REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E202 OF 2023

KENNETH NJAGI NJIRU………..…………………….….1ST PETITIONER

MESHACK SUBA CHURCHILL……………...………….2ND PETITIONER
LEMPAA SUYINKA……………………………………..…3RD PETITIONER
TEDDY M. MUTURI …………………………………….…4TH PETITIONER
AMOS WANJALA………………………………………..…5TH PETITIONER
STEVEN KIHONGE NDUNG’U…………………………...6TH PETITIONER
SOPHIE DOLA……………………………………………….7TH PETITIONER
WINNIE THUO……………………………………………...8TH PETITIONER
ENG. VICTOR NG’ANG’A………………………………….9TH PETITIONER
SIMON LOKOMA…………………………………………..10TH PETITIONER
CAROLINE MOGAKA………………………………….….11TH PETITIONER
FRANCIS KENYA MWANGI………………………...……12TH PETITIONER
-VERSUS-
KENYA KWANZA COALITION……………………….….1ST RESPONDENT
THE NATIONAL ASSEMBLY OF KENYA……………...2ND RESPONDENT
SPEAKER OF THE NATIONAL ASSEMBLY…………...3 RD RESPONDENT
HON. MOSES M. WETANG’ULA……………………...…4TH RESPONDENT
REGISTRAR OF POLITICAL PARTIES………………...5TH RESPONDENT
HON. KIMANI ICHUNG’WA……………………………...6TH RESPONDENT
HON. OWEN BAYA………………………………………...7TH RESPONDENT
HON. SYLVANUS OSORO…………………………...……8TH RESPONDENT
HON. NAOMI JILLO WAKO……………………………...9TH RESPONDENT

1 |PETITION NO. E202 OF 2023: JUDGMENT

HON. SABINA CHEGE…………………………………...10TH RESPONDENT
INDEPENDENT ELECTORAL & BOUNDARIES
COMMISSION (IEBC)……………………………………11TH RESPONDENT
THE HON. ATTORNEY GENERAL ……………………12TH RESPONDENT
HON. KANINI KEGA…………………………………..…13TH RESPONDENT
ANNE NDERITU……………………………………….….14TH RESPONDENT
KENYA REVENUE AUTHORITY……………………....15TH RESPONDENT
CABINET SECRETARY THE NATIONAL
TREASURY AND ECONOMIC PLANNING…………...16TH RESPONDENT
UNITED DEMOCRATIC ALLIANCE………………..…17TH RESPONDENT
AMANI NATIONAL CONGRESS……………………..…18TH RESPONDENT
FORD KENYA……………………………………………..19TH RESPONDENT
–AND-
AZIMIO LA UMOJA ONE- KENYA
COALITION …………………………………….….1ST INTERESTED PARTY
JUBILEE PARTY OF KENYA……………….…...2ND INTERESTED PARTY
LAW SOCIETY OF KENYA………….…………..3RD INTERESTED PARTY
HON. OPIYO WANDAYI…………………….....…4TH INTERESTED PARTY
HON. ROBERT MBUI…………………………......5TH INTERESTED PARTY
HON. JUNET MOHAMED……...……..…………6TH INTERESTED PARTY
KATIBA INSTITUTE……………………….……..7TH INTERESTED PARTY
MAENDELEO CHAP CHAP PARTY…………....8TH INTERESTED PARTY
UNITED DEMOCRATIC MOVEMENT………....9TH INTERESTED PARTY
MOVEMENT FOR DEMOCRACY & GROWTH……….
TH
…………………………………10 INTERESTED PARTY
USAWA KWA WOTE PARTY………………….11TH INTERESTED PARTY

2 |PETITION NO. E202 OF 2023: JUDGMENT

ROOTS PARTY………………………………….12TH INTERESTED PARTY
JUDGMENT
Introduction
1. The petition before court is dated 16 June 2023 but amended on 23 June
2023. It is expressed to be brought under Article 3 of the Constitution
according to which the petitioners believe they have a joint obligation to
protect and defend the Constitution of Kenya, 2010. They have introduced
themselves as “citizens of Kenya and registered voters” and that they are
also members or supporters of the Jubilee Party and Azimio la Umoja One
Kenya Coalition (hereinafter “Azimio coalition”). These two entities have
been described in the petition as political parties duly registered under the
Political Parties Act, 2011.

The petitioners’ case

2. We need state at the outset that the facts in this case, at least as far as the
petitioners’ case is concerned, were set out in a ruling on preliminary
objections against petition rendered on 26 January 2024. To appreciate the
petitioners’ case in this judgment, it is necessary that we reproduce them
here.
3. The petitioners contend that during the 9 August 2022 General elections, the
main contestants for various elective political positions were candidates
from parties that formed the Azimio coalition and Kenya Kwanza Alliance
Coalition (hereinafter “Kenya Kwanza coalition”). The coalitions are said to
have been forged by various individual political parties through coalition
agreements. The Kenya Kwanza coalition agreement was signed on 8 May
2022. The signatories to this agreement were His Excellency President
William Ruto, who was then the leader of the United Democratic Alliance

3 |PETITION NO. E202 OF 2023: JUDGMENT

 party, Honourable Musalia Mudavadi of Amani National Congress party
and Honourable Moses Wetangula, the leader of Ford-Kenya party.
4. Amongst the highlights of the Kenya Kwanza coalition agreement were the
distribution of various posts and duties among the coalition parties’ leaders
or members. For instance, under Article 11 of the agreement, the coalition
partners agreed on creation of a coalition parliamentary group and
prescribed, inter alia, the group’s membership and leadership. It also
prescribed how particular positions would be shared between or amongst
the coalition’s parties. This provision of the agreement has been captured in
the petition as follows:

“a) There shall be a coalition parliamentary group consisting of

elected and nominated members of the National Assembly, the
Senate and the East African Legislative Assembly who are elected or
nominated by or through any of the founding member parties.
b) The coalition parliamentary group shall be chaired by the
coalition presidential candidate and in his absence by the coalition
deputy presidential candidate.
c) Members of the party leaders Forum shall be ex officio members
of the coalition parliamentary group.
d) The chairperson of the coalition parliamentary group shall
convene the first meeting of the parliamentary group within thirty
(30) days following the swearing in of the members of the
parliamentary group.
e) The coalition parliamentary group shall elect a coalition
parliamentary group secretary, a coalition parliamentary group
whip and such other coordinating officials as may be deemed
necessary for ease of the coalition’s agenda in the National
Assembly, the Senate at the East African Legislative Assembly.

4 |PETITION NO. E202 OF 2023: JUDGMENT

 f) ANC and Ford-Kenya shall nominate for election, the secretary
and the whip of the coalition parliamentary group as may be agreed
among the two member parties.
g) After its first meeting, the coalition parliamentary group shall be
convened once every three (3) months or otherwise as frequently as
may be deemed necessary.
h) The role of the coalition parliamentary group shall be to assist
the party leaders forum to plan, review and track the
implementation of the coalition’s legislative and representational
agenda in the National Assembly, the Senate and the East African
Legislative Assembly including the agreed policies, programmes and
legislative proposals of the coalition in the National Assembly, the
Senate and the East African Legislative Assembly.”
5. Article 14 of the coalition agreement is on the functions and operations of
the party leaders’ forum. The petitioners contend that under that article,
Honourable Moses Wetang’ula plays what the petitioners have described as
a “political role” in the affairs of the party leaders’ forum. Hon. Wetangula
was nominated for election as the Speaker of the National Assembly under
Article 21(l) of the Agreement.
6. Article 21(n), on the other hand, provides for sharing of positions in the
National Government between Amani National Congress and Ford-Kenya.
This article reads as follows:

“n) ANC and FORD-Kenya shall have 30% share of the positions in
the national secretaries, principal government including
ambassadors/high commissioners/heads of diplomatic missions,
chairpersons of state corporations, directors of state corporations
and chairpersons and commissioners of constitution commissions
provided that the aforesaid 30% share positions in the national
government shall be shared equally between ANC and Ford Kenya.”
7. After the August 9, 2022 elections, the Independent Electoral Boundaries
Commission (hereinafter “IEBC”) published the results of the members
5 |PETITION NO. E202 OF 2023: JUDGMENT
 elected and nominated to the National Assembly in Gazette notices nos.
105055 of 5 September 2022; 10537 of 7 September 2022 and 10710 of 9
September 2022.
8. The petitioners contend that according to the published election results, 171
members of the National Assembly were elected on the tickets of political
parties that formed the Azimio coalition while 165 members of the National
Assembly were elected on Kenya Kwanza coalition parties’ tickets. It
followed that, going by these results, the Azimio coalition became the
majority party in the National Assembly after the August 9, 2022 General
Elections.
9. Besides election of members of National Assembly, President William Ruto
was declared the duly elected President of the Republic of Kenya while
Honourable Moses Wetangula was elected Senator of Bungoma County.
Honourable Wetangula later resigned as the senator and subsequently,
successfully contested for election as the Speaker of the National Assembly
at the first sitting of the 13th Parliament on 8 September 2022.
10.In the wake of the General elections and after the election of President Ruto
as the President of the Republic of Kenya had been validated by the
Supreme Court, several members of the National Assembly who contested
as members of parties in the Azimio coalition opted to defect to the Kenya
Kwanza coalition. To be precise, these were fourteen members of the
National Assembly drawn from United Democratic Movement (UDM),
Movement for Democracy and Growth (MDG), Maendeleo Chap Chap
(MCCP) and PAA political parties.
11.The petitioners are aggrieved that although Hon. Wetangula was elected the
Speaker of the National Assembly, he held and still holds the position of the
leader of Ford-Kenya party; that he is a member of the Kenya Kwanza
6 |PETITION NO. E202 OF 2023: JUDGMENT
 Forum of Party leaders; and, that he is an ex officio member of the coalition
parliamentary group of Kenya Kwanza. According to the petitioners,
Honourable Wetangula is conflicted to the extent that, going by his political
inclination, he would be biased towards driving the Kenya Kwanza
coalition political agenda in discharge of his functions as the Speaker of the
National Assembly.
12.Apart from conflict of interest, Honourable Wetangula’s position as the
Speaker of the National Assembly yet he remains a leader of a political
party and a member of Kenya Kwanza forum of party leaders and also the
coalition’s parliamentary group is untenable because it is contrary to the
Constitution of Kenya which establishes a presidential form of government
in which the three arms of the government, that is, the executive, the
legislature and the judiciary are independent of each other.
13.The petitioners’ other grievance arises from the manner in which Hon.
Wetangula handled a dispute or disputes that arose in the National
Assembly on which of the two coalitions, Azimio and Kenya Kwanza,
formed the majority party and who, in these two coalitions, was to be
recognised as the bona fide majority leader in the House.
14.The dispute arose when on 4 October 2022, Hon. Wetangula informed the
National Assembly that he had received two letters respectively from the
Azimio coalition and Kenya Kwanza coalition, both claiming to be the
majority party and in that regard appointing their leaders in the National
Assembly. As a matter of fact, by a letter dated 21 September 2022, the
secretary-general of Azimio coalition had written to the Speaker of the
National Assembly informing him that following the coalition’s
parliamentary group meeting held on 16 and 17 September 2022, the

7 |PETITION NO. E202 OF 2023: JUDGMENT

 coalition had elected certain of its members as House leaders in the National
Assembly. These members were as follows:
i) Hon. James Opiyo Wandayi is the leader of the majority.
ii) Hon. Robert Mbui, as the deputy leader of the majority.
iii) Hon. Junet Mohammed is the majority whip; and
iv) Hon. Sabina Chege, as the deputy majority whip.

15.On the other hand, on 22 September 2022, Hon. Silvanus Osoro Onyigo and
Honourable Kimani Ichung’wa, wrote to the Speaker of National Assembly
and informed him that at its parliamentary group meeting held on 16 and 17
September 2022, the Kenya Kwanza coalition had elected the following
persons as its leaders in the National Assembly:
i) Hon. Kimani Ichungwa leader of the majority party
ii) Hon. Owen Baya, deputy leader of the majority party
iii) Hon. Sivanus Osoro Onyiego, chief whip
iv) Hon. Naomi Jillo Waqo, deputy chief whip
16.Following the two letters in which members of the coalitions sought to be
recognised as the majority party and laid claim on the leadership position in
the National Assembly appurtenant to that status, Hon. Moses Wetangula
invited members to a debate on the leader of the majority party and the
leader of the minority party in the National Assembly.
17.On 6 October 2022, Honourable Wetangula, read out to the National
Assembly his ruling the material part which has been summarised in the
petition as follows:

“1) That consideration of the various allegations of coercion and

duress at the time of entering into coalition agreements and any
appropriate remedy for the same lies outside the authority of this
House.
2) That in my considered opinion, it would be imprudent to treat the
14 members elected to the House under the UDM, PAA, MCCP and
MDG as part of a coalition that they have expressly distanced both
8 |PETITION NO. E202 OF 2023: JUDGMENT
 themselves and the parties from. I am therefore persuaded that the
14 members and their parties are a part of the Kenya Kwanza
coalition. These, in my view, would be fair and in accordance with
the previous rulings by my predecessors and related matters.
3) That with the 14 members, the membership of Kenya Kwanza
Coalition stands at 179 members while the membership of the
Azimio la Umoja-One Kenya Coalition Party stands at 157 members.
This, by implication, indicates that the Kenya Kwanza Coalition is
the majority party and the Azimio la Umoja-One Kenya Coalition
Party is the minority party in the House.
4) That the Kenya Kwanza coalition is entitled to appoint the leader
of the majority party while the Azimio La Umoja-One Kenya
Coalition Party is entitled to appoint the leader of the minority party.
5) That with regards to the majority party;
a) The member for Kikuyu Constituency, Hon. Kimani Ichung’wa is
the leader of the majority party;
b) The member for Kilifi North, Owen Baya, is the deputy leader of
the majority party;
c) The member for South Mugirango, Hon. Sivanus Osoro is the
majority party whip; and
d) The member for Marsabit County, Hon. Naomi Jillo Waqo is the
deputy majority whip.
6) That with regards to the minority party:
a) The member fo Ugunja, Hon. Opiyo Wandayi is the leader of the
minority party;
b) The member for Kathiani, Hon. Robert Mbui is the deputy leader
of the minority party;
c) The member for Suna East, Hon. Junet Mohamed is the minority
party whip; and
d) Nominated member, Hon. Sabina Chege is the deputy minority
whip.”
18.The petitioners are aggrieved that this ruling is unlawful because it is in
contravention of the Constitution, statutory provisions and the standing

9 |PETITION NO. E202 OF 2023: JUDGMENT

 orders of the National Assembly. It is their position that this ruling was
made without jurisdiction and, therefore, it is unconstitutional, null and
void. In particular, the petitioners have pleaded that Hon. Wetangula
arrogated to himself the power, mandate or jurisdiction to determine the
majority party in the aftermath of the General elections held on 9 August
2022. Given that the results of the elections of the members of National
Assembly clearly showed that Azimio coalition was the majority party, the
issue of the majority party between the two coalitions could not arise or
subject to debate.
19.Considering that there was no dispute in the Azimio coalition concerning
the need of the majority in the House, the Speaker of the National Assembly
acted mischievously and unconstitutionally in recognizing Kenya Kwanza
coalition as the majority party.

According to Articles 4, 90, 99 and 103 of the Constitution as read with

section 14 and 34 (F) of the Political Parties Act, the Speaker of the National
Assembly did not have the legal basis to recognise the purported coalition
agreement between the 14 members who had written to him distancing
themselves and their parties from the Azimio coalition in order to determine
that Kenya Kwanza had become the majority party after the results of the
elections of members of the National Assembly were gazetted.

20.The petitioners have also contended that even if the 14 members of the
Azimio coalition had lawfully resigned from Azimio coalition, the coalition
could not, by that fact alone, cease being the majority party after the
General elections of August 2022. The power to determine the majority
party, it is contended, is with the people of Kenya and it is duly exercised
during the General elections. The Azimio coalition could not lose its status,

10 |PETITION NO. E202 OF 2023: JUDGMENT

 rights and privileges of the majority party secured through a General
election on account of defection and change of political allegiance by some
members of the National Assembly elected on the tickets of the coalition’s
constituent parties.
21.Considering that Azimio coalition was the majority party in the National
Assembly, the subsequent determination by the Speaker of the National
Assembly on the respective leadership of the majority party and minority
party was illegal, null and void. In any event, the Speaker the National
Assembly was not an impartial and independent arbiter within the meaning
of Article 50 (1) and 75 (1) (a) of the Constitution and he ought to have
recused himself, assuming that the dispute was properly before him.
22.The petitioners pleaded that the dispute about which coalition is the
majority party is justiciable issue and falls within the jurisdiction of this
Honourable Court to determine. But the validity of the coalition agreement
of Azimio coalition could not be determined by the Speaker of the National
Assembly.

Standing order No. 1 which the Speaker of the National Assembly invoked
in making his decision enjoined him to give his decision in accordance with
the Constitution, the applicable laws and democratic norms and conventions.

23.The petitioners are aggrieved that the immediate effect of the Speaker’s
ruling has been to trigger general indiscipline and rebellion in political
parties particularly those in Azimio coalition. The National Assembly has
also been turned to “a political bazaar” in which disgruntled members of
Azimio coalition are said to sell their souls and interests of their electors to
the government of the day on the pretext of seeking development for their
constituents.

11 |PETITION NO. E202 OF 2023: JUDGMENT

 24.It is also the petitioners’ contention that in inducing, soliciting, aiding and
abetting the defection of the members of National Assembly from
constituent parties in Azimio coalition, the 1st respondent has violated
Articles 1, 3, 4, 10, 38, 73 and 91 of the Constitution.
25.As far as the petitioners’ grievances against the Registrar of the Political
Parties are concerned, the petitioners claim that the Registrar has aided and
abetted the violation of Articles 1, 4, 38 and 18 of the Constitution and the
subversion of multi-party democracy in Kenya because she has failed to
uphold the will of the people of Kenya expressed during the General
elections held on 9 August 2022.
26.The Registrar of Political Parties is alleged to have failed to enforce the
Political Parties Act, 2011 and this failure has emboldened Kenya Kwanza
coalition to engage in unprecedented and systematic subversion of multi-
party democracy in Kenya over the last eight months, prior to the filing of
the instant petition. In the same breath, in failing to ensure that Kenya
Kwanza coalition complies with the code of conduct for political parties as
set out in the 1st schedule to the Political Parties Act, the Registrar of
Political Parties has encouraged, aided and abetted the violation of the
petitioners’ political rights and those of other Azimio coalition members
guaranteed by Article 38 of the Constitution.
27.The Registrar of Political parties is also accused of having promoted, aided
and abetted Kenya Kwanza coalition in subverting multi-party democracy.
She is said to have provided immunity from legal consequences to the 10th
and 13 respondents and other elected leaders of Jubilee party who have
defected from the parties in the Azimio coalition but continue to hang on to
their political seats sponsored by Azimio coalition during the General
elections of August, 2022.
12 |PETITION NO. E202 OF 2023: JUDGMENT
 28.The 10th and 13 respondents, according to the petitioners, should be deemed
to have ceased to be members of the Jubilee party and having resigned from
their positions as members of National Assembly and the East African
Legislative Assembly respectively.
29.In view of the decisions, actions and omissions of the Kenya Kwanza
coalition and the Speaker of the National Assembly, the Registrar of
Political Parties has become unfit to continue holding that position on
account of her willful violations of Articles 1, 3, 4, 10, 73 and 75 of the
Constitution.
30.As for the IEBC, the petitioners contend that the Commission has refused,
neglected or otherwise failed to expressly declare the party or coalition that
garnered the majority of seats in the National Assembly. Due to this failure,
Kenya Kwanza lobbied, induced and manipulated some members of the
National Assembly of the Azimio coalition to unlawfully defect to its
coalition and assert itself as the majority party.
31.The IEBC is also alleged to have been silent in the wake of public schemes
by the Kenya Kwanza and the Speaker of National Assembly to undermine
multi-party democracy by fomenting rebellion and indiscipline among
Members of National Assembly elected on tickets of constituent parties of
the Azimio coalition. The IEBC is alleged to have failed to raise any
objection or protest the ruling of the Speaker that Kenya Kwanza is the
majority party.
32.Finally, the petitioners contend that the Finance Act, 2023 and the
Appropriation Act, 2023 were processed through illegal process for the
reason that these statutes were spearheaded by parliamentary committees
led by a majority that was unlawfully in office and in a House presided over
by a partisan speaker. Accordingly, the statutes are unlawful.
13 |PETITION NO. E202 OF 2023: JUDGMENT
 33.Against the foregoing background, the petitioners have petitioned for
several orders which we can do no better than reproduce them here as
outlined in the petition. They have been captured as follows:

“a) That a declaration be issued to declare that the question as to

which party or coalition of parties is the majority in the National
Assembly in the 13th Parliament was determined by the sovereign
will of the Kenyan voters on 9th August 2022.
b) That the declaration be issued to declare that the decisions,
actions and omission of the 1st respondent with the assistance,
complicity, aid and abetment of the 4 th and 5th respondents to
destabilize the 1st interested party as the popularly determined
majority party in the National Assembly constitutes an attempt to
overturn the will of the people expressed in the general elections
held on 9th August 2022 and establish the leadership of the National
Assembly in the 13th Parliament contrary in a manner prohibited by
Articles 1, 4, 38 and 103 of the Constitution.
c) That a declaration be issued to declared (sic) that under Articles
1, 12, 27 and 38 of the Constitution the 1 st, 4th and 5th respondents
are jointly and severally prohibited from establishing government
that excludes representatives of the members and supporters of
Jubilee party in accordance with their voting during the General
election (sic) held on 9th August 2022.
d) That a declaration be issued to declare that the Azimio la Umoja-
One Kenya Coalition is the majority party in the National Assembly
of Kenya based on the outcome of the election of members of the
National Assembly held on 9th August 2022.
e) That a declaration be issued to declare that the Kenya Kwanza
alliance is the minority party in the National Assembly of Kenya
based on the outcome of the elections of members of the National
Assembly held on 9th August 2022.
f) That a declaration be issued to declare that the
ruling/determination of the 3rd respondent contained in his
communication from the chair made on 6th October, 2022

14 |PETITION NO. E202 OF 2023: JUDGMENT

 concerning the leadership of the National Assembly in the 13 th
Parliament is inconsistent with the Constitution of Kenya and the
outcome of the election of members of the National Assembly held
on 9th August, 2022.
g) That an order of certiorari be issued quashing the ruling of the
3rd respondent on the leadership of the National Assembly in the 13 th
Parliament contained in his communication from the chair made on
6th October, 2022.
h) That a declaration be issued to declare that by dint of Article 103
of the Constitution read with section 14 of the Political Parties Act
no member of a party or coalition can become a member of a
different coalition merely by writing to the 3rd respondent for
recognition of such a change of political allegiance.
i) That a declaration be issued to declare that the 3 rd respondent’s
ruling on the leadership of the National Assembly in the 13 th
Parliament is unlawful for amounting to an attempt to establish a
government otherwise than in compliance with the Constitution of
Kenya, 2010 and the results of the election of members of the
National Assembly held on 9th August, 2022.
j) That a declaration be issued to declare that on account of the 4 th
respondent’s position as the leader of the Ford-Kenya party, as a
member of the party leaders forum of Kenya Kwanza alliance and
an ex officio member of coalition preliminary group of Kenya
Kwanza alliance the 4th respondent was not eligible to be elected as
the speaker of the National Assembly in the 13th Parliament.
k) That a declaration be issued to declare that by dint of Articles 50
(1) and 75 (1) of the Constitution and the doctrine of the separation
of powers the 4th respondent was not lawfully elected as or to
continue serving as the speaker of the 2nd respondent.
l) That an order of certiorari be issued to quash the election of the
4th respondent as the speaker of the National Assembly held on 8
September, 2023.
m) That a declaration be issued to declare the position of the
speaker of the National Assembly is applicant.
15 |PETITION NO. E202 OF 2023: JUDGMENT
 n) That a declaration be issued to declare that the 1 st respondent has
violated Articles 1, 3, 4, 10, 38, 91 and 103 of the Constitution in
inducing, causing, sponsoring and securing political rebellion in
Jubilee party and de facto defection of its MPs to the Kenya Kwanza
alliance.
o) That a declaration be issued to declare that the 4 th respondent is
complicit and guilty of aiding and abetting the de facto defection of
Jubilee MPs into Kenya Kwanza alliance in violation of Articles 91
and 103 of the Constitution read with section 14 of the Political
Parties Act, 2011.
p) That a declaration be issued to declare that by dint of Articles 1,
4, 12 (1) and 38 of the Constitution read with section 22 and 23 of
the Citizenship Act, the 4th-6th and 7th-12th petitioners alongside other
members of the Jubilee party have a right to be represented by MPs
elected on its ticket during the entire five years term of the 13 th
Parliament.
q) That a declaration be issued to declare that by dint of Articles 4,
12 (1), 38 and 90 of the Constitution the Jubilee party cannot leave
the Azimio la Umoja One Kenya Coalition without the approval of
its members and/or supporters determined through a referendum
envisaged under Articles 1 and 88 of the Constitution.
r) That a declaration be issued to declare that no official of Jubilee
party is mandated to issue a notice to withdraw the Jubilee party
from the deed of agreement for Azimio la Umoja One Kenya
coalition before such intention is subjected to public participation
among members and supporters of Jubilee party as envisaged under
Article 10 of the Constitution.
s) That a declaration be issued to declare that the 13 th respondent’s
notice to withdraw Jubilee party from the deed of agreement for
Azimio la Umoja one Kenya coalition dated 13th June, 2023 is
unlawful for being inconsistent with Articles 1, 4, 10, 12 (1), 38 (1)
and 91 of the Constitution read with sections 10, 14 and 34 of the
Political Parties Act, 2011.

16 |PETITION NO. E202 OF 2023: JUDGMENT

 t) That an order of certiorari be issued to quash the 13 th
respondent’s notice dated 13 June, 2023 to withdraw Jubilee party
from the deed of agreement for Azimio la Umoja one Kenya
coalition.
u) That a declaration be issued to declare that the political scheme
between the 1st, 4th, 9th, 12th and 13th respondents to destabilize
Jubilee party and secure its withdrawal from the deed of agreement
for Azimio la Umoja one Kenya coalition amounts to a conspiracy to
achieve political and economic exclusion of members and
supporters of Jubilee party in central Kenya in violation of Articles
1, 4, 10, 12 (1) and 38 of the Constitution.
v) That a declaration be issued to declare that the Finance Bill, 2023
and the Appropriation Bill, 2023 were prepared and spearheaded by
the majority leadership of the National Assembly that is unlawfully
in office.
w) That a declaration be issued to issue an order of certiorari to
quash the impending Finance act, 2023 and the Appropriation Act,
2023.
x) That a declaration be issued to declare that by dint of Articles 1,
3, 4, 10, 12, and 38 of the Constitution on the obligation of every
Kenyan citizen or section of the citizenry to pay taxes is conditional
and subject to his right to be represented in management of state
affair (sic) and organs of the state and in particular Parliament.
y) That a declaration be issued to declare that the member (sic)
and/or supporters of Azimio la Umoja one Kenya coalition and its
constituent parties have a right to withhold payment of 50% of the
direct taxes due to the National Government unless and until the
status, rights and privileges of Azimio la Umoja as majority party in
the National Assembly are fully restored by this Honourable Court.
z) That the declaration be issued to declare that by dint of Articles 1,
4 and 38 of the Constitution and an elected official sponsored by a
political party cannot join another political party until he or she has
resigned from his or her elective position.

