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Okoiti v Attorney General & 3 others; Sugut & 6 others (Interested Parties) (Petition E104 of 2023) [2024] KEHC 15701 (KLR) (Constitutional and Human Rights) (13 December 2024) (Judgment)

Okoiti v Attorney General & 3 others; Sugut & 6 others (Interested Parties) (Petition E104 of 2023) [2024] KEHC 15701 (KLR) (Constitutional and Human Rights) (13 December 2024) (Judgment)
Citation
Okoiti v Attorney General & 3 others; Sugut & 6 others (Interested Parties) [2024] KEHC 15701 (KLR)
Media Neutral Citation
[2024] KEHC 15701 (KLR)
Court
High Court
Court station
High Court at Nairobi (Milimani Law Courts)
Outcome
Allowed
Case number
Petition E104 of 2023
Judges
LN Mugambi
Judgment date
13 December 2024
Language
English
Type
Judgment
Original source file
Download DOCX (99.5 KB)
Collections
Date published
27 December 2024
Case action
Judgment
Court division
Constitutional and Human Rights
Filing county
Nairobi
Order
a. A declaration that the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional and, therefore, invalid, null and void. b. Each Party shall bear its costs.
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Introduction
1.The Petition dated 31st March 2023 is supported by the Petitioner’s affidavit sworn on even date. In addition, the further affidavits dated 10th and 14th April 2023.
2.The gist of this Petition is a claim by the Petitioner that the Independent Electoral and Boundaries Commission (Amendment Act No. 1 of 2023 (IEBC (Amendment) Act) was enacted by the Senate in violation of Article 10 and 118 of the Constitution. The Petitioner thus filed the instant Petition seeking to have the Act declared unconstitutional.
3.Accordingly, the Petitioner sought the following reliefs:a.A declaration that the Speaker of the Senate ought to have, but failed to reject the purported withdrawal of the Report since it was already the property of the House.b.A declaration that, by assenting to the Bill as passed, H. E. the President of Kenya, failed in his obligations under Article 115(1) & (2) of the Constitution to refer the Bill back to Parliament for reconsideration by Parliament after satisfying himself that the Independent Electoral and Boundaries Commission (Amendment) Bill 2022 (National Assembly Bills No. 49 of 2022) was not enacted in accordance with the Constitution.c.A declaration that the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional and, therefore, invalid, null and void ab initio.d.A declaration that anything done under the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is invalid, null and void ab initio.e.A declaration be issued that the Respondents should be condemned to pay the costs of this motion.f.An Order be issued quashing the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023.g.An Order be issued quashing everything and anything done under the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023.h.An order be issued compelling the Respondents to bear the costs of this Petition.i.Consequent to the grant of the prayers above the Court be pleased to issue any other or further remedy (directions and orders) that the Court shall deem necessary to give effect to the foregoing orders, andor favour the cause of justice.
Petitioner’s Case
4.The Independent Electoral and Boundaries Commission (Amendment) Bill 2022 was published vide Kenya Gazette Supplement No.174 dated 2nd November 2022. The impugned Bill was tabled for the First Reading before the National Assembly on 16th November 2022 and soon after committed to the National Assembly’s Departmental Committee on Justice and Legal Affairs for consideration in line with Article 118 of the Constitution and National Assembly Standing Order 127(3).
5.Following the announcement for public participation, the Committee received written memoranda from five stakeholders namely: Katiba Institute; the Petitioner; Eliud Matindi and Johnson Rithaa of National Youth Council. The Committee on 1st December 2023 tabled its Report on the Bill before the House. Having considered the various views it made no recommendation for amendments to the Bill. The Bill was on the same day passed by the House without any amendments.
6.The Bill was thereafter transmitted by the Speaker of the National Assembly to the Speaker of the Senate pursuant to Article 110(4) of the Constitution. The First Reading of the Bill in the Senate was conducted on 8th December 2022 before being submitted to the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights for consideration through public participation. The call to participate garnered memoranda from nine stakeholders namely: the Office of the Registrar of Political Parties; Council of County Governors; National Gender and Equality Commission; County Assemblies Forum; Katiba Institute; Kenya Conference of Catholic Bishops; National Youth Council; Independent Electoral and Boundaries Commission; and Eliud Matindi.
7.The Senate’s Committee in its Report following the public participation engagement, recommended amendments to the Bill. The Bill with the attendant amendments in its Report were tabled before the House at a special sitting of the Senate on 19th January 2023 by the Committee in the morning session.
8.It is alleged that when it came time for the House to vote in the afternoon, the Chairman of the Committee acting ultra vires withdrew the Report that contained the amendments. As a result the House deliberated on the Bill in its original form without the Committee’s Report and amendments therein.
9.The Petitioner, who is a member of this Committee, contends that there was no resolution by the Committee to withdraw the Report. Nonetheless it is argued that the law does not envisage a situation where the Committee’s Report can be withdrawn.
10.The Petitioner takes issue with the Chairman’s action as it has no basis in law. Furthermore he asserts that once the Committee’s Report was tabled in the Senate it became its property. Equally, it was improper for the Chairman to withdraw the Report on a whim without the consent of the Committee. Correspondingly, it is contended that the Speaker of the Senate who ought to have rejected the purported withdrawal failed to do so.
11.It is likewise asserted that the effect of withdrawal of the Committee’s Report on the Bill meant that the Bill was passed in violation of Article 10 and 118 of the Constitution. Accordingly, it is his assertion that the resultant IEBC (Amendment) Act is void as was enacted in violation of the Constitution and so unconstitutional.
