https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11256

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ISIOLO** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E014 OF 2025** **IN THE MATTER OF THE CONTRAVENTION OF ARTICLES 2 (1) & (4), 3(1), 4, 10, 19, (1), & (2), 20 (1), 22 (1), 22 (2), 23, 27, 33 159(2), 196, 258, 259 & 260 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 PART 1 3(1), (2), (3),(4),(5),(6),(7),(8), PART 111 23, & 24** **AND** **IN THE MATTER OF SECTION 8, 10 & 11 COUNTY ASSEMBLIES POWER AND PRIVILEGES ACT** **BETWEEN** **HON. AMINA OMAR ENOW ......................................................1ST PETITIONER** **HON. ABDINOOR DIMA JILLO .................................................2ND PETITIONER** **HON. ABDIRASHID DIBA ............................................................3RD PETITIONER** **HON. FATUMA ABDULLAHI ABDI .........................................4TH PETITIONER** **HON. FRANCISCO LETIMALO .................................................5TH PETITIONER** **HON. DAVID LEMANTILE ..........................................................6TH PETITIONER** **HON. REHEMA ABDIKADIR ......................................................7TH PETITIONER** **HON. DAVID WAITHAKA ..........................................................8TH PETITIONER** **HON. FOZIA JIBRIL .......................................................................9TH PETITIONER** **AND** **INSPECTOR GENERAL OF POLICE .....................1ST RESPONDENT** **DIRECTOR, DIRECTORATE OF CRIMINAL** **INVESTIGATIONS .....................................................2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS .........3RD RESPONDENT** **JUDGMENT** 1. The Petitioners herein are Elected, and Nominated members of the County Assembly (MCAs) of Isiolo. 2. They have brought the present petition seeking orders as follows: - 3. *A declaration does issue that the actions of the Respondents violated the Petitioners’ rights under Article 27 of the Constitution of Kenya, 2012.* 4. *A declaration do issue that the intended arrest and/or prosecution of Members of the County Assembly of Isiolo, the Petitioners herein by the Respondents in connection with their vote in the proceedings for the removal of Mohamed Roba Koto as the Speaker, and subsequent election of Abdullahi Jaldesa Banticha, as the new Speaker of the Isiolo County Assembly violates the doctrine of separation of powers, and contravenes the parliamentary privileges and immunities accorded to members under Article 196 of the Constitution of Kenya, 2010, as read together with the County Assemblies Powers And Privileges Act Cap. 265C.* 5. *A declaration do issue that the Respondents’ conduct in investigating and the intended arrest of the Petitioners in connection with their vote during the proceedings for the removal of Mohamed Roba Koto as Speaker, and the subsequent election of Abdullahi Jaldesa Banticha as the new Speaker of the Isiolo County Assembly, amounts to an abuse of power, is unlawful, and constitutes a violation of the doctrine of separation of powers and the parliamentary privileges guaranteed under Article 196 of the Constitution of Kenya.* 6. *A declaration do issue that the Respondents’ conduct in investigating and the intended arrest of the Petitioners in connection with their vote during the proceedings for the removal of Mohamed Roba Koto as Speaker, and the subsequent election of Abdullahi Jaldesa Banticha as the new Speaker of the Isiolo County Assembly, is unconstitutional and amounts to an outright contravention of Article 20 (1) of the Constitution of Kenya, 2010 which binds all state organs and state officers to respect, protect promote and fulfil the rights and fundamental freedoms in the Bill of Rights.* 7. *An order of permanent injunction be issued against the Respondent restraining the Respondents either by themselves or their agents, employees and/or servants from summoning, investigating, arresting and/or recommending prosecution or in manner interfering with the Petitioners’ liberty in connection with their vote during the proceedings for the removal of Mohamed Roba Koto as Speaker, and the subsequent election of Abdullahi Jaldesa Banticha as the new Speaker of the Isiolo County Assembly on 19th June, 2025, 24th June, 2025 and 26th June, 2025 or any other material date.* 8. *An order of Permanent Injunction be issued against the Respondents restraining the Respondents either by themselves or their agents, employees and/or servants from conducting further investigations, recommending the prosecution or commencing prosecution of the Petitioners or any manner interfering with their liberties in connection with their vote during the proceedings for the removal of Mohamed Roba Koto as Speaker, and the subsequent election of Abdullahi Jaldesa Banticha as the new Speaker of the Isiolo County Assembly on 19th June, 2025, 24th June, 2025 and 26th June, 2025 or any other material date.