17 |PETITION NO. E202 OF 2023: JUDGMENT

 aa) That a declaration be issued to declare that within the meaning
of Article 103 of the Constitution and section 14 of the Political
Parties Act, the 10th and 13th respondents are deemed to have
resigned as members of the Jubilee party.
bb) A declaration be issued to declare that the incumbent Registrar
of Political Parties madam Anne Nderitu has violated Articles 1, 3,
4, 10, 38, 73 and 75 of the Constitution which renders her unfit to
continue serving as the Registrar of Political Parties.
cc) A declaration be issued to declare that the 1st respondent has
violated Articles, 1, 3, 4, 38 and 91 of the Constitution.
dd) That a declaration be issued to declare that the 16th respondent-
the Cabinet Secretary, National Treasury and Economic Planning-
violated the rights of the Kenyans to public participation in respect
to the budget making cycle for the Finance Bill, 2023 and the
Appropriation Bill, 2023.
ee) That an order of permanent injunction be issued to restrain the
15th respondent-Kenya Revenue Authority-from demanding payment
of taxes due from citizens aggrieved by the ouster of Azimio la
Umoja one Kenya coalition as the majority party vide a ruling of the
3rd respondent delivered on 6th October 2022.
ff) An order of mandamus to compel the Registrar of Political
Parties to commence an inquiry into the deregistration of the 1 st
respondent on account of its willful violation of the principles and
values set out in Article 91 of the Constitution.
gg) that an order of compensation of the petitioners for violation of
their constitutional rights within the meaning of articles 1, 10, 12
(1), 27, 38 and 50 of the Constitution.
hh) costs of this petition be borne by the respondents.”
Respondents’ and interested parties’ response

(i) 1st and 17th respondents’ response

18 |PETITION NO. E202 OF 2023: JUDGMENT

 34.In response to the petition, except for the 15 th respondent, the 1st to 19th
respondents filed replying affidavits opposing the petition. The 8th interested
party filed a replying affidavit and a cross-petition. The 10 th interested party
also filed a cross-petition. The rest of the interested parties filed
submissions either in support of or against the petition. The 3 rd and 4th
respondents, 6th to 9th and 18th respondents also preliminary objections. For
the reasons given in our ruling handed down on 26 January 2024, we
dismissed the preliminary objections.
35.The 1st and 17th respondents’ replying affidavit was sworn by Mr. Cleophas
Malalah who introduced himself in the affidavit as the Secretary-General of
the United Democratic Alliance Party. Some of the “depositions” made in
the affidavit appear to be issues of law and which this Honourable Court
pronounced itself on in the ruling on the preliminary objections. For
instance, Mr. Malala has “sworn” that the petition raises a multiplicity of
unrelated causes of action against different unrelated parties and that the
court lacks jurisdiction to entertain some of the causes of action.
36.According to Mr. Malala, the alleged amalgamation of the causes of action
is crafted by the petitioners to avoid the dispute resolution mechanisms laid
down in the Constitution and applicable statutes. The jurisdiction to
determine a dispute between or among members of a political party is
vested in the Political Parties Disputes Tribunal after exhaustion of the
internal party dispute resolution mechanisms in accordance with Section 40
and 41 of the Political Parties Act. According to the 1st and 17th respondents,
the amended petition is an appeal against the decision of the Registrar of
Political Parties.
37. Mr. Malala’s remarks on the office of the National Speaker are also legal
arguments and he has even gone further and made reference to certain
19 |PETITION NO. E202 OF 2023: JUDGMENT
 provisions of the Constitution including Article 106 and Article 99 which he
has quoted verbatim in his affidavit. He has also cited the Standing Orders
of the National Assembly, in particular, standing orders numbers 4 to 12 on
the requirements for and the procedure of electing the speaker of the
National Assembly.
38.Nonetheless, Mr. Malala has also sworn that at the time of his election on 8
September 2022, the Hon. Wetang’ula was the party leader of Ford-Kenya
Party and also a leader in the Kenya Kwanza Alliance and that the Members
of the National Assembly were aware of this fact when they elected him. As
far as the impugned decision is concerned, Mr. Malala has sworn that the
Speaker of the National Assembly cannot be faulted for discharging his
Constitutional duty to lead and guide the House on various issues.
According to him, the issue of deciding which party is the majority in the
National Assembly falls within the functions of the office of the Speaker of
the National Assembly.
39.On the issue of the passage of the Finance Bill 2023 and the Appropriation
Bill 2023 Mr. Malala has urged that the process of making law is a
cumulative and joint responsibility of all the members of the National
Assembly independent of any political affiliations. In any event, this
Honourable Court lacks jurisdiction to entertain any dispute on tax waivers
and, that the Constitution has empowered the National Assembly to make
legislation on tax waivers.
(ii) 2nd respondent’s response
40. A replying affidavit sworn on 19 March 2024 by Samuel Njoroge was filed
on behalf of the 2nd respondent in response to the petition. Mr. Njoroge
swore the affidavit in his capacity as the Clerk of the National Assembly.
He states that the Office of the Clerk of the National Assembly is a
20 |PETITION NO. E202 OF 2023: JUDGMENT
 constitutional office within the Parliamentary Service and has the
responsibility of managing the operations and affairs of the National
Assembly and providing technical and procedural advice to the Speaker and
Members on parliamentary practices and procedure, as outlined in Articles
127 and 128 of the Constitution.
41.Like the 1st and 17th respondents, Mr. Njoroge has deposed on what is largely
matters of law relating to his office and the process of election of the
Speaker of the National Assembly at the Assembly’s first sitting after
members have taken oath of office. In this regard, Mr. Njoroge has made
reference to articles of the Constitution and several standing orders including
standing orders numbers 4,5,7, 10 and 12. He has also made reference to
Articles 106 (1)(a) and 99 of the Constitution with respect to qualifications
for the office of the Speaker and those of the members of Parliament.
42.As far as the election of the 4th respondent as the Speaker of the National
Assembly is concerned, Mr. Njoroge has sworn that on 5 September 2022,
through Gazette Notice No. 10529, the Clerk of the National Assembly
announced vacancies for the position of Speaker and invited qualified
individuals to apply.
43.Subsequently, the 4th respondent submitted his application in line with
Standing Order 5(3A) after which the Clerk contacted various agencies,
including the IEBC, to verify the 4th respondent's eligibility. The IEBC is
said to have confirmed that the 4 th respondent met the requirements to
contest for Speaker, as per Article 99 of the Constitution and Section 24 of
the Elections Act, 2011. The 4th respondent was subsequently elected as
Speaker of the National Assembly in the 13th Parliament.
44.According to Mr. Njoroge, a person running for the office of the Speaker is
not prohibited from holding a position in a political party or coalition and to
21 |PETITION NO. E202 OF 2023: JUDGMENT
 the extent that the petition posits that to be the position , the petitioners are
said to introduce new qualifications for the office of the speaker which are
not provided for in the Constitution.
45.On the quest to remove the Speaker from office, Mr. Njoroge has sworn that
this Honourable Court has no jurisdiction to remove the Speaker. According
to him, the Speaker can only be removed in accordance with Article 106(2)
(c) of the Constitution and Standing Order 12B of the National Assembly’s
Standing Orders.
46.The Speaker of the National Assembly, it has been sworn, acts as an
impartial umpire, guiding proceedings in the House and Standing Order
1(1) grants him the authority to decide any procedural questions that are not
specifically addressed by the Standing Orders or other House rules.
47. As far as the leadership of the House is concerned, Mr. Njoroge states that
the positions of Leader of majority party and minority party are provided for
under Article 108 of the Constitution, Standing Order 19A(1) and Standing
Order No.20(1). It is urged that upon election of leaders, their names must
be communicated to the Speaker in writing, who then informs the House of
the majority and minority Party leadership and whips, as per Standing Order
19A.
48.The Clerk of the National Assembly then writes to the Leaders of the
Majority and Minority Parties, requesting the names of nine(9) members to
serve on the House Business Committee, as outlined in Standing Order
171(1)(f). These names are published in the Order Paper for approval at the
House’s first sitting.
49.The House Business Committee, it has been sworn, plays a crucial role in
determining and prioritizing the legislative agenda of the National
Assembly. Further, without this Committee, the House cannot proceed with
22 |PETITION NO. E202 OF 2023: JUDGMENT
 its functions, and the participation of the Majority and Minority Leaders is
essential. It is urged that Standing Order 171(2) mandates the formation of
the House Business Committee within seven days from the start of a new
House.
50.Mr. Njoroge has sworn that with respect to the 13 th Parliament, a dispute
arose regarding the identification of the majority and minority parties, a
matter not explicitly covered by the Constitution or Standing Orders. In line
with Standing Order 1, the Speaker, guided by constitutional provisions,
statutes, parliamentary traditions, and precedents, addressed the issue. In the
2nd respondent’s view, the Speaker's decision on the dispute was consistent
with the Constitution and the relevant laws, and that the Petitioners have not
demonstrated any violation of rights, fundamental freedoms, or laws in their
Amended Petition.
51.As far as the Finance Bill, 2023, and Appropriation Bill, 2023, are
concerned, Mr. Njoroge has sworn that at the time of institution of this suit,
both Bills were in the process of legislation. The Finance Bill, 2023, was
eventually enacted by the National Assembly on 21 June 2023 and assented
to by the President on 26 June 2023.
(iii) 3rd & 4th respondents’ response
52. The 3rd and 4th respondents refer to one and the same person except that he
has been sued both in his official and private capacities. The Honourable
Speaker, filed a Notice of Preliminary Objection dated 30 June 2023 and
later filed an Amended Notice of Preliminary Objection dated 30 October
2024.
53. The Speaker also filed a replying affidavit sworn 23 November 2023. In the
preliminary objection, the Speaker objected to the amended petition on
grounds that it contravenes Article 117(2) of the Constitution as read with
23 |PETITION NO. E202 OF 2023: JUDGMENT
 section 12(2) of the Parliamentary (Powers and Privileges) Act,2011. He
has also contended that the amended petition seeks to challenge Finance
Bill,2023 and Appropriation Bill, 2023 which have already been enacted
and assented to. The said Bills were also a subject of a separate suit.
54. It is the Speaker’s position that the petitioners are guilty of latches and that
the orders sought, if granted, will cripple the functioning of the National
Assembly. Some of the decisions sought to be challenged in this petition
were made long before the petition was filed.
55. The petitioners, it is urged, have failed to exhaust the mechanisms contained
in the various parties’ constitutions and coalition agreements and also those
provided under sections 40 and 41 of the Political Parties Act.
56. The Amended Petition is said to contravene Rule 4 of the Constitution of
Kenya (Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules, 2013 which requires that petitioners demonstrate, with
precision, and specify the violation or threat of violation of rights to them or
any other identified person.
57. It is also urged that the Amended Petition offends the doctrine of sub judice
as the issues therein are substantially and materially similar to the subject
matters in:
a. The High Court of Kenya at Nairobi in Constitutional Petition No.
E166 of 2023; Hon. Sabina Chege versus Rt. Hon. Of the National
Assembly and 3 Others.
b. The Political Parties Parties’ Dispute Tribunal Case No. E010 of
2023; Jeremiah Kioni versus Office of the Registrar of Political
Parties

24 |PETITION NO. E202 OF 2023: JUDGMENT

 c. The High Court of Kenya at Kiambu in Constitutional Petition No.
E025 of 2023; Association of Friends of Youth and Women versus
Speaker of the National Assembly and 3 Others.
58. The Speaker has sworn that he was qualified to run for the office of the
Speaker of the National Assembly, as demonstrated by his successful
candidacy as the Member of Parliament for Bungoma County in the 2022
General Elections and that following Standing Order 5(4) of the National
Assembly Standing Orders, the Clerk confirmed his eligibility to contest
and cleared him as a candidate for Speaker alongside other qualified
candidates.
59. When elections were eventually held on 8 September 2022, he was elected
Speaker of the National Assembly with 215 votes out of 346 votes and at
the time of his election, he was the Party Leader of Ford-Kenya and a
Leader in the Kenya Kwanza Alliance, a fact known to the Members of the
National Assembly.
60. According to the Speaker, the only objection raised during the election was
by Hon. T.J. Kajwang, who questioned his qualifications on grounds that he
was still a Senator. After a thorough debate, the Clerk is said to have ruled
that he had resigned as Senator and was thus qualified to be Speaker, with
the ruling recorded in the Hansard of 8 September 2022.
61. It is the Speaker’s case that the petitioners, or their representatives, had the
opportunity to raise any objections to his qualifications during the election
process, but none was presented at the time and, therefore, the objections
raised in the Amended Petition are irrelevant, as they are both belated and
an afterthought.
62. He has invited the Court to note, that through the Amended Petition, the
petitioners have, without any lawful authority, sought to formulate,
25 |PETITION NO. E202 OF 2023: JUDGMENT
 introduce and entrench new qualifications for the office of the Speaker of
the National Assembly. The purported qualifications are not anchored in
any law in Kenya. In particular, the Speaker has urged that the allegations
by the petitioners that a Speaker of the National Assembly shall not hold
office in a political party has no constitutional or legal foundation.
63. According to the Speaker, he is aware that Article 38 (1) of the Constitution
of Kenya safeguards the political right to form and participate in forming a
political party and to participate in the activities of a political party and, that
a speaker of the National Assembly is not precluded from the enjoyment of
this right. He has also sworn that the office of the Speaker of the National
Assembly is an elective position. According to him, there is no law that
bars a Speaker of the National Assembly or any other elected state officer,
for that matter, from holding a position in a political party.

64. The Speaker contends that since he is an elected state officer and not
appointed one and, he is not subject to Article 77(2) of the Constitution. His
position is that the Constitution contemplates that a Speaker of Parliament
may be a member of a political party by dint of Article 106(1) (a) as read
together with Article 99(1)(c) of the Constitution. The Deputy Speaker is
not prohibited from holding a position in a political party yet he or she, as
an elected state officer, who exercises the functions of a Speaker in the
absence of the Speaker. The Speaker, by necessary implication enjoys the
same rights.
65. Similarly, the Speaker’s Panel consists of seven Members of the National
Assembly, the Deputy Speaker included. All the seven members in the
Speaker’s Panel are members of political parties, one of whom is a party
leader of Movement for Democracy and Growth. Four of the members of
26 |PETITION NO. E202 OF 2023: JUDGMENT
 the Speaker’s Panel are from the majority party while three are from the
minority party. None of the Members of the Speaker’s Panel is precluded
from holding a position in a political party and neither is holding a position
in a political party considered a ground for qualification or disqualification
of a member from holding the position in the Speaker’s Panel.
66. The Speaker has also made reference to Article 75(1) of the Constitution on
what constitutes conflict of interest and urged that pursuant to the said
provision, conflict of interest constitutes conflict strictly between public
interest and personal interests of a public officer. In contrast, the
involvement of a person in a political party or its leadership is a matter of
enhancing public interest under section 4A of the Political Parties Act.
67. The Speaker has reiterated that his position in the political party does not
cause any conflict with his role as Speaker of the National Assembly and
that, in any event, the petitioners have not adduced any evidence before this
Honourable Court to prove the existence of a conflict of interest, now or in
future.
68. He states further that parliamentary proceedings including legislation, is a
product of political actors being the members of Parliament including the
Speaker who is an ex-officio member, and, therefore, the position by the
petitioners that only the Speaker ought not be a Member or an official of a
political party is not only discriminatory, but also an absurdity and
unfounded.
69. The Speaker has compared our jurisdiction to that of the United States of
America where the Speaker of the House of Representatives is the political
and parliamentary leader of the House and is simultaneously its presiding
officer, de facto leader of the body's majority party, and the institution's
administrative head. He also states that South Africa has a Parliamentary
27 |PETITION NO. E202 OF 2023: JUDGMENT
 system where the political parties’ elect members of the National Assembly.
However, this is not the position in Kenya as ours is a presidential system
where members of Parliament are elected directly by the voters.
70. On separation of powers, it’s the Speaker’s position that the principle of
separation of powers concerns the three arms of government; that is, the
Executive, the Legislature, and the Judiciary. Under Article 130(1) of the
Constitution, the executive comprises the President, the Deputy President,
and the rest of the Cabinet. It is urged that offices in the executive do not
include political parties.
71. The petitioners, according to the Speaker, have not provided evidence to
support the claim of bias. Citing the Black's Law Dictionary, the Speaker
says that bias is a preconceived opinion that prevents an open mind.
Contrary to the petitioners’ allegations, the Speaker denies that he has
shown any elements of bias in his actions.
72. As far as the dispute on the Majority Party in the House is concerned, the
Speaker has sworn that on 21 September 2022, he received a letter from the
Secretary General of the Azimio La Umoja One Kenya Coalition Party, the
Hon. Junet Mohammed, MP conveying information to the effect that the
Coalition Party had elected the following as its House leaders in the
National Assembly:
a. Hon. James Opiyo Wandayi, MP as the Leader of the Majority;
b. Hon. Robert Mbui, MP as the Deputy Leader of the Majority;
c. Hon. Junet Mohammed, MP as the Majority Whip; and
d. Hon. Sabina Chege, MP as the Deputy Majority Whip.
73. He also received two other letters dated 22 September 2022 from the
Member for South Mugirango, the Hon. Silvanus Osoro Onyiego, MP and
the Member for Kikuyu Constituency, Hon. Kimani Ichung’wah, MP. In
28 |PETITION NO. E202 OF 2023: JUDGMENT
 those letters, it was communicated to him that the Kenya Kwanza Coalition
had appointed the following persons as its House Leaders in the National
Assembly:
a. Hon. Kimani Ichung’wah, MP, Leader of the Majority Party;
b. Hon. Owen Baya, MP, Deputy Leader of the Majority Party;
c. Hon. Silvanus Osoro Onyiego, Chief Whip; and
d. Hon. Naomi Jillo Waqo, MP, Deputy Chief Whip.
74. Owing to what the Speaker has termed as “the confusion arising from the
letters”, there was a dispute over who held key positions in the National
Assembly, and, as a result of the dispute, the formation and functioning of
the House Business Committee was hampered. Nonetheless, this dispute
called for the determination of which parties or coalitions formed the
Majority and Minority parties in the House. According to the National
Assembly Standing Orders, the Speaker was required to make a reasoned
ruling on the issue. The ruling was eventually delivered on 6 October 2022,
after a debate among the Members of the National Assembly.
75. According to the Speaker, in delivering the ruling, he was fulfilling his
official responsibility to give guidance to the House on the constitution of
the leadership offices of the National Assembly and, for that reason, he is
immune against any proceedings for any act done in the discharge of the
functions of the Office of the Speaker of the National Assembly. This
immunity is found in Article 117 of the Constitution and section 12 (2) of
the Parliamentary Powers and Privileges Act, 2017.
76. In a bid to resolve the dispute, the Clerk of the National Assembly wrote to
the Office of the Registrar of Political Parties on 2 September 2022
requesting information and copies of Coalition Agreements and vide the
letter dated 7 September 2022, the Registrar of Political Parties is said to
29 |PETITION NO. E202 OF 2023: JUDGMENT
 have declined to avail the documents as requested but stated that the
membership of Azimio La Umoja One Kenya Coalition Party was still
contested in Court.
77.As a result of the documents laid on the floor of the House on 4 October,
2022, it was brought to the Speaker’s attention that some political parties
had filed constitutional petitions challenging the constitutionality of the
Azimio la Umoja One Kenya Coalition Agreement. The Petitions were
identified as Nairobi High Court Constitutional Petition E409 of 2022
Mwengi Mutuse & 4 Others vs Azimio la Umoja One Kenya Coalition &
Others filed by members of the Maendeleo Chap Chap Party, (MCCP)
and Pamoja African Alliance (PAA) and Mombasa High Court
Constitutional Petition E041 of 2022 Mangale Chiforomodo vs Azimio la
Umoja One Kenya Coalition & Others. Also, an objection had been raised
by Movement for Democracy and Growth (MDG) Party dissociating itself
from Azimio La Umoja One Kenya Coalition Party.
78.In rendering his ruling of 6 October 2022, the Speaker referred to all the
documents presented to him, the presentations of members during the
debate in the House and applicable laws and precedents and that the reasons
for the decision are contained in the decision itself.
79. After the delivery of the decision, the Members of the Kenya Kwanza
Coalition and Azimio La Umoja One Kenya Coalition Party have been
operating and continue to operate under their respective designations as
majority and minority party in the House respectively. According to the
Speaker, none of the coalition parties have contested the positions they
assumed after the ruling.
(iv) 5th & 14th Respondents’ response

30 |PETITION NO. E202 OF 2023: JUDGMENT

 80. The 5th & 14th respondent’s filed a replying affidavit sworn on 3 November
2023 by Mr. Wafula Wakoko who has sworn that he is the Legal and
advisory officer of the 5th Respondent. He has stated the petition should be
dismissed because it does not raise any reasonable cause of action against
the 5th respondent. In any event, as the Registrar of Political Parties, the 5th
respondent has effectively carried out her duties in accordance with the
Political Parties Act, including regulating political parties and ensuring their
compliance with the law.
81. On the particular question of the Majority Party in the National Assembly,
she wrote to the 19th Respondent requesting the party’s position with
regards to the Speaker being a Ford Kenya leader. The 19 th respondent
replied stating that the Speaker was not an appointed state officer and,
therefore, Article 77 was not applicable to him. The 5 th Respondent is said
to have been satisfied with this response.
82. As far as the coalitions are concerned, the Registrar of Political Parties has
admitted gazetting the Azimio Coalition Party via Gazette Notice No.4442
on 14 April 2022.The coalition, according to this gazette notice, comprised
26 political parties. She availed this information to the National Assembly
when it was requested for. She gave the same information to the Secretary
General of Azimio when he wrote to her inquiring about the status of the
coalition agreement. Her letter to Azimio Coalition was dated was 7
September 2022. According to the 5th Respondent, as at June 2023, the only
party that had legally exited the Azimio coalition was the Devolution
Empowerment Party. All other parties were as gazetted on 14 April 2022
and they remained constituent parties of the Azimio Coalition.
(v) 6th to 9th respondents’ response

31 |PETITION NO. E202 OF 2023: JUDGMENT

 83.The 6th to 9th respondents filed an amended notice of preliminary objection
dated 3 November 2023 and a replying affidavit sworn on 30 June 2023 by
Hon. Anthony Kimani Ichung’wah MP, the 6th Respondent in these
proceedings, in response to the petition.

84.In the preliminary objection, the 6th-9th respondents urged that the petition
contravened Article 117(2) of the Constitution as read with section 12(2) of
Parliamentary (Powers and Privileges) Act, 2011; that the Petitioners seek
to challenge a legislative process; that they are guilty of latches; that they
have failed to exhaust the available dispute resolution mechanisms; and,
that the pmended petition is full of political contests and it does not raise
any justiciable issues capable of being determined by this Honourable
Court. They have also contended that the amended petition contravenes
Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental
Freedoms) Practice and Procedure Rules, 2013; and, finally that the
petitions offend the doctrine of sub judice.
85.In his replying affidavit, Hon. Anthony Kimani Ichung’wah has sworn that
following the ruling by the Speaker, the Minority Leader in the National
Assembly addressed the House and stated that his Party will reserve the
right to move the speaker to review his ruling. However, the minority
party, has not exercised its right to move the speaker to review his ruling
dated 6 October 2022.
86.Hon Ichungwa has also deposed that the designated leaders for both
majority and minority parties in the National Assembly took office in
accordance with the ruling, members from the Kenya Kwanza Coalition
assumed the Majority Leadership positions while members of the Azimio
Coalition assumed the minority leadership positions. The 6 th to 9th

32 |PETITION NO. E202 OF 2023: JUDGMENT

 respondents state that the two Coalitions have never raised issues on the
Speaker’s ruling or the status of Kenya Kwanza position as the majority
coalition in the National Assembly.
87.It is the 6th to 9th respondents’ case that the issue of coalition membership is
governed by the provisions of the coalition agreements and the Political
Parties Act. They state that the discernable issue from the petition is the
dispute between coalition partners; either as Azimio or Kenya Kwanza
partners and, as such, the dispute is wrongly filed before this Honourable
Court.
88. The petitioners’ petition is also opposed on the ground that the petitioners
have not pleaded with any degree of precision of the majority leaders’
unconstitutional actions in the discharge of their official duties. The have, in
this regard, invoked Article 117 of the Constitution as read together with
Section 12 of the Parliamentary Powers and Privileges Act to urge that they
have been wrongly sued in their official capacity in this matter and that
pursuant to the doctrine of parliamentary privilege they are immune to these
proceedings.
89. It is their case that Article 38(2) of the Constitution of Kenya guarantees the
right to form or join a political party and to campaign for a political cause
and as such Kenya Kwanza Coalition exercised this right by partnering with
other political parties that share similar interests and objectives to form the
coalition. According to the 6th -9th Respondents the Kenya Kwanza coalition,
consisting of political parties with a majority in the House, holds 179
members, while the Azimio La Umoja One Kenya Alliance has 157
members. They urge that according to Article 108 of the Constitution, they
are lawfully in office, having been validly nominated by the Kenya Kwanza
Coalition, the majority party in the National Assembly.
33 |PETITION NO. E202 OF 2023: JUDGMENT
 90. They urge that the rights and freedoms under Article 38(2) of the
Constitution protect political parties' ability to join or form coalitions of their
choice, and also to leave coalitions without limitations. It is their case that
following this constitutional right, political parties such as MCCP, MDG,
PAA, and UDM severed their ties with the Azimio La Umoja One Kenya
Alliance Party and submitted their cessation documents to the Registrar of
Political Parties.
91. Additionally, the 6thto 9th respondents argue that Section 10 of the Political
Parties Act, 2011, allows two or more political parties to form a coalition
before or after an election, and requires them to deposit their coalition
agreement with the Registrar within set timelines. It is also urged that
Section 2 of the Third Schedule to the Political Parties’ Act stipulates that
coalition agreements must be written, executed by authorized national party
officials, and certified by a commissioner for oaths.
92. Section 3 of the Third Schedule of the Political Parties Act,2011 is said to
outline the contents of a coalition agreement which include the parties which
are members of the coalition, the policies and objectives of the coalition, the
decision-making structure, rules and procedures, the Code of Conduct of the
coalition including the values and the principles guiding the performance of
the individuals and the member parties within the coalition, the dispute
resolution mechanisms and procedures and the enforcement and sanction
mechanisms and procedures for breach of any of the provisions of the
agreement.
93. According to the 6thto 9th respondents any party claiming to be in a coalition
must submit the coalition agreement to the Registrar of Political Parties.
Further, the claim that MCCP, UDM, PAA, and MDG are part of the Azimio

34 |PETITION NO. E202 OF 2023: JUDGMENT

 coalition lacks supporting documentary evidence, which is necessary for the
orders sought by the Petitioners.
94. It is further urged that the leaders of these four parties have publicly
distanced themselves from the Azimio La Umoja One Kenya Alliance Party
and that they have expressed their support for the Kenya Kwanza Alliance
and their right to pursue their own political path, which should be respected
and protected.
95. It is further contended that Section 11(1) of the Political Parties Act allows
political parties to merge with another party, either forming a new party or
merging into an already registered one. Coalition agreements, it is urged, are
private contracts between the parties involved and that they should be
resolved according to the terms agreed upon by those parties. The 6 th to 9th
respondents also urge that the petitioners have not explained why they by-
passed the internal dispute resolution mechanisms of the political parties
involved before resorting to court.
96. The 6th to 9th respondents urge that despite the petitioners' claim that UDM,
PAA, MDG, and MCCP are part of Azimio La Umoja One Kenya Alliance,
they have not provided the necessary documentary evidence to support their
claim.
97. They also urge that the political rights guaranteed under Article 38 of the
Constitution are closely tied to the freedom of association outlined in Article
36, which prohibits the compulsion of a person to join any association,
advocating instead for voluntary association. The petitioners, according to 6th
to 9th respondents, are attempting to force the four political parties to remain
part of the Azimio La Umoja Kenya One Alliance Party, against their will,
which is an infringement upon their political rights and freedom of
association.
35 |PETITION NO. E202 OF 2023: JUDGMENT
 98. The 6th to 9th Respondent urge that Coalition agreements, which are
deposited with the Registrar of Political Parties, can be used to determine
coalition membership. However, these agreements must adhere to the
requirements of the Third Schedule of the Political Parties Act, 2011, to be
valid and reliable.
Also, that the issue of which party or coalition holds the majority in the
National Assembly is dynamic and can only be definitively settled when the
situation arises, or when political allegiances and party coalitions change.
99. It is these respondents’ case that the petitioners' claim that the majority in
the National Assembly is decided by the ballot is incorrect. They urge that
the Kenyan voters elect their representatives, not political parties, meaning
that they do not directly decide who holds the majority in the National
Assembly. According to them, this assertion overlooks the role of
independent members in the Assembly.
100.They have also urged that the question of which party or coalition of parties
holds the majority in the National Assembly, as outlined in Article 108 of
the Constitution, only arises once members are sworn in. It is their case that
the same becomes relevant when the House needs to determine who is
entitled to nominate individuals for the majority and minority leadership
positions. According to the Constitution, the leader of the majority in the
National Assembly is the leader of the largest party or coalition of parties.
101.It is the 6th to 9th respondents’ case that the issue of deciding which party is
the majority in the National Assembly falls within the functions of the
office of the Speaker of the National Assembly. The petition, according to
them, has been brought late in the day and the inordinate delay has not been
explained. The members of the minority party are alleged to be guilty of
acquiescing and have failed to dispute the Speaker's ruling, particularly
36 |PETITION NO. E202 OF 2023: JUDGMENT
 having benefited from the leadership offices by being the second largest
party in the National Assembly.
102.The 6th to 9th respondents further contend that the legislation passed by the
National Assembly is intended to serve all the people of Kenya, not just a
specific political faction or party. Therefore, the petitioners’ argument that
the Finance Bill 2023 and Appropriation Bill 2023 are designed to benefit
the Kenya Kwanza Alliance is flawed.
103.They state that the laws are enacted by all members of the National
Assembly in fulfillment of their duty to serve the Kenyan public, rather than
to promote their own political interests. It is the 6th to 9th respondents’ case
that the petitioners' suggestion that only Azimio and Kenya Kwanza have
representation in Parliament is inaccurate. The National Assembly is said to
also include members from parties unaffiliated with either Azimio or Kenya
Kwanza, as well as independent candidates who actively participate in the
legislative process.
104.It is also the 6th to 9th respondents’ case that the doctrine of separation of
powers dictates that the courts should refrain from intervening in matters
that are still under consideration by the National Assembly until its
processes are completed. Furthermore, the petitioners are said to have failed
to specify the illegality in the National Assembly's handling of the Finance
Bill and the Appropriation Bill.
105.The 6th to 9th respondents state that the petitioners' claim that the bills were
passed by the chairperson of the majority party is a misunderstanding of the
parliamentary process as the bills are reviewed by the relevant committee,
where decisions are made collectively by members from both the majority
and minority parties, as well as independents. They further urge that a bill
is considered by the relevant committee and the role of the chairperson is to
37 |PETITION NO. E202 OF 2023: JUDGMENT
 chair the meeting as provided under Standing Order 180 of the National
Assembly’s Standing Orders. The committee’s report undergoes scrutiny by
the whole House, where all members can make further recommendations. It
is urged that members of the Azimio La Umoja One Kenya Coalition Party
are equally responsible for lawmaking in the National Assembly.
106.The 6th to 9th respondents urge that Articles 95 and 109 of the Constitution
envision legislation being made by all Members of the National Assembly,
regardless of party affiliation. The laws made in Parliament represent the
collective will of the people, not any particular political party. It is also
stated that, under Article 122, decisions in Parliament are made by a
majority of members present and voting, meaning that bills belong to the
House as a whole, not to any one party.
107.The 6th to 9th respondents urge that Members of Parliament maintain their
independence when voting and making decisions based on needs of the
electorate, and not under the control of political parties and as such, the
petition is flawed in suggesting that Members of Parliament lack political
independence. They have referred to Articles 209 and 210 of the
Constitution on the taxation and urged that these Articles grants the
National Assembly the authority to impose taxes and make tax-related laws.
It is further urged that the Finance Bill, at the time of filing their response,
was still undergoing the proper legislative process, and could not be deemed
unconstitutional at that stage. Further, that this Court lacks jurisdiction to
grant tax waivers, as only the National Assembly has the constitutional
authority to legislate on taxation matters.
108.Finally, the 6th to 9th respondents urge that the petitioners' claim appears to
be an attempt to bring internal political party disputes to court, dragging the
National Assembly's leadership into their political issues. They urge that the
38 |PETITION NO. E202 OF 2023: JUDGMENT
 appropriate forum for such disputes is within the parties' internal dispute
resolution mechanisms or the political parties' tribunal, not the court.
(vi) 10th and 13th respondents’ response

109.The 10th and 13th respondents filed a replying affidavit sworn on 2 February
2024 by Honourable Kanini Kega, named as the 13th respondent in this
petition. He introduced himself as the National Director of Elections as well
as a member of the National Executive Committee of the Jubilee Party.
According to the 10th and13th respondents, the amended petition, in so far as
it relates to Jubilee Party's membership in the Azimio la Umoja One Kenya
Coalition, is moot as the Jubilee Party successfully withdrew from the Deed
of Agreement with the Azimio la Umoja One Kenya Coalition.
110. It is their case that this court lacks jurisdiction to hear and determine the
questions in the petitioner’s amended petition as the issue of Jubilee
leadership is sub judice as there are multiple suits filed in the High Court
with regard to it. They also urge that this court will not be seized of
jurisdiction until the matter is determined by the internal dispute resolution
mechanism of the Jubilee Party as mandated under Section 40(2) of the
Political Parties Act,2011.
111. The 10th and 13th respondents also urge that the question as to the leadership

of the National Assembly as it relates to the 10th respondent and the Jubilee
Party is moot as the Jubilee Party is now recognised as a Parliamentary
Party with the 10th respondent as its whip. It is further urged that this issue is
also sub judice as Milimani Constitutional Petition Number E505 of 2023
Azimio la Umoja One Kenya Coalition Party vs. The Speaker of the
National Assembly and Jubilee Party.