12.The Petitioner additionally posits that the actions that have taken place in line with the impugned Act since its enactment are also void and thus should be annulled. In particular, the declaration of vacancies in the IEBC by the President vide Gazette Notice No. 1901 of 14th February 2023 and the appointment of the Selection Panel for the Recruitment of Nominees for Appointment as the Chairperson and Members of the Independent Electoral and Boundaries Commission vide Gazette Notice No. 2641 of 27th February, 2023.
13.In light of these averments the Petitioner is certain that the impugned actions were unlawful and contrary to Articles 10, 38, 73, 75, 94(4) and 118 of the Constitution.
1st Respondent’s Case
14.The 1st Respondent in its grounds of opposition dated 11th April 2023 opposed the Petition on the basis that:i.The Petition has no merit and should be dismissed since Article 110(5) of the Constitution contemplates that a Bill concerning counties may originate from either House of Parliament and both Houses may pass the Bill in the same form.ii.The Petition and accompanying Notice of Motion should be dismissed since either House of Parliament may either conduct its business through its Committees or the Committee of the whole House and the amendments herein were passed by the Committee of the whole House in the Senate in the same form as passed by the National Assembly.
2nd Respondent’s Case
15.The 2nd Respondent through its Clerk, Jeremiah Nyegenye, CBS filed its Replying Affidavit dated 5th April 2023. He swore that the objective of the IEBC (Amendment) Bill was to amend the First Schedule of the IEBC Act. This was with reference to the change of the composition of the Selection Panel that oversees the filing of the vacant positions in the IEBC. It is noted that this was done in compliance with the High Court’s declaration in Okiya Omtatah Okoiti v Attorney General & 5 others (2021) KEHC 439 (KLR) to the effect that paragraph 1(2) of the IEBC Act, 2011 was unconstitutional.
16.He depones that the subject Bill as stated by the Petitioner, originated from the National Assembly. The Bill at that stage underwent public participation following a call for memorandum and views in the print media on 21st November 2022.Stakeholders were also invited vide letter REF: NADDCJLAC202225 dated 29th November 2022 for an engagement meeting. In the end, the Committee received views, comments and memorandum from the public and the stakeholders. After considering these views the Committee prepared its Report and tabled it before the National Assembly. The Bill was considered by the House and passed without amendments on 1st December 2022.
17.He avers that the Bill as stated by the Petitioner was then transmitted to the Senate. In addition to the Petitioner’s account, he acknowledges that during the afternoon session in the Senate on 19th January 2023, the Chairman of the Committee withdrew the proposed amendments to the Bill. As such the House proceeded to consider and thereafter passed the Bill in its original form.
18.He asserts that this withdrawal was in line with Senate Standing Order 61(1) and 71. Furthermore that Senate Standing Order 148 provides for the procedure of the consideration of the Committee’s Report. It is alleged that in doing so, the House primarily uses the Report to inform itself of the Committee’s consideration and findings as they debate on a Bill at the Second Reading. Accordingly he argues that the impugned Act was enacted lawfully by both Houses.
19.He further posits that the Petitioner’s constitutional challenge to the impugned Act is procedural and not substantive. This is because it revolves around the 2nd Respondent’s approval of withdrawal of the Committee’s Report. In addition, it is noted that this challenge is offensive to the Supreme Court’s guidance in Speaker of the Senate & another v Attorney General & 4 others (2013) eKLR that held that the Houses of Parliament establish and regulate their internal procedures and hence should not be subjected to undue interference by the courts.
20.Correspondingly it is argued that the Petitioner being a member of the Senate had a right under the Senate Standing Orders to introduce amendments to the Bill despite withdrawal of the Committee’s Report yet failed to do so. In fact it is noted that nominated Senator, Catherine Mumma in accordance with the Senate Standing Orders was allowed to move amendments to the impugned Bill in the afternoon session.
21.It is the 2nd Respondent’s case thus that the Petitioner has failed to demonstrate the manner in which the Senate’s procedures violated the law or the Constitution. Further it was contended that the Act enjoys presumption of constitutionality which the Petitioner has failed to rebut. Equally it was stressed that the Senate had carried out adequate public participation contrary to the Petitioner’s allegation. All notwithstanding, it is asserted that the Houses being the law-making organs are not bound by the views and comments gathered during the public participation process.
3rd Respondent’s Case
22.Correspondingly, the 3rd Respondent’s Chairman who is the 6th Interested Party herein filed its Replying affidavit sworn on 5th April 2023 on its behalf and its members who are the Interested Parties herein.
23.First, he asserts that the Petitioner lacks the requisite locus standi to file the instant Petition and in turn that this Court lacks jurisdiction to entertain this matter. This is because the Petitioner being a Senator and also member of the Senate’s Standing Committee on Justice, Legal Affairs and Human Rights, lacks locus standi to institute this suit in public interest.
24.It is averred further that this being a challenge to the House’s internal procedure, this Court lacks jurisdiction to determine questions relating to procedural infractions of Houses as this is their mandate under Article 124 of the Constitution.
25.Reiterating the chronology of the events that led to the enactment of the impugned Act, it is averred that contrary to the Petitioner’s allegation the Chairman of the House Committee did not withdraw the Committee’s Report but the amendments to the said Bill. It is noted that this is well captured in the Hansard for 19th January 2023. Furthermore, the said withdrawal was done following consultation with the members of the Senate Committee. There were no objections to the withdrawal.