* 9. *An order of Prohibition be and is hereby issued against the IG, DCI and DPP from conducting further or any fresh investigation, recommending the prosecution or commencing any prosecution of the Petitioners in connection with their vote during the proceedings for the removal of Mohamed Roba Koto as Speaker, and the subsequent election of Abdullahi Jaldesa Banticha as the new Speaker of the Isiolo County Assembly on 19th June, 2025, 24th June, 2025 and 26th June, 2025 or any other material date.* 10. *An order for compensation for violations of the Constitutional rights of the Petitioners.* 11. *The costs of the Petition.* **The petitioners’ case** 1. The Petitioners state that they participated, and contributed to, the debate and voting in the Assembly of Isiolo (The County Assembly) in Motions which took place on 19/06/25, 24/06/25 and 26/06/25. 2. The Motions were in respect of the removal of **Mohamed Roba Koto** as the speaker, and subsequent election of **Abddullahi Jaldesa Banticha** as the new speaker of the County Assembly. (The Motions) 3. That subsequent to the said Motions, the Agent of the 1st and 2nd Respondents one **AIG Carney Nyawinda** summoned them to appear before their offices at Directorate of Criminal Investigation (DCI) Headquarters. 4. It is stated that the attempt to question their decision to support the Motions violates the independence of the County Assembly and the doctrine of separation of powers, envisaged by the Constitution. 5. They insist that the summons, intended investigation and charges, under ***Section 393 of the Penal Code constituted*** a ***Violation*** of ***Section 8*** of the County Assemblies Powers and privileges Act; devoid of public interest consideration under ***Article 157 and 47, of the Constitution*** and ***Section 4 of the Fair Administrative Action Act, 2015 (FAAA).*** It is further stated that the intended actions violate ***Articles 10, 196 (3), 19, 27, 20(1) 260 20(2), 22,28*** and ***49 of the Constitution.*** 6. The Petitioners state that they have approached the court on the basis of ***Articles 23, 165, 24 and 25*** of the Constitution. 7. In their submissions, the Petitioners state they are not custodians of the **Order papers, Hansard Report** and **vote proceedings** and therefore cannot be summoned by the Respondents to shed light on matters outside their scope; that to the contrary it is the clerk of the county Assembly who prepares and maintain custody of the aforesaid documents. 8. The Petitioners further submit that the ousted speaker could not therefore have been the custodian of order papers, Hansard votes and proceedings, to purport to declare the documents as forgeries. It is further stated that the County Assembly clerk has never filed a complaint relating to a case of forgery of any document. 1. The Petitioners further submit that their involvement was limited to tabling the subject Motions as was done by the 2nd Petitioner and the 1st, 3rd to 9th Petitioners simply took part in the debate. It is therefore argued that their actions fell within ***Section 8 of the County Assemblies Powers and privileges Act***. 2. It is submitted that their actions were protected by parliamentary privileges. In this regard, to buttress their submissions, they have cited the decisions in the case of ***Okiya Omtatah Okoiti & 3 Others vs. A.G. & 5 Others [2014] e KLR,*** and ***Apollo Mboya vs. A.G National Assembly & Senate [208] KEHC 6933*,** both of which emphasize free speech for parliamentarians for them to be able to effectively discharge parliamentary duties. 1. It is argued that to allow investigations into the debate on the Motions will be opening a pandora’s box, and the ripple effect will be that other MCAs will be apprehensive of expressing their opinions during county Assembly debates. 2. On whether the Respondent’s actions amount to abuse of power, the Petitioners submit that the conduct is in violation of ***Article 157*** ***of the Constitution***. In this regard, the Petitioners have relied on the High Court decision in the case of ***Maina & 4 Others vs. DPP & 4 Other [2022] KEHC*** where it was held *interalia* that an oppressive or vexatious litigation is contrary to public policy, and the Courts have inherent powers to stop such investigation or prosecution process. 3. On damages, while relying on the decision in the case of ***Gitobu Imanyara & 2 Other vs. A.G. [2016] eKLR*** the Petitioners propose an award of Ksh. 5,000,000 for each of them, for violation of their lights. 4. On costs it is submitted that cost do follow the event. **Respondent’s case** 1. The Respondent did not make a specific response to the Petition nor file Submissions. **Analysis and determination** 1. I have considered the Petition, the Submissions, the attachments and previous Affidavits and other documents earlier filed by both parties which are on record. **Issues for determination** 1. The following issues arise for determination: - 2. *Whether all the Petitioners have been summoned under Section 52 of the National Police Service Act.* 3. *Whether the summons constituted a breach of Sections 8 and 11 of the County Assembly Powers and Privileges Act.* 4. *Whether the Respondents conduct was unconstitutional.