39 |PETITION NO. E202 OF 2023: JUDGMENT

 112. It is the 10th and 13th Respondent’s case that the duties of the National
Executive Committee are outlined under Article 8.2 of the Jubilee Party
Constitution and include, inter alia, ensuring that all decisions made by all
party organs are duly carried out and all the policies are adhered to and
ensuring that proper order, discipline, and strict adherence to the Party's
constitution, by-laws, and party policies by all officials, members, and all
organs of the Jubilee Party. They further urge that the Jubilee Party
Constitution under Article 14.1.12 mandates the National Disciplinary
Committee to report its findings and decisions to the National Executive
Committee for adoption, ratification, variation or substitution.
113. According to the 10th and 13th respondents, Jeremiah Kioni, David Murathe
and Kagwe Gichohi who were the Secretary General, National Vice
Chairperson and National Treasurer of the Jubilee Party respectively, ceased
participating in the running of the Jubilee Party, on 10 February 2023 when
they were suspended by a resolution of the National Executive Committee
pending the hearing and determination of complaints made against them
within the Jubilee Party internal dispute resolution mechanism.
114. The Jubilee Party National Executive Committee is also said to have
resolved to have the 13th respondent as the acting Secretary General of the
Jubilee Party, Hon Rachel Nyamai as the acting National Treasurer and
Hon. Adan Keynan as the acting National Vice Chairperson to ensure the
smooth running of the affairs of the Jubilee Party. It is urged that the said
persons have held these positions until Hon. Asenath Ongeri J. gave interim
orders dated 13 July 2023 in Nairobi High Court Civil Appeal Number
E630 of 2023.
115. The 10th and 13th respondents urge that, Jeremiah Kioni, David Murathe and
Kagwe Gichohi, thereafter, moved to the Political Parties Tribunal in
40 |PETITION NO. E202 OF 2023: JUDGMENT
 PPDTC Number E001 of 2023 seeking, inter alia, orders to annul the
resolutions of 10 February 2023 that suspended them from the Jubilee Party.
On 19 April 2023, the Political Parties Tribunal is said to have delivered its
judgment in PPDTC Number E001 of 2023 referring the issue of the
validity of the meeting and resolutions of 10 February 2023 to the Jubilee
Party internal dispute resolution mechanism in line with section 40 of the
Political Parties Act.
116. Following the judgment of the Political Parties Tribunal in PPDTC Number
E001 of 2023, Jeremiah Kioni, David Murathe and Kagwe Gichohi were
charged before the Jubilee Party National Disciplinary Committee pursuant
to the resolutions of the National Executive Committee dated 10 February
2023 and complaints filed by the Chairperson on behalf of the Jubilee Party.
117. According to the 10th and 13th respondents, in a bid to intimidate and
threaten the operations of the Jubilee Party internal dispute resolution
mechanisms, Jeremiah Kioni issued several letters purporting to revoke the
appointment of members of the Jubilee Party national disciplinary tribunal
and internal dispute resolution committee. It is urged that Jeremiah Kioni,
David Murathe and Kagwe Gichohi were given a fair hearing before the
Jubilee Party national disciplinary committee and were represented by
advocates of their choice.
118. The national disciplinary committee reached a decision expelling Jeremiah
Kioni and David Murathe and suspending Kagwe Gichohi which decision
was forwarded to the national executive committee as provided under article
14.1.12 of the Jubilee Constitution. The 10th and 13th Respondents urge that
pursuant to Article 8.2.5 of the Jubilee Party Constitution, the national
executive committee met and adopted the decision of the national
disciplinary committee on 19 May 2023. The Minutes of the National
41 |PETITION NO. E202 OF 2023: JUDGMENT
 Executive Committee of 19 May 2023 were then forwarded to the Office of
the Registrar of Political Parties who, upon review of the submitted
documents, updated its records and the register of party members of the
Jubilee Party in its letter dated 19 May 2023.
119. The 10th and 13th Respondents urge that the decision to suspend Jeremiah
Kioni, David Murathe and Kagwe Gichohi led them to filing multiple suits
through different law firms seeking a raft of similar orders in the Political
Parties Dispute Tribunal. These suits included:
i. PPDTC Complaint Number E009 of 2023 Hon. Jeremiah
Ngayu Kioni versus Jubilee Party and Registrar of Political
Parties and Nelson Dzuya and 12 Others;
ii. PPDTC Complaint number E012 of 2023 David Murathe
versus Jubilee Party and Registrar of Political Parties and
Nelson Dzuya and 13 Others;
iii. PPDTC Complaint number E011 of 2023 Kagwe Gichohi
versus Jubilee Party and Registrar of Political Parties and
Nelson Dzuya and 13 Others ;
iv. PPDTC E010 of 2023 Jeremiah Kioni, David Murathe, Kagwe
Gichohi and Jubilee Party versus The National Disciplinary
Committee of the Jubilee Party, Joshua Kutuny and Kanini
Kega
v. PPDTA Number E003 of 2023 Jeremiah Kioni, David
Murathe, Kagwe Gichohi and Jubilee Party versus The Office
of the Registrar of Political Parties, Anne N. Nderitu. The
National Disciplinary Committee of the Jubilee Party, Joshua
Kutuny and Kanini Kega.

42 |PETITION NO. E202 OF 2023: JUDGMENT

 139. According to the 10th and 13th respondents, the Political Parties Disputes

Tribunal delivered its judgments in E009, E010, E011 and E012 on 10 July
2023 dismissing the complaints with costs to the respondents and interested
parties in the dispute. The Political Parties Disputes Tribunal delivered its

judgment in PPDTA Number E003 of 2023 on 11 July 2023 dismissing the

appeal with costs to the respondents and interested parties therein.
140. It is urged that the Jubilee Party Internal Dispute Resolution Committee in
IDRC Dispute Number E005 of 2023 Hon. Jeremiah Kioni versus Nelson
Dzuya and Hon. Joshua Kuttuny held that the Committee meeting held on
10 February 2023 was properly convened and held under the Jubilee Party
Constitution. They urge that this decision is yet to be appealed from or set
aside.
141. The 10th and 13th respondents urge that Jeremiah Kioni, David Murathe and
Kagwe Gichohi would later file multiple Appeals in different High Courts
challenging the decisions of the Political Parties Dispute Tribunal (PPDT)
being;
i. Nairobi High Court Civil Appeal Number E630 of 2023;
ii. Nairobi High Court Civil Appeal Number E635 of 2023;
iii. Mombasa High Court Civil Appeal Number E159 of 2023 now
Milimani HCCA Number 008 of 2023;
iv. Nairobi High Court Civil Appeal Number E736 of 2023;
v. Nairobi High Court Civil Appeal Number E750 of 2023;
vi. Nairobi High Court Civil Appeal Number E764 of 2023.
142. The 10th and 13th Respondents case is that it is not in dispute that the

Jubilee Party entered into a deed of agreement dated 12 March 2022

with respect to the Azimio la Umoja One Kenya Coalition with other

43 |PETITION NO. E202 OF 2023: JUDGMENT

 coalition partners. It is also not in dispute that the Jubilee Party suffered
greatly at the hands of its Azimio coalition partners including the
unlawful removal of Jubilee Party members from parliamentary
committees and parliamentary leadership positions.
143. They urge that pursuant to Article 33.1 and 33.2 of the Jubilee
Constitution, the National Executive Committee of the Jubilee Party in
its meeting of 10 February 2023 resolved that pending the convening of
a special National Delegates Convention that the Committee commences
the process of exiting the Azimio Coalition; the National Executive
Committee engages with the ruling coalition on the possibility of
creating a working cooperation arrangement with it and the Committee
demands that the Jubilee Party be recognized as a Parliamentary Party
with all the rights and benefits accruing thereto taking into account that
the Jubilee Party is the third largest party in Parliament.
144. Given the alleged constant mistreatment of the Jubilee Party members in
the hands of its coalition partners within the Azimio la Umoja One
Kenya Coalition, the Jubilee Party registered a dispute within the
Azimio la Umoja One Kenya Coalition Dispute Resolution Panel
pursuant to article 16 of the Deed of Agreement for Azimio La Umoja
One Kenya Coalition. It is urged that attempts to resolve the dispute
were ignored at the expense of the Jubilee Party and the 10th respondent.
145. The 10th and 13th respondents’ case is that pursuant to article 33 of the
Jubilee Party Constitution, the National Executive Committee of the
Jubilee Party on 6 June 2023 resolved to withdraw from the Deed of
Agreement for Azimio La Umoja One Kenya Coalition as was provided
for under Article 22.1 of the Deed of Agreement for Azimio La Umoja
One Kenya Coalition.
44 |PETITION NO. E202 OF 2023: JUDGMENT
 146. They also state that as was required under Article 22.1. of the Azimio
Deed of Agreement, the Jubilee Party published a Notice to Withdraw
from the Deed of Agreement for Azimio la Umoja One Kenya Alliance
on 13 June 2023.

(vii) 11th respondent’s response

147. Mr. Chrispine O. Owiye swore a replying affidavit on behalf of the 11 th
respondent in response to the petition. The affidavit was sworn on 28
July 2023. Mr. Owiye has introduced himself as the manager, in charge
of the Directorate of Legal and Public Affairs of the IEBC.
148. According to Mr. Owiye, the 11th respondent’s case is that the petition
severely falls short of the constitutional threshold as it does not state
with specificity the constitutional provisions that have been violated
by the requirement of paragraph (f) of the Gazette Notice No. 5735
of 12 June, 2017. The gazette notice, according to Mr. Owiye, was
sanctioned by law and specifically Articles 90 and 260 of the
Constitution, 2010, Section 34 (6B) and (7) of the Elections Act
and the Regulations under the Elections Act.
149. It is further sworn that the respondent is mandated by the
Constitution of Kenya 2010, the Independent Electoral and
Boundaries Commission (IEBC) Act, 2011 and the Election Act,
2011 to conduct or supervise elections to any elective body or
office established by the Constitution of Kenya and specifically
Article 88(4)(d) of the Constitution mandates the IEBC to
regulate the process by which parties nominate candidates for
elections. The rest of Mr. Owiye’s depositions relate to qualifications

45 |PETITION NO. E202 OF 2023: JUDGMENT

 for nomination to the National Assembly for representation of special
groups and they appear to be unrelated to the issue at hand.

(viii) 12th and 16th respondent’s response

150. The 12th and 16th respondents filed a replying affidavit sworn on 7
November 2023 by Njuguna Ndung’u. It is their case that the process of
preparation and enactment of the Finance Act,2023 was an inclusive
process and that it begun by issuing a Public Notice on 15 November,
2022 on the Government’s website requesting proposals from various
stakeholders to be considered during the preparation of the Finance
Act,2023.
151. According to them, the public notice required the proposals to be
submitted in writing to the Cabinet Secretary, National Treasury and
Economic Planning or through the email
[email protected] not later than 16th December 2022. The
Notice is said to have specified that the proposals ought to have
resonated with the Economic Recovery Strategy and the country’s
economic blueprint Vision 2030, on taxes should have been geared
towards promoting the growth of Agriculture, Micro, small and Medium
Enterprise (MSMES), Housing and Settlement, Healthcare, Digital
Superhighway and Creative Economy. They also ought to have included
measures on regulatory reforms, revenue administration reforms, and
any other measures that could enhance macroeconomic stability and also
that they could include measures to reposition the economy on an
inclusive and sustainable growth trajectory.
152. In response to the said public notice, several stakeholders submitted
proposals for consideration in the preparations of the Finance Bill, 2023.

46 |PETITION NO. E202 OF 2023: JUDGMENT

 Some of the stakeholders that submitted proposals included Institute of
Certified Public Accountants of Kenya (ICPAK), Price Waterhouse
Coopers (PWC), Ernst and Young, Kenya Association of Manufacturers
(KAM) ,Kenya Bankers Association, Petroleum Institute of East Africa,
EABX Public Limited Company, KPMG, Kenya Association of Air
Operators, American Chambers of Commerce-Kenya, Alcohol
Beverages Association of Kenya, Delloite, Association of Chartered
Certified Accountants, Old Mutual Holdings and RSM East Africa.
153. It is the 12th and 16th respondent’s position that the Principal Secretary
for the National Treasury requested the Commissioner General, Kenya
Revenue Authority, to send an officer to National Treasury in January
2023 to participate in the review of the tax proposals submitted by
stakeholders together with the team from the National, Treasury.
154. They also urge that the Principal Secretary for the National Treasury
requested the Solicitor General State Law Office to send an officer to
the National Treasury, legislative team in March 2023,to draft the bill.
Upon review of the proposals by the team from the National Treasury
and Kenya Revenue Authority, the team invited Stakeholders that
submitted tax proposal for consideration in the preparation of the
Finance Bill, 2023, following the Public Notice for meetings to discuss
their respective proposals with the team.
155. It is their case that the views of the stakeholders were taken into
consideration in the finalization of the analysis of the proposals which
were subsequently submitted to the Cabinet Secretary for consideration
and approval and were thereafter drafted to form the Finance Bill,2023.
The Bill is said to have been subjected to legal drafting by the team from
the State Law Office.
47 |PETITION NO. E202 OF 2023: JUDGMENT
 156. The 12th and 16th Respondents also contend that after finalization of the
legal drafting, the Finance Bil1 2023 was submitted to the Cabinet for
approval and submission to the National Assembly and it was thereafter
published in the Kenya Gazette Supplement No.56 as National
Assembly No.14.
157. Following the publication of the Finance Bill, 2023, the National
Assembly members of the public were to submit views and comments
on the Bill through a Public Notice. Indeed, members of the public
responded to the Notice by submitting comments and views including
proposals to amend the Bill. It is sworn that the National Assembly
submitted to the matrix on summary of comments or proposals to the
National Treasury for review. The National Treasury provided
comments on each proposal in the matrix in accordance with the
provisions of Article 114 of the Constitution.
158. The 12th and 16th respondents also state that the departmental Committee
of Finance and National Planning invited the Cabinet Secretary for the
National Treasury and Economic Planning to take the committee
through the National Treasury comment on the matrix on the summary
of the stakeholder’s comments or proposal on the Finance Bill in a
retreat in Naivasha.
159. They also urge that the Departmental Committee of Finance and
National Planning of the National Assembly reviewed the comments
from the stakeholders and considered the comments from the National
Treasury and Economic Planning on the stakeholder comments and
prepared a report which was tabled in the National Assembly. It is their
case that during this stage of the Finance Bill,2023,the National
Assembly made changes to the Bill.
48 |PETITION NO. E202 OF 2023: JUDGMENT
 160. According to the 12th and 16th respondents, the above process was
undertaken to ensure compliance with the Constitutional requirement of
public participation in the development of a policy. It is also their case
that the National Assembly has the mandate to, change the contents of
the Finance Bill or any other Bill, submitted to Parliament for enactment
by adding modifying or removing proposals contained in the Bill having
conducted public participation on the same or in their own wisdom.
161. The 12th and 16th Respondents urge that it is clear that there was public
participation in the enactment of the Finance Act, both at the preparation
stage and after the publication of the Finance Bill,2023 in the Gazette by
the National Assembly.
(ix) 18th respondent’s response
162. The 18th Respondent also filed a replying affidavit dated 21 November
2023 sworn by Hon. Omboko Milemba. The affidavit is neither signed
nor commissioned and, for that reason, it does not carry any probative or
evidentiary weight.
(x) 19th respondent’s response
163. The 19th respondent filed a replying Affidavit sworn on 23 November
2023 by Stephen Khisa Namusyule who has introduced himself as the
Executive Director of Ford Kenya.
164. According to Mr. Namusyule, the petitioners' assumption that the voters
determined the majority coalition in the National Assembly through
their votes is flawed. According to him, the voters did not choose
candidates based on coalition affiliation; rather, they voted for
individual candidates or political parties. According to the 19 th
respondent, neither Azimio la Umoja One Kenya Coalition Party nor
Kenya Kwanza Alliance sponsored candidates for the National
49 |PETITION NO. E202 OF 2023: JUDGMENT
 Assembly as coalitions and as such, political parties sponsored their own
candidates, and voters had the option to vote based on individual party
affiliations, not coalition membership.
165. The 19th respondent’s case is that both Azimio and Kenya Kwanza’s
constituent parties each fielded individual candidates for National
Assembly seats which resulted in intra-party competition, with voters
able to choose between candidates from the same coalition, undermining
the unity that would have been presented by a single candidate per
coalition. Hence, parties cannot be compelled to continue supporting a
coalition against their will.
166. The 19th respondent has also stated that the determination of which
coalition has the majority in the National Assembly is based on the
publication of the results; however, this question should consider the
situation at the time of the ruling as seen in the Speaker’s Ruling of 6
October 2022, where he accounted for the fact that 14 members from
parties like UDM, PAA, MCCP, and MSG had explicitly distanced
themselves from the Azimio coalition.
167. He contends further that the Political Parties Act does not limit the rights
stipulated under Articles 36 and 38 of the Constitution but only
regulates the procedural exercise of political association, including
coalition formation. And members of Parliament elected under different
parties within a coalition are not bound to remain aligned with the
coalition if they choose to leave.
168. The 19th respondent argues that the petitioners lack locus standi to file
the petition as they are not officials of the Azimio coalition or its
constituent parties and as such they cannot make claims on behalf of the
coalition without proper authorization.
50 |PETITION NO. E202 OF 2023: JUDGMENT
 169. According to the 19th respondent, Standing Order 1 of the National
Assembly Standing Orders gives power to the 3 rd respondent to give
decisions on issues not provided for in the Standing Orders. He has also
referred to the letter dated 18 January 2023 from the Registrar of
Political Parties raising issues on the eligibility of the 4 th respondent and
its response dated 18 January 2023 on the issues raised by Registrar.
170. Articles 106 of the Constitution on the election and removal of the
Speaker by the National Assembly and Standing Order 12B of the
National Assembly Standing Orders have also been referred to. The 19 th
respondent urges that this court lacks jurisdiction to determine the
prayer seeking to remove the 4th respondent from office of Speaker of
the National Assembly.
171. On the issue of the enactment of the Finance Act,2023 and
Appropriation Act,2023 the 19th respondent states that the petitioners
have not demonstrated in any manner the alleged constitutional breaches
committed by the 2nd respondent when passing the Finance Act,2023 and
the Appropriation Act 2023 and that, in any event, there are pending
proceedings before the High Court challenging the legality and or
constitutionality of the Acts.
172. The 19th respondent also urges that the issue of the election of the
Speaker is not a constitutional issue that necessitates judicial
intervention.
(xi) 8th interested party’s response
173. The 8th interested party filed a replying affidavit sworn by Wilfred
Nyamu Mati who has introduced himself as the Secretary General of the
8th interested party. The affidavit was on 20 June 2024.

51 |PETITION NO. E202 OF 2023: JUDGMENT

 174. According to the 8th interested party, on or about 10 April 2022, through
a press conference televised nationally, its Party Leader Hon. Alfred
Mutua announced that the 8 interested party had joined the Azimio La
Umoja One Kenya Coalition by signing the Azimio Coalition
Agreement and this announcement triggered an objection from the vice
chairman who challenged the propriety of the joinder to the Azimio
Coalition contrary to internal party processes.
175. Owing to the objection, the Secretary General of the Party proceeded to
issue a notice convening the party’s National Executive Meeting which
was scheduled for 16 April 2022. During the meeting, the Party
Leader’s authority to sign any coalition agreements on behalf of the
Party was questioned and, as such, it was resolved that a tribunal be
constituted to discuss the issues of membership to Azimio la Umoja
coalition.
176. The tribunal is said to have conducted its hearings between 20 th and 21st
April 2022 and in its findings, the tribunal presented its report which
was adopted and a resolution passed for the 8 th interested party to
commence proceedings to exit the Azimio Coalition.
177. It is the 8th interested party’s case that the findings were based on the
fact that there was no inclusivity of the members required to execute the
decision on joining the coalition, the Vice chairman was not included in
the decision making and did not participate in the signing of the
agreement, Dr. Alfred Mutua being the party leader is not gazetted,
hence he could not be a signatory for any coalition and that the National
Executive Council did not meet to discuss and make a decision to join
Azimio Coalition.

52 |PETITION NO. E202 OF 2023: JUDGMENT

 178. The party is said to have immediately commenced steps to withdraw for
the coalition. However, it emerged that the Azimio Coalition Agreement
was never shared with the 8th interested party and only the execution
page was shared during signing.
179. Further, according to the 8th interested party, its attempts to obtain a
copy of the Agreement before the elections were frustrated by the laxity
of both the Registrar of Political Parties and the Azimio Coalition and
this is evidenced by the letters dated 20 April 2022, 6 May 2022 and 5
May 2022 addressed to the Registrar and Azimio Coalition respectively
and a Letter dated 29 April 2022 addressed to Maendeleo Chap Chap
Party by the Registrar.
180. The 8th interested party’s right to association, it is contended, cannot be
limited by the Registrar of Political Parties’ refusal to update the list of
political parties forming part of Azimio Coalition. The 8 th interested
party is said to have since joined the Kenya Kwanza coalition and has 2
members in the National Assembly, being Hon. Caleb Mulwe and Hon.
Eckomas Mwengi Mutuse who already enjoy the parliamentary benefits
accruing from the 8th interested party’s membership to the Kenya
Kwanza coalition.
181. The 8th interested party urges that pursuant to a further National
Governing Council Meeting, the party commenced the withdrawal
proceedings afresh through writing to the Secretary General of Azimio
Coalition on 13 October 2023 and informing him that all requirements to
exit had been met and requesting for the party’s withdrawal from the
Coalition to be made formal. A letter was also written to the Registrar of
Political Parties notifying her that the Party had complied with the
directions.
53 |PETITION NO. E202 OF 2023: JUDGMENT
 182. The Registrar of Political Parties is said to have responded on 2
November 2023 acknowledging receipt of the letter and notifying the
Party of the commencement of a 90 -day notice period and upon expiry
of the 90-day notice period, the Registrar of Political Parties wrote
notifying the Party that the Party had satisfied all the requirements of
exiting the Azimio Coalition.
(xii) 10th Interested party’s response
183. The 10th Interested Party filed a Cross-Petition dated 16 April 2024. The
petition is supported by the Affidavit of Mary Anconsila Makokha who
has sworn that she is the Secretary General and the duly authorized
representative of the Cross Petitioner. The Cross Petition seeks the
following orders:

a) A declaration that Section 10(1) of the Political Parties Act is

unconstitutional to the extent that it provides for the creation of a
coalition political party.
b) A declaration that the Azimio La Umoja-One Kenya Coalition is
neither a political party nor a coalition of parties contemplated
under the Constitution hence unconstitutional, null and void.
c) A declaration that the Azimio La Umoja-One Kenya Alliance
Coalition Party coalition agreement is illegal and
unconstitutional for having violated the freedom of association,
freewill and political rights of some of the purported signatories.
d) A declaration that the Orange Democratic Movement is the
Minority Political Party in the National Assembly.
e) Any other orders the Court may deem fit to grant.

54 |PETITION NO. E202 OF 2023: JUDGMENT

 184. The 10th interested party argues that the coalition agreement was
executed under significant coercion, duress, misrepresentation,
deception, falsehoods, distortion, misstatement, intimidation, bullying,
and threats which are factors, that vitiated the agreement and made it
incurably invalid, illegal, and unconstitutional.
185. Additionally, the 10th interested party asserts that the Constitution of
Kenya contemplates either a political party or a coalition of political
parties, but not the so-called coalition political party as defined in
Section 10(1) of the Political Parties Act. It is also urged that Section
10(1) is unconstitutional because it attempts to create a hybrid entity that
is neither a political party nor a coalition of political parties.
186. The 10th interested party relies on several provisions of the Constitution
and these include Article 2(1),2(4),3(1),10,22(1) and (2),38(1)(c),108(2)
and (3),159(1),165(3)(d),258(1) and 259(1). The Cross Petitioner urges
that Section 9 of Act No. 2 of 2022 amended Section 10 of the Political
Parties Act, introducing the creation of a coalition political party, which
is described as a "mongrel" not recognized or contemplated by the
Constitution. Under this amendment, Azimio was formed as such a
"mongrel."
187. It is the 10th interested party’s case that due to the illegality and
unconstitutionality of the amendment in question, any entity created as a
result of it would be inherently illegal and invalid from its inception. As
a result, Azimio lacks legal recognition and validity. It has no standing
to claim the status of the majority party within the National Assembly or
any other forum because it does not meet the necessary legal foundation
for such a designation.

55 |PETITION NO. E202 OF 2023: JUDGMENT

 188. According to the 10th interested party, any attempt to designate Azimio
as the Majority party or Coalition would be legally flawed and baseless.
It has also been urged that several political parties, which are purported
signatories to the coalition agreement, have raised concerns about the
validity of the agreement, citing factors such as coercion, duress,
misrepresentation, deception, intimidation, and threats.
189. These factors, it is agreed upon by the 10 th interested party, undermine
the validity of the agreement, rendering it illegal, unconstitutional, and
beyond remedy. Consequently, the legitimacy of the agreement is
questioned, and its foundation is deemed insufficient for lawful
recognition.
Submissions
(i) Petitioners’ submissions
190. The petitioners, in their submissions, identified the following issues for
determination:

“1) How and when is the question as to which party or coalition of

parties is the majority in the National Assembly determined?

2) Whether the 1st respondent - Kenya Kwanza Coalition - has

undermined multi-party democracy in Kenya.

3) Whether the 1st, 4th and 5th respondents have jointly or severally
engaged in actions and omissions that exclude participation in
government on the part of representatives and supporters of Jubilee
Party in accordance with their voting during the General Election
held on 9th August, 2022.

56 |PETITION NO. E202 OF 2023: JUDGMENT

 4) Which is the majority party or coalition of parties on one hand
and the minority party or coalition of parties based or the outcome
of the last General Election?

5) Whether the 3rd respondent - Speaker of the National Assembly -

had jurisdiction to determine which party or coalition of parties is
the majority. And if so, whether he determined the said question
correctly in his ruling/determination contained in the
Communication from the Chair made on 6th October, 2022.

6) Whether the Members of Parliament elected on the tickets of one

party or coalition can become members of a different party or
coalition merely by writing to the Speaker of the National Assembly
for recognition of such change of political allegiance.

7) Whether the 4th respondent - Hon. Moses Wetangula - was

lawfully elected as Speaker of the National Assembly and eligible to
continue serving as such whilst simultaneously remaining one of the
Principals in Kenya Kwanza Government.

8) Whether the 4th - 6th and 8th - 12th Petitioners have a right be
represented by MPs elected on its ticket during the entire five years'
term of the 13th Parliament.

9) Whether during the term of the 13th Parliament Jubilee Party can
withdraw from Azimio La Umoja One Coalition without the
concurrence or approval of its members and supporters.

10) Whether the political scheme between the 1st, 4th, 9th, 12th and
13th respondents to destabilize Jubilee Party and secure its
withdrawal from the Deed of Agreement for Azimio La Umoja One
57 |PETITION NO. E202 OF 2023: JUDGMENT
 Kenya Coalition amount to a conspiracy to achieve political and
economic exclusion of members and supporters of Jubilee Party in
Central Kenya.

11) Whether a section of citizenry excluded from political

participation and representation in the management of State affairs
and organs of the State are enjoined to pay taxes.

12) Whether the 10th and 13th respondents - Hon. Kanini Kega and
Hon. Sabina Chege - should be deemed as having resigned as
members of the Jubilee Party on account of their allegiance to the
UDA Party and support for policies of Kenya Kwanza government.

13) Whether Madam Anne Nderitu, the Registrar of Political Parties

- the 14th Respondent herein is fit to continue serving as the
Registrar of Political Parties.

14) Whether the 5th respondent - the Registrar of Political Parties -

should commence an inquiry into deregistration of the 1 st
respondent - the Kenya Kwanza Coalition - on account of its willful
violation of the principles and values set out in Articles 91 of the
Constitution.

15) Whether the rights of the Petitioners enshrined in Articles 1, 10,

12(1), 27, 28 and 50 of the Constitution have been violated.

16) Whether the reliefs sought in the Amended Petition dated 23 rd

June, 2023 should be granted.

17) Who should bear the costs of this Petition?”

58 |PETITION NO. E202 OF 2023: JUDGMENT

 191. Prior to submitting on these issues, the petitioners outlined the historical
background of multi-party democracy in this country and, in particular,
several amendments to the 1963 Constitution with regard to the country’s
multi-party-political infrastructure. The petitioners have also submitted on
the background of the current Constitution and urged that the petition finds
its roots in Article 3 thereof which states as follows:

(1) Every person has an obligation to respect, uphold and defend

this Constitution.

(2) Any attempt to establish a government otherwise than in

compliance with this Constitution is unlawful.

192. We must mention that, to a greater degree, the submissions mirror the
pleadings in the amended petition and the depositions in the affidavit in
support of the petition. As far as the first issue is concerned, it has been
submitted that two of the most cherished principles of Kenya's electoral
system set out in Article 81 are the right to vote in any election or
referendum and principle (d) on "universal suffrage based on the aspiration
for fair representation and equality of votes".
193. Pursuant to these rights, during the General Election held on 9 August,
2022, Kenyans cast their votes to elect, inter-alia, their representatives in the
National Assembly. In accordance with the published election results, the
two contesting coalitions garnered the following seats in the National
Assembly:
a) Azimio Coalition 171 Members.
b) Kenya Kwanza Alliance 165 Members.
194. Under Article 108(2) of the Constitution, the majority party is the largest
party or coalition of parties. Having garnered 171 members of the National
59 |PETITION NO. E202 OF 2023: JUDGMENT
 Assembly the Azimio Coalition is the majority and, therefore, entitled to
appoint the leader of the majority in the National Assembly.
195. According to the petitioners, the question of which party shall be the
majority in the National Assembly was settled by the Kenyan voters on 9
August, 2022 and this is a fact that the Speaker himself acknowledged in his
ruling of 6 October, 2022.
196. On the second issue, it has been urged that the immediate impact of the
alleged scheme by the 1st respondent in inducing, soliciting aiding and
abetting the defection of Azimio Coalition Members of Parliament to Kenya
Kwanza Alliance was to secure the election of one of its three Principals,
Hon. Moses Wetang’ula, as the Speaker of the National Assembly. In
return, Hon. Wetang’ula declared his Kenya Kwanza Coalition as the
majority despite acknowledging that, in accordance with the declared results
of the National Assembly elections, Azimio Coalition had 171 Members of
Parliament against Kenya Kwanza's 164 Members of Parliament. These
schemes, the petitioners have urged, have subverted multi-party democracy
and violated Articles 1, 3, 4, 10, 38, 73 and 91 of the Constitution.
197. On the third issue, it has been submitted that the declaration in Article 4 of
the Constitution that the sovereign Republic of Kenya is a multi-party
democratic State means and implies the following:-

i) The right of establishment and existence of many political parties.

ii) The right to belong to those political parties and seek elective
office through the same.

iii) The organization of government using political party

representation as the building block and organizing theory of our
democracy.
60 |PETITION NO. E202 OF 2023: JUDGMENT
 iv) The right of Kenyans to participate in public affairs and
particularly in parliament through elected representatives sponsored
by political parties during the General Election.

v) The Democratic idea that in an election the voters give the

representatives a mandate to represent them based on the manifesto
and ideology of the party that sponsored them.

198. The petitioners urge that as members or supporters of Jubilee or the Azimio
La Umoja One Coalition, they gave their successful candidates a five years
mandate to represent them in Parliament based on the manifesto and
ideology of Jubilee Party and the Azimio Coalition. Since the Kenya
Kwanza Coalition and its affiliated parties were the major competitors for
power against Jubilee Party and Azimio Coalition, any Member of
Parliament elected on the ticket of Jubilee is prohibited from championing
the political agenda and manifesto of the 1st and 17th respondents.
199. However, the 1st , 4th and 5th respondents by their actions and omissions have
aided, abetted and acquiesced in a political scheme whose objective is to
strip the members and supporters of Jubilee Party of representation in the
National Assembly in violation of Articles 3(2) and 10(1) of the
Constitution.
200. With respect to the fourth issue, the petitioners have made reference to
Gazette Notice No. 4442 dated 13 April, 2022, published in The Kenya
Gazette of 14th April, 2022. In this gazette notice, Registrar of Political
Parties published particulars of registration of the Azimio La Umoja One
Coalition Party which, inter alia, specified the constituent political parties.
The said parties include:-

i) Devolution Empowerment Party (DEP).

61 |PETITION NO. E202 OF 2023: JUDGMENT
 ii) United Democratic Movement (UDM).

iii) Parnoja African Alliance (PAA).

iv) Movement for Democracy and Growth (MDG).

v) Chama Cha Uzalendo (CCU).

vi) Maendeleo Chap Chap Party (MCCP).