26.He posits that nonetheless, the Senate Standing Orders provide recourse against the Chairman in instances where they act contrary to the Committee’s decision. Moreover, he argues that the withdrawal of the amendments did not bar the Petitioner or any other member from introducing the same amendments for consideration by the Senate. Accordingly, he reasons that the Petitioner ought to be estopped from challenging the process of enacting the impugned Act as he failed to introduce the amendments to the Bill in the House.
27.It is stressed that according to Senate Standing Order 148(2), the House can proceed to the Second Reading without the Committee’s Report. As such the House is not legally obligated to consider the Committee’s Report before passing a law. The only legal obligation is to conduct public participation which was done in both Houses of Parliament.
28.Further reiterating the actions that took place following the enactment of the IEBC Amendment Act as detailed by the Petitioner, the 3rd Respondent published an advertisement inviting applications from suitable qualified persons for the declared vacancies by the President. He depones that the 3rd Respondent is in the process of fulfilling its mandate under paragraph 3(1) of the First Schedule of the IEBC Act.
29.He equally urges the Court to appreciate the strict timelines that governs its mandate. He notes that a further delay in the recruitment of the chairperson and members of the IEBC will affect the review of names and boundaries of constituencies.As such it is argued that it will not be in public interest to suspend the operations of the 3rd Respondent.
30.It is in the same way contended that the Petitioner’s alleged procedural infractions are to be determined by the House as involves its internal procedures and hence not within this Court’s purview. The impugned Act is also said to enjoy presumption of constitutionality and that the Petitioner has failed to demonstrate how enactment of the impugned Act breached the Constitution and the law.
4th Respondent’s Case
31.The 4th Respondent in response filed grounds of opposition dated 26th May 2023. The Petition is opposed on the premise that:i.The Petition and Application lack merit as the Parliament fully complied with the Constitution and the law during the enactment of the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023.ii.The Petitioner, who is a state officer, by virtue of being a Member of Parliament as the Senator lacks locus standi to institute proceedings in public interest.iii.The Petitioner is a sitting Member of Parliament, particularly in the Senate. He is also a Member of the Justice, Legal Affairs and Human Rights Committee and participated in the in-Committee’s consideration of the matter. He has exclusive mandate under Article 109(1) and (5) of the Constitution of Kenya to introduce legislative measures in the in Parliament to amend, repeal or replace the provisions of the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023.iv.Members whose views are rejected by the majority in the house have no recourse before the Courts. The Petitioner’s recourse lies with the same House as the House’s internal procedures are insulated from scrutiny by the Courts, as long the procedures were carried out constitutionally. The Petitioner has not exhausted the provided mechanism provided for under His own House’s Standing Orders. Additionally, no attempts have been made to demonstrate the reasons for failure to comply with the exhaustion doctrine, before moving this court through the Application and the Petition herein.v.This Court lacks jurisdiction to determine issues related to procedural infractions of Houses of Parliament. The doctrine of separation of powers, as regards the internal workings of Parliament, demands that this Court does not interfere with any such internal arrangements as recognized by the Supreme Court in Speaker of the Senate & Another vs the Attorney General and 4 Others [2013] eKLR.vi.The petition is therefore a threat to the doctrine of separation of powers and is an encroachment to the legislative mandate of Parliament. If the orders sought are granted, they will amount to the interference of Parliament’s constitutional legislative powers by the Judiciary.vii.The impugned Act of Parliament enjoys a presumption of constitutionality having been enacted pursuant to the sovereign authority donated to Parliament under Article 94(1) & (5) of the Constitution.viii.The 4th Respondent holds a constitutional mandate under Articles 94(1), 95 and 109, of the Constitution to take legislative and policy measures to enact legislation. Therefore, if the sought orders are granted, they will interfere with the 4th Respondent’s statutory mandate and limit the legislative mandate of Parliament.ix.The orders sought by the Petitioner are against the public interest as public interest lies in upholding the will of the people who enacted the impugned Act through Parliament.x.The application and Petition herein are unmerited, misconceived, misplaced and an abuse of the court process.
Parties’ Submissions
Petitioner’s Submissions
32.On 12th April 2023, the Petitioner filed submissions in support of his case. Mr. Omtatah identified a number of issues for determination being: his locus standi to institute this suit in public interest; this Court’s jurisdiction in the matter; whether the 2nd Respondent ought to have but failed to reject the purported withdrawal of amendments; whether by assenting to the Bill, the President of Kenya, failed his obligation under Article 115(1) & (2) of the Constitution; whether the impugned withdrawal of the amendments violated the law; whether the IEBC (Amendment) Act is unconstitutional; whether anything done under the impugned Act is invalid and whether the 2nd Respondent violated the Petitioner’s legitimate expectations.
33.The Petitioner submitted that he has locus standi to institute this suit in public interest. This is since the Petition raises constitutional issues that arose as a result of the Committee’s Chairman withdrawal of the proposed amendments to the Bill. He highlighted that his standing is anchored under Article 22 and 258 of the Constitution. Moreover that the Constitution under Article 3(1) of the Constitution places an obligation on everyone including himself to respect, uphold and defend the Constitution. Consequently, that his status as a Senator does not revoke these rights from him.
34.Reliance was placed in Albert Ruturi, JK Wanywela & Kenya Bankers’ Association v The Minister of Finance & Attorney General and Central Bank of Kenya (Nairobi High Court Misc. Civil Application No.908 of 2001) where it was held that:“any person or social action groups, acting in good faith, can approach the court seeking judicial redress for a legal injury caused or threatened to be caused to a defined class of persons represented, or for a contravention of the Constitution, or injury to the nation.”