* 5. *Whether the Petitioners are entitled to the reliefs sought.* *Whether all the Petitioners have been summoned under Section 52 of the National Police Service Act.* 1. Annexed to the Affidavit in support of the Petition are documents entitled: “**Requisition to compel attendance**” issued by 2nd respondent under Section 52 of the National Police Service Act. The requisitions were issued to Amina Omar (1st Petitioner) Fatuma Abdi (4th Petitioner) and Abdinoor Jallo (the 2nd Petitioner). 2. In his Affidavit sworn on 09/09/2025, Inspector Kennedy Ireri Mugo , of the Directorate of Criminal investigations (DCI) , Investigation Unit, stated that no summons were issued to the 5th, 6th, 7th, 8th and 9th Petitioners. A perusal of the record show that indeed there is no evidence that any requisition was issued against the last four petitioners. 3. In respect to the 3rd Petitioner, there is no Requisition document on record but the Respondent under paragraph 15 of his Affidavit did admit that they did summon the first 4 Petitioners. 4. In view of the aforegoing it is evident that not all the petitioners have been summoned. The participation of the 5th to the 9th petitioners in the suit is uncalled for. There is no legal dispute therefore between them and the Respondents, that is before Court for determination. The names of the 5th to the 9th petitioners are hereby are hereby expunged from these proceedings. *Whether the summons constituted a violation of separation of powers and Sections 8 and 11 of the County Assembly Powers and Privileges Act.* 1. **Section 52 of the National Police Service Act** provides: - ***a).*** *A police officer may, in writing, require any person whom the police officer has reason to believe has information which may assist in the investigation of an alleged offence to attend before him at a police station or police office in the county in which that person resides or for the time being* *b).A person who without reasonable excuse fails to comply with a requisition under subsection (1), or who, having complied, refuses or fails to give his correct name and address and to answer truthfully all questions that may be lawfully put to him commits an offence.* *c).A person shall not be required to answer any question under this section if the question tends to expose the person to a criminal charge, penalty or forfeiture.* *d).A police officer shall record any statement made to him by any such person, whether the person is suspected of having committed an offence or not, but, before recording any statement from a person to whom a charge is to be preferred or who has been charged with committing an offence, the police officer shall warn the person that any statement which may be recorded may be used in evidence.* *e).A statement taken in accordance with this section shall be recorded and signed by the person making it after it has been read out to him in a language which the person understands and the person has been invited to make any correction he may wish.* *f).Notwithstanding the other provisions of this section, the powers conferred by this section shall be exercised in accordance with the Criminal Procedure Code (Cap. 75), the*[*Witness Protection Act*](https://kenyalaw.org/akn/ke/act/2006/16)*(Cap. 79) or any other written law.* *g).The failure by a police officer to comply with a requirement of this section in relation to the making of a statement shall render the statement inadmissible in any proceedings in which it is sought to have the statement admitted in evidence.* (Emphasis added). 1. It is evident from the wording of the above section of the National police service Act that summons may be issued to potential suspects, as well as potential witnesses. 2. In respect to the 2nd and 3rd Petitioners, the Respondents have stated that they were summoned to provide information in their capacity as the mover of the Motions and the person presiding over the Assembly at the time of the debate, respectively. The Respondent further stated that the 1st and 4th Respondents had earlier voluntarily recorded statements in respect of the subject Motions. The respondent further stated that none of the petitioners were at the time under investigations, unless further investigations reveal their culpability. 3. To stop investigation at such a stage is to curtail an investigation when there is no basis for it. In other words, it is unknown if the petitioners will end up as suspects or witnesses. The rush to file a petition was in my view was firstly, premature. 4. On the intended investigation, the evidence on record shows that the investigation was prompted by a letter dated 11/07/25 from the Attorney General (AG) and addressed to the 2nd respondent. The letter seeks investigation into the circumstances surrounding the Motions in general, but specifically, to the documents which emanated from the County Assembly and sent to the Government Press, resulting in the gazettement of Abdullahi Jaldesa Banticha as the speaker of the county Assembly. 