201.Against this background, it has been submitted that the Speaker had no
jurisdiction to make the declaration on the majority party in the House
contrary to the available evidence. It is also urged that in view of this
evidence of the constituent political parties of Azimio Coalition, there was
no legal basis upon which the Speaker could reasonably purport to entertain
a dispute as to which party was a member of the Azimio Coalition. And to
the extent that he did, the 4th respondent was not an impartial and
independent arbiter of the purported dispute over which coalition was the
majority party and he ought to have recused himself assuming the matter
was lawfully available for resolution before him. The 4 th respondent is said
to have violated Articles 50(1) and 75(1)(a) of the Constitution.
Nonetheless, a dispute about which coalition is the majority party is a
justiciable issue that falls within the jurisdiction of this Honourable Court.
202.On the question whether the Members of Parliament elected on the tickets
of one party or coalition can become members of a different party or
coalition merely by writing to the Speaker of the National Assembly for
recognition of such change of political allegiance, it has been urged that
under Article 103(1)(e) of the Constitution read with Sections 14 and 34 of
the Political Parties Act, 2011, a Member of Parliament ceases to be a
member of a political party if he resigns or is declared to have resigned

62 |PETITION NO. E202 OF 2023: JUDGMENT

 from the party. The basic purpose of these provisions is to outlaw defection
of members from one party to the other in order to uphold the sanctity and
efficacy of multiparty democracy.
203.As to whether the 4th respondent was lawfully elected as Speaker of the
National Assembly and eligible to continue serving as such whilst
simultaneously remaining one of the Principals in Kenya Kwanza
Government, the petitioners have submitted that uunder Article 97(1)(d) of
the Constitution, the Speaker of the National Assembly is an ex-officio
member because he is the holder of the office of Speaker by dint of Article
106(1) of the Constitution.
204.The Speaker is elected by substantive members of the House in accordance
with the Standing Orders and his main duty as per Article 107 is to preside
at any sitting of the House of Parliament. According to Articles 94, 95, 107
and 127 of the Constitution, the Speaker of the National Assembly is the
substantive and titular head of Parliament. That notwithstanding, the
Speaker remains the leader of Ford-Kenya Party, one of the founding parties
of the Kenya Kwanza Coalition; he is also a member of Kenya Kwanza's
Forum of Party Leaders; and that he is an ex-officio member of the
Coalition Parliamentary Group of Kenya Kwanza Alliance.
205.It is submitted that Article 77 of the Constitution and Section 12 of the
Political Parties Act provide that elected state officials are excluded from
the constitutional requirement that state and public officers should not hold
positions in political parties. No doubt, the Speaker is elected by Members
of Parliament yet there is nothing in the cited laws to suggest that such
election is what is envisaged from the standpoint of Articles 1, 38, 81 and
88 of the Constitution read with Elections Act, 2011. Accordingly, it is

63 |PETITION NO. E202 OF 2023: JUDGMENT

 illogical for the 4ᵗʰ respondent to contend that he is an elected State Officer
"just like his fellow MPs".
206.The Speaker’s position, it is urged, is a sacred position and, under the
Constitution, the Speaker should not be a Member of Parliament or enjoy a
similar constitutional or political status. According to Article 106(1) the
Speaker is elected "from among persons who are qualified to be elected as
members of Parliament but are not such members. Secondly, under Article
97(1)(d) the Speaker, is an ex-officio member of the National Assembly
meaning that his membership stems from the fact that he holds the office of
Speaker and not on account of having been elected by the people of Kenya
in exercise of their sovereign power.
207.It is urged that Speaker Wetang’ula holds a position that requires him to be
politically neutral and impartial. Thus, Hon. Wetangula cannot be
simultaneously Speaker whilst he remains Chairman of Ford-K Party, a
Principal of Kenya Kwanza Coalition and a participant in the parliamentary
group meetings of Kenya Kwanza and other political activities. Also the
doctrine of separation of powers prohibits the 4th respondent from
simultaneously serving as Speaker and engaging in requisite political
activities as the leader of Ford-Kenya, as one of the principals of Kenya
Kwanza and as a member of its top political organ.
208.On the question whether the 4th to 6th and 8th to 12th petitioners have a right
to be represented by Members of Parliament elected on a particular ticket
during the entire five years' term of the 13 th Parliament, it is urged that these
petitioners are members or supporters of Jubilee Party who voted for its
candidates and those of Azimio Coalition. The said representatives
were voted in to serve for a five years' term. It is the case of the petitioners

64 |PETITION NO. E202 OF 2023: JUDGMENT

 that Article 103(1)(e) of the Constitution prohibits defection of elected
representatives and if they do so their seats become automatically vacant.
209.The petitioners have cited International Centre for Policy and Conflict & 5
Others vs. Attorney General & 5 Others (2023) eKLR in which the sanctity
of the people's sovereignty and political rights of electors under Article 38
of the Constitution was underscored in the following terms:
“We have already placed on record the rights of the citizens of this
country to make political choices, and indeed the rights of the 3rd
and 4th Respondents to seek public office. Article 1 of the
Constitution of Kenya places all sovereign power on the people of
Kenya which shall be exercised only in accordance with the
Constitution. It shall not be, and can never be the role of this court
to exercise that power on behalf of the people of Kenya. That right
must remain their best possession in a democratic society and is
inalienable.”
210.Regarding the question whether during the term of the 13 th Parliament
Jubilee Party can withdraw from Azimio Coalition without the concurrence
or approval of its members and supporters, the petitioners have submitted
that the Jubilee Coalition is one of the constituent parties in the Azimio
Coalition on whose manifesto, agenda and ideology its Members of
Parliament were elected to Parliament.
211.Under Articles 1 and 38 of the Constitution, the petitioners have a
constitutional right and a legitimate expectation that Jubilee Party will
remain a constituent party of Azimio Coalition which implies that it cannot
leave the said coalition without their permission. Under Article 103(f) of
the Constitution the departure of Jubilee Party from Azimio Coalition
constitutes a defection of its Members of Parliament to Kenya Kwanza. The
65 |PETITION NO. E202 OF 2023: JUDGMENT
 speaker is said to have acknowledged this fact in his ruling when he stated
that upon the four parties namely UDM, MDG, MCCP and PAA leaving
Azimio Coalition their 14 members were deemed to have shifted their
allegiance to Kenya Kwanza.
212.On the question whether a section of citizenry excluded from political
participation and representation in the management of State affairs and
organs of the State are enjoined to pay taxes, it has been submitted that
there is a direct and necessary connection between the rights of citizens to
political representation and the obligation to pay taxes. Under Article
12(1) of the Constitution, every citizen is entitled to:-
(a) the rights, privileges and benefits of citizenship, subject to the
limits provided or permitted by this Constitution; and
(b) a Kenyan passport and any document of registration or
identification issued by the State to citizens.
213.It is urged that States and governments operate on tax payers' money and
invariably citizens have a legal obligation to pay taxes. In return, citizens
have a right to participate in the public affairs and governance of the State
either directly or indirectly. It is submitted that the Court should recognize
and declare the right of citizens who are not represented not to pay taxes to
the Government established by Kenya Kwanza Coalition.
214.As to whether the 10th and 13th respondents should be deemed as having
resigned as members of the Jubilee Party on account of their allegiance to
the UDA Party and support for policies of Kenya Kwanza government, it is
urged that the petitioners do not, and cannot, begrudge the fundamental
freedom of the 9th and 13th respondents guaranteed under Articles 36 and 38
of the Constitution. However, these freedoms are not absolute because they
are subject to Article 103(1) of the Constitution to the extent that in order to
66 |PETITION NO. E202 OF 2023: JUDGMENT
 lawfully change political fidelity to Kenya Kwanza, they must give back the
seats conferred upon them by Jubilee, its members and supporters during
the August, 2022 General Election.
215.On the question whether Ms. Anne Nderitu, the Registrar of Political
Parties, is fit to continue serving as the Registrar of Political Parties, the
petitioners have submitted that state officers have a personal obligation to
be accountable under the law and their offices cannot do so on their behalf.
The 14th respondent, it is urged, has failed to respond to the allegations
made against her in the petition and, therefore, the orders sought against her
ought to be granted.
216.Regarding the question whether the 5th respondent should commence an
inquiry into deregistration of the 1st respondent on account of its wilful
violation of the principles and values set out in Articles 91 of the
Constitution, it is urged that the petitions have demonstrated how the 1 st
respondent has violated Articles 1, 3, 4, 10, 38, 73 and 91 of the
Constitution. It has been submitted further that a political party that does not
comply with the Constitution may be deregistered in accordance with the
process set out in Sections 21 and 22 of the Political Parties Act.
217.Finally, except for prayer (gg) in the petition, which has been abandoned,
the petitioners urge that they are entitled to the rest of the prayers in the
petition and that they should be awarded costs of the petition as well.
(ii) 1st to 17th Respondents submissions.
218.The 1st and 17th respondents filed written submissions dated 1 March 2024.
Their case against the petition is that it is bad for misjoinder of causes of
action and among the cases they have cited in support of their position is
that of Yowana Kahere & Others vs. Lunyo Estates Limited [1959] EA 319
on misjoinder of causes and where the court held that the cause of action in
67 |PETITION NO. E202 OF 2023: JUDGMENT
 the plaint was not based on the same act or transaction or series of incidents,
but rather on separate and independent acts of dispossession or possession.
The court is said to have observed that there was no shared legal or factual
issue among the plaintiffs, leading to a misjoinder of plaintiffs and a
misjoinder of causes of action.
219.This position was also reiterated by the court in the case of Matindi & 3
others vs. The National Assembly of Kenya & 4 others; Controller of
Budget & 50 others (Interested Parties)(Petition E080, E084 & E150 of
2023 (Consolidated)) [2023] KEHC 19534 (KLR) (Constitutional and
Human Rights) (3 July 2023) (Judgement) (with dissent-HI Ong’udi J).
220.On the exhaustion principle, the 1st and 17th respondents have submitted that
as was held by the Court of Appeal in Lillian Gogo vs. Joseph Mboya
Nyamuthe & 4 others [2017] eKLR, disputes between members of political
parties ought to be heard by a party’s internal dispute resolution mechanism
after which they resort to the Political Parties Disputes Tribunal. The court
also held that where there is a clear procedure for redress of any particular
grievance prescribed by the Constitution or an Act of Parliament the
procedure ought to be strictly followed.
221.The 1st and 17th respondents also submit that the petitioners have sued
the persons who occupy the offices of the Speaker, the leader of
majority party, the leader of minority party, chair persons of committees
and members in their personal capacity and to this extent that the
amended petition violates Section 12(2) of Political Parties Act.
222. They rely on the case of John Harun Mwau vs. Dr. Andrew Mullei &
Another Civil Appeal No.157 of 2007 where the court held that as the
primary function of Parliament is to debate and pass resolutions freely
on subjects of their own choosing, they have the freedom of speech and
68 |PETITION NO. E202 OF 2023: JUDGMENT
 freedom of debate. These freedoms according to the court are the single
most important parliamentary privilege and are the cornerstone to
section 4 and 12 of the National Assembly(powers and privileges) Act.
(iii) 2nd respondent’s submissions
223. The 2nd respondent filed written submissions dated 4 April 2024.
According to the 2nd respondent, the immunity provided under Section
12 of the Parliamentary Powers and Privileges Act No. 29 of 2017,
operates as a safeguard of the separation of powers and the sovereignty
of Parliament and extends to those acts of Parliament that are necessary
for its existence as well as for the performance of its functions.
224. In support of this position, the 2 nd respondent relied on Justus Kariuki
Mate & Another vs. Martin Wambora & Another (2017) eKLR where
the Court is said to have recognized protection conferred upon the
Speaker and the officers of the Assembly under Section 12 of the
Parliamentary Powers and Privileges Act No. 29 of 2017.This position
was also reiterated in the case of Teng Chang Khim V. Badrul Hisham
Bin Abdullah & Another; Malaysia Civil Appeal No. 01(F)-26-
d08/2016 (B). Also cited for the same position is Erskine May Treatise
on the Law, Privileges Proceedings and Usage of Parliament, 24 th
Edition, page 203 where the author explains Parliamentary privilege.
225. The 2nd respondent also relied on the case of Peter O. Ngoge V. Francis
Ole Kaparo & 4 Others (2007) eKLR where the Court observed that the
applicant's contentions challenged Parliament's internal arrangements,
including the Speaker’s election, and were not related to their personal
rights. These challenges, according to the court, were protected by
Parliamentary Privileges and required deference from the Court.

69 |PETITION NO. E202 OF 2023: JUDGMENT

226. The 2nd respondent has submitted further that the petitioners have failed
to exhaust internal and alternative dispute resolution mechanisms prior
to approaching this Honourable Court and that it is trite that 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. It has relied on Court of Appeal case of Lilian Gogo v
Joseph Mboya Nyamuthe & 4 others [2017] eKLR in support of this
position.
227. It is submitted that the amended petition contains several unrelated
causes of action and that the misjoinder of causes of action is an issue
that impacts the fundamental right to a fair trial. The 2 nd respondent
submits that as was held by the Court in the case of Matindi & 3 Others
versus National Assembly of Kenya & 4 Others; Controller of Budget
& 50 Others (2023) KEHC (KLR) each cause of action ought to be
litigated independently to ensure the proper application of law and
presentation of evidence.
228. The 2nd respondent submits that this court ought to adopt the finding in
the case of Tlouamma & Others v Mbethe, Speaker of the National
Assembly of the Parliament of the Republic of South Africa and
Another (A 3236/15) [2015] ZAWCHC 140; 2016 (1) SA 534 (WCC);
[2016] 1 All SA 235 (WCC); 2016 (2) BCLR 242 (WCC) (7 October
2015), that there is no constitutional or statutory barrier preventing the
Speaker from holding any leadership position within his political party
or engaging in the party's activities.
229. It is the 2nd respondent’s submission that the Constitution vests the
Speaker with broad powers and duties, including the authority to
regulate and oversee the conduct of parliamentary business. This
70 |PETITION NO. E202 OF 2023: JUDGMENT
 includes the power to interpret the rules of the House, resolve disputes
among members, and make procedural rulings to ensure the orderly
functioning of Parliament.
230. The 2nd respondent relies on the Supreme Court case of Speaker of the
Senate & another vs. Attorney General & 4 Others [2013] eKLR where
the court observed that workings of Parliament cannot be supervised by
the Court. Further, unwarranted interference in one arm of government's
operations by another must not jeopardize the institutional comity
among the three arms.
231. It is submitted that this court lacks jurisdiction as it is not convened as
an election petition to delve into the issue of whether or not the results
were unconstitutional as there was no declaration of the majority party.
According to the 2nd respondent, it is only the procedures outlined under
the Constitution that can be used to remove the Speaker. In support of
this argument, the 2nd respondent relied on the cases of Tlouamma &
Others v Mbethe, Speaker of the National Assembly of the Parliament
of the Republic of South Africa and Another (supra) and International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) where the courts
observed that where the Constitution provides for the procedure to
remove the speaker, then it is impermissible for any other person or
institution to assume that function.
232. It is submitted that the petition is sub judice and an abuse of the court
process. Further, that having the same issues tried in three different
petitions will lead to duplication and a high likelihood of conflicting
decisions given by the same Court. The 2nd respondent refers to the Rule
3(8) of the Constitution of Kenya (Protection of Rights and Fundamental
71 |PETITION NO. E202 OF 2023: JUDGMENT
 Freedoms) Practice and Procedure Rules 2013,which are said to allow
the Court to strike out a Petition in the interest of having good order in
litigation and to save on judicial time and resources.
233. The 2nd respondent submits that the doctrine of separation of powers, as
articulated by Montesquieu in his work "The Spirit of the Laws,"
advocates for the division of political authority within a state into three
branches: executive, judicial, and legislative. Further, this division aims
to prevent the concentration of power by providing checks and balances
among the branches of government. It is also submitted that this ensures
that no branch of government oversteps its constitutional authority by
encroaching on the powers of the others.
234. On the doctrine of constitutional avoidance, the 2nd respondent relies on
the Supreme Court case of Communications Commission of Kenya & 5
others v Royal Media Services Limited & 5 others Petition 14,14 A, 14
B & 14 C of 2014 (Consolidated) Judgment of the Supreme Court
(2014) eKLR where the court held that a Court will not determine a
constitutional issue, when a matter may properly be decided on another
basis.
(iv) 3rd and 4th respondents’ submissions
235. As noted earlier, the 3rd and 4th respondents refer to one at the same
person except that he is sued in two different capacities. The Speaker
filed written submissions dated 25 June 2024. In the submissions, the 4 th
respondent set out what, in his opinion, were pertinent parts of the ruling
of 6 October 2022.
236. It is also submitted that this court ought not to exercise its jurisdiction to
preside over and determine the matter before it as what has been
presented before it is a dispute between members of a political party and
72 |PETITION NO. E202 OF 2023: JUDGMENT
 a coalition. It is also urged that there has been no contestation that the
Jubilee Party and Azimio Coalition instruments did not provide a forum
for internal dispute resolution mechanisms.
237. The Speaker has submitted that, assuming that the Azimio Coalition
agreement exhibited on the Registrar of Political Parties affidavit is
genuine and the one submitted to the Speaker was inadmissible, then an
internal dispute resolution mechanism was expressly provided for under
Article 24(3) of the Deed of Agreement and which ought to have been
employed to resolve the dispute. It is argued that the Jubilee Party
constitution, no doubt, has a dispute resolution clause.
238. The Speaker also submits that even if the Court were to hold that the
petitioners were not bound to pursue the party or coalition internal
dispute resolution mechanisms, the next available statutory forum of
dispute resolution, would have been the Political Parties Disputes
Tribunal which is provided for under Section 40 of the Political Parties
Act. The Petitioners have not demonstrated why they avoided and
overlooked this clear statutory procedure on resolution of political party
disputes. It is urged that this Court can only exercise appellate
jurisdiction in resolving disputes between members of a political party
as provided for under Section 41(2) of the Political Parties Act.
239. The Speaker’s submission is that even if the petitioners were not able to
pursue any of the legal dispute resolution mechanisms, then they still
had a legal opportunity of seeking the expulsion of the alleged
perpetrators of their grievances from their political parties as provided
under Section 14A of Political Parties Act.
240. It is submitted that if the Petitioners were not willing to pursue the three
available avenues, then there existed an opportunity for them to engage
73 |PETITION NO. E202 OF 2023: JUDGMENT
 in resolution of the alleged grievance with their members of Parliament
by exercising the right of recall as envisaged under Article 104 of the
Constitution as read together with sections 45 Elections Act.
241. The Speaker urges the court to apply the doctrine of constitutional
avoidance and decline to exercise jurisdiction as the petition is
composed of political party disputes. The case of Lilian Gogo v Joseph
Mboya Nyamuthe & 4 others [2017] eKLR has been cited in this regard.
On the doctrine of exhaustion, the respondents rely on the case of
Cleophas Malala & another v Speaker of the Senate & 2 others;
Stewart Madzayo & another (Interested Parties) [2021] eKLR.
242. The Speaker’s submission is that there are various disputes pending
before the High Court and the Political Parties Disputes Tribunal and
that these disputes touch on questions of association of Jubilee Party,
MCCP, PAA, UDM and MDG as well as their respective members with
the Azimio Coalition and validity of the Azimio Coalition Agreement
and as the petitioners in this case are members or supporters of Jubilee
and Azimio, and they are already represented in the pending cases. It is
urged that they could easily join those ongoing proceedings to address
their concerns. According to the 4th respondent, given that the issues
raised in this petition are identical to those in the pending cases, the
court doesn't have the jurisdiction to hear this petition.
243. The Speaker has relied on the Supreme Court case of Kenya National
Commission on Human Rights vs Attorney General, Independent
Electoral & Boundaries Commission & 16 others [2020] eKLR, where
the court held that when two or more cases are filed between the same
parties on the same subject matter before courts of equal jurisdiction,

74 |PETITION NO. E202 OF 2023: JUDGMENT

 the matter that is filed later ought to be stayed in order to await the
determination to be made in the earlier suit.
244. It is submitted that the petitioners claim to be upset that their elected
members were not appointed as majority leaders in the National
Assembly yet these positions are not open to them because they are not
current members of Parliament. The Speaker’s submission is that only
sitting MPs or their political parties have the right to hold these
positions. They also submit that neither the serving Members of
Parliament of the Jubilee Party or Azimio Coalition, nor the parties
themselves, have raised this issue. Further, that the petitioners do not
have a valid cause of action and it is only the Azimio Coalition, its
constituent parties, or the sitting Members of Parliament who could
pursue such a grievance.
245. The Speaker also relied on the case of Yasser Ali Sheikh vs. Amani
National Congress (ANC), Forum for Restoration of Democracy-
Kenya, (Ford-K), Orange Democratic Movement (ODM)-Kenya &
Wiper Democratic Movement-Kenya (WDM-K) Jointly as the National
Supper Alliance (NASA) Coalition & 2 others [2018] eKLR where the
petitioner, a FORD-Kenya member, relying on the NASA Coalition
Agreement, filed a petition challenging the slots allotted to FORD-
Kenya by NASA in the EALA elections. The NASA Coalition
Agreement gave NASA affiliated parties the right to invoke the dispute
resolution process but not individual members of those parties.
246. The court, in its finding, observed that the petitioner at his personal or
individual level, could not be a member of the NASA coalition which is
a coalition of Political Parties and he could also not be entitled to the
nomination slot, at a personal level.
75 |PETITION NO. E202 OF 2023: JUDGMENT
 247. On whether the Speaker and Leaders of the House can be sued in their
personal capacities on matters relating to discharge of the functions of
their offices it is submitted that Article 117 of the Constitution and
section 12(2) of the Parliamentary Powers and Privilege Act provides
that no civil suit shall be commenced against the Speaker, the Leader of
the Majority Party, the Leader of Minority party, Chairpersons of
Committees and Members for any act done or ordered by them in the
discharge of the functions of their office.
248. The Speaker cited the case Salaries and Remuneration Commission &
another v Parliamentary Service Commission & 15 others; Parliament
& 4 others (Interested Parties) [2020] eKLR where the court held that
the suit against the 3rd to 12th respondent’s in that case was unsustainable
owing to the provisions of Article 250(9) of the Constitution on
immunity.
249. He also cited Attorney-General & 2 others v Ndii & 79 others; Dixon
& 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021
(Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment)
(with dissent) where the court also observed that the President is
immune from civil action for anything done in the performance of his
official duties. The case of Bellevue Development Company Ltd v
Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested
Parties) (Civil Appeal 239 of 2018) [2018] KECA 330 (KLR) (21
September 2018) (Judgment) is also relied on immunity of judicial
officers.
250. On parliamentary privilege, the Speaker cited the Canadian case of
Harvey v New Brunswick (Attorney General) [1996] 2 SCR 876, where
the court observed that Parliament and provincial legislatures have the
76 |PETITION NO. E202 OF 2023: JUDGMENT
 constitutional right to regulate their own procedures, as outlined in the
Constitution Act, 1867. This privilege is immune from the Charter, and
Section 3 of the Charter is achieved by interpreting the democratic
guarantees in a purposive way. Courts may only review whether a
matter falls within this privilege, and if it does, they must leave the issue
for the legislature to resolve, without judicial interference.
251. It is reiterated that the election of the Speaker is an internal arrangement
of the National Assembly and the Court ought to refrain from interfering
with such processes that are exclusively reserved to the National
Assembly itself. In support of this position the case of Peter O. Ngoge v
Francis ole Kaparo & 4 others [2007] eKLR is cited. In that case, the
court observed that the applicant, who sought the office of Speaker,
could not validly claim that the failure to be elected constitutes a
violation of fundamental rights under Section 84 or any provisions of
Chapter 5 of the repealed Constitution of Kenya. Further, that there was
no clear connection between the two. The court also found that simply
alleging a breach of Chapter 5 without providing specific details of the
violation or how it occurred was insufficient to justify judicial
intervention.
252. On the doctrine of separation of powers, the Speaker relied on the case
of Mumo Matemu v Trusted Society of Human Rights Alliance & 5
others [2013] eKLR where the court held that the doctrine of separation
of powers is a core principle of the constitutional framework, but it does
not only prevent one branch of government from interfering with the
others but also grants each branch certain powers that act as checks and
balances on actions by organs of government. However, these powers
are not a license for one branch to take over the functions of another;
77 |PETITION NO. E202 OF 2023: JUDGMENT
 there must be respect and deference between the judicial, legislative, and
executive branches regarding their respective roles.
253. It is the Speaker’s submissions that the Supreme Court in the case of
Speaker of the Senate & another v Attorney General & 4 Others
[2013] eKLR, recognized the power or mandate of Houses of Parliament
to establish and regulate their internal procedures without undue
interference from courts.
254. According to the Speaker, the petitioners have not provided any legal
provisions to support that he was unqualified to be elected on the ground
that he held a political office and based on based on this premise the
Amended Petition ought to collapse.
255. On the jurisdiction of this Honourable Court to remove the speaker from
office, the Speaker cited Tlouamma and others v Mbethe, Speaker of
the National Assembly of the Parliament of the Republic of South
Africa and another (supra), Peter O. Ngoge v Francis ole Kaparo & 4
others and Mumo Matemu v Trusted Society of Human Rights
Alliance & 5 others (supra).
256. It is the Speaker’s submission that the petitioners’ argument that the
Speaker should not hold a political office after being elected does not
hold water for the reasons that Article 77(2) of the Constitution only
prevents appointed State Officers from holding political party offices;
the Speaker, is an elected State Officer.
257. The Speaker contends that the he is considered a member of Parliament
under Article 97(1) of the Constitution and is not restricted from holding
a political office, as per Section 12(2) of the Political Parties Act.
Article 106(1)(a) of the Constitution only disqualifies a serving member
of Parliament from vying for the position of the Speaker, so much so
78 |PETITION NO. E202 OF 2023: JUDGMENT
 that, the requirement only applies on qualification prior to election of the
Speaker. However, once the candidate is cleared by the relevant organs,
including the IEBC and the Clerk of the National Assembly and is
elected as the Speaker, then such a person is expressly included as a
member of the National Assembly under Article 97(1)(d) of the
Constitution.
258. Regarding the claim that the Speaker’s political office compromises
impartiality and neutrality, it is contended that the petitioners have not
provided any evidence of actual partiality on the Speaker’s part, and
their allegations are speculative. The Constitution, it is urged, defines
the national executive as the President, Deputy President, and Cabinet
and does not include the Speaker or coalition co-principals.
259. The Speaker has also submitted that holding a political office does not
inherently make the Speaker partial in their role as presiding officer and
this is evidenced by parliamentary practices in other democracies, such
as Uganda where Section 82(2) of the Ugandan Constitution allows the
Speaker to serve as a representative of a constituency while also
fulfilling the Speaker’s duties. Similarly, Section 84(1) of the
Constitution of Tanzania permits the Speaker to remain a member of
Parliament while serving in their role, Section 52(1) of the South
African Constitution provides for election of a Speaker of the National
Assembly from amongst the Members of the National Assembly. Other
countries with similar practices, according to the Speaker, are South
Africa, the United Kingdom, the United States of America, Canada, and
even India.
260. According to the 4th respondent, the petitioners' claim that the Speaker's
political office causes partiality is unfounded. It is urged that allegations
79 |PETITION NO. E202 OF 2023: JUDGMENT
 of impartiality should be raised through a substantive motion in the
House, as per the Standing Orders Standing Order 87(1) and
parliamentary practice.
261. It is submitted that the Speaker’s decisions are guided by the
Constitution, the laws and the rules as provided for in the Standing
Orders and in instances where the rules do not expressly provide
guidance, the Speaker is still obligated to answer any questions arising
in Parliament taking into consideration statute law, and the usages,
forms, precedents, customs, procedures, traditions and the practices of
the Parliament of Kenya and other jurisdictions to the extent that these
are applicable to Kenya.
262. The Speaker’s position is that his role is not influenced by political
leadership positions, which are not recognized in the National Assembly
Standing Orders except for the positions listed under Article 108 of the
Constitution, such as the Leader of Majority and Minority Parties,
Whips, and their deputies. The Speaker has no casting vote, and his role
does not affect the outcome of decisions in the House. He also does not
participate in debates, meaning that his political affiliations do not
influence the House’s decisions.
263. It is submitted that the petitioners wrongly argue that the Speaker had no
jurisdiction to make the communication regarding the majority
leadership dispute yet both the Azimio and Kenya Kwanza Coalitions
had requested the Speaker’s intervention on the matter. The Speaker
then acted within his jurisdiction to resolve the issue, in accordance with
Article 107 of the Constitution and Standing Order 18, which
designate the Speaker as the Presiding Officer of the House. It is urged
that the Speaker's duty to "preside over" the House, as defined in legal
80 |PETITION NO. E202 OF 2023: JUDGMENT
 dictionaries, includes guiding, directing, or controlling the House. Thus,
the Speaker’s actions were within his authority and cannot be faulted.
264. The Speaker relied on Judicial Service Commission v Speaker of the
National Assembly & 4 others; Commission on Administrative Justice
(Amicus Curiae); Law Society of Kenya (Interested Party)(Petition 518
of 2013) [2014] KEHC 7493 (KLR) (Constitutional and Human
Rights) (15 April 2014) Judgment) where the court held that the
Speaker is responsible for issuing orders concerning procedures and
debates in the House. The Speaker serves as the Presiding and Principal
Officer of the National Assembly, bearing the responsibility for ensuring
the proper constitutional conduct of proceedings and decisions within
the Assembly.
265. The Speaker submits that other than being the presiding officer, he has
explicit powers to make decisions on questions arising during
parliamentary proceedings under Standing Orders 1 and 47(3) of the
National Assembly’s Standing Orders. This, according to the Speaker,
ensures the smooth conduct of House business and prevents disruptions.
266. The Speaker has given instances when the his predecessor gave rulings
on various issues which included the constitutionality and aspect of
public participation during consideration of the Health Laws
(Amendment) Bill; admissibility of recommendations of the report of
the Public Accounts Committee on its examination of the report of the
Auditor General on the financial statements of the Independent Electoral
and Boundaries Commission; consideration of Mediated versions of the
County Governments (Amendment) Bill (Senate Bill No. 11 of 2017);
the County governments (Amendment) (No.2) Bill (Senate Bill No. 7 of

81 |PETITION NO. E202 OF 2023: JUDGMENT

 2017); and, the constitutionality and aspect of public participation
during consideration of the Health Laws (Amendment) Bill.
267. It is submitted that in other comparable jurisdictions, a Speaker of
Parliament has at all times possessed both express, inherent and residual
powers to render guidance to the House in form of a Communication. In
this regard, the Speaker cited Canadian Parliamentary practice and
procedure House of Commons Procedure and Practice -Third Edition
2017, Marc Bosc and Andre Gagnon and in the United States of
America, Mason's Manual of Legislative Procedure, 2020 Edition at
pages 426-427.
268. It is also submitted that the High Court has no jurisdiction to interrogate
the correctness or wrongness of a decision of a Speaker. In other words,
the court has no jurisdiction to engage in a merit-based view of a
decision of a Speaker. Further, that it cannot sit as an appellate body to
the decisions of a House of Parliament. The South African case of
Tlouamma and others v Mbethe, Speaker of the National Assembly of
the Parliament of the Republic of South Africa and another (supra)
has been cited in support of this position.
269. The Speaker submits that our Courts and those of other jurisdictions in
cases such as Speaker of the Senate & another v Attorney-General & 4
Others [2013] eKLR and Marshall Field & Co. v Clark 143 US 649
[1892] have repeatedly held that they have no jurisdiction to interfere in
the internal processes of Houses of Parliament or to make rules or
prescribe procedures for Houses of Parliament.
270. The Supreme Court in the case of Katiba Institute v Attorney General &
9 others (Petition 17 of 2020) [2023] KESC 47 (KLR) (16 June 2023)
(Judgment) (with dissent-NS Ndungu, SCJ) is said to have propounded
82 |PETITION NO. E202 OF 2023: JUDGMENT
 the test that courts should employ while reviewing the exercise of
administrative functions reposed in other state organs. This was also the
position in the Court of Appeal decision of Pevans East Africa Limited
& another v Chairman, Betting Control & Licensing Board & 7 others
[2018] eKLR.
271. According to the Speaker, the main aim of this litigation is to influence
"the outcome of political decisions" which conduct was deprecated by
Salmon LJ more than 48 years ago in Blackburn vs Attorney General
(1971] 1 WLR 1037 when held that; “whilst I recognise the undoubted
sincerity of Mr. Blackburn's views I deprecate litigation the purpose of
which is to influence political decisions. Such decisions have nothing to
do with the courts”.
(v) 5th and 14th respondents’ submissions.
272. Like the 3rd and 4th respondents, the 5th & 14th respondents also refer to
one at the same person who, in this instance, is the Registrar of Political
Parties. It is Registrar’s submissions that her office is established under
Section 33(1) of the Political Parties Act and that the office is capable of
suing and being sued in its own name and, as such, enjoining the holder
of the office in her personal capacity when the petition pertains to
actions within her official duties is improper.
273. She further submits that, pursuant to Section 5(d) of the Constitution of
Kenya (Protection of Rights and Fundamental Freedoms) Practice and
Procedure Rules, 2013, the court may direct that a party improperly
joined to a petition may be struck out. She has made reference to Section
34 of the Political Parties Act on the functions of the Registrar of
Political Parties.