35.Like dependence was also placed in John Harun Mwau and 3 Others vs. Attorney General and 2 Others [2012]eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013)eKLR, John Kipng'eno Koech & 2 others v Nakuru County Assembly & 5 others [2013]eKLR, John Wekesa Khaoya v. Attorney General [2013] eKLR, Michael Osundwa Sakwa vs Chief Justice and President of the Supreme Court of Kenya & another (2016) eKLR, Ms. Priscilla Nyokabi Kanyua vs Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 and Kiluwa Limited & Another vs. Commissioner of Lands & 3 others (2015)eKLR.
36.In like manner, he submitted that this Court has jurisdiction to entertain this matter as conferred under Article 165(3) of the Constitution and as also discussed by the Supreme Court in Re the matter of interim Independent Electoral Commission (Constitutional Application No. 2 of 2011). To buttress this point, he cited the case of Minister of Health and Others vs. Treatment Action Campaign and Others (2002) 5 LRC 216, 248 where the South African Court held that:“The primary duty of courts is to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. the Constitution requires the State to respect, protect, promote, and fulfil the rights in the Bill of Rights. Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive that is an intrusion mandated by the Constitution itself.”
37.Comparable reliance was also placed in Kalpana Mehta v Union of India Petition (Civil) No. 558 of 2012, and No. 921 of 2013, Oriani-Ambrosini, MP v Sisulu, MP Speaker of the National Assembly [2012] ZACC 27, Mazibuko v Sisulu, Speaker of the National Assembly 2013 6 SA 249 (CC), Economic Freedom Fighters v Speaker of the National Assembly,[2016] ZACC 11, United Democratic Movement v Speaker of the National Assembly,[2017] ZACC 21, Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v. The Hon. Vernon J. Symonette M.P. and 7 Others (Bahamas) [2000] UKPC 31 (26th July,(2000), Sabaroche v the Speaker of the House of Assembly and the Attorney General of the Commonwealth of Dominica, Civil Appeal No. 20 of 1997, Bond v Floyd, 385 US 116 (1966), 5th December 1966 and Paul K. Ssemogerere and Ors v Attorney General (Constitutional Appeal No.1 of 2002)) [2004] UGSC 10 (28 January 2004).
38.The Petitioner further submitted that the 2nd Respondent miscarried his mandate in failing to reject the withdrawal of the Committee’s recommended amendments by its Chairman. He stressed that Senate Standing Order 15 and 16 are clear that the 2nd Respondent is in charge of the House’s proceedings. He further submitted that the withdrawal was devoid of the Committee’s resolution to do so. Accordingly, he argued that the withdrawal was in violation of the law which the 2nd Respondent failed to halt.
39.The Petitioner equally submitted that the President was in breach of his duty under Article 115 (1) and (2) of the Constitution as read with Article 131(2)(a) by assenting to the impugned Bill without ascertaining whether it was enacted in accordance with the Constitution.
40.Turning to the Chairman’s alleged action of withdrawing the Committee’s amendments, he submitted that Senate Standing Order 151 on procedure on Bills provides that the Senate is required to consider the Bill as reported from the select committee upon motion and further that Senate Standing Order 147(1) provides that all proposed amendments to a Bill must be disposed of. According to the Petitioner the withdrawal of the proposed amendments was detrimental as was in violation of Article 10(2) of the Constitution.On this premise it is asserted that the impugned Act is unconstitutional.
41.Reliance was placed in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR where it was held that:“The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. the Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation.”
42.Similar dependence was also placed in Matatiele Municipality & Others vs. The President of South Africa & Others (2) (CCT 7305 A [2006] ZACC12; 2007 (1) BCLR 47 (CC) and Kenya Human Rights Commission v Attorney General & another [2018] eKLR.
43.It is additionally argued that owing to the allegation that the impugned Act is unconstitutional, any mandate and function undertaken in line with the Act is correspondingly invalid and thus null and void ab initio. To buttress this point reliance was placed in Carr v. State ((1890) 127 Ind. 204, 26 N. E. 778; 11 L. R. A. 370 where it was held that:“An act which violates the Constitution has no power and can, of course, neither build up or tear down. It can neither create new rights nor destroy existing ones. It is an empty legislative declaration without force or vitality."
44.The Petitioner also cited the cases of Chicago, Indianapolis & Louisville Ry. v. Hackett (1912) 227 U. S. 559, S. Ct., 57 L. Ed. 966, Louisiana v. Pillsbuny (1881) 15 Otto 287, 26 L. Ed. 1090, Norton v. Shelby County (1886) 118 U. S. 425, Ex parte Bockhorn (1911) 62 Tex. Cr. 651, 138 S. W. 706 and Minn. Sugar Co. v. Iverson (1903) 91 Minn. 30, 97 N. W. 454 in support.
45.It is his submission thus that the 2nd Respondent violated his and the general public’s legitimate expectations by violating the express provisions of the Constitution. This point was supported by the case of Kevin K. Mwiti & Others vs. Kenya School of Law & 2 Others (2015) eKLR where the Court highlighted as follows:“A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.”
46.Equal dependence was placed also in Communication Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others (2014) eKLR and Kalpana H. Rawal v Judicial Service Commission & 4 others [2015] eKLR.