5. The letter states in part *“In view of the foregoing, the purpose of this letter is to request your very urgent investigation into the circumstances that led to the gazettement of Mr. Abdullahi Jaldesa Banticha as the speaker of the County Assembly of Isiolo and particularly, the allegation of forgery of documents that informed the Advisory opinion of this office”.* 6. It emerged from the documents attached to the letter by the AG that the Government printer had forwarded the subject documents to the AG seeking advice on the publication of the documents. The AG advised the Government printer to proceed with the publication. It was upon the Attorney general receiving a complaint from one Mohammed Roba , casting doubts on the authenticity of the documents, that the AG requested for investigation. 7. It is clear therefore that the basis of investigations was primarily the documents alleged to have been forged. It is also apparent that the documents informed the police investigations into a case of suspected felony. 8. It is the Petitioner’s case that, they are immunized from investigation or prosecution on matters relating to their participation in the debate, pursuant to the provisions of ***Section 8*** ***of the County Assemblies Powers*** and ***Privileges Act. (CAPPA).*** Section 8 of CAPPA provides as follows. *“No Civil or Criminal Proceedings may be instituted in any Court or tribunal against a member by reason of any matter said in any debate, petition motion or other proceedings of a County Assembly”.* 1. Further Section 11 of the same Act states:- “11. (1) No civil or criminal proceedings shall be instituted against any Member for words spoken before, or written in a report to a county assembly or a Committee, or by reason of any matter or thing brought by him or her therein by a report, petition, Bill, resolution, motion or other document written to a county assembly. (2) No civil suit shall be commenced against the Speaker, the leader of the majority party, the leader of the minority party, a chairperson of a committees or any member for any act done or ordered by them in the discharge of the functions of their office. (3) The Clerk or other members of staff shall not be liable to be sued in a civil court or joined in any civil proceedings for an act done or ordered to be done in the discharge of their functions relating to proceedings of a county assembly or its committees.” 34. Expounding on the above privileges, the Court of Appeal in [***Mwau v Mullei & 3 others [2016] KECA 842 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/842/eng%402016-09-23)stated: *“**In our analysis and with the foregoing provisions in mind, one of the primary functions of Parliament is to debate and pass resolutions freely on subjects of its own choosing. This is one of the cornerstones for parliamentary democracy. The performance of this function is secured by the members of Parliament each having the right to say what they will (freedom of speech) and discuss what they will (freedom of debate). These freedoms, the single most important parliamentary privilege, are the cornerstone to Sections 4 and 12 of the National Assembly (Powers and Privileges) Act, Chapter 6 of the Laws of Kenya. The privilege embodies the concept of parliamentary immunity. In practical terms, the freedom of speech and debates for proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliamen”t.* 1. The pertinent question in this Petition however is, whether members of County Assembly are immunized from investigation and possible prosecution on the basis of Section 8 and 11 of CAPPA for suspected criminal acts. 2. The above two section of CAPPA have been the subject of many past decisions of the Superior Courts. 3. In ***Francis Matheka & 10 Others vs. DPP & Ano. [2015] KEHC 7642 (KLR)*** the court took the view that criminal acts do not constitute parliamentary proceedings. The court held: *“It is to be recognised that privilege essentially belongs to the House as a whole; individual Members can only claim privilege insofar as any denial of their rights, or threat made to them, would impede the functioning of the House. In addition, individual Members cannot claim privilege or immunity on matters that are unrelated to their functions in the House. It follows that the special privileges of Members are not intended to set them above the law; rather, the intention is to give them certain exemptions from the law in order that they might properly execute the responsibilities of their position. In this context, it would be difficult to envisage a criminal act which would fit into or be a part of a parliamentary proceeding save for those contemplated under section 4 of the Privileges Act as read with section 16 of the CGA. A criminal offence which immediately comes to one’s mind in this respect is criminal libel. Similarly, the right to freedom from interference in the discharge of parliamentary duties does not apply to actions taken by Members outside parliamentary proceedings which could lead to criminal charges. No Member may claim immunity from arrest or imprisonment on such charges”* (Emphasis added). 