83 |PETITION NO. E202 OF 2023: JUDGMENT

 274. The petition, according to the Registrar, does not disclose any violation
of the Constitution by the Registrar to warrant the intervention of the
court. In this regard, she has cited Anarita Karimi Njeru vs Attorney
General [1979]KLR. She has also submitted that this Honourable Court
lacks jurisdiction to grant the relief sought for the removal of the
Registrar as the procedure is set out under Political Parties Act. On this
argument, she has relied on International Trade Administration
Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC);
2010 (5) BCLR 457 (CC).
(v) 6th to 9th respondents’ submissions
275. In their written submissions, the 6th to 9th respondents have urged that
the question of the legality of the Finance Act is subject to proceedings
before this Honourable Court in CCHRPET/E181/2023: Okiya
Omtatah Okoiti Vs Cabinet Secretary, National Treasury and
Planning & Others. They have cited the Supreme Court case of Kenya
National Commission on Human Rights vs Attorney General,
Independent Electoral & Boundaries Commission & 16 others [2020]
eKLR to urge that this question is sub judice.
276. The 6th to 9th respondents’ submission is that the jurisdiction to
determine the present case is vested in the Political Parties Disputes
Tribunal under Section 40(1)(f) of the Political Parties Act. They have
cited the cases of Lilian Gogo v Joseph Mboya Nyamuthe & 4 others
(supra),County Government of Turkana v National Land Commission,
Attorney General & Jackson Ekaru Nakusa & 32 others [2020] eKLR
and Cleophas Malala & another v Speaker of the Senate & 2 others;
Stewart Madzayo & another (Interested Parties) [2021] eKLR where
the Courts reiterated that where there is a clear procedure for redress of
84 |PETITION NO. E202 OF 2023: JUDGMENT
 any particular grievances prescribed by the law, the same ought to be
strictly followed.
277. According to the 6th to 9th respondents, the petitioners can only deviate
from alternative remedies where there are exceptional circumstances.
This was the position in the Supreme Court case of Nicholus v Attorney
General & 7 others; National Environmental Complaints Committee
& 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC
113 (KLR) (28 December 2023) (Judgment).
278. It is submitted that the question of whether the four political parties
coalition pact is legal should be dealt with in accordance with the two-
tier mechanism under section 40 of the Political Parties Act, to wit; first
through internal dispute resolution mechanism and second, through
Political Parties Dispute Tribunal as was held by the Court of Appeal in
Munene & another v Muturi & 7 others (Civil Appeal E350 of 2022)
[2022] KECA 912 (KLR) (22 July 2022) (Reasons).
279. According to the 6th to 9th respondents, the provisions of Article 108(2)
Constitution are couched in present terms and nothing in it can be read
to mean that the status of a party or a coalition as the majority party or
coalition is fixed for five years. They have relied on the Court of Appeal
case in Okiya Omtatah Okoiti & another v Attorney General & 6
others [2020] eKLR where the court held that the Constitution should be
given purpose interpretation to give effect of the purpose of the
Constitution.
280. It is their case that the decision mentioned above implies that the
creators of the Constitution foresaw a scenario where the majority status
of a party or coalition in the National Assembly could change during the
parliamentary term. They also urge that Section 10 of the Political
85 |PETITION NO. E202 OF 2023: JUDGMENT
 Parties Act allows for the formation of post-election coalitions, new
political parties, or the merging of existing parties.
281. The 6th to 9th respondents also urge that the majority party in the
National Assembly can change due to various circumstances, including,
two or more political parties merging to form a coalition with a majority
(Section 10(1) of the Political Parties Act); two or more political parties
merging to form a new political party with a majority (Section 11(1)(a));
a political party merging into an existing party, resulting in a majority
(Section 11(1)(a)); expulsion of members from the majority party,
affecting its status; loss of members through death, election nullification,
imprisonment, or bankruptcy; or even disintegration of the majority
coalition into individual parties.
282. The 6th to 9th respondents submit that the scenarios affecting the majority
party in the National Assembly must be interpreted with a specific
purpose, as per Article 108 of the Constitution. While General Elections
determine the National Assembly's membership, they do not prevent
these changes from occurring before the parliamentary term ends and if
any situation arises that impacts which party or coalition holds the
majority, it must be addressed immediately and cannot be postponed
until the next general election.
283. It is urged that the purposive interpretation of Article 108 of the
Constitution asserts that the determination of which party or coalition
holds the majority in the National Assembly should be made on a case-
by-case basis when circumstances change. If a political party leaves a
coalition, joins another, or merges to form a new party or coalition, it
does not result in the loss of seats held by its members. However, such
changes can alter the majority party status. It is also submitted that if
86 |PETITION NO. E202 OF 2023: JUDGMENT
 these changes lead to the formation of a party or coalition with a
majority, a new majority status is established and must be addressed
accordingly.
284. It has also been submitted on behalf of the 6 th to 9th respondents that the
shifting of four political parties from the Azimio La Umoja coalition to
Kenya Kwanza shifted the numbers, making Kenya Kwanza the
majority party after the general election. They also submit that the
Constitution allows individuals running for the position of Speaker to be
either nominated by a political party or run as independent candidates.
There is no requirement for a Speaker, once elected, to resign from their
political party or cease engaging in political activities if they were
nominated by a political party. The Constitution is said to permit
candidates to leverage the support of a political party during their
campaign for Speaker.
285. The 6th to 9th respondents rely on the case of Tlouamma and Others v
Mbethe, Speaker of the National Assembly of the Parliament of the
Republic of South Africa and Another (supra) where the court
observed that where the Constitution, legislation or rules do not require
the Speaker to sever their ties with political parties, this does not impede
the Speaker from occupying any leadership position within the political
party or participating in the activities of the political party. The
Speaker's membership to a political party does not point to him lacking
impartiality while discharging his official duties.
286. They also rely on the case of in Matter of Kenya National Commission
on Human Rights [2014] eKLR: Reference 1 of 2012, where the court
held that a holistic interpretation of the Constitution must mean
interpreting the Constitution in context. The 6th to 9th respondents
87 |PETITION NO. E202 OF 2023: JUDGMENT
 reiterate this court lacks the requisite jurisdiction to remove the Speaker
of the National Assembly from office.
287. On the question of immunity, the 6 th to 9th respondents rely on the
Supreme Court case of Bellevue Development Company Ltd v Gikonyo
& 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020)
(Judgment) where the court observed that the objective of judicial
immunity is to allow judicial officers to make decisions independent of
personal consideration including fear of personal liability. According to
these respondents, the above rationale applies to the parliamentary
immunity granted to the Speaker and Leaders in the National Assembly
under section 12 of Political Parties Act.
288. It is submitted that Article 203 (1) of the Constitution states that tax
exemptions can only be made through legislation. Further that the Court
in the case of Okoiti & 2 others v Cabinet Secretary, National Treasury
& 4 others (Petition 303 of 2018) [2022] KEHC 13213 (KLR)
(Constitutional and Human Rights) (30 September 2022) (Judgment)
held that policy issues are better left to the legislature and can only be
questioned if they violate the Constitution.
(vi) 10th and 13th submissions
289. The 10 and 3th respondents filed written submissions dated 29 March
2024 in response to the petitioners’ submissions. It is their submission
that this court cannot adjudicate on the issues before it because they are
sub judice in light of Milimani Constitutional Petition Number E505 of
2023 Azimio la Umoja One Kenya Coalition Party versus The Speaker
of the National Assembly and Jubilee Party.
290. In support of this position, they rely on the case of Kenya National
Commission on Human Rights v Attorney General; Independent
88 |PETITION NO. E202 OF 2023: JUDGMENT
 Electoral & Boundaries Commission & 16 others (Interested Parties)
[2020] eKLR where the court observed that the purpose of the sub-
judice rule is to stop the filing of a multiplicity of suits between the
same parties or those claiming under them over the same subject matter
so as to avoid abuse of the Court process and diminish the chances of
courts, with competent jurisdiction, issuing conflicting decisions over
the same subject matter.
291. The 10th and 13th respondents also rely on the case of Okiya Omtatah
Okoiti & another v Ministry of Transport & Infrastructure & 4 others
[2016] eKLR where the court observed that the doctrine of sub judice is
equally applicable to Petitions under the Constitution. A similar position
was also held in the case of Leonard Omullo v National Land
Commission [2021] eKLR.
292. It is their case that the assertion that the Jubilee Party cannot leave the
Azimio Coalition without a referendum is moot in light of the fact that
the Jubilee Party already left the Azimio Coalition. According to them,
a referendum can only be held when amending the Constitution of
Kenya under Articles 255, 256 and 257 of the Constitution of Kenya,
2010 and the ratification of the Constitution under Article 263 of the
Constitution of Kenya, 2010.
293. On the issue of jurisdiction, the 10th and 13th respondents rely on the case
of The Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited
[1989] KLR 1 for the argument that this court does not have jurisdiction
to dispose of the dispute and thus should down its tools. These
respondents also rely on Rich Productions Limited vs. Kenya Pipeline
Company & Another [2014] where the court held that the reason why

89 |PETITION NO. E202 OF 2023: JUDGMENT

 the Constitution and the law establish different sectors is to ensure that
such disputes are resolved by those with technical expertise.
294. The 10th and 13th respondents also relied on the case of Satya Bhama
Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR
where the court outlined the situations where an abuse of the court
process would arise.
(vii) 11th respondent’s submissions
295. The 11th respondent filed written submissions dated 9 April 2024. At the
onset, the 11th respondent begun by submitting that it has been
unnecessarily dragged into this Petition. It also states that no relief has
been sought against it.
296. It is its submission that it is only mandated by the Constitution of Kenya
2010,the IEBC Act and the Election Act 2011 to conduct or supervise
elections to any elective body or office established by the Constitution
of Kenya and in keeping with that mandate, the IEBC delivered free,
fair, credible and verifiable elections in the General Elections held on
29th August 2022.
297. The 11th respondent relies on Article 82 of the Constitution on the
Legislation on elections where some of the functions of the IEBC are
laid out. Article 88(4) and Section 4 of the IEBC Act are also referred to
on more functions of the IEBC. Article 89 on IEBC’s delimitation of
constituencies and wards and Article 90 on IEBC’s responsibility to
conduct and supervise party nomination of candidates are also referred
to in the submissions. It is submitted that the obligations and function of
IEBC at Article 248 and 249 of the Constitution are replicated and
attained in the execution of its functions under Articles 82,88,89 and 90
of the Constitution.
90 |PETITION NO. E202 OF 2023: JUDGMENT
 298. The 11th respondent also urges that there is an express and clear legal
regime that regulates political parties in Kenya. The Commission refers
to Article 92 of the Constitution on Political Parties and submits that
from the reading of the Political Parties Act, the IEBC has absolutely no
role to play in the regulation of political parties outside the election
period.
299. According to the 11th respondent, the election period for the elections of
9 August 2022, commenced on 20 January 2022,on the publication of
the Kenya Gazette, Vol.CXXIV-No.14 of 20 January 2022 and ended on
23 August 2022 on the publication of election results vide Kenya
Gazette Vol.CXXIV-No.169 of 23 August 2022. The Kenya Gazette
Vol. CXXIV.No.14 of 20 January 2022 was also publicized by the IEBC
Press Release of 21 January 2022.
300. It is the 11th respondent’s submission that no law obliges it to monitor
the elected office holders as to their political affiliations or to which
political party or which coalition, as that is the function of the Registrar
of Political Parties under Section 34 of the Political Parties Act.
301. The 11th respondent has also submitted that the election is not conducted
for a political party as an individual or a constituent but for a human
individual person. Regulation 22 of the Elections (General) Regulations
is said to prescribe the manner of nomination of political party
candidates for the National Assembly while regulation is said to provide
for the inclusion of a symbol of a candidate in the ballot papers.
302. The 11th respondent also refers to regulation 70 on the manner of voting,
regulation 39(1) on the determination and declaration of results,
regulation 79 on the declaration of results of the voting of the member of
the National Assembly. It is the 11th respondent’s case that Form 35A
91 |PETITION NO. E202 OF 2023: JUDGMENT
 referred to in Regulation 79 does not provide a slot for the number of
votes attained by a political party nor coalition nor a merger.
303. Regulation 83 provides for the manner of tallying and announcement of
election results and in that process there is no requirement at that the
results be tallied or announced per a political party, or coalition or a
merger.
304. Similarly, it is the 11th respondent’s submission that Form 35B referred
to under Regulation 83(1) (e) of the Elections Regulation does not
provide a slot for the number of votes attained by a political party nor a
coalition nor a merger. In summary, the 11th respondent submits that it is
not obligated under any law or moral rule, to declare the party or
coalition that garnered the majority votes or had majority members, in
the National Assembly.
305. In making reference to Article 249 and 252 on the objects and authority
of commissions and independent offices and the general powers and
functions of the commissions, it has been submitted on behalf of the 11 th
respondent that its mandate does not include objecting to, or protesting
or reviewing or countermanding the rulings of the Speaker of the
National Assembly.
306. The National Assembly or the Senate, it is urged, are not under the
control or supervision of another body or authority and that it is only the
judiciary that has the mandate to ensure that the decisions of the
National Assembly are within the law, through the provided channel but
not the IEBC.
307. According to the 11th respondent the Chairman of the IEBC has no role
in the tallying and declaration of results of election to the National
Assembly, that is the role of the Presiding Officer and the Returning
92 |PETITION NO. E202 OF 2023: JUDGMENT
 Officer as provided in Regulations 79(2A) and 83(1) of the Elections
Regulation.
308. The Chairman’s role with regard to the elections to the National
Assembly is said to be to tally and verify results received and not
announce or declare the results as regulation 84 provides for the
establishment of the final tallying centers for the respective elective
posts.
309. The Chairman’s responsibility it is submitted is only as is provided
under Regulation 87(3) and that is to announce the results of each
presidential candidate and to declare the person elected president. In
Forms 34A,34B and 34C, there is no provision for declaration of results
of persons or political parties elected and affiliated to the elected
president or other presidential candidates.
310. In conclusion, the 11th respondent submits that it has no role to play
when it comes to who occupies the office of the majority or minority
leaders in the National Assembly.
311. The 11th respondent also submits that although the petitioners have no
basis or cause at all against the IEBC, this court can recommend an
amendment of the Elections Act, to make provision for the declaration
by the IEBC of the largest party or coalition or parties, during general
elections, to actualize Article 108 of the Constitution.
(viii) 12th and 16th respondents’ submissions
312. The 12th and 16th respondents filed their written Submissions dated 7 th
November 2023 and 20th June 2024.
313. On the question whether the decision by the 16 th respondent contravened
Articles 10 and 47 of the Constitution for want of public participation,
stakeholder consultations and administratively fair procedures, the 12 th
93 |PETITION NO. E202 OF 2023: JUDGMENT
 and 16th respondents rely on the case of Mombasa High Court
Constitutional Petition No. 159 of 2018 consolidated with
Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi &
3 Others versus Attorney General & 4 Others; Muslims for Human
Rights & Two Others (Interested Parties)(2020) eKLR where the court
observed that Article 10 outlines the national values and principles of
governance that apply to all state organs, officers, public officers, and
individuals when interpreting the Constitution, enacting laws, or making
public policy decisions. Additionally, that Section 7(1) of the Sixth
Schedule provides that any law in effect before the Constitution’s
promulgation remains in force, but must be construed with the
alterations, adaptations, qualifications and exceptions necessary to bring
it into conformity with the Constitution.
314. They also rely on the Court of Appeal case of Independent Electoral
and Boundaries Commission (IEBC) v National Super Alliance
(NASA) Kenya & 6 Others, Civil Appeal No. 224 of 2017 eKLR where
the court held that the values espoused in Article 10 (2) are neither
aspirational nor progressive but that they are immediate, enforceable and
justiciable. The court also held that the values are not directive
principles. It also observed that the values of human dignity, equity,
social justice, inclusiveness and non-discrimination cannot be
aspirational and incremental, but are justiciable and immediately
enforceable.
315. On the concept of public participation, the 12th and 16th respondents rely
on the case of Robert N. Gakuru & Others vs. Governor Kiambu
County & 3 Others [2014] eKLR where the court adopted the definition
of public participation as had been stated in the South African decision
94 |PETITION NO. E202 OF 2023: JUDGMENT
 in Doctors for Life International vs. Speaker of the National Assembly
& Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc);
2006(6) SA 416 (CC). The court in Doctors for Life International
(supra) held that Public involvement or participation refers to the
process where the public engages in an activity. Also, that in the context
of the legislative process, facilitating public involvement means taking
actions to ensure that the public has the opportunity to participate in the
process.
316. The 12th and 16th respondents submit that the process of Public
Participation may take different forms and that at times it may include
consultations. They refer to the definition of consultations as the act of
asking the advice or opinion of someone. It is also submitted that
consultation is a more robust and pointed approach towards involving a
target group and it is often referred to as stakeholders’ engagement.
317. They rely on the Court of Appeal case of Legal Advice Centre & 2
others v County Government of Mombasa & 4 others [2018] eKLR
where the court quoted with approval Ngcobo J in Matatiele
Municipality and Others vs. President of the Republic of South Africa
and Others (2) (CCT73/05A) [2006] ZACC 12; 2007 (1) BCLR 47
(CC) where it was stated that the more discrete and clearly identifiable
and potentially affected a specific group of people is, and the greater the
potential impact on their interests, the more reasonable it is to expect the
legislature to take care in ensuring that this group is given a fair
opportunity to voice their concerns.
318. The 12th and 16th respondents also rely on the case Constitutional
Petition Nos. 305 of 2012, 34 of 2013 and 12 of 2014 (Formerly
Nairobi Constitutional Petition 43 of 2014) Mui Coal Basin Local
95 |PETITION NO. E202 OF 2023: JUDGMENT
 Community & 15 Others v Permanent Secretary Ministry of Energy &
17 Others [2015] eKLR where the court observed that a public
participation program must be intentionally inclusive and diverse. Any
clear and intentional attempts to exclude genuine stakeholders would
render the program ineffective and unlawful.
319. Further, that when designing such a program, government agencies or
public officials must consider the subsidiarity principle, meaning that
those most affected by a policy, legislation, or action must have a
greater say in that policy, and their opinions should be actively sought
and considered.
320. They also submit that consultation or stakeholder engagement allows
key sector stakeholders to participate in the process of making laws or
administrative decisions that significantly impact them and since these
stakeholders are most affected by the law, policy, or decision, it is
essential for government agencies or public officers to consider
incorporating consultation or stakeholder engagement in appropriate
cases, as was done by the 16th respondent in this case.
321. They have also relied on Legal Advice Centre & 2 others v County
Government of Mombasa & 4 others (supra) where the Court held that
the purpose of allowing public participation in the law-making process
is to give the public a chance to influence law-makers' decisions.
Further, that law-makers must consider the public's input and make
informed decisions based on it.
322. The court also went ahead to state that law-makers are required to
provide meaningful opportunities for the public to express their
concerns, values, and preferences, and to take these into account when

96 |PETITION NO. E202 OF 2023: JUDGMENT

 shaping decisions and policies. It is the court’s position that without this,
the duty to facilitate public participation would be meaningless.
323. The 12th and 16th respondents also rely on the case of Matatiele
Municipality v President of the Republic of South Africa (2)
(CCT73/05A), where the South African Constitutional Court
emphasized that the right to public participation in governmental
decision-making is not only essential for improving decision accuracy
by allowing people to present their side but also crucial for preserving
human dignity and self-respect.
324. Similarly, in Poverty Alleviation Network & Others v President of the
Republic of South Africa & 19 others, CCT 86/08 [2010] ZACC 5, the
Court highlighted the importance of public participation, stating that it is
vital for informing the public about what to expect, allowing
communities to express concerns and demands. The court also held that
in a democratic state, participation is integral to the legitimacy of
decisions, and decisions made without consulting the public cannot be
considered informed.
325. The 12th and 16th respondents rely on the case of Legal Advice Centre &
2 others v County Government of Mombasa & 4others (supra) where
the Court of Appeal referred to the case of Independent Electoral and
Boundaries Commission (IEBC) vs. National Super Alliance (NASA)
Kenya & 6 others [2017] eKLR on the threshold of public participation.
In this case, the court observed that the mechanism used to facilitate
public participation, which included meetings, press conferences,
briefings, structured questionnaires, and a department dedicated to
receiving concerns, was deemed adequate. The court went ahead to
observe that the 1st Respondent has the discretion to choose the
97 |PETITION NO. E202 OF 2023: JUDGMENT
 appropriate medium for public participation, as long as it ensures a
broad outreach to the public and interested parties. The case of Mui
Coal Basin Local Community & 15 Others v Permanent Secretary
Ministry of Energy & 17 Others (supra) has also been cited on what
constitutes a reasonable threshold in public participation.
326. On the doctrine of exhaustion, the 12th and 16th respondents have relied
on the case of Martin Kabubii Mwangi v County Government of
Laikipia [20191 eKLR where the court observed that the exhaustion
principle, as enunciated in the cases like Secretary, County Public
Service & Another v Hulbhai Gedi Abdille Civil Appeal 202 of 2015,
does not allow a litigant to choose which parts of a statute to rely on.
According to the 12th and 16th respondents, the dispute before this court
is clearly a dispute between the political party members of the National
Assembly and the best avenue to resolve this issue is clearly stipulated
under Section 40 of the Political parties Act 2011 which establishes and
gives mandate to the Political Parties Disputes Tribunal.
327. The 12th and 16th respondents also rely on the case of William
Odhiambo Ramogi & 3 others v Attorney General & 4 others;
Muslims for Human Rights & 2 others (Interested Parties) [2020]
eKLR, where the court emphasized the importance of exhausting
administrative remedies before seeking judicial intervention. In this case
court stated that the exhaustion doctrine ensures that litigants first utilize
the available mechanisms within an agency for resolving issues before
turning to the courts. It is the 12 th and 16th respondents’ case that this
approach promotes diligence in protecting one’s interests and postpones
judicial consideration until the alternative remedies have been pursued.

98 |PETITION NO. E202 OF 2023: JUDGMENT

 328. They also rely on the case of Peter Odour Ngoge v Francis Ole Kaparo
& others; SC Petition No. 2 of 2012, [2012] eKLR, where the Supreme
Court upheld a preliminary objection due to the failure to exhaust
statutory alternative dispute resolution mechanisms. Similarly, they have
cited Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148
others; SC Petition No. 3 of 2016, [2019] eKLR, where the Supreme
Court reiterated that even in matters of profound legal significance, the
relevant persons or bodies specified by the law should be given the first
opportunity to resolve disputes. The court also emphasized that when
alternative dispute resolution mechanisms are provided by legislation,
the courts must exercise restraint and allow these bodies to handle the
dispute in the first instance.
329. Another case from the Supreme court which the 12 th and 16th
respondents cited is United Millers Limited versus Kenya Bureau of
Standards & 5 others (2021) eKLR which stressed that where
alternative dispute resolution methods are legislated, the courts should
show restraint in exercising their constitutional jurisdiction and defer to
the bodies designated by statute to address such disputes initially.
330. The 12th and 16th respondents submit that the law does not operate in a
vacuum. They rely on the case of R vs Kenya Revenue Authority Ex-
parte Style Industries Limited (2019) eKLR where Mativo, J,(as he
then was) not only dismissed a suit based on the fact that the applicant
failed to exhaust all the mechanisms available before approaching the
court, but also strived to define the use of the word “SHALL” as used
under provisions of the law.
331. According to the 12th and 16th respondents, Section 40(2) of the Political
Parties Act 2011 imposes a restriction on the tribunal’s jurisdiction,
99 |PETITION NO. E202 OF 2023: JUDGMENT
 stating that it shall not hear or determine disputes under certain
conditions unless the disputes have been heard and resolved by the
internal political party dispute resolution mechanisms. They have also
relied on the case of Musalia Mudavadi & 4 others v Angela Gathoni
Wambura & 2 others [2019] eKLR, where the court explained that the
tribunal only acquires jurisdiction to determine disputes under Section
40(1) after they have been addressed and decided by the political parties'
internal dispute resolution mechanisms.
332. It is urged that judicial restraint is a principle of judicial interpretation
that encourages judges to limit their own power and to avoid striking
down laws or interfering with the actions of other arms of government
unless the actions are clearly unconstitutional. According to the 12 th and
16th respondents, the role of the court is to examine whether the
legislature has acted within its constitutional powers and if not, the court
may strike down the action but must do so within self-imposed limits.
333. The 12th and 16th respondents also cited Speaker of the Senate and
Another v Attorney General and Others [2013] eKLR, where the
Supreme Court of Kenya rationalised that if judges decide only those
cases that meet certain justiciability requirements, they respect the
spheres of their co-equal branches, and minimize the troubling aspects
of counter-majoritarian judicial review, in a democratic society, by
maintaining a duly limited place in government.
334. The 12th and 16th respondents urge this restraint can be exercised through
mechanisms like standing rules, the exhaustion of local remedies,
adherence to stare decisis, avoidance of political questions, and the
requirement of justiciability.

100 |PETITION NO. E202 OF 2023: JUDGMENT

 335. It is the 12th and 16th respondents’ case that the doctrine of separation of
powers emphasizes that courts must avoid taking over the functions of
other branches. These respondents rely on the case of Mumo Matemu v
Trusted Society of Human Rights Alliance & 5 Others [2013] at
paragraph 49, where the Court of Appeal underscored the importance of
deference among the branches of government. It noted that separation of
powers not only prevents interference between branches but also enables
each branch to provide checks and balances on the others. The court
warned that while each branch has powers to counterbalance others,
those powers do not grant one branch the authority to assume the
functions of another, thereby fostering institutional restraint and
avoiding overreach.
336. The 12th and 16th respondents urge that legislative bodies around the
world enjoy parliamentary privilege, which refers to the special rights
granted to each House of Parliament collectively and to individual
members, enabling them to perform their duties without interference.
These privileges are necessary for the legislature to function effectively
and to address challenges to its authority.
337. They further urge that the purpose of parliamentary privilege is to
remove any obstacles that could impede the legislature in carrying out
its work. It is to ensure that the legislature is independent from control
by the executive and the courts, granting it the necessary powers to
fulfill its constitutional and legal responsibilities. Members of the
legislature and others participating in its proceedings must have certain
immunities to allow the legislature to perform its functions properly.
These privileges reflect parliamentary autonomy and are essential for an
effective legislature that operates in the public interest.
101 |PETITION NO. E202 OF 2023: JUDGMENT
 338. According to them, the rights and immunities granted to Members of
Parliament individually can be categorized into the freedom of speech,
freedom from Arrest in Civil Actions and exemption from being
summoned to Court. In this submission, they have relied on Francis
Matheka & 10 Others v Director of Public Prosecutions & Another
[2015] eKLR, where the court emphasized that parliamentary privilege
belongs to the House as a whole, not to individual members. The case of
Samuel Muigai Nganga v. The Minister for Justice, National
Cohesion and Constitutional Affairs & Another [2013] eKLR, where
the petitioner is said to have sought an advisory opinion from the High
Court regarding who qualifies as a full-time state officer under Article
77(1) of the Constitution has also been relied upon by the 12 th and 16th
respondents.
339. The court in this case is said to have ruled that it lacked jurisdiction to
address hypothetical or abstract issues. It emphasized that its role in
interpreting the Constitution could only be exercised in the presence of a
real dispute, thus reinforcing the principle of judicial restraint and its
focus on concrete legal questions.
(ix) 18th respondent’s submissions
340. The 18th respondent filed written submissions dated 11 April 2024 in
respect to the amended petition. To begin with, the 18th respondent has
submitted that where, pursuant to a constitutional provision, there exists
a statute providing a forum for alternative dispute resolution; this ought
to be upheld by the Courts.
341. The 18th respondent also submits that it is not disputed that the
petitioners’ nature of complaint herein arises from a political dispute
between members of a political coalition, namely members of Azimio
102 |PETITION NO. E202 OF 2023: JUDGMENT
 coalition who bolted out of Azimio Coalition, thereby occasioning the
crisis in the National Assembly concerning which one between the
Azimio Coalition and Kenya Kwanza Alliance held a majority status in
the house. The Petitioners, therefore, ought to have pursued internal
disciplinary mechanisms within their respective parties or coalitions in
the first instance and if dissatisfied, moved the Political Parties Dispute
Tribunal in the second instance and upon exhausting these mechanisms,
move to this Honourable Court.
342. The 18th respondent submits that the petitioners also had the option of
accessing the Court via Order 53 of the Civil Procedure Rules,
specifically Order 53 rule 3(1) which provides that an application for
orders of Mandamus, Prohibition or Certiorari shall be made by way of
notice of motion to the High Court. Section 7 of the Fair Administrative
Actions Act is also referred to on review of administrative decisions.
343. It is also submitted that Section 9(2) of the Fair Administrative Action
Act, 2015 further affirms that the High Court can only review an
administrative action once all internal appeal mechanisms have been
exhausted. Section 9(4) is referred to the exemption to comply with
doctrine of exhaustion. The 18th respondent has relied on the case of
Peter Gichuki King’ara versus Independent Electoral and Boundaries
Commission (Civil Appeal 23 of 2013), where the court observed that if
a court lacks jurisdiction, it must immediately cease its proceedings. For
this same argument, the decisions in the Owners of the Motor Vessel
"Lillian" v. Caltex Oil (Kenya) Ltd (Civil Appeal No. 50 of 1989) and
the Supreme Court case of Samuel Kamau Macharia & Another v.
Kenya Commercial Bank Ltd & 2 Others [2012] have been cited.

