9th June 2026 does not meet the threshold of a valid preliminary objection as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The objection is substantially based on contested factual matters that require evidentiary interrogation.*** 32. ***The Court further finds that the Petition, as pleaded, raises constitutional and statutory questions concerning the legality of actions allegedly undertaken by the Speaker of the Narok County Assembly and the Committee on Selection. Those issues fall within the constitutional jurisdiction of the High Court under Articles 22, 23 and 165 of the Constitution.*** 33. ***Finally, the plea of sub judice cannot be determined on a preliminary objection, as it requires examination of the evidence and comparison of the pleadings in the two proceedings.*** 34. ***Accordingly, the Respondents' Notice of Preliminary Objection dated 9th June 2026 is hereby dismissed.*** 35. ***Costs of the Preliminary Objection shall abide by the outcome of the Petition.*** 36. ***The Petition shall proceed to hearing on its merits.*** 37. Orders accordingly. **DATED, SIGNED, AND DELIVERED AT NAROK, THIS 31ST DAY OF JULY 2026.** **CHARLES KARIUKI** **JUDGE**