47.In conclusion the Petitioner asserted that he was entitled to costs in the event he is the successful party. He however urged the Court not to award him the costs if he is not successful as matter was filed in public interest.
1st Respondent’s Submissions
48.On 12th April 2023, Principal State Counsel, Thande Kuria filed submissions in opposition to the Petition. Primarily he highlighted the issues for discussion as whether it is mandatory for the Senate to consider its Committee’s Report in the legislative process and whether the Senate violated the Constitution and its Standing Orders by passing the impugned Act.
49.Counsel submitted that Article 94(1) of the Constitution vests legislative authority in the Parliament which comprises of the National Assembly and the Senate. It was noted that the Bill in question after consideration by the National Assembly was passed to the Senate in line with Article 110 of the Constitution.
50.Noting that the Petitioner’s contention is the alleged withdrawal of the impugned Bill, Counsel submitted that Article 110 (5) of the Constitution allows either House to consider and pass a Bill in the form that it was received from the other House notwithstanding the procedure set out under the Standing Orders. Accordingly he argued that withdrawal of the Committees Report was not unlawful or un-procedural as alleged.
51.Moreover, he argued that the allegation that the Bill did not undergo public participation cannot hold water as the Bill having originated from the National Assembly was duly submitted for public participation.
52.Counsel as well submitted that the Petitioner had failed to demonstrate any violation of the Constitution in enactment of the amendments to the impugned Act. Even so, it was argued that this issue could have been determined and resolved by the Senate Standing Orders as it concerns its internal procedures and processes.
53.Reliance was placed in Republic v Speaker of the National Assembly & 4 others ex parte Edward R.O. Ouko(2017)eKLR where it was held that:“The role of the judiciary is to ensure that the public authorities act lawfully and to act as a check and balance on government power. In our constitutional dispensation it is not Parliament or the Executive or the Judiciary that are supreme, but the Constitution. The actions of the senate cannot be faulted in the manner proposed by the petitioner since they were undertaken in a manner that is provided for in the Constitution.”
54.As such the Court was urged not to interfere with the processes of Parliament as long as they did not breach the Constitution. Reliance was placed in Speaker of the Senate and another (supra) and Peter O. Ngoge vs Francis Ole Kaparo (2007) eKLR.
55.To this end, Counsel also argued that the Petition lacks any basis in law as the orders sought violate the constitutional power granted to Parliament to regulate its own internal rules of procedure as well as the National Assembly (Powers and Privileges) Act. In addition, that the orders violate the principle of separation of powers as the Petition herein seeks to usurp the Parliament’s mandate and thus this Court ought to decline this invitation.
2nd Respondent’s Submissions
56.In opposition to the Petition, the 2nd Respondent through Counsel Edward Libendi filed submissions on 11th April 2023. The area of focus in the submissions was: whether there was sufficient public participation prior to enactment of the IEBC (Amendment) Act, 2023; whether the action of the Chairperson of the Senate Standing of withdrawing the Committee amendments to the IEBC (Amendment) Bill, 2022 amounted to failure to undertake public participation; whether the President had a constitutional obligation to refer the IEBC (Amendment) Bill, 2022 back to Parliament for reconsideration and whether the Petitioner has met the threshold for the grant of the reliefs sought.
57.Recounting the chronology of events that led to the enactment of the impugned Bill, Counsel submitted that adequate public participation had been conducted in accordance with Article 10 and 118(1) of the Constitution as read with Standing Order 145(5). To support this argument Counsel cited Moses Munyendo & 908 others -vs- Attorney General & another [2013] eKLR where it was held that:(18)The National Assembly and public institutions have a broad measure of discretion in how they achieve the object of public participation. How it is affected will vary from case to case but it must be clear that a reasonable level of participation has been afforded to the public. Sachs J., observed in Minister of Health and Another NO-vs-New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para. 630, that, "The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”
58.Correspondingly it was argued that adequate public participation does not necessarily mean that the legislature should incorporate in the Bill all the submitted proposals and views. In this regard reliance was placed in Francis Nyahoro & 25 others -vs- County Government of Nyandarua [2019] eKLR. What is more, it was argued that the Petitioner in addition had an opportunity to raise his views in the House in his capacity as a Senator, prior to enactment of the impugned Bill but did not do so.
59.On the second issue, Counsel submitted that the jurisdiction of this Court is invoked pursuant to the provisions of Article 165 (3) (d) of the Constitution. As such in absence of an actual breach of the Constitution or the law, the Court does not have jurisdiction to interfere with Parliament’s legislative mandate as the same would be in violation of the doctrine of separation of powers.
60.That said, Counsel relying on Standing Order 61(1) and 71 submitted that the Chairman of the Committee had a right to withdraw the amendments before the question had been proposed on the same. He faulted the Petitioner for relying on the wrong provision of the Standing Orders in support of his case being Order 151(2).It was further stated that as per Standing Order 148, the Report of a Standing Committee on a Bill is for information purposes only and it is not discussed and adopted by the Senate unlike the report of a Select Committee on a Bill that the Petitioner had alluded to.
61.Thirdly, it was submitted that a reading of Article 115 of the Constitution makes it apparent that the President can refer back the Bill to Parliament for reconsideration on a number of reasons. It is contended that this Article does not restrict the reasons to enactment of the Bill by Parliament in contravention of the Constitution.