103 |PETITION NO. E202 OF 2023: JUDGMENT

 344. The 18th respondent has urged that the challenge to the Finance Bill
2023 and Appropriation Bill 2023 is being raised too late, after both bills
have already become law and these laws were foundational to the
government's budget for the 2023-2024 financial years, and any
intervention by the court at this stage would be harmful to the nation’s
public good and constitutionalism.
345. It is the 18th respondent’s submission that the amended petition as
framed fly in the face of Article 117(2) of the Constitution as read with
the Parliamentary (Powers and Privileges) Act, 2011 and Section 12(2)
2011, which ring fences the autonomy of debate and the civil liberties of
members of the Assembly (including the Speaker) while discharging
their respective official duties.
346. It is the 19th respondent’s case that the Petitioners should have raised
their grievances earlier, and if they had genuine concerns, they could
have petitioned Parliament under Article 119 of the Constitution through
the procedure provided for under the Parliament (Procedure) Act No. 22
of 2012.
(x) 19th respondent’s submissions
347. The 19th respondent has, in the written submissions, filed in its behalf,
urged that the decision that offends the petitioners was a political one
made by political parties who prior to their departure, formed the
constituent parties of the Azimio la Umoja One Kenya Coalition Party.
Any constituent party of the Azimio la Umoja One Kenya Coalition
Party or member of any constituent party thereof who felt aggrieved by
the decision of the 14 members from UDM, PAA, MCCP and MDG had
a clear path of redress as provided for under Section 40 of the Political
Parties Act.
104 |PETITION NO. E202 OF 2023: JUDGMENT
 348. It is submitted that the attempt to defeat the provisions of the Political
Parties Act by filing a Constitutional Petition is not one promoting the
supreme law of the land but attempting to undermine the institutions
created thereunder and in support of this position the 18 th respondent has
relied on Moses Mwicigi & 14 others v Independent Electoral and
Boundaries Commission & 5 others [2016] eKLR. In this case, the
court observed that to allow an electoral dispute to be transmitted into a
petition carries the risk of opening up a parallel electoral dispute-
resolution regime.
349. The 19th respondent has also cited the case of Peter Muturi Njuguna
versus Kenya Wildlife Service [2017] eKLR where the court is said to
have considered whether a claimant was under an obligation to comply
with the provisions of Section 62(r) of the Wildlife (Conservation and
Management) Act(repealed), which required a claimant to make an
application to a district committee for the award of compensation. The
Court noted that in the language of the Act, there was no compulsion to
follow the procedure in the Act since the word used was "may".
350. The 19th respondent has also relied on the case of Peter Oduor Ngoge v
Francis Ole Kaparo & 5 others [2012] eKLR where the Court is said
to have emphasized the need to trust every institution established under
the Constitution by exhausting the specific procedures prescribed
therein.
The case of Jeremiah Ekaimas Lomorukai versus County Government
& 2 others [2015] eKLR has also been cited for the argument that the
issue of removal of a majority leader can only be resolved by the
second respondent and its coalition parties involving the political party
machinery facilitated under the Political Parties Act. Also cited is the
105 |PETITION NO. E202 OF 2023: JUDGMENT
 case of Kanjogu Njiiru Mbogo & 7 others v Speaker, Embu County
Assembly & another [2015] eKLR, where the Court struck out a
petition because the dispute should have been resolved through internal
party mechanisms.
351.It is also submitted that the petition against the 4th ,6th ,7th,8th ,9th and 10th
respondents cannot be sustained in view of Article 117 of the
Constitution and Section 12 of the Parliamentary (Powers and
Privileges) Act. In this regard, the 19th respondent has relied on the case
of Shadrack Muyesu Sharu & 2 others v Justin Muturi & 2 others
[2018] eKLR where the court declined to allow the preliminary
objection on grounds that the same was not on whether or not the
actions of the National Assembly can be interrogated, but rather
whether, in doing so the speakers can be held personally liable and
hence be sued in his or her individual capacity in the exercise of his or
her functions as speaker.
352.The 19th respondent states that the petition is fatally defective due to the
joinder of unrelated causes of action and to support this position it cites
Ami Development Services Limited & 6 others v The Trustees of the
Kenya Local Government & 2 Others, I. Z Engineering Construction
Ltd & another [2005] eKLR where the court held that there must be a
joint interest in the main questions raised by the litigation as a condition
precedent to the joinder of several causes of action against several
defendants.
353.The 19th respondent further submits that a political party which has
disassociated itself from a coalition party or coalition of parties and
proceeded to support the ideology of a rival coalition party or coalition
of parties cannot be said to still belong to the coalition party or coalition
106 |PETITION NO. E202 OF 2023: JUDGMENT
 of parties that it is opposing. The term ideology is said to have been
considered by the court in the case of Thuranira & 4 others v Attorney
General & 2 others; Registrar of Political Parties & 3 others
(Interested Parties) (Petition Eo43, Eo57 & E109 of 2022) [2022]
KEHC 482 (KLR) (Constitutional and Human Rights) (20 April
2022).
354.It is the 19th respondent’s submission that the 4th respondent was alive to
the realities of the day and as such rightfully considered that 14
members drawn from UDM, PAA, MCCP and MSG had expressly
distanced themselves and their parties from Azimio la Umoja One
Kenya Coalition.
355.According to the 19th respondent, a perusal of the Political Parties Act
vis-a- vis the requirement of Article 24(2) of the Constitution shows
that the former does not manifest or declare any intent to limit the right
of association guaranteed under Article 36 of the Constitution and the
right to political rights under Article 38 of the Constitution. The
Political Parties Act does not engage in substantive limitation of rights
but only deals with the procedural exercise of those rights and
timelines.
356.The 19th respondent submits that as was held by the Court in the case of
John Harun Mwau versus Independent Electoral & Boundaries
Commission & another [2019] eKLR, a political party within a
Coalition Party or Coalition Parties retains the identity and promotes its
values.
357.This particular respondent also relied on the case of Yahya Ahmed
Shee v Speaker county Assembly of Lamu; Jubilee Party & 6 others
(Interested Parties) [2021] Eklr where the court observed that for a
107 |PETITION NO. E202 OF 2023: JUDGMENT
 petition to be competent before this court, the grounds in the petition
must relate to and raise questions of constitutionality or
unconstitutionality of the Speaker's decision not to effect changes as
demanded in the coalition agreement.
358.It is submitted that the Speaker of the National Assembly is not
prohibited from holding an office in a political party and that just like a
member of Parliament who is elected under the sponsorship of a
Political Party is bound to remain as a member of such Political Party
during his term, the Honourable Speaker of National Assembly has no
obligation to relinquish his office as the party leader of Ford Kenya.
The 19th respondent also relies on the case of Aluoch Polo Aluochier v
Attorney General [2018] eKLR where the court held that Article 77(2)
of the Constitution is limited to “appointed” State Officers.
359.According to the 19th respondent, the reason Azimio la Umoja coalition
cannot invoke Article 106 of the Constitution is because the coalition
“does not have the numbers”.
360.It is submitted that the National Assembly, when passing both the
Finance and Appropriation Act was exercising its Constitutional
mandate. On the issue of exemption of taxes, the 19th respondent urges
that the same amounts to favoring certain persons which conflicts with
Article 27(1) of the Constitution. According to the 19 th respondents the
Petitioners have failed to prove the 2nd respondent contravened the
Constitution while passing the Act and in support of this position the
case of John Harun Mwau v Independent Electoral & Boundaries
Commission & another [2019] eKLR has been cited.
361.The 19th respondent submits that the Court cannot supervise the
operation of the National Assembly especially where the Court is not
108 |PETITION NO. E202 OF 2023: JUDGMENT
 being asked to annul unconstitutional process but rather being asked to
substitute the decision of the National Assembly with its own decision.
The respondent relies on the case of Pevans East Africa Limited &
Another v Chairman, Betting Control & Licensing Board & 7 others
[2018] eKLR on when courts should intervene when it comes to the
legislative process of the National Assembly.
(xi) Interested parties’ submissions
362. The 1st,4th,5th and 6th Interested Parties filed written submissions dated
10 November 2023 and 16 March 2024. Their case is that the
Constitution of Kenya, 2010, as well as various international legal
instruments, emphasize democracy as a core principle, particularly
through the right to vote and free and fair elections.
363. They urge that the ruling delivered by the Speaker on 6 October 2022
declaring Kenya Kwanza as the Majority party was unconstitutional,
unreasonable, and biased, as it goes against the will of the electorate.
364. They also urge that the Speaker acted beyond his powers and
jurisdiction, especially since the validity of the Azimio coalition was
not within his authority to determine, as per the legal limits outlined in
Article 165 of the Constitution of Kenya, 2010. They also urge that the
Speaker’s actions contradict the constitutional framework, especially
Article 38 of the Constitution, which safeguards the right of the people
to choose their representatives.
365. According to these interested parties, the Speaker’s decision, which
disregards the gazetted election results, is in violation of Article 88 of
the Constitution, and is legally invalid and to support this position, they
rely on the case of Macfoy vs. United Africa Co. Ltd [1961] 3 ALL

109 |PETITION NO. E202 OF 2023: JUDGMENT

 E.R. 1169, where Lord Denning held that if an act is void, then it is in
law a nullity. It is not only bad, but incurably bad.
366. They have urged that the Speaker's decision fails the test of
reasonableness under Article 47 of the Constitution of Kenya, 2010.
They rely on the case of Republic vs. Public Procurement
Administrative Review Board & 2 Others Ex-parte Pelt Security
Services Limited [2018] eKLR, where the court held that a decision can
be challenged as unreasonable if it fails to give proper weight to
relevant factors. The court also observed that the decision must be
transparent and defensible in both law and facts.
367. The 1st,4th,5th and 6th interested parties urge the Court, to interpret the
Constitution harmoniously, as was affirmed by the Court in the case of
Tinyefuza vs. Attorney General of Uganda Constitutional Petition No.
1 of 1997 (UGCC3), where it was held that the Constitution should be
read as an integrated whole, with each provision complementing the
others. They urge that this principle supports the notion that the
Majority and Minority parties must be determined based on the election
results as gazetted by the IEBC, as outlined in Article 90 of the
Constitution of Kenya, 2010.
368. The Supreme Court in the case of Institute for Social
Accountability & Another vs. NATIONAL ASSEMBLY & 3
OTHERS & 5 OTHERS (PETITION 1 OF 2018) [2022) KESC
39 (KLR) (8 AUGUST 2022) ( JUDGMENT) i s s a i d t o h a v e
pointed out that the Courts have jurisdiction to interrogate the
validity of the decisions of the Speaker.
369. The 1st,4th,5th and 6th interested parties also submit that the suggested
forum is neither available to the Petitioners nor convenient for
110 |PETITION NO. E202 OF 2023: JUDGMENT
 resolving the issues raised in the Petition for various reasons
including that the Political Parties Dispute Tribunal and the Registrar
of Political Parties lack jurisdiction over decisions or actions involving
the Speaker of the National Assembly, the Cabinet Secretary for
National Treasury, and the Kenya Revenue Authority.
370. It is further urged that the internal dispute mechanisms of political
parties do not apply to individuals outside the party, such as those in
positions like the Speaker of the National Assembly or the Cabinet
Secretary. It is also their case that the Registrar of Political Parties
cannot address allegations of fundamental rights violations or oversee
the actions of the Independent Electoral and Boundaries Commission.
They also urge that the Political Parties Dispute Tribunal or the
Registrar cannot issue the Orders the Petitioners are seeking in this
Honourable Court.
371. It is urged that the Petition falls under the exceptions to the
exhaustion doctrine as it entails a polycentric of issues that are best
heard and determined on merits by this Honourable Court pursuant
to Article 165 (3) (d) of the Constitution of Kenya, 2010 as the
existing dispute resolution mechanisms have a limited role and they
do not have jurisdiction over some parties in the instant dispute.
The issues raised in the petition border on constitutional
interpretation with the key challenge being the conduct of the
Speaker of the National Assembly and his determination of the
question of which political party is the Majority and Minority in the
N ational Assembly.
372. They rely on the cases of Republic vs. Independent Electoral and
Boundaries Commission (I.E.B.C.) Ex Parte National Super
111 |PETITION NO. E202 OF 2023: JUDGMENT
 Alliance (NASA) Kenya & 6 Others [2017] eKLR where the
Court and Night Rose Cosmetics (1972) Ltd vs. Nairobi City
County Government & 2 Others[2018] eKLR where the courts
acknowledged the circumstances under which exceptions to the
exhaustion doctrine would apply.
373. They also relied on Sir Dawda K Jawara vs. Gambia,
ACmHPR 147/95-149/96- where the Court observed that a remedy
is considered available only if the applicant can make use of it in the
circumstance of his case.
374. The 1st,4th,5th and 6th interested parties also submit that the immunity
is not absolute and this Court retains the power to interrogate
whether any act is undertaken in accordance with the Constitution of
Kenya, 2010. They also rely on the case of Judicial Service
Commission vs. Speaker of The National Assembly & 8 Others,
Petition 518 of 2013, [2014] eKLR and the case of Hon.
Augustine Lyatonga Mrema vs. Speaker of The National
Assembly & Another MISC. Civil Application No. 36 OF
1998 where the Court highlighted the place of the Speaker in a
constitutional democracy.
(xii) 2nd Interested party’s submissions
375. The 2nd interested party filed written submission dated 16 April 2024 in
respect of the amended petition. Its position is that this Court lacks
jurisdiction to hear and determine the Amended Petition in so far as it
relates to the withdrawal of the Jubilee Party from the Azimio Coalition
and the membership of the 10th and 13th respondents in the Jubilee Party
as they have raised issues that offend the express provisions of sections
40 (2) and 41 of the Political Parties Act, 2011.
112 |PETITION NO. E202 OF 2023: JUDGMENT
 376. It is also the 2nd interested party’s case that the respondents and,
particularly the National Assembly, the Speaker of the National
Assembly, the Independent Electoral and Boundaries Commission
(IEBC), the Kenya Revenue Authority (KRA), the Cabinet Secretary,
the National Treasury and Economic Planning are individuals who
cannot be subjected to the dictates of Section 40 of the Political Parties
Act and, therefore, the Political Parties Tribunal lacks jurisdiction to
entertain any claim or response accruing from the captioned individual.
377. According to the 2nd pnterested party the reliefs being sought by the
Petitioners herein are not capable of being adjudicated by the Political
Parties Tribunal under Section 40 of the Act and, in any event, the
petition seeks to uphold the Sovereignty of the people under Article 1
and Article 38 of the Constitution of Kenya 2010 as it seeks to
determine the question of when the majority is to be determined; is it
determined during the election and upon the returning of the election
results or is it determined by the Speaker upon the convening of
Parliament, noting that the question of either majority of minority can
only be determined pursuant to an election.
378. The 2nd interested party states that the dispute being presented by the
petitioners is a dispute that pits the following determinations; who
determines that a particular party in Parliament is either the Majority
Party or the Minority Party, when is the Majority party or the Minority
party determined? How is the Majority party or the Minority Party
determined? Do the results of the election as returned by the 11 th
respondent play a part in determining the question of the Majority or
Minority Party? Did the pronouncement of the Speaker of the National
Assembly have the capability of altering the outcome of the 9th August
113 |PETITION NO. E202 OF 2023: JUDGMENT
 2022 election? This questions, according to the 2nd interested party are
fundamental questions that cannot be left to the mercy of a mere
subordinate Political Party Tribunal.
379. The 2nd interested party relies on the case of County Government of
Kiambu vs. The Senate & Others [2017] eKLR where the Court held
that it had jurisdiction to determine a matter on the legality or
constitutionality of decision or actions or purported decisions brought
before the court. It also observed that the Constitution distributes power
among various organs, and if any of these organs are accused of not
acting in line with the Constitution, courts have the authority under
Article 165(3)(d)(ii) to determine whether actions are inconsistent with
the Constitution. The courts play a crucial role in reviewing the
constitutionality or legality of legislative, executive, and administrative
acts, protecting constitutional principles and an aggrieved party can
challenge these acts in court, provided they can establish locus standi to
do so.
380. The Court also observed that while parliamentary privilege includes
necessary immunity for MPs to perform their roles, constitutional
organs must still operate within the limits and roles defined by the
Constitution.
The 2nd interested party also relies on the case of Mumo Matemu v.
Trusted Society of Human Rights Alliance and 2 Others, on the scope
of application of the separation of powers doctrine.
(xiii) 3rd interested party submissions
381. The 3rd interested party filed written submissions dated 27 June 2024.
The 3rd interested party’s case is that the 3rd respondent erred when he
reasoned that determination of majority and minority status under
114 |PETITION NO. E202 OF 2023: JUDGMENT
 Article 108 is based on the number of Members of Parliament owing
allegiance to any party (or coalition of parties) rather than the number
of seats won by any party (or coalition of parties) at the general
election.
382. According to the 3rd interested party, Article 10(a) of the Constitution
highlights that all state organs, officers, and everyone involved in
interpreting the Constitution must follow the national values and
principles of governance. This sets the foundation for what’s known as
“value coherent interpretation,” where the Constitution is interpreted in
a way that promotes the values it stands for.
383. The 3rd interested party also urges that this kind of interpretation, known
as teleological interpretation, focuses on achieving justice by looking
beyond just the literal text of the law. It’s about understanding the
values behind human rights, freedoms, and the broader goals of the
Constitution. It is urged that since a Constitution is drafted in broad and
general terms, it should be interpreted flexibly, with the goal of
ensuring fundamental rights are protected. The idea is that the
Constitution is a living document meant to address important social and
political issues, and its interpretation should reflect its commitment to
values and political goals, rather than being strictly confined to its
specific wording.
384. The 3rd interested party has cited Francous Venter, “Utilizing Values
in Constitutional Comparison” Apotchefstroom Electronic Law where
the writer explains that "constitutional values" are not about material
worth, but rather represent standards or measures of what is considered
good. These values guide how the Constitution should be interpreted,

115 |PETITION NO. E202 OF 2023: JUDGMENT

 applied, and acted upon. If something does not align with these values,
it could lead to unconstitutional outcomes.
385. The 3rd interested party’s case is that anyone interpreting the
Constitution, whether it's a judge or a speaker in the National
Assembly, must ensure their interpretation promotes the values outlined
in Article 10. It is the Society’s case that the two key values from
Article 10(2)(a) are democracy and the participation of the people and
thus when interpreting Article 108, the goal should be to uphold these
values, ensuring that the people's democratic rights are respected both
within and between political parties.
386. The 3rd interested party has urged that adopting an interpretation of
Article 108 of the Constitution which gives the Members of Parliament
a carte blanche to decide which party or coalition of parties, will be the
majority or minority party in the National Assembly based solely on an
assessment of the dictates of their own self-interests by shifting their
allegiances from one party, or coalition of parties to another, violates
Article 10(1)(a) of the Constitution.
387. It is urged further that in his impugned ruling, the 3rd respondent
ignored the letter which had been written to him by the 5th respondent
indicating that Azimio Coalition had won 171 seats while Kenya
Kwanza Coalition had won 165 seats, and instead relied on the contents
of letters that were written to him by the 14 Members of Parliament
who were elected on the tickets of UDM, MDG, MCCP and PAA
indicating that they had since defected from Azimio Coalition and this
was an error on his part. The interpretation adopted by the 3 rd
respondent on the said letters violated Articles 91(1),20(4)(a) and 20(4)
(b) of the Constitution.
116 |PETITION NO. E202 OF 2023: JUDGMENT
 388. The 3rd interested party submits that as observed by Allen Hickens in
“The Role of Political Parties in Making Democracy Work” Briefing
Paper No. 3 University of Michigan & V-DEM Project Manager For
Political Parties at page 2 political parties are the workhorses of
democracy. The writer observes that Political parties play a crucial role
in democracy by acting as a link between voters and their government
and that they do this in two main ways: First, parties bring together the
interests of many individual voters, giving them a voice in
policymaking alongside powerful groups like corporations. Second,
parties are the main way voters can hold politicians accountable for
their actions. Without strong, effective parties, people are more likely to
feel disconnected from the political system and frustrated with
democracy.
389. It is urged that the Constitution of Kenya seeks to protect, promote and
preserve the integrity and purity of decision-making in political parties
by ensuring that decisions affecting political parties or their members
are made collectively by the members, rather than a few individuals
within the party who may occupy privileged positions within the party.
This, according to the 3rd interested party is the reason why Article
91(1) (c) –(g) of the Constitution makes it mandatory for political
parties to comply with the conditions laid out therein.
390. According to the 3rd interested party, the 3rd respondent’s decision that
the four parties, whose MPs defected, were no longer part of the Azimio
Coalition violated several constitutional provisions. First, according to
Article 91(1)(b), political parties can only make decisions through their
governing bodies, so the 14 MPs couldn’t just decide on their own to
remove their parties from the Azimio Coalition by writing letters.
117 |PETITION NO. E202 OF 2023: JUDGMENT
 Second, Article 91(1)(d) requires political parties to follow good
governance practices, meaning those four parties couldn’t just enter a
new coalition with the Kenya Kwanza Coalition without first formally
ending their agreement with Azimio, which was still valid. Lastly,
Article 91(1)(e) stresses that party members have the right to participate
in decisions affecting their party so, the Members of Parliament and the
four parties could not unilaterally leave the Azimio Coalition without
involving other party members or Azimio in the decision.
391. The 3rd interested party also urges that the 3rd respondent adopted an
interpretation of Article 108 of the Constitution which clearly violated
Article 38 of the Constitution, which is part of the Bill of Rights.
392. Article 20(4)(a) of the Constitution requires courts, and any other
person who is interpreting a provision of the Bill of Rights, to adopt an
interpretation that promotes the values that underlie an open and
democratic society based on human dignity, equality, equity and
freedom. The 3rd interested party relied on the Article by Andreas,
Bengtson, “The Morality of Party Switching 39 Journal of Applied
Philosophy (2022) 6/6 at 621-622 where he highlights the negative
impact of party-switching on human dignity. The 3rd interested party’s
case is that as Bengtson argues, the essence of justice is that people
should relate with each other as equals, as opposed to inferiors and
superiors
393. It is submitted that giving Article 108 of the Constitution an
interpretation that gives elected MPS the unbridled liberty to determine
whether their party or coalition members will enjoy the majority status
which they have won at the ballot, also violates the value of freedom to

118 |PETITION NO. E202 OF 2023: JUDGMENT

 the extent that it denies such party or coalition members the freedom to
determine their political, social or economic destiny.
394. The 3rd interested party submits that the Constitution of Kenya adopts a
very hostile approach to party switching. As Article 103 (1)(e) provides
that where a Member of Parliament elected on a particular party defects
to another party after election then he loses his seat. This, according to
the 3rd interested party, is informed by a deep appreciation of the
dangers of party switching as has been written by Martin Goeke
&Christoff Hartmann (supra).
395. According to the 3rd interested party, Article 50(1) of the Constitution
guarantees everyone the right to have disputes resolved fairly,
impartially, and independently, whether in court or before any other
body handling such disputes. This includes decisions regarding which
party holds majority status in Parliament. It is submitted that the process
must meet the constitutional standards of fairness, independence, and
impartiality. The "fairness" standard it is urged means that all parties
affected by a decision must be given the chance to be heard before any
ruling is made. In this case, it is submitted that the members of the
Azimio Coalition who voted for the 14 defecting MPs were not given
this opportunity, thus violating their right to a fair trial.
396. Article 50(1) requires the tribunal (in this case, the Speaker of the
National Assembly) to be independent and impartial and, according to
the 3rd interested party, independence means being free from any
personal or external influences that might affect the decision-making
process. It is submitted that at the time of the ruling, the 3 rd respondent,
who was also the Chairman of Ford Kenya (a founding party of the
Kenya Kwanza Coalition), had multiple roles within the said coalition
119 |PETITION NO. E202 OF 2023: JUDGMENT
 and as such this created a clear conflict of interest, making it impossible
for him to make an impartial decision, thereby rendering his ruling
unconstitutional and invalid.
397. The 3rd interested party relies on the case of Kalpana Rawal & 2
Others vs. The Judicial Service Commission & 6 Others [2016]
eKLR where the Court observed that “where a judge is so intimately
involved in a decision subject of the challenge then no amount of
judicial ingenuity can extricate him from either a real or perceived
bias”.
398. It is the 3rd interested party’s submission that where a court tribunal or
other body renders a judicial or quasi-judicial decision on a matter in
which it has an interest, then any decision made by such court, tribunal
or body whatever its merits or qualities, fails to meet the constitutional
standard of fairness and must therefore be declared null and void ab
initio.
399. This according to the 3rd interested party, is the reason why the
constitution prohibits public and state officers (save for the small
excepted categories of elected leaders) from holding positions in
political parties. It follows, therefore, that a speaker of the National
Assembly cannot make decisions that involves resolving conflicts
between political parties if he holds a key position in any of the
disputing parties.
(xiv)7th Interested party’s submissions
400. The 7th interested party filed written submissions dated 15th April 2024
in support of the Amended Petition.
401. It is the 7th interested party’s submission that the Constitution’s
interpretation requires a purposive approach that upholds its
120 |PETITION NO. E202 OF 2023: JUDGMENT
 transformative values, including the rule of law and good governance,
as specified in Articles 10, 20(3), and 259 and that the Constitution
forbids an interpretation of the Constitution that is narrow, artificial,
rigid and pedantic and to support this position, the 7 th interested party
has relied on In the Matter of the Kenya National Commission on
Human Rights, Supreme Court Advisory Opinion Reference No. 1 of
2012; [2014] eKLR where the Court observed that a holistic
interpretation of the constitution means that the Constitution must be
interpreted in context.
402. It is the 7th interested party’s submission that the Speaker of the
National Assembly and members of parliament cannot deploy the
privileges roadblock when the constitutionality of their decision is
being questioned and that to agree to such an invitation would mean
that the speaker of the national assembly and the members of
parliament are allowed to operate outside the precincts of the
Constitution.
403. In support of this position, the 7 th respondent has relied on Republic vs.
Public Procurement Administrative Review Board & Another Ex
Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008]
KLR 728 where the Court observed that exempting public authorities
from the jurisdiction of the courts gives them unchecked power, which
is essentially an abuse of constitutional authority.
404. This court, it is urged, has on several occasions as seen in the case of
Judicial Service Commission v Speaker of the National Assembly &
another (Petition 518 of 2013) [2013] KEHC 1569 (KLR)
(Constitutional and Human Rights) (6 November 2013) (Ruling)
PETITION NO. 518 OF 2013 rejected the argument that Article 117 of
121 |PETITION NO. E202 OF 2023: JUDGMENT
 the Constitution and section 12 of the Parliamentary powers and
privileges Act confer parliamentary organs or offices absolute
immunity.
405. According to the 7th interested party, the arguments for parliamentary
supremacy, separation of powers, judicial restraint, and constitutional
avoidance are relics of the past, and they suffered their timely death on
27t August 2010; to this end, the 7 th interested party has relied In the
Matter of the Speaker of the Senate & another [2013] eKLR.
406. It is also the 7th interested party’s case that even courts in other
jurisdictions have held that no organ is immune from judicial scrutiny
due to constitutional supremacy and some of the cases where courts has
observed as much include Doctors for Life International v Speaker of
the National Assembly and Others (CCT 12/05) [2006] ZACC 11 and
Speaker of National Assembly v De Lille MP & Another 297/98
(1999)(ZASCA 50).
407. The Constitution, it is urged, includes two important provisions related
to Members of Parliament switching parties. Article 104 is said to give
voters the right to recall a Member of Parliament, while Article 103(1)
(e) is said to provide that a Member of Parliament's seat becomes vacant
if they leave the party they were elected from or join a different one. It
is the 7th interested party’s case that, accordingly, the Political Parties
Act was created, and Section 14A outlines when a Member of
Parliament is considered to have resigned from their party and this may
include if they join another party or promote its ideology.
408. It is urged that the process for moving from one party to another is clear
and it involves the party, the Member of Parliament, and the Registrar
of Political Parties, and the member is not officially considered to have
122 |PETITION NO. E202 OF 2023: JUDGMENT
 switched parties until the process is finalized. According to the 7 th
interested party, the National Assembly Speaker, therefore, does not
have the authority to decide if Members of Parliament have left the
Azimio coalition as that decision rests with the Registrar.
409. The 7th interested party has also submitted that Article 103(1)(e) of the
Constitution, often called the anti-hopping clause, stops Members of
Parliament from switching parties after elections and if a Member of
Parliament does switch parties, they lose their seat. This rule has its
roots in Kenya’s history, where Members of Parliament would often
betray their voters by changing allegiance; the Constitution was
designed to prevent this. This was discussed by three-judge bench of the
High Court in Mbae v Speaker, County Assembly of Nakuru &
another; others (Interested Party) (Constitutional Petition E004 of
2022) [2022] KEHC 3313 (KLR) (7 July 2022) (Judgment).
410. It is also urged that the Constitutional Review Commission (CKRC)
had suggested that Members of Parliament who switch parties should
seek a new mandate from voters. This is because, while Kenyans
wanted to maintain party discipline, they also understood that Members
of Parliament should be free to change parties based on their
conscience. The compromise was that if a Member of Parliament
switches parties, they lose their seat and must face a by-election,
allowing the electorate to decide if they still support the Member of
Parliament with their new party and ideology. This protects both the
voter and the elected leader, ensuring the leader still reflects the
electorate’s views
411. According to the 7th interested party, Kenya is not alone in entrenching
these anti-hoping provisions. In the Zimbabwe Constitution, article 129
123 |PETITION NO. E202 OF 2023: JUDGMENT
 thereof provides a similar provision. The 7th interested party has also
cited Desposato, Scott W. (2006b) in “Parties for Rent? Ambition,
Ideology, and Party Switching in Brazil’s Chamber of Deputies,”
American Journal of Political Science, Vol. 50, No. 1, (January), 62-
80) who has stated that political parties serve as the main connection
between voters and politicians in modern democracies and meaningful
and stable party labels allow voters to identify the best candidates and
make informed voting decisions. However, when politicians switch
parties, it violates the fundamental electoral agreement and undermines
the significance of party labels.
412. The 7th interested party has also cited Joubert, Leonardus Kolbe (2006)
in “The Mandate of Political Representatives with Special Reference
to Floor Crossing: A Legal Historical Study.” Pretoria: University of
South Africa: Unpublished Master of Laws Thesis where he observes
that there is a conflict between the principle of accountability to voters
and the proportional representation electoral system and that in the
current proportional representation system, representatives who switch
parties are not held accountable to the voters who elected them, which
weakens the democratic value of accountability. Kenneth Janda, in
Laws Against Party Switching, Defecting, or Floor-Crossing in
National Parliamentshttps://www.partylaw.leidenuniv.nl/uploads/ also
holds a similar position.
413. The 7th interested party’s submit that party hopping undermines the
already weak party organisations, impedes the institutionalisation of the
party system, and complicates policy-making and representation
processes. This is why Kenya and other countries constitutionalise an
anti-hoping constitutional clause.
124 |PETITION NO. E202 OF 2023: JUDGMENT
 414. It is submitted that in a multiparty democracy such as ours, political
parties play an essential role and that through the elected parties, parties
ensure the interests of the voiceless are championed in parliament.
Political parties bring divergent policies in parliament some parties can
be pro-left, while others can be pro-right. These parties it is submitted
go to the electorate with their inclinations, and the voters elect them to
strike a balance in Parliament.
415. Article 4 of the Constitution which declares Kenya a multi-democratic
state is founded on national values and principles and that this is a
reaction to our history in the 1990s when Kenya was transformed into a
de facto and de jure one-party state. The 7th respondent cites the case of
Mbae v Speaker, County Assembly of Nakuru & another; others
(Interested Party) (supra) where the Court observed thus “Kenyans,
informed by the painful history of de jure and de facto one party state,
were keen to etch a robust role for political parties in Kenya’s
governance structure. Kenyans wanted a clear framework for making
the country a multi-party democracy. Indeed, so important was this
principle to them that they included article 4(2) of the Constitution”
8th Interested party submissions
416. The 8th interested party submits that membership to the National
Assembly under Article 97(1)(a) by the 290 members is not collective,
but individual, with each member gaining a foot in the house through
election by the registered voters of individual constituencies and,
therefore, it is inconceivable that it is argued that the majority party is
determined during the general elections. It is also urged that the
Constitution only envisages that the registered voters’ interest would be
electing the representative for their constituency.
125 |PETITION NO. E202 OF 2023: JUDGMENT
 417. It is further submitted that upon election, a person elected or nominated
as a member of National Assembly only assumes the office once the
oath or affirmation has been administered and resultantly, the question
of majority party or coalition of parties remains a speculative matter
until the House is convened, oaths administered, and the speaker
elected.
418. This, according to the 8th interested party, when viewed in light of
Section 10 of the Political Parties Act which allows political parties to
enter in coalition agreements either before or after the General
Elections, demonstrates that the majority status is capable of shifting
from one umbrella to another at any moment. This position is said to be
further vindicated by Standing Order 2B.
419. The 8th interested party’s submission is that the speaker, having been
mandated by the Constitution to preside over parliament, was granted
the authority to make determinations on such matters as would arise in
the house, so as to facilitate the discharge by the National Assembly of
its functions.
420. According to the 8th interested party, given that the Speaker was
entrusted with the responsibility of presiding over parliament, it is
incorrect for the petitioners to argue that the Speaker lacked the legal
authority to decide on the issue of who constituted the legitimate
majority coalition. It is urged that had the Speaker failed to address the
conflict, his failure to act would have been seen as an abandonment of
his Constitutional duties, especially considering the dispute that
jeopardized the functioning of the House.
421. In support of this position, the 8 th respondent relied on Judicial Service
Commission v Speaker of the National Assembly & 4 others;
126 |PETITION NO. E202 OF 2023: JUDGMENT
 Commission on Administrative Justice (Amicus Curiae); Law Society
of Kenya (Interested Party) (Petition 518 of 2013) [2014] KEHC 7493
(KLR) (Constitutional and Human Rights) (15 April 2014)
(Judgment) where the Court held that the Speaker holds significant
responsibilities as the presiding officer of the National Assembly,
including maintaining order during debates, resolving points of order,
and declaring the decisions of the Assembly.
422. The Speaker is also said to ensure that Members of Parliament can
express themselves freely without fear of legal repercussions, as long as
parliamentary rules and orders are followed. However, the Court states
that the Speaker's authority should not be used to shield actions that
violate human rights, acknowledging the importance of balancing
parliamentary privileges with accountability.
423. It is the 8th interested party’s case that the anti-defection provisions
apply particularly to political parties, and in rare cases, to political
coalitions for example where the defecting politician vied through the
coalition ticket and that this can be clarified by further reference to the
Mbae v Speaker, County Assembly of Nakuru & another; others
(Interested Party) (supra) case.
424. They also urge that a coalition of parties, like Azimio, operates based
on the coalition agreement filed with the Registrar and given the dispute
over the constitutionality of the agreement and the differences between
the version presented by the Registrar and the one tabled by Hon. Junet
Mohamed, the Speaker correctly concluded that the agreement could
not be relied upon to resolve the dispute.
(xvi) 10th Interested party’s submissions.