4. The same position was taken by the high Court in ***Elizabeth Manyala & 12 others vs. A.G and EACC [2017] eKLR*** where the Court while dismissing an Application seeking to stop investigation and prosecution arising from a fight which took place in the Nairobi County Assembly stated that fighting is not part of County Proceedings. 5. In ***Justus Kariuki Mate & Jim Kaume vs Martin Nyaga Wambora & County Gov. of Embu*** the Court of Appeal emphasized that parliamentary privilege is not absolute and went on to hold the Respondent guilty of contempt of Court. 6. The Petitioners herein were summoned to help in the investigations into a felony contrary to Section 393 of the Penal code. The Respondents stated that the felony in question is a case of suspected forgery as per the AG’s misapprehension. The suspect documents emanated from the County Assembly. If the Petitioners participated in the forgery of documents, whose content is purportedly on the basis of a debate, then forgery is a criminal Act which has nothing to do with what the Petitioners said at the floor of the Assembly, in support of, or in opposition to the subject Motion. In other words, investigating the authenticity of the documents which are said to have emanated from the Assembly cannot be equated with what was said in the debate. I would go further and state that even an investigation on whether the said documents arose from a sitting of the Assembly or not, is not an investigation into the contribution of the individual members to the debate. 7. Further, a careful reading of section 11(1) of CAPPA shows that what is protected are documents introduced to the Assembly by a member. There is no such protection on documents which leave or emanate from, the Assembly. 8. It should be borne in mind, that the County Assembly is not on “trial”. Instead it is the actions of individual MCA in relation to documents that were said to have emanated from County Assembly. Forging documents are Criminal Acts, and as was held in Elizabeth’s Case (Supra), forgery like having a brawl inside or at the precincts of the county Assembly, are not part of parliamentary proceedings or duties, and are therefore not protected by section 8 or 11 of CAPPA, from investigations or prosecutions. *Whether the Respondents conduct was unconstitutional.* 1. All the Respondents have statutory mandates under the Constitution. It is now well settled that while they act independently, they are under supervision of the Courts for purposes ascertaining whether their actions are in compliance with the constitution. This was aptly stated in the case of ***Maina & 4 Others vs. D.P.P (Supra)*** cited by the Petitioners. The Court held: - *If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See [Githunguri v Republic](https://kenyalaw.org/akn/ke/judgment/kehc/1985/6%22%20%5Ct%20%22_blank) [1985] KLR 3090. It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or* prosecution process. See *Ndarua v R* [2002] 1 EA 205. See also *Kuria & 3 others v Attorney General* *[2002] 2 KLR*. 2. In the present case, the Court has found that what is under investigation is a case of a suspected crime, that of a felony. The AG received a report casting doubts on the authenticity of the documents, which documents formed the basis of her advisory opinion to the Government printer. The 1st and 2nd respondents acted on the AG’s request for investigation. The investigations therefore, or intended prosecution cannot be said to have had no basis, oppressive or vexatious. There was a valid criminal complainant that had been made, and the Respondents had a constitutional duty to investigate and prosecute. 3. It matters not that the clerk of the Assembly who is reported to be the custodian of all the county Assembly records, has not complained. The complainant in this case, as the documents on record show, are the Government Printer and the Attorney General. It is evident that both are apprehensive that they may have acted on, or given advice, respectively, on forged documents. 4. It is the finding of this court that the investigations or intended prosecutions did not infringe sections 8 and 11 of CAPPA. The petitioners have further failed to demonstrate that any of their constitutional rights have been violated. *Whether the petitioners are entitled to the reliefs sought.* 1. On damages, the Court would not have awarded any. At the time of filing the Petition, the Petitioners had only received summons, but they had not responded to them. Further, the petitioned was filed on 27/08/25, and the Court issued conservatory orders the same day. Although conservatory orders pending the hearing of the petition were later denied, as at the time of the hearing of the Petition, there was no evidence that the Petitioners had suffered any injury that deserve to be cured by damages. 2. In the end the entire Petition fails. The parties to meet their own costs Dated, Signed and delivered at Isiolo, this 23rd day of July, 2026 S. Chirchir Judge. In the presence of: - Roba Katelo-Court Assistant Mr. Majale for the 3rd Respondent