62.Finally, Counsel submitted that the Petitioner had not demonstrated with precision how the impugned Act is unconstitutional. The Petitioner was accused of making general assertions while quoting various constitutional Articles without demonstrating the alleged violation. Owing to this Counsel maintained that the impugned Act is constitutional and hence the Petitioner is not entitled to the reliefs sought.
3rd Respondent’s Submissions
63.Counsel Anthony T. Njoroge filed submissions for the 3rd Respondent on 12th April 2022. The issues for consideration were narrowed down to whether the Petitioner has locus standi to institute these proceedings in the public interest, whether this Court has jurisdiction to entertain these proceedings, whether there was public participation during enactment of the IEBC Amendment Bill and whether it is in the public interest to quash the proceedings of the 3rd Respondent.
64.Firstly, it was submitted that the Petitioner being a State Officer lacks locus standi to institute proceedings in public interest and further being a member of the stated Committee lacks locus standi to institute proceedings, impugning the conduct of the chairperson or the Senate. Reliance was placed in Article 75 of the Constitution which provides that a State Officer shall behave in a manner that avoids any conflict between personal interests and public or official duties; compromising any public or official interest in favour of a personal interest; or demeaning the office the officer holds.
65.For this reason, Counsel submitted that the Petitioner lacks the requisite standing to institute and sustain this suit in public interest. Reliance was placed in Alfred Njau & 5 others v City Council of Nairobi [1983] eKLR where it was held that:“The term locus standi means a right to appear in Court, and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”“Lack of locus standi and of a cause of action are two different things. Cause of action is the fact or combination of facts which give rise to a right to sue whereas locus standi is the right to appear or be heard in court or other proceedings; literally it means place of standing; see Jowitt’s Dictionary of English Lawrvol.2 Second Ed. To say that a person has no cause of action is not necessarily tantamount to shutting the person out of the court but to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.”
66.Similar dependence was placed in Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR and Brian Asin & 2 others v Wafula W. Chebukati & 9 others [2017] eKLR.
67.Relying in Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2011] eKLR in the second issue, Counsel echoed that a court’s jurisdiction flows from the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. This argument was premised on two grounds. First that the Petitioner as a member of the Senate failed to object to the enactment of the impugned Act in line with the Senate’s Standing Orders. Second that this Court cannot, determine questions relating to procedural infractions of Houses as Article 124 of the Constitution vests this power exclusively in the Houses of Parliament. In this regard, pursuant to the Standing Orders the decision of the Speaker of the relevant House is final and binding. Reliance was placed in Ramdas Athawale vs Union of India & Ors. (AIR 2010 Supreme Court 1310) the Supreme Court of India where it was held that:31.Under Article 122 (2), the decision of the Speaker in whom powers are vested to regulate the procedure and the Conduct of Business is final and binding on every Member of the House. The validity of the Speaker's decision adjourning the House sine die on 23rd December, 2003 and latter direction to resume its sittings cannot be inquired into on the ground of any irregularity of procedure. The business transacted and the validity of proceedings after the resumption of sittings of the House pursuant to the directions of the Speaker cannot be inquired into by the Courts. No decision of the Speaker can be challenged by a member of the House complaining of mere irregularity in procedure in the conduct of the business. Such decisions are not subject to the jurisdiction of any Court and they are immune from challenge as understood and explained in Keshav Singh's case and further explained in Indira Nehru Gandhi Vs. Raj Narain & Anr.3 wherein it was observed that "the House is not subject to the control of the courts in the administration of the internal proceedings of the House." It is a right of each House of Parliament to be the sole judge of the lawfulness of its own proceedings. The Courts cannot go into the lawfulness of the proceedings of the Houses of Parliament. the Constitution aims at maintaining a fine balance between the Legislature, Executive and Judiciary. The object of the constitutional scheme is to ensure that each of the constitutional organs function within their respective assigned sphere. Precisely, that is the constitutional philosophy inbuilt into Article 122 of the Constitution of India.”
68.Like dependence was placed in Marshall Field & Co. v Clark 143 US 649 [1892].
69.Restating the sequence of events that led to the enactment of the impugned Bill as deponed in the 3rd Respondent’s affidavit, Counsel submitted that both Houses of Parliament not only facilitated extensive public participation on the Bill, but also considered the views of the public and stakeholders. In support of this argument reliance was placed in Commission for the Implementation of the Constitution v Parliament of Kenya & Another & 2 Others & 2 others [2013] eKLR where it was held that:“The National Assembly has a broad measure of discretion in how it achieves the object of public participation. How this is affected will vary from case to case but it must be clear that a reasonable level of participation has been afforded to the public. Indeed, as Sachs J observed in Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para. 630, “The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”
70.Furthermore, it was submitted that the procedure utilized by the Committee chairperson for withdrawal of the amendments was done in consultation with the Committee members and in accord with Senate Standing Order 152 (6). Nonetheless it is argued that the Senate could still proceed to consider the Bill in the Second and Third Reading under Standing Order 148(2) of the Senate Standing Orders without the Committee’s Report. As such there it was submitted that there is no requirement in law that the House must consider the Committee’s Report before passing legislation.
71.In the final issue, Counsel submitted that the 3rd Respondent had adduced evidence in its affidavit to demonstrate that its members were properly appointed to office in accordance with the law and that it has a limited timeframe within which it is required to discharge its mandate. It was noted that the 3rd Respondent had carried out a substantial part of its mandate in accordance with the Constitution and the law. Moreover that substantial public funds and resources had been expended in executing the said mandate. For these reasons, Counsel submitted that it would not be in public interest to suspend the operations of the 3rd Respondent.