127 |PETITION NO. E202 OF 2023: JUDGMENT

 425. In its submissions, the 10th interested party urged that the Political Parties
Dispute Tribunal is said to have in the case of Gabriel Bukachi Chapia
versus Orange Democratic Movement & Complaint No.237 of 2017
emphasised the need to exhaust party internal dispute resolution mechanism
before engaging its jurisdiction as a necessity for the promotion and
protection of the national values and principles of governance including
multi-party democracy.

426.It is further urged that under the 2022 Amendments of the Political Parties
Act, 2011, all a claimant needs to prove is evidence of attempt to apply the
respective party’s internal dispute resolution mechanism for the Tribunal to
have jurisdiction over their case. Evidence of any effort to exhaust party
internal dispute resolution mechanism is sufficient to trigger the jurisdiction
of Political Parties Disputes Tribunal. In support of this argument, the 8 th
interested party cited the Tribunal’s decision in Jared Kaunda Chokwe
Barns V. Orange Democratic Movement & 2 Others complaint no: 259 of
2017.

427.On the question of immunity, the 10th interested party submitted that as
was held by the court in Justus Kariuki Mate & Another vs Martin
Nyaga Wambora & Another, [2017] eKLR, members of the legislature
and their speakers are protected from judicial proceedings for acts done
in the performance of their legislative functions. It is urged that the
objections are not on whether or not the actions or ruling of the
National Assembly Speaker can be interrogated; rather, whether in so
doing, the speaker can be held personally liable and hence be sued in
his individual capacity in the exercise of his functions as the speaker.
Analysis and Determination

128 |PETITION NO. E202 OF 2023: JUDGMENT

 428. The main issue and upon which this petition turns is whether the ruling
of the Speaker of the National Assembly rendered on 6 October 2022 is
unconstitutional. The rest of the issues are secondary and, in a way,
connected to the primary question of the constitutionality of the
speaker’s ruling. For instance, such an issue as whether there was any
basis for rejection by the Speaker of the information given by the
Registrar of Political Parties on the status of the Azimio Coalition and
Kenya Kwanza Coalition; and, whether, in so rejecting, the Speaker
could reach conclusions inconsistent with the evidence provided by the
Registrar of Political Parties on the extent of membership of the two
coalitions.
429. These are fundamental questions that go to the constitutionality of the
speaker’s ruling. Again, the question whether, in rejecting the
information from the Registrar of Political Parties, which was given at
the Speaker’s instance, the Speaker could thereby designate members of
a particular coalition to another coalition and proceed to declare the
coalition to which he designated the members as the Majority Party also
goes to the issue of the constitutionality of the Speaker’s ruling. This is
because Article 108 of the Constitution on which party or a coalition of
parties is the majority or minority in the National Assembly is all about
numbers and any action by the Speaker that would, in one way or the
other, tamper with the number of members of a political party or a
coalition of parties poised to be either a majority party or minority party
goes to the question whether the Speaker’s action is what the
Constitution describes in Article 165 (3) (d) (ii)as something said to be
done under the authority of the Constitution or of any law but which is,
in fact, inconsistent with, or in contravention of, the Constitution; in this
129 |PETITION NO. E202 OF 2023: JUDGMENT
 particular case, inconsistent with or in contravention of Article 108 of
the Constitution.
430. A slightly isolated issue; isolated in the sense that it is independent of
the question of the constitutionality of the Speaker’s ruling, has to do
with the office of the Speaker and it is this: once elected the Speaker of
the National Assembly could the Speaker continue holding a political
office of the leader of his Ford-Kenya party? This is a constitutional
question because under Article 260 of the Constitution, the Speaker is a
public officer and according to this Article is a public officer who, by
virtue of that position, is restricted from holding a political office under
the Political Parties Act and the Leadership and Integrity Act, No.19 of
2012. Thus, the question whether the Speaker can hold a political office
is a constitutional question which this Honourable Court has
jurisdiction to interrogate under Article 165(3)(d)(ii) of the
Constitution.
431. Before delving into these issues, we reiterate here that in our ruling on
the preliminary objections delivered on 26 January, 2024, we did find
that this Court has jurisdiction to determine the issues raised in this
Petition. At paragraph 97 of our ruling aforesaid, we made reference to
Article 165 of the Constitution which we cited verbatim before
concluding as follows:
“…Flowing from these provisions of the Constitution, and for
purposes of determination of the preliminary objections before us, is
the overarching question whether the petition provokes any question
on interpretation of the Constitution. Secondary to this question, is
the question whether there is any contention in the petition against
the respondents, jointly or severally, that they did anything,
130 |PETITION NO. E202 OF 2023: JUDGMENT
 ostensibly under the authority of the Constitution, but which turns
out to be inconsistent with or in contravention of the Constitution. If
answers to these questions are in the affirmative, the petition is
properly before court and there should be no debate whether this
Honourable Court is seized of jurisdiction or not…”

432.We then proceeded to consider the issues in contention in the succeeding

paragraphs as follows:

“…. The petitioners’ concern, as we understand it, is whether the

Speaker’s ruling is consistent with Article 108 of the Constitution
which provides for, among other things, the positions of the leader
of the majority party and the leader of the minority party…. The
respondents have urged that the Speaker’s ruling ought not to be
questioned in this court and in support of this position they have
invoked Article 117 of the Constitution and section 12 of the
Parliamentary Powers and Privileges Act, 2017…”(see Paragraph
102)

433.It was our finding that this Court has jurisdiction to determine the issues in
this Petition under Article 165 (3) (d) (ii) which finding we expressed at
paragraph 107 of our ruling of 26th January, 2025 as follows:

“…The very argument by the respondents and the interested parties

supporting the preliminary objections that the Speaker’s ruling is
beyond question in light of these provisions of the law does, by itself,
invite this Honourable Court to interpret these provisions vis-à-vis
Articles 165(3) (d) of the Constitution on this Honourable Court’s
jurisdiction to hear any question respecting the interpretation of the

131 |PETITION NO. E202 OF 2023: JUDGMENT

 Constitution; Article 165(3) (d) (ii) on whether any anything said to
be done under the authority of this Constitution or of any law is
inconsistent with, or in contravention of, this Constitution; and,
Article 3 (1) on the obligation on every person, including the
Speaker of the National Assembly, to respect, uphold and defend the
Constitution, among other provisions of the Constitution. The court
is also invited to interpret the consistency with these provisions of
the Constitution or lack thereof of section 12 of Parliamentary
Powers and Privileges Act, 2017…”

434. With due respect to counsel who have submitted on this issue in support of
or in opposition to the petition, we need not belabour this question of
jurisdiction since we addressed it with finality in our ruling on the
preliminary objections.
435. The second issue that necessarily shapes the course our judgment takes is
that of constitutional interpretation. There is no doubt that issues raised call
for constitutional interpretation hence it is necessary to consider the
principles which guide the Court in interpreting the Constitution.
436. The starting point is the Constitution itself. Article 259(1) provides the
manner in which the Constitution should be interpreted. This Article states
as follows:

Article 259- Construing this Constitution

(1) This Constitution shall be interpreted in a manner that-

a) promotes its purposes, values and principles;

b) advances the rule of law, and the human rights and fundamental
freedoms in the Bill of Rights

132 |PETITION NO. E202 OF 2023: JUDGMENT

 c) permits the development of the law; and

d) contributes to good governance

437.The Supreme Court in the Matter of the Interim Independent Electoral &
Boundaries Commission [2011] KESC 1 (KLR), while acknowledging the
significance of Article 259 (1) of the Constitution held as follows:

“(86)” ...The rules of constitutional interpretation do not favour

formalistic or positivistic approaches (Articles 20(4) and 259(1)).
The Constitution has incorporated non-legal considerations, which
we must take into account, in exercising our jurisdiction. The
Constitution has a most modern Bill of Rights, that envisions a
human-rights based, and social-justice oriented State and society.
The values and principles articulated in the Preamble, in Article 10,
in Chapter 6, and in various other provisions, reflect historical,
economic, social, cultural and political realities and aspirations that
are critical in building a robust, patriotic and indigenous
jurisprudence for Kenya. Article 159(1) states that judicial authority
is derived from the people. That authority must be reflected in the
decisions made by the Courts.

[87] In Article 259(1) the Constitution lays down the rule of

interpretation as follows: “This Constitution shall be interpreted in
a manner that – (a) promotes its purposes, values and principles; (b)
advances the rule of law, and human rights and fundamental
freedoms in the Bill of Rights; (c) permits the development of the
law; and (d) contributes to good governance.” Article 20 requires
the Courts, in interpreting the Bill of Rights, to promote: (a) the

133 |PETITION NO. E202 OF 2023: JUDGMENT

 values that underlie an open and democratic society based on
human dignity, equality, equity and freedom; and (b) the spirit,
purport and objects of the Bill of Rights….Article 10 states clearly
the values and principles of the Constitution, and these include:
patriotism, national unity, sharing and devolution of power, the rule
of law, democracy, participation of the people, human dignity,
equity, social justice, inclusiveness, equality, human rights, non-
discrimination and protection of the marginalized, good governance,
integrity, transparency and accountability, and sustainable
development.

[89] It is for these reasons that the Supreme Court, while observing
the importance of certainty of the law, has to nurture the
development of the law in a manner that eschews formalism, in
favour of the purposive approach. Interpreting the Constitution, is a
task distinct from interpreting the ordinary law. The very style of the
Constitution compels a broad and flexible approach to
interpretation.”

438.The purposive approach of interpretation mainly focuses on ascertaining the

intent or the object of the framers in coming up with a particular enactment.
The Supreme Court of Canada in the case of R vs Big M Drug Mart Ltd
1985 ISCR 295 explained as follows:

“…. The meaning of a right or freedom guaranteed by the Charter

was to be ascertained by an analysis of the purpose of such a
guarantee; it was to be understood, in other words, in the light of the
interests it was meant to protect. …… [T]his analysis is to be
undertaken, and the purpose of the right or freedom in question is to
134 |PETITION NO. E202 OF 2023: JUDGMENT
 be sought by reference to the character and the larger objects of the
Charter itself, to the language chosen to articulate the specific right
or freedom, to the historical origins of the concepts enshrined, and
where applicable, to the meaning and purpose of the other specific
rights and freedoms with which it is associated within the text of the
Charter. The interpretation should be … a generous rather than a
legalistic one, aimed at fulfilling the purpose of the guarantee and
securing for individuals the full benefit of the Charter's protection.
At the same time it is important not to overshoot the actual purpose
of the right or freedom in question, but to recall that the Charter
was not enacted in a vacuum, and must therefore … be placed in its
proper linguistic, philosophic and historical contexts…”

439.The Supreme Court of Kenya considered the principle of holistic

interpretation in in the Matter of Kenya National Commission on Human
Rights (2014) eKLR and observed thus:

“But what is meant by a ‘holistic interpretation of the Constitution?

It must mean interpreting the Constitution in the context. It is the
contextual analysis of the Constitutional provision, reading it
alongside and against other provisions, so as to maintain a rational
explication of what the Constitution must be taken to mean in the
light of its history, of the issues in dispute, and of the prevailing
circumstances. Such a scheme of interpretation does not mean an
unbridled extrapolation of discrete constitutional provisions into
each other, so as to arrive at a desired result…”

440.With this background in mind, we now turn back to the issues that we have
singled out as germane to the determination of this petition. The
135 |PETITION NO. E202 OF 2023: JUDGMENT
 constitutionality of the Speaker’s ruling of 6 October 2022, as noted, is the
primary issue about which this Honourable Court is concerned; it is whether
the ruling violated or contravened the Constitution. To be precise, the
question with which the court is confronted is whether the ruling is
consistent with Article 108 of the Constitution on the majority and minority
party in the National Assembly and their respective leaders. This Article
reads as follows:
108. Party leaders
(1) There shall be a leader of the majority party and a leader of the
minority party.
(2) The leader of the majority party shall be the person who is the
leader in the National Assembly of the largest party or coalition of
parties.
(3) The leader of the minority party shall be the person who is the
leader in the National Assembly of the second largest party or
coalition of parties.
(4) The following order of precedence shall be observed in the
National Assembly—
(a)the Speaker of the National Assembly;
(b)the leader of the majority party; and
(c)the leader of the minority party.
441.Our task is to interpret and apply this provision of the Constitution and, in
the process, determine whether or not the speaker’s ruling is consistent with
the same provision. In doing so we must discount, at the outset, the notion
that we are somehow sitting on an appeal against the Speaker’s ruling or
that we are exercising supervisory jurisdiction over the National Assembly.
442.If we have to say more on this issue, we are mindful that Article 117 of the
Constitution provides for, among other things, the freedom of speech and
debate in Parliament and also privileges and immunities of Parliament. The
Article reads as follows:

136 |PETITION NO. E202 OF 2023: JUDGMENT

 1) There shall be freedom of speech and debate in Parliament

2) Parliament may, for the purpose of orderly and effective

discharge of the business of Parliament, provide for the powers,
privileges and immunities of Parliament, its committees, the leader
of the majority party, the chairpersons of committees and members.

443.Pursuant to Article 117 of the Constitution, Parliament enacted the

Parliamentary Powers and Privileges Act Cap 6. The preamble to the Act
provides as follows:

“AN ACT of Parliament to give effect to Article 117 of the

Constitution; to provide for the powers, privileges and immunities of
Parliament, its committees, the leader of the majority party, the
leader of the minority party, the chairpersons of committees and
members; to make provision regulating admittance to and conduct
within the precincts of Parliament; and for connected purposes.”

444. The Act at Sections 11 and 12 makes provision for immunity of proceedings
of Parliament by providing thus:

11. Proceedings not to be questioned in courts

No proceedings or decision of Parliament or the Committee of

Powers and Privileges acting in accordance with this Act shall be
questioned in any court.
12. Immunity from legal proceedings
(1) No civil or criminal proceedings shall be instituted against any
Member for words spoken before, or written in a report to
Parliament or a Committee, or by reason of any matter or thing

137 |PETITION NO. E202 OF 2023: JUDGMENT

 brought by him or her therein by a report, petition, Bill, resolution,
motion or other document written to Parliament.
(2) No civil suit shall be commenced against the Speaker, the leader
of majority party, the leader of minority party, chairpersons of
committees and members 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 by them in the discharge of their functions relating to
proceedings of either House or committee of Parliament.
445.It is the above provisions that the Speaker of the National Assembly
contend that they shield his ruling from the reach of this Honourable Court.
446.This court takes cognizance of the fact that under the principle of separation
of powers, Courts are required to accord due deference to other
Constitutional bodies or organs by allowing them to execute their
constitutional mandates. However, this is only possible if such organs do
not violate the Constitution. Under Article 2 (1), the Constitution declares
that it is the supreme law of the Republic and binds all persons and all state
organs at both levels of government and further, Article 2 (2) provides that
no person may claim or exercise state authority except as authorized under
the Constitution.
447.The Constitutional Court of South Africa, while addressing the principle of
separation of powers in Doctors for Life International v Speaker of the
National Assembly and Others (CCT12/05) [2006] ZACC 11 stated as
follows:

138 |PETITION NO. E202 OF 2023: JUDGMENT

 “The constitutional principle of separation of powers requires that
other branches of government refrain from interfering in
parliamentary proceedings. This principle is not simply an abstract
notion; it is reflected in the very structure of our government. The
structure of the provisions entrusting and separating powers
between the legislative, executive and judicial branches reflects the
concept of separation of powers. The principle ‘has important
consequences for the way in which and the institutions by which
power can be exercised’.. …..

But under our constitutional democracy, the Constitution is the

supreme law. It is binding on all branches of government and no
less on Parliament. When it exercises its legislative authority,
Parliament ‘must act in accordance with, and within the limits of,
the Constitution’, and the supremacy of the Constitution requires
that ‘the obligations imposed by it must be fulfilled’. Courts are
required by the Constitution ‘to ensure that all branches of
government act within the law’ and fulfil their constitutional
obligations. This Court ‘has been given the responsibility of being
the ultimate guardian of the Constitution and its values.”

448.In Kenya, it is the Constitution that is supreme as was affirmed in Speaker

of National Assembly -vs-Attorney General and 3 Others (2013)
eKLR where the Supreme Court held thus:

“Parliament must operate under the Constitution which is the

supreme law of the land. The English tradition of Parliamentary
supremacy does not commend itself to nascent democracies such as
ours. Where the Constitution decrees a specific procedure to be
139 |PETITION NO. E202 OF 2023: JUDGMENT
 followed in the enactment of legislation, both Houses of Parliament
are bound to follow that procedure. If Parliament violates the
procedural requirements of the supreme law of the land, it is for the
courts of law, not least the Supreme Court, to assert the authority
and supremacy of the Constitution. It would be different if the
procedure in question were not constitutionally mandated. This
Court would be averse to questioning Parliamentary procedures that
are formulated by the Houses to regulate their internal workings as
long as the same do not breach the Constitution. Where however, as
in this case, one of the Houses is alleging that the other has violated
the Constitution, and moves the Court to make a determination by
way of an Advisory Opinion, it would be remiss of the Court to look
the other way. Understood in this context therefore, by rendering
this Opinion, the Court does not violate the doctrine of separation of
powers. It is simply performing its solemn duty under the
Constitution and the Supreme Court Act... Whereas all State organs,
for instance, the two Chambers of Parliament, are under obligation
to discharge their mandates as described or signaled in the
Constitution, a time comes such as this, when the prosecution of
such mandates raises conflicts touching on the integrity of the
Constitution itself. It is our perception that all reading of the
Constitution indicates that the ultimate judge
of “right” and “wrong” in such cases, short of solution in
plebiscite, is only the Courts.”

140 |PETITION NO. E202 OF 2023: JUDGMENT

 449.Further, in yet another South African decision of Hugh Glenister vs.
President of the Republic of South Africa & Others Case CCT 41/08;
[2008] ZACC 19 the Court affirmed:

“In our constitutional democracy, the courts are the ultimate

guardians of the constitution. They not only have the right to
intervene in order to prevent the violation of the Constitution, they
also have the duty to do so. It is in the performance of this role that
courts are more likely to confront the question of whether to venture
into the domain of other branches of government and the extent of
such intervention. It is a necessary component of the doctrine of
separation of powers that courts have a constitutional obligation to
ensure that the exercise of power by other branches of government
occurs within constitutional bounds.”

450.Similarly, in the South African Court case of Pharmaceutical

Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa & Others (CCT 31/99) [2000] ZACC 1; 2000 (2)
SA 674; 2000 (3) BCLR 241 (25 February 2000) Chaskalson CJ held:

“It is a requirement of the rule of law that the exercise of public

power by the Executive and other functionaries should not be
arbitrary...”

451.Consequently, the ruling of the Speaker in our view would only be immune
and beyond the question by the Court only if it can be demonstrated that it
was made in conformity with the Constitution, otherwise, the Court has a
constitutional duty to intervene if, in making the decision, the Speaker

141 |PETITION NO. E202 OF 2023: JUDGMENT

 violated the Constitution. The immunity granted by the Parliamentary
Powers and Privileges Act cannot shield an unconstitutional decision.
452.That said, it is not in dispute that during the 9 August 2022 General
Elections, there were two major coalitions of political parties that contested
for various elective positions both at the national and county levels of
Government. These coalitions were, as noted, the Azimio coalition and the
Kenya Kwanza coalition.
453.As far as the contests for the elective positions in National Assembly and
nominations for membership in that Assembly is concerned, Article 108 of
the Constitution states what we think is the obvious and logical position that
that the party or a coalition of parties with the largest number of members
assumes the majority party status while the party or a coalition of parties
with second largest number of members becomes the minority party.
454.Once the IEBC has declared and gazetted the results for membership in the
National Assembly, it should be obvious from those results which party or
coalition of parties has the largest number of members of National
Assembly and, consequently, the Majority party. Similarly, it would also be
obvious from those results the second largest party in the House and which,
for that reason, would assume the Minority party role.
455.Except for those candidates participating in the elections as independent
candidates, candidacy for the elective positions and nomination for
membership in the National Assembly are based on party membership and,
therefore, the question of the party ticket on which any particular member
was elected or nominated to the House need not arise in determining the
Majority or Minority Party. Likewise, section 10 of the Political Parties Act
provides for registration of coalitions prior to elections although they may
also be registered after elections. This section reads as follows:
142 |PETITION NO. E202 OF 2023: JUDGMENT
 10. Coalitions

(1) Two or more political parties may form a coalition or a coalition

political party before or after an election and shall deposit the
coalition agreement with the Registrar.

(2) A coalition agreement entered into before an election shall be

deposited with the Registrar at least three months before that
election.

Provided that in the case of a coalition political party, the coalition

political party shall submit the coalition agreement at least one
hundred and twenty days before a general election.

(3) A coalition agreement entered into after an election shall be

deposited with the Registrar within twenty-one days of the signing of
the coalition agreement.

(4) A coalition agreement shall set out the matters specified in the
Third Schedule.

456.The petitioners’ case is that Azimio coalition and the Kenya Kwanza
coalition agreements were entered into and deposited with the Registrar of
Political Parties prior to the General Elections of 9 August 2022 and,
therefore, under section 10(2) of the Political Parties Act, they must have
been deposited with the Registrar of Political Parties, at least, three months
to the General Elections. That being the case, upon the declaration by the
Independent Electoral and Boundaries Commission of the 9 August 2022
General Election results, it ought to have been obvious which of the two
coalitions was the majority party in the National Assembly.

143 |PETITION NO. E202 OF 2023: JUDGMENT

 457.Indeed, vide a gazette notice no. 9950 dated 22 August 2022, the chairman
of the IEBC declared persons elected as members of the National Assembly.
In the gazette notices, such details as the names of the persons elected and,
most importantly for our purposes, the political parties on which they ran
and elected were given. Copies of these gazette notices have been exhibited
to the affidavit of Chrispine O. Owiye who as noted, is an employee of the
IEBC.
458.Based on this information published by the IEBC and the coalition
agreements signed and deposited with the Registrar of Political Parties, it
ought to have been possible to tell, offhand, which of these two coalitions
was the majority party and whether the other coalition was the minority
party. If the coalition agreements were clear, as they ought to be, on the
political parties that comprised their respective coalitions; and, if the
number of seats in the National Assembly garnered by each of these parties
was also clear from the gazette notices published by the IEBC, the question
of which of the two coalitions, or any other coalition or party, for that
matter, is the majority party, ought not to be in doubt.
459.It is for this reason that Article 108 of the Constitution is couched in such
terms that the question of a majority party or minority party is
predetermined upon the declaration of the results by the IEBC; the
declaration is the conclusive proof of the majority party and the minority
party. It is against this background that we now consider the Honourable
Speaker’s ruling.
460.As to what the ruling was all about is not a question that is in dispute;
however, for the benefit of an objective reader, it is necessary that we set
out the ruling, at least in its material respects. More importantly, it may not
be plausible to come to the conclusion that the ruling is either in tandem
144 |PETITION NO. E202 OF 2023: JUDGMENT
 with or subverts Article 108 of the Constitution without first laying it bare
and without analysing it, at least to such an extent as is necessary to
determine the fundamental question of whether it is constitutional or not. In
other words, there has to be a basis for the determination that the ruling is
consistent or inconsistent with the Constitution; that basis can only be laid
after the analysis of the ruling.
461.The background of the Honourable Speaker’s ruling can be found in its first
few paragraphs. The speaker introduced the ruling as follows:

“Hon. Members, you will recall that during the afternoon sitting of
Tuesday, 4th October, 2022, I informed the House that a question
had arisen on the matter of constituting the House Business
Committee, especially with regard to the membership reserved for
the leaders and whips of the majority party and the minority party,
respectively. In guiding the House on the business to be transacted
before the establishment of the House Business Committee and the
manner in which the business would be moved, I indicated that a
question had arisen as to who the bona fide leader of the majority
party in the House is. I proceeded to allow the House to address me
on this matter and gave priority to the designated party leaders and
whips of the Kenya Kwanza Coalition and the Azimio La Umoja-
One Kenya Coalition Political Party.

In the debate that ensued, Hon. Kimani Ichung’wah tabled various

coalition agreements entered into by the constituent parties of Kenya
Kwanza Coalition and deposited with the Registrar of Political
Parties. Hon. Silvanus Osoro also table letters relating to the matter,
an excerpt of the minutes of the parliamentary group meeting and a

145 |PETITION NO. E202 OF 2023: JUDGMENT

 list of attendees of the meeting during which party leaders were
elected.

Similarly, Hon. Opiyo Wandayi tabled a copy of a letter dated 7 th

September 2022 from the Registrar of Political Parties (PPP)
addressed to the clerk of the National Assembly, conveying what the
Registrar termed as constituent parties of the Azimio la Umoja-One
Kenya Coalition Party, the Kenya Kwanza Alliance (KKA), the name
of one party not affiliated to any coalition and an indication of
parties that had filed constitutional petitions and objections to their
membership of the Azimio Coalition.”

462.The Speaker further noted that in order to establish the fact and the status of
the coalition agreements, the clerk of the National Assembly wrote to the
Registrar of Political Parties seeking particular information. On this
particular issue the speaker wrote as follows:

“With regard to the coalition agreements affecting the affairs of the

13ᵗʰ Parliament, the Clerk wrote to the Office of the Registrar of
Political Parties on 2ⁿᵈ September 2022. In her letter titled,
"Requests for Information and Copies of Coalition Agreements
Pursuant to the National Assembly Standing Order 2B", she
provided the Registrar with a list of parties with representation in
the House at the time. The Clerk sought the following from the
Registrar:

(i) Guidance on which particular political parties (from the list

above) are in Coalition arrangements. Please include the date of the
registration of the coalition(s);

146 |PETITION NO. E202 OF 2023: JUDGMENT

 (ii) Information on changes made to any of the coalition agreements
or partnerships that are in place and the dates of the changes, if
any; and,

(iii) Certified copies of the coalition arrangements entered into by

any of the parties listed herein.

Hon. Members, in response, the Registrar noted that as at 21ˢᵗ April

2022, Azimio La Umoja-One Kenya Coalition Party comprised 26
political parties namely: Jubilee Party (JP), Orange Democratic
Movement (ODM), Wiper Democratic Movement of Kenya (WDM-
K), Kenya African National Union (KANU), National Rainbow
Coalition (NARC), National Rainbow Coalition-Kenya (NARC-
Kenya), Muungano Party (MP), Maendeleo Chap Chap Party
(MCCP), Democratic Action Party Kenya (DAP-K), Devolution
Empowerment Party (DEP), United Party of Independent Alliance
(UPIA); United Democratic Movement (UDM), United Progressive
Alliance (UPA), Pamoja African Alliance (PAA), Kenya Union
Party (KUP), United Democratic Party (UDP), Movement for
Democracy and Growth (MDG), Kenya Reform Party (KRP),
Chama Cha Uzalendo (CCU), National Liberal Party (NLP),
People's Trust Party (PTP), Ubuntu Peoples' Forum (UPF), Party
of National Unity (PNU), Labour Party of Kenya (LPK) and the
Party for Growth and Prosperity (PGP).

In the same letter, according to the Registrar, the Kenya Kwanza

Alliance comprises 15 political parties which include: United
Democratic Alliance (UDA), Amani National Congress (ANC),
Forum for Restoration of Democracy in Kenya (FORD-K), Chama
147 |PETITION NO. E202 OF 2023: JUDGMENT
 Cha Kazi (CCK), Communist Party of Kenya (CPK), The Service
Party (TSP), Tujibebe Wakenya Party, Farmers Party, Devolution
Party of Kenya, Economic Freedom Party and the Umoja na
Maendeleo Party. These are the members of the Coalition as at 3ʳᵈ
June 2022.

Hon. Members, the letter further notes that the Democratic Party,
the National Agenda Party of Kenya, the Grand Dream
Development Party and Chama Cha Mashinani effectively became
members of the Coalition on 5ᵗʰ September 2022. The Registrar of
Political Parties also observed that the National Ordinary People
Empowerment Union (NOPEU) is not a member of any of the
coalitions. In the letter, the Registrar of Political Parties also
conveys that the Maendeleo Chap Chap Party (MCCM), the Pamoja
African Alliance (PAA), the United Democratic Movement (UDM)
and the Movement for Democracy and Growth (MDG) have filed
constitutional petitions and/or objections with regard to their
membership of the Azimio Coalition.

463.In his ruling, the Hon. Speaker appeared to harbour some reservations on
the information provided by Registrar of Political Parties. He noted, thus:

“It is notable that despite written requests by the Clerk of the

National Assembly, the Registrar of Political Parties did not convey
certified copies of any pre-election or post-election coalition
agreements entered into by the parties with representation in this
House in the response to the letter dated 7ᵗʰ September 2022.

148 |PETITION NO. E202 OF 2023: JUDGMENT

 May I at this juncture report to the House that surprisingly the
Registrar of Political Parties today morning, at 8.30 a.m. submitted
to me, through the Office of the Clerk, documents said to be certified
copies of the coalition agreements for the Kenya Kwanza Alliance
Coalition and the Azimio la Umoja-One Kenya Coalition Party.
Curiously, whereas the Registrar's letter to the Clerk of the National
Assembly is dated 3ʳᵈ October 2022, the accompanying agreements
bear a certification of the following day, which is 4ᵗʰ October 2022.
The letter and the documents were delivered to the Office of the
Clerk today, 6ᵗʰ October 2022. That is more than six weeks after the
request by the Clerk. Seemingly, this may be read by any reasonable
person to be a reaction to the proceedings of the House on Tuesday,
4ᵗʰ October 2022.”

And in what appears to have been a justification for dismissal or ignoring of

the Registrar’s communication, the speaker noted as follows:

“Nevertheless, I have had occasion to peruse the documents

accompanying the letter as against the documents tabled in the
House on Tuesday this week. Despite attempting to advise the House
on the status of the coalition agreements affecting the composition
of the House as at yd October 2022, the Registrar has again failed to
mention the existence of any post-election coalition agreements.
This is a glaring omission when viewed against the post-election
coalition agreements tabled by the Member for Kikuyu Constituency
during the proceedings. The post-election coalition agreements are
critical to the Speaker for purposes of guaranteeing constitutional

149 |PETITION NO. E202 OF 2023: JUDGMENT

 rights and political freedoms of Members of this House elected
under UDM, PAA, MCCP and MDG.”

464.It is apparent that the speaker was of the conviction that the Registrar of the
Political Parties suppressed the information that there were post-election
coalition agreements involving UDM, PAA, MCCP and MDG political
parties which, hitherto, were members of the Azimio Coalition. For the
avoidance of doubt that the speaker was of the firm view that there were
post-election coalition agreements that were pivotal to his ruling, he held as
follows:

“This now brings me to the submissions made by Hon. Opiyo

Wandayi on the significance to be attached to the response of the
Registrar of Political Parties, which he also tabled in the House on
Tuesday this week and any subsequent communication from the
Registrar. It will be recalled that the distinguished Member for
Ugunja submitted that the Speaker has no other role apart from
conveying information contained in the letter by the Registrar to the
House. You will agree with me that this view is untenable for two
main reasons.

Firstly, Section 10 of the Political Parties Act 2011 is clear that

coalitions are not cast in stone. They are evolving arrangements that
can occur both prior to and after an election. The Registrar has
shied away from making a determination on the post-election status
of the existing coalitions in light of the submissions made by part of
the membership of this House and letters written to me by a number
of Members relating to post-election coalitions.

150 |PETITION NO. E202 OF 2023: JUDGMENT

 465. The speaker then dismissed the Registrar of Political Parties’ information
and held as follows:

“Hon. Members, may I at this point bring to the attention of the

House that several Members said to belong to the Azimio la Umoja -
One Kenya Coalition Party have formally written to my office to
denounce their association with the party. In a letter dated 9 th
September 2022 and received by my office on 22ⁿᵈ September 2022,
the Member for Ugenya Constituency, Hon. David Ochieng wrote to
convey the decision of his party, the MDG to terminate its
membership with the Azimio la Umoja - One Kenya Coalition Party.
In the letter, Hon. Ochieng also notes that his party is now a
member of the Kenya Kwanza Coalition.

In letters received by my office on 21st and 22ⁿᵈ September 2022,

Hon. Kenneth Charo, Hon. Gonzi Rai and Hon. Anthony Kenga,
who were all elected to Parliament on the PAA Party ticket formally
distanced themselves and their party from any association with the
Azimio Coalition. The three categorically noted that their party
should only be associated with the Kenya Kwanza Coalition with
which it has entered into its only existing coalition agreement.

Additionally, in a letter dated 16th September 2022 and received by

my office on 19th September 2022, all the seven Members of
Parliament elected to the National Assembly under the United
Democratic Movement (UDM), namely Hon. Maj (Rtd). Bashir
Abdullahi, Hon. Hassan Kulow, Hon. Haro Abdul Ebrahim, Hon.
Mangale Chiforomodo, Hon. Yusuf Adan Haji, Hon. Joseph
Lekuton, Hon. Umul Kheir Kassim and Hon. Sulekha Harun
151 |PETITION NO. E202 OF 2023: JUDGMENT
 distanced themselves and their party from any alleged coalition
agreement with the Azimio Coalition.

Instead, they note in their letter that they are party to a post-election
coalition agreement with the Kenya Kwanza Coalition. It is their
contention that their affiliation with the Kenya Kwanza Coalition
has seemingly been ignored by the Registrar of Political Parties.”

466.Even then, the speaker admitted, as we have posited earlier in this

judgment, that coalition agreements coupled with the gazette notice or
gazette notices publishing the election results are sufficient to determine the
majority and minority party in the National Assembly. As a matter of fact,
the Honourable Speaker held that using this basic and rather common-sense
formula, the Azimio Coalition would have 171 members while Kenya
Kwanza Alliance would have 165 members in the National Assembly. To
quote the Honourable Speaker:

Hon. Members, let me now turn to the nexus between the letter from
the Registrar of Political Parties and the several gazette notices
published by the Independent Electoral and Boundaries
Commission (IEBC) with respect to your election or nomination as
Members of this House. Based on Gazette Notices No. 9950 and
9951 of 2022 both dated 23ʳᵈ August 2022; Gazette Notice No. 10535
of 2022 dated 5ᵗʰ September 2022; Gazette Notice No. 10537 of 2022
dated 7ᵗʰ September 2022 and Gazette Notice No. 10710 of 2022
dated 9ᵗʰ September 2022 the current composition of the National
Assembly by individual political parties is as follows: The UDA),
145; ODM, 86; Jubilee Party, 28; WDM, 26; UDM, 8; ANC, 8;
FORD K, 6; KANU, 6; DAP-K, 5; PAA, 3; KUP, 3; UPIA 2; MCCP,
152 |PETITION NO. E202 OF 2023: JUDGMENT
 2; TSP, 2; UPA, 1; NAP-K, 1; NOPEU, 1; GDDP, 1; DP, 1; MDG)l;
and CCM, 1.

Hon. Members, reference to the letter by the Registrar of Political

Parties would give the cumulative number of members of the
constituent parties of what the Registrar refers to as the Azimio la
Umoja-One Kenya Coalition Party as 171 Members against 165
Members of the constituent parties of what the Registrar refers to as
the Kenya Kwanza Alliance.”

467.However, and in total disregard of the foregoing, the Speaker rejected the
evidence provided by the Registrar of Political Parties which, based on the
gazette notices by the IEBC declaring the results for membership in the
National Assembly, the Azimio coalition was the majority party. His reason
for the departure from this approach was as follows:

“It is however, notable that a total of 14 Members are drawn from

four parties which is UDM, MDG, MCCP and PAA who according
to the letter of the Registrar have filed constitutional petitions and
objections against their membership in Azimio. This implies that the
letter from the Registrar may not be used to compute the
membership of the Majority and Minority parties by dint of the
admission contained in it on the existing constitutional petitions and
objections. Hon. Members, it will also be recalled that the Members
of UDM, MDG, MCCP and PAA have claimed they signed pre-
election and post-election coalition agreements with the Kenya
Kwanza Alliance Coalition. Cumulatively, the membership of the
four parties in this House is 14 Members. If these Members were to
be added to the 165 Members of the initial constituent parties of the
153 |PETITION NO. E202 OF 2023: JUDGMENT
 Kenya Kwanza Coalition, it would comprise a total of 179 Members.
Consequently, the Azimio Coalition would then comprise a total of
157 Members.”

468.Indeed, the Honourable Speaker proceeded accordingly, and added to the

Kenya Kwanza Coalition the 14 members of Parliament drawn from UDM,
MDG, MCCP and PAA political parties. Inevitably, the membership of
Azimio coalition was reduced by the same margin with the result that the
Azimio coalition had less members than Kenya Kwanza Alliance. The
Honourable Speaker stated:

“Hon. Members, I note that the four parties which I mentioned

cumulatively, comprise of 14 Members. The Members elected to this
House under the four parties have exercised their freedom of
association under Article 36 of the Constitution. They have already
migrated to the Kenya Kwanza Alliance both in writing and in
action. The parties are already enjoying benefits accruing from their
membership of the Kenya Kwanza Coalition based on the coalition
agreements that they signed and deposited with the Registrar.”

469.The Speaker then concluded his ruling and stated, inter alia, as follows:

“Hon. Members in summary therefore, my considered

determination on the matter raised is as follows:

1. That, consideration of the various allegations of coercion and

duress at the time of entering into coalition agreements and any
appropriate remedy for the same lies outside the authority of this
House.

154 |PETITION NO. E202 OF 2023: JUDGMENT

 2. That, in my considered opinion, it would be imprudent to treat the
14 Members elected to the House under the UDM, PAA, MCCP and
MDG as part of a coalition that they have expressly distanced both
themselves and their parties from. I am therefore persuaded that the
14 Members and their parties are part of the Kenya Kwanza
Coalition. This, in my view, would be fair and in accordance with
previous rulings by my predecessors on related matters.

3. That, with the 14 members, the membership of the Kenya Kwanza

Coalition stands at 179 Members while the membership of the
Azimio la Umoja-One Kenya Coalition Party stands at 157
Members. This, by implication, indicates that the Kenya Kwanza
Coalition is the Majority Party and the Azimio la Umoja-One Kenya
Coalition Party is the Minority Party in this House.

4. That, the Kenya Kwanza Coalition is entitled to appoint the

Leader of the Majority Party while the Azimio la Umoja-One Kenya
Coalition Party is entitled to appoint the Leader of the Minority
Party.

5. That, with regard to the Majority Party:

a) The Member for Kikuyu Constituency, Hon. Kimani

Ichung'wa is the Leader of the Majority Party;
b) The Member for Kilifi North, Hon. Owen Baya is the
Deputy Leader of the Majority Party;
c) The Member for South Mugirango, Hon. Silvanus Osoro
is the Majority Party Whip; and

155 |PETITION NO. E202 OF 2023: JUDGMENT

 d) The Member for Marsabit County, Hon. Naomi Jillo
Waqo is the Deputy Majority Whip.

6. That, with regard to the Minority Party:

a) The Member for Ugunja, Hon. Opiyo Wandayi is the

Leader of the Minority Party;
b) The Member for Kathiani, Hon. Robert Mbui is the Deputy
Leader of the Minority Party;
c) The Member for Suna East, Hon. Junet Mohamed is the
Minority Party Whip; and
d) Nominated Member, Hon. Sabina Chege is the Deputy
Minority Whip.”
470.It is clear from the Speaker’s ruling that when the dispute as to which of the
two coalitions-Azimio Coalition and Kenya Kwanza Coalition, was the
Majority Party he sought to satisfy himself of, among other things, the
membership and the status of these coalitions and, to that end, he wrote to
the Registrar of Political Parties, through the office of the Clerk to the
National Assembly, seeking for this information.
471.It is also clear from the ruling that the Registrar of Political Parties
responded to the Clerk’s letter before the speaker rendered his ruling.
According to the Honourable Speaker, the Registrar did not provide all the
information that he required but it is clear from his ruling that the Registrar
provided information to the effect that:

(i) there existed Azimio la Umoja Coalition Party that comprised 26 political
parties which included, UDM, PAA, MCCP and MDG political parties.

156 |PETITION NO. E202 OF 2023: JUDGMENT

 (ii) there also existed Kenya Kwanza Alliance coalition consisting of 15
political parties.

(iii) Maendeleo Chap Chap Party Movement (MCCM), Pamoja African

Alliance (PAA), United Democratic Movement (UDM) and Movement for
Democracy and Growth (MDG) had filed constitutional petitions or
objections against their membership in the Azimio la umoja Coalition.

472.It is also apparent from the Speaker’s ruling that on 6 October 2022 at 8.30
AM, the Hon. Speaker also received from the Registrar of Political Parties
“certified copies of the coalition agreements for the Kenya Kwanza
Alliance Coalition and the Azimio la Umoja-One Kenya Coalition Party.”
473.Armed with this information, together with the election results declared by
the IEBC the Speaker could, and indeed did determine, that Azimio
Coalition had the largest number of members followed by the Kenya
Kwanza Coalition. But the speaker was not prepared to declare the Azimio
Coalition as the majority party for the reasons that:

(i) The registrar failed to mention the existence of any post-election

coalition agreements which the Speaker found to be “a glaring
omission.” According to him, there were “post-election agreements
that had been tabled by the Member for Kikuyu Constituency during
the proceedings.” Ostensibly, these post-election coalition agreements
had been entered into by UDM, PAA, MCCP and MDG political
parties.

(ii) The Registrar had “shied away from making a determination on

the post-election status of the existing coalitions in light of the
submissions made by part of the membership of this House and letters

157 |PETITION NO. E202 OF 2023: JUDGMENT

 written to me by a number of Members relating to post-election
coalitions.”

(iii) Members of National Assembly elected on UDM, PAA, MCCP

and MDG party tickets had written to the Speaker dissociating
themselves and their parties from the Azimio Coalition and
associating themselves with the Kenya Kwanza Alliance Coalition. As
a matter of fact, they had declared that they were in a post-election
coalition agreement with the Kenya Kwanza Alliance.

(iv) Members of National Assembly elected on UDM, PAA, MCCP

and MDG party tickets had exercised their right to freedom of
association under Article 36 of the Constitution and “migrated to the
Kenya Kwanza Alliance both in writing and in action”. The speaker
held that the parties have “signed and deposited with the Registrar”
coalition agreements.

(v) The UDM, PAA, MCCP and MDG had raised objections or filed
petitions in this Honourable Court contesting their membership in the
Azimio Coalition.

474.Now, it is worth noting that the Speaker, having been sued in this petition as
the 3rd and 4th respondents, apparently, in his official and private capacities
respectively, swore and filed a replying affidavit dated 23 November 2023
in response to the petition. Nowhere in that affidavit has the Speaker
alluded to or provided any evidence of the existence of any post-election
coalition agreements involving the UDM, PAA, MCCP and MDG and the
Kenya Kwanza Alliance. There is simply no evidence of any post-election
coalition signed and deposited with the Registrar of Political Parties as

158 |PETITION NO. E202 OF 2023: JUDGMENT

 alleged by the Hon. Speaker or at all. As a matter of fact, none of the rest of
the respondents, including the Hon. Ichung’wah who is said to have tabled
the post-election coalition agreements in parliament during the debate on
the issue of the majority and minority party in the House, has exhibited any
such agreement.
475.According to section 9(1) of the Political Parties Act, the constitution or
rules of every political party shall provide for all the matters specified in the
Second Schedule to this Act. One of the matters specified in the 2 nd
schedule is the requirement that the constitution or rules of a political party
must provide rules for entering into a coalition (see Rule 21of the 2 nd
Schedule to the Act). It has not been demonstrated, at the very least, that
any of the parties alleged to have entered into a post-election coalition
agreement with Kenya Kwanza took any step, in compliance with this
particular rule, to enter into a coalition agreement with Kenya Kwanza.
476.In the absence of any proof of post-election coalition agreements entered
into between the UDM, PAA, MCCP and MDG and the Kenya Kwanza
Alliance, the Speaker cannot be heard to fault the Registrar of Political
Parties for not producing them. She could not produce what had not been
deposited at the Registrar of Political Parties. If it is true the UDM, PAA,
MCCP and MDG political parties had signed and deposited the agreements
with the Registrar of Political Parties, we are entitled to assume that they
must have had, in their possession, copies of these agreements or evidence
of their existence and which they were under obligation to exhibit in these
proceedings. At the very least, the Speaker or Honourable Ichung’wa ought
to have exhibited those agreements which the Speaker singled out as having
been presented on the floor of the House during the debate.

159 |PETITION NO. E202 OF 2023: JUDGMENT

 477.Without these post-election coalition agreements, the Speaker had no basis
to disregard and dismiss the Registrar of Political Parties information on the
membership of Azimio coalition and Kenya Kwanza Coalition. For the
same reason, the Speaker had neither the legal nor factual basis of declaring
UDM, PAA, MCCP and MDG as having migrated from the Azimio
Coalition and joined the Kenya Kwanza Alliance.
478.Again, the fact that there were pending disputes either in this Honourable
Court or before the Political Parties Tribunal on the membership of UDM,
PAA, MCCP and MDG in the Azimio Coalition, could not have been a
reason for the Speaker to rule that the parties were in Kenya Kwanza
Coalition rather than in Azimio coalition. Based on the information
provided by the Registrar of Political Parties, these parties were members of
the Azimio Coalition notwithstanding the disputes that were pending for
determination. It was never suggested that the coalition agreement or
agreements between the constituent parties were suspended or held in
abeyance in the event of a dispute on their membership. Neither was there
any suggestion or evidence that either this Honourable Court or the Tribunal
before which these disputes were pending for determination had stayed or
suspended the coalition agreements pending the resolution of the disputes.
479.It follows that, by assigning to Kenya Kwanza Alliance, the 14 members of
National Assembly elected on UDM, PAA, MCCP and MDG party tickets
without any justifiable cause or reason and, in the process declaring Kenya
Kwanza the Majority Party in the National Assembly, the Speaker acted
arbitrarily and violated Article 108 of the Constitution.
Whether the speaker can hold a political office
480.The Petitioners contended that it is not within the Constitutional design that
a National Assembly Speaker can also double up as a leader of a political
160 |PETITION NO. E202 OF 2023: JUDGMENT
 party at the same time as is the case with the current Speaker who not only
is the leader of Ford-Kenya party but is also a member of the Kenya
Kwanza Party leader’s forum; and, an ex officio member of the coalition
parliamentary group of Kenya Kwanza. The Petitioners argue that this state
of affairs makes him conflicted, politically inclined and makes him
unsuitable to serve impartially as the National Assembly Speaker.
481.The Office of the Speaker is provided for under Article 106 of the
Constitution. This Article provides thus:
106- Speakers and Deputy Speakers
1) There shall be-
a) Speaker for each House of Parliament, who shall be
elected by that House in accordance with the Standing
Orders, from among persons who are qualified to be
elected members of Parliament but are not such members;
2) a Deputy Speaker for each House of Parliament, who shall be
elected by that House in accordance with standing orders from
among members of the House
482.Apart from the above Constitutional provision requiring that the Speaker
shall be a person qualified to be elected as a Member of Parliament but is
not as such a member of Parliament, there is no other pre-condition that the
Constitution prescribes prior to one assuming the role of the Speaker.
483. Once elected, the Constitution further provides the manner in which the
Office of Speaker or Deputy Speaker may become vacant. Article 106 (2)
provides-
The Office of Speaker or Deputy Speaker shall become vacant:
a) When a new Parliament first meets after election

161 |PETITION NO. E202 OF 2023: JUDGMENT

 b) If the office holder, as a member of the relevant House, vacates
office under Article 103,
c) If the relevant House so resolves by resolution supported by votes
of at least two-thirds of members; or
d) If the office holder resigns from office in a letter addressed to the
relevant House
484.Again, the above provision does not state that the Speaker’s office can
become vacant by the Speaker’s belonging to or joining a political party.
485.Nevertheless, the foregoing Constitutional provisions cannot be viewed in
isolation but must be considered alongside other constitutional provisions
that deal with Parliament as the well-established principles on the role of the
Speaker in a Constitutional democracy. Article 259 (1) of the Constitution
requires, among other things, that in interpreting the Constitution, the same
be interpreted in a manner that permits the development of the law and
contributes to good governance.
486.In any well-meaning Constitutional democracy, there are three main organs
namely; the Executive, the Legislature and the Judiciary which operate
under a system of checks and balances working independently within their
constitutionally defined spheres but also complementing each other.
487.Parliament (meaning National Assembly and the Senate- per Article 93) is
vested with legislative power under Article 94. That power is specifically
protected under Article 94 (5) which provides that “No person or body,
other than Parliament has the power to make provision having the force
of law in Kenya except under authority conferred by this Constitution or
by legislation.”
488. The Speaker whose role is to preside over Parliament is also the figure head
of this arm of Government and it his duty to ensure that Parliament executes
162 |PETITION NO. E202 OF 2023: JUDGMENT
 the constitutionally mandated roles autonomously under the doctrine of
separation of powers. Separation of powers, though not expressly
mentioned by the Constitution is a fundamental feature in the rule of law
principle which the Constitution obligates State and Public officers to
observe under the national values and principles of governance in Article 10
(2) (a) of the Constitution.
489.The overarching role of the Speaker in a Constitutional democracy was
articulated in the South African case of Tlouamma and Others v Mbethe,
Speaker of the National Assembly of the Parliament of the Republic of
South Africa and Another (A 3236/15) [2015] ZAWCHC 140; 2016 (1) SA
534 (WCC); [2016] 1 All SA 235 (WCC); 2016 (2) BCLR 242 (WCC) (7
October 2015) as follows:
“[78] The Speaker represents the National Assembly in its
interactions with the President, other organs of State, judiciary,
public, media and international bodies or States. While members of
Parliament represent their individual constituencies, the Speaker
represents the full authority of the House itself. The Speaker
therefore speaks for the House as a whole and must make decisions
that are in the best interest of the National Assembly as a whole. By
common consent the Speaker’s judgment is normally unquestioned
and the Speaker is looked upon as the guardian of parliamentary
democracy.

[79] The legal system of South Africa has developed a strong set of
traditions concerning the Speaker of Parliament which were
retained from the Westminster system of government. According to
these traditions the Speaker of Parliament must maintain the

163 |PETITION NO. E202 OF 2023: JUDGMENT

 neutrality of the office, must act with fairness, without favouritism
and with impartiality. The 2004 Guide to National Assembly
Procedure states explicitly that the role of the Speaker must be
executed in a manner that displays fairness, impartiality, protects
the rights of all parties and advances the interests of Parliament.”
490.In yet another South African Court decision, the Supreme Court of Appeal
of South Africa in Gauteng Provincial Legislature v Kilian & 29 others
562/98 2000 ZASCA 75; 2001 (2) SA 68 (SCA); 2001 ALL SA 563 it was
held that notwithstanding the fact that the Speaker may be removed by
legislature or his decision may be overridden by it, the Speaker should not
submit to political pressures. Zulman JA observed:
“He is required by the duties of his office to exercise, and display,
the impartiality of a Judge.”
491.Many a time, matters concerning the Executive Branch such as those
involving oversight, passage of certain laws that the executive or political or
interested groups are clamouring for, budgets, approval of appointments,
impeachments will ordinarily find their way into Parliament. The Speaker
has to be seen to facilitate those deliberations in Parliament neutrally to
preserve the integrity of Parliament as an independent institution. Being
associated with a political party or coalition affiliations whose stand on such
issues is apparent will obviously evoke perceptions of bias. The cardinal
requirement of impartiality is that one must only be impartial but must be
seen to be free from influences that may be perceived to lean towards, or be
reasonably thought to be politically inclined in favour of either side, in this
case, a Speaker who is openly aligned to a political party cannot assure and
preserve the independence of Parliament.

164 |PETITION NO. E202 OF 2023: JUDGMENT

 492.It also our view, it is the Speaker’s foremost task is to protect and propel the
independence of Parliament not only in the conduct of debates or motions
before the House but also in the broader sense. An arrangement such as the
present one where the Speaker is openly a leader of a Political Party which
is part of the ruling Political Coalition viewed from the perspective of an
objective observer will reasonably and naturally evoke perceptions of bias.
493. It will be remembered that our Constitution at Article 99 (1) (c) only
singles out the Speaker as the ex-officio Member of the National Assembly
unlike all other members because of his special status. The argument that
the position of the Speaker can thus be viewed as those of other members of
National Assembly who sit in the Speaker’s panel is thus untenable. The
Speaker is the representative face of Parliament as its leader. Through his
affiliations or conduct, public confidence in the credibility of Parliament as
an Independent Institution can be gained or lost.
494.Separation of powers doctrine is a critical component of the rule of law
principle and the Speaker occupies the honoured position as the guardian of
parliamentary independence that the framers of the Constitution yearned
for. Even though the Speaker may be elected while a member of a political
Party, the nature of his duties upon assuming office demands that he severs
that relationship upon assuming office so as to remain neutral not only in
discharging his duties inside Parliament but also externally to manifest the
cohesive face of the democratic independent institution of Parliament. That
cannot be the case if the Speaker is encumbered with political party
affiliations and interests.
495.In enacting Article 106 (1) of the Constitution on eligibility of person who
can be elected Speaker, the drafters did not require one to be member of a
political party or even a Member of Parliament, in fact, one is required to
165 |PETITION NO. E202 OF 2023: JUDGMENT
 resign his or her political party position and that explains why the current
Speaker resigned as the Senator of Bungoma County.
496.Our position slightly varies with that of South Africa. In South Africa, the
Speaker must come from among the Members of Parliament. This is a
requirement of law as explained by the Court in Tlouamma and Others v
Mbethe, Speaker of the National Assembly of the Parliament of the
Republic of South Africa and Another (supra) where it was held:
“.[80] Section 52(1) read with subsection 4 of the Constitution of the
Republic of South Africa[39] provides that the National Assembly
must elect a Speaker from among its members and that the Speaker
may be removed from the office by a resolution of the House,
provided a majority of the members of the National Assembly are
present. The Speaker holds office for the duration of the term of an
Assembly, and ceases to hold office when he or she ceases to be a
member of the Assembly…”
497.The Court then proceeded to highlight the underlying weakness created in
the provision by stating thus:
“[82] The South African Constitution and Rules of Parliament do
not give clear guidelines regarding the most appropriate manner to
protect the Speaker's impartiality and do not require the Speaker to
resign from a political party. There are no provisions in the
Constitution which specifically deal with the role and powers of the
Speaker. However, as administrative leader of the National
Assembly, THE SPEAKER HAS AN IMPLICIT DUTY to uphold
the dignity and authority OF THE ASSEMBLY, thereby enhancing
its ability to fulfill its constitutional mandate to pass legislation in a

166 |PETITION NO. E202 OF 2023: JUDGMENT

 manner that promotes a participatory and representative democracy,
and to hold the executive to account.”
498.Unlike the South Africa, Kenya has Section 12 of the Political Parties Act

which bars public officers from being members of a political parties except

those that are specifically mentioned as having been exempted from the

application of that provision. The Speaker of the National Assembly is not

among those that are exempted from the application of Section 12 yet by

dint of Article 260 of The Constitution he is in fact a public officer.

499.Article 260 of the Constitution defines a "public officer” to mean:

(a) any State officer; or

(b) any person, other than a State Officer, who holds a public office;
"public office" means an office in the national government, a
county government or the public service, if the remuneration and
benefits of the office are payable directly from the Consolidated
Fund or directly out of money provided by Parliament.’
500.Section 12 of the Political Parties Act provides:

12. Restrictions on public officers in a political party

(1) A public officer shall not—
(a) be eligible to be a founding member of a political party;
(b) be eligible to hold office in a political party;
(c) engage in political activity that may compromise or be seen to
compromise the political neutrality of that person’s office; or
(d) publicly indicate support for or
opposition to any political party or
candidate in an election.
(2) Subsection (1) shall not apply to the President, Deputy President, a
Member of Parliament, Governor, Deputy Governor or a member of a
167 |PETITION NO. E202 OF 2023: JUDGMENT
 county assembly.
(3) Until after the first elections under the Constitution, subsection (2)
shall apply to the Prime Minister.

501.Guided by the canon of Interpretation ‘Expressio Unius Est Exclusio

Alterius’ "the expression of one is the exclusion of another, " It is our
finding that the listing of the category of public officers who can be
members of political parties while conspicuously excluding the Speaker is
not exempted by section 12 of Political Parties Act. It is our humble view
that this omission is not by accident but deliberate act of Parliament to
protect the office of the Speaker from political affiliations and safeguard its
neutral role in execution of its constitutional mandate as a guarantee for
Parliamentary Independence.
502.To further augment our finding above, we are emboldened by Section 23
and 24 of the Leadership and Integrity Act which Act was enacted to give
effect to Chapter 6 of the Constitution. The two sections provide as follows:

23. Political neutrality

(1) An appointed State officer, other than a Cabinet Secretary or a

member of a county executive committee shall not, in the
performance of their duties—
(a)act as an agent for, or further the interests of a political party or
candidate in an election; or
(b)manifest support for or opposition to any political party or
candidate in an election.
(2) An appointed State officer or public officer shall not engage in
any political activity that may compromise or be seen to compromise

168 |PETITION NO. E202 OF 2023: JUDGMENT

 the political neutrality of the office subject to any laws relating to
elections.
(3) Without prejudice to the generality of subsection (2) a public
officer shall not—
(a) engage in the activities of any political party or candidate or act
as an agent of a political party or a candidate in an election;
(b) publicly indicate support for or opposition against any political
party or candidate participating in an election.

24. Impartiality

A State officer shall, at all times, carry out the duties of the office
with impartiality and objectivity in accordance with Articles 10, 27,
73(2)(b) and 232 of the Constitution and shall not practise
favouritism, nepotism, tribalism, cronyism, religious bias or engage
in corrupt or unethical practices.
503.It is instructive to note that Section 23 (2) of the Leadership and Integrity
Act applies to all public officers, and also on appointed state officers
subject to any law relating to elections. In our view, the only exemption
provided for in law is the category of State or Public officers enumerated in
Section 12 (2) of the Political Parties Act to which the Speaker does not
belong.
504.We thus hold and find that the simultaneous holding of the position of
Speaker with that of the leader of political Party and the leadership positions
in the ruling political coalition as is the case with the current National
Assembly Speaker, Hon. Moses Wetang’ula who is the leader of Ford
Kenya and a holder of key position in Kenya Kwanza Coalition reasonably
evokes appearance bias and undermines his neutrality role as the Speaker

169 |PETITION NO. E202 OF 2023: JUDGMENT

 of the National Assembly and the independence of Parliament as the symbol
of democracy negatively impacting on our democratic standards as
envisaged by the rule of law principle under Article 10 (2) (a) of the
Constitution. This dual role is therefore unlawful and unconstitutional.
505.The other aspect of the Speaker’s office which the petitioners urged before
us is whether the Honourable Moses Wetang’ula was validly elected to this
office. We hold that the Speaker was elected in accordance with Article 106
(1)(a) and Standing Orders 4 and 6 of the National Assembly’s Standing
Orders. The fact that he was a party leader at the time of his election could
not invalidate his election. However, for reasons we have given, his position
as the leader of Ford-Kenya Party, or a leader of any other political office or
organ, for that matter, became untenable and inconsequential the moment he
assumed the Office of the Speaker of the National Assembly. He could not,
and he has no capacity to perform any other functions as a leader of a
political party or a political organ as long as he is the Speaker of the
National Assembly.
506. Before we conclude, we note that two of the interested parties filed cross-
petitions. Under Rule 15 (3) of the Constitution of Kenya (Protection of
Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, it
is only a respondent in a constitutional petition who has the discretion to file
a cross-petition. That rule reads as follows:
15.(3)The respondent may file a cross-petition which shall disclose
the matter set out in rule 10(2).
507.Going by the express provision of this rule, an interested party does not
enjoy that advantage. It is presumed that an interested party has the option
of and reserves the right to file his own petition; if the court finds that such
a subsequent petition raises common issues as in the pre-existing petition, it
170 |PETITION NO. E202 OF 2023: JUDGMENT
 may exercise its discretion under rule 17 of the Constitution of Kenya
(Protection of Rights and Fundamental Freedoms) Practice and Procedure
Rules and consolidate the petitions. This rule reads as follows:
17.The Court may on its own motion or on application by any party
consolidate several petitions on such terms as it may deem just.
508.For these reasons, we are not inclined to dwell on the cross-petitions any
further except to strike them out for the reason that they are misconceived
and an abuse of the due process of this Honourable Court.
In the ultimate, we allow the petition to the following extent:
(i) It is hereby declared that the question as to which party or
coalition of parties is the majority in the National Assembly in the
13th Parliament was determined by the sovereign will of the Kenyan
voters during the 9 August 2022 General Elections.
(ii) It is hereby declared that the Honourable Speaker’s ruling or
determination contained in his communication from the chair made
on 6 October, 2022 on the Majority and Minority in the National
Assembly violated article 108 of the Constitution and, therefore, it is
null and void.
(iii) It is hereby declared that the Honourable Speaker’s ruling or
determination from the chair on 6 October 2022 with respect to
leadership of the National Assembly on account of his
determination of the Majority Party and Minority Party in the
National Assembly is contrary to and violated Article 108 of the
Constitution and, to that extent, it is null and void.
(iii) An order of certiorari is hereby issued quashing the Honourable
Speaker’s ruling or determination contained in his communication

171 |PETITION NO. E202 OF 2023: JUDGMENT

 from the chair made on 6 October, 2022 on the Majority and
Minority in the National Assembly.
(iv). Subject to the forgoing orders, the rest of the prayers in the
Petition are declined.
(v). Parties will bear their respective costs.
Orders accordingly.

Signed, dated and delivered in open court at Nairobi on 7 February 2025

_______________
Ngaah, J.
________________
Chigiti, J.
_______________________
Mugambi, J.

172 |PETITION NO. E202 OF 2023: JUDGMENT