72.Reliance was placed in Katiba Institute v Attorney General & 9 others [2018] eKLR in a similar situation where it was held that:“In the draft memorandum, the applicant prays in the alternative that this Court do issue an order invalidating the nomination, approval and appointment of the 5th, 6th, and 7th respondents, as the case may be, as members of the JSC. This alternative prayer perforce acknowledges that even if the 5, 6 and 7 respondents were to be sworn respondents taking oath of office and this Court shall be presented with a fait acompli. If they are sworn into office, the in and take office, this Court has power to invalidate their membership to the JSC. If it is ultimately found that the nomination of 5th, 6th, and 7th respondents is valid, we opine that nothing would prevent the court from nullifying the same.”
4th Respondent’s Submissions
73.Correspondingly, the 4th Respondent in support of its case filed submissions dated 26th May 2023 through its Counsel, Joshua Kiilu. The issues of focus were identified as whether the Petitioner has locus standi to institute these proceedings, whether this Court has jurisdiction to determine this suit and whether public participation was conducted.
74.On the first issue, Counsel submitted that the challenge to the Petitioner’s locus standi in instituting this suit is premised on his status as a state officer being a Senator and part of the House’s Committee. According to Counsel, the Petitioner lacks locus standi to impugn the proceedings leading up to the passing of the IEBC Amendment Act since he participated in its consideration at the Committee stage and in the Committee of the whole house. It is noted that the Petitioner did not highlight the issue of public participation in the House. This argument was anchored in Article 75 of the Constitution that bars a state officer from acting in a manner that instigates conflict of interest.
75.Moreover, Counsel argued that the Court ought to interrogate whether the Petitioner in this matter is advancing bona fide public interests or motivated by personal interests. This is since the Petitioner who was involved in the enactment process, failed to raise the issue in the House to be resolved however waited until the process was done to challenge the same in Court. Reliance was placed in Brian Asin & 2 others(supra) where it was held that:63.The question is whether the proceedings before me frivolous or vexatious bearing in mind are that it is the duty of the court to see whether the petitioner who approaches the court has a bona fide intention and not a motive for personal gain, private profit or political or other oblique considerations.”
76.Counsel submitted that this Court lacks jurisdiction to entertain the instant Petition as it concerns the internal workings of the Parliament which the Petitioner is bound by. Equally, the Petitioner is estopped from litigating decisions made by the Speaker of the House as they are final. Reliance was placed in the Matter of the Speaker of the Senate & another, Advisory Opinion Reference No. 2 of 2013; [2013] eKLR where it was held that:“This Court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another.”
77.Relying on the events that led to the enactment of the impugned Act, Counsel submitted that the Senate conformed to the Constitution and its Standing Orders in passing the impugned Act as adequate public participation was evidently done. Counsel added that although public participation is mandatory in the legislative process, Parliament is not mandated to agree with the submissions made during public participation. This is because Parliament has the obligation to consider the submissions during public participation and make an informed decision on the issue at hand without being bound by the views and comments.
78.To buttress this point reliance was placed in Merafong Demarcation Forum and Others vs. President of the Republic of South Africa and Others (CCT 4107)[2008] ZACC 10; 2008 (5) SA 171 (CC); 2008 (10) BCLR 968 (CC) where it was held that:“To say that the views expressed during a process of public participation are not binding when they conflict with Government’s mandate from the national electorate, is not the same as cynically stating that the legislature is not required to keep an open mind when engaging in a process of that kind.”
79.It was submitted that the Petitioner had failed to adduce evidence to show that the impugned Act was unconstitutionally enacted. This includes all actions and decisions made pursuant therein. Accordingly it was submitted that delay in the recruitment of IEBC Commissioners to oversee the activities of the commission is injurious to public interest.
Analysis and Determination
80.Having read through the parties’ pleadings and submissions, it is my considered view that the issues that arise for determination are as follows:i.Whether the Petitioner has locus standi to institute and sustain this suit in public interest.ii.Whether this Court has jurisdiction to entertain this Petition.iii.Whether the Senate’s standing orders were violated in view of the withdrawal of the amendments to the Independent Electoral and Boundaries Commission (Amendment) Bill by the Chairman of the Senate’s Legal Affairs and Human Rights Committee.iv.Whether the action of withdrawing the Committee amendments to the IEBC (Amendment Bill, 2022) negated the public participation exercisev.Whether the President of Kenya failed in his mandate under Article 115(1) & (2) of the Constitution, by not referring the Bill back to Parliament in light of the alleged unconstitutionality.vi.Whether the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional.viiWhether the Petitioner has locus standi to institute and sustain this suit in public interest.
81.The term locus standi connotes the right or ability to institute legal action in Court. The Court of Appeal elaborated on the phrase in Sheila Nkatha Muthee v Alphonce Mwangemi Munga & others & another [2016] eKLR stating thus:“Locus standi is a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue renders the suit incompetent. In Alfred Njau & Others v City Council of Nairobi [1982-88] 1 KAR 229 this Court gave meaning to the term locus-standi by stating:“……to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.”
82.In Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR the Court observed:“In the case of Law Society of Kenya …Vs… Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, the Court held that;-“Locus Standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others Vs City Council of Nairobi (1982) KAR 229, the Court also held that;-“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.It is therefore evident that locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. Therefore if a party is found to have no locus standi, then it means heshe cannot be heard even on whether or not he has a case worth listening to…”
83.The Court of Appeal extensively discussed locus standi in the light of the present Constitutional dispensation in the case of Randu Nzai Ruwa & 2 others vs Secretary, the Independent Electoral and Boundaries Commission & 9 others [2016] eKLR and observed thus:“While Article 48 of the Constitution recognizes the importance of access to justice as an essential instrument for the protection of human rights, it must, at the same time be borne in mind that “…the rights and fundamental freedoms in the Bill of Rights…belong to each individual and are not granted by the State”. See Article 19 (3) (a). Taken together with Articles 22, and 258 these Articles are a stark departure from the narrow scope of Section 84 of the former Constitution in so far as the concept of locus standi is concerned. The former Constitution and the cases decided during its reign provided and held in no uncertain terms that only a party aggrieved and whose interests were directly affected could institute proceedings for protection, under the Bill of Rights…”
84.Referring to Articles 22, 258 and 260 of the Constitution, the Court went on to observe as follows:“Each of the first two Articles starts with the phrase “Every person has the right to institute court proceedings.” They also provide that that person may either bring the proceedings as an individual in hisher own interest. Heshe can, in addition bring proceedings in many other capacities, on behalf of persons who cannot act in their own name, or as a member of or in the interest of a group or class of persons, or, like in the above cited Supreme Court case of Mumo Matemo (supra), acting in the public interest or, finally an association acting in the interest of one or more of its members can also institute court proceedings for the enforcement of the Bill of Rights. The above decision arose from the judgment of this Court in Civil Appeal No. 290 of 2012, Mumo Matemo v Trusted Society of Human Rights Alliance and another, in which the Court, like the Supreme Court emphasized that;27Moreover we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broad context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hardles on access to courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution …28.It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights,…”
85.The submission that the Petitioner lacks locus standi to bring this Petition was made by the Respondents on the basis that the Petitioner being a member of the Senate and part of its Senate Standing Committee on Justice, Legal Affairs and Human Rights, that he participated in the deliberations in the Senate and thus had the opportunity to propose the amendments on the floor of the House. That he, therefore, cannot institute this suit in public interest for this amounts to violation of Article 75 of the Constitution which provides as follows:1.A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids-a.any conflict between personal interests and public or official duties;b.compromising any public or official interest in favour of a personal interest; orc.demeaning the office the officer holds.2.A person who contravenes clause (1), or Article 76, 77 or 78 (2)—a.shall be subject to the applicable disciplinary procedure for the relevant office; andb.may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office.3.A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office.
86.I find no merit in the contention that the Petitioner lacks locus standi on account of the arguments advanced by the respondent. That position is dislodged by Article 22 and 258 of the Constitution which gives every person the right to bring proceedings in Court to protect, defend and uphold the Constitution. The responsibility is to every person, State and non-State officers included. The fact that the Petitioner wasis a member of the Committee or a Senator does not mean he should be gagged from challenging unconstitutional actions perpetrated in the Senate or by its committees just because he belongs there. It would be unconstitutional to limit his right to defend and protect the Constitution unless it is a dispute which can lawfully be excluded by existence of any other alternative dispute resolution mechanisms. I am emboldened in reaching this finding by the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR where it was held thus:130... The AG challenged the competence of the claim by KNCHR, which he contended is an organ of state. He submitted that the KNCHR claim leads to a conflict of interest as KNCHR, being a State organ, has no locus standi to bring a petition against the government. He submitted further that since KNCHR, is a state organ which, under Article 254, reports to the President and Parliament, it should not be a party but a respondent in this matter.…136.. While it may not appear to be the ideal situation for organs of State to litigate against the State, it seems to us that considering the higher goal of securing observance of democratic values and principles, and in light of the broad formulation of Article 22 and 258 with regard to who can approach the court for protection of human rights and interpretation of the Constitution, KNCHR is entitled to lodge a petition seeking interpretation of legislation that is deemed to violate or threaten violation of the human rights and fundamental freedoms of individuals which it is constitutionally mandated to safeguard…”
87.I thus find no merit in the assertion by the Respondents that the Petitioner lacks locus standi.
Whether this Court has jurisdiction to entertain this Petition
88.Jurisdiction is the ability or the capacity of the Court to adjudicate a legal dispute. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR) it was held that jurisdiction is everything, without it, a Court has no power to make one more step.
89.This Court’s jurisdiction on constitutional disputes is found under Article 165 of the Constitution. Sub-Article 3(d) provides:i.Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191.
90.In A.O.O & 6 Others vs. Attorney General & Another [2017] eKLR the Court held that:“Article 165 (3) (d) (i) & (ii) of the Constitution vests power to the High Court to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the Constitution and also the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution. An unconstitutional statute is not law; and more important judicial function includes the power to determine and apply the law, and this necessarily includes the power to determine the legality of statutes. The judiciary has a special role in our system with respect to constitutional interpretation. Courts are bound by the Constitution and must interpret it when a dispute so requires.”
91.The Petitioner challenges the 2nd Respondent’s conduct in the Senate proceedings by allowing the withdrawal of the committee report unprocedurally. Article 124 (1) and (2) of the Constitution provides as follows with reference to Parliament’s procedures:1.Each House of Parliament may establish committees, and shall make Standing Orders for the orderly conduct of its proceedings, including the proceedings of its committees.2.Parliament may establish joint committees consisting of members of both Houses and may jointly regulate the procedure of those committees.
92.The Senate Standing Orders enacted pursuant to this Article state in Order 1 as follows:1.In all cases where matters are not expressly provided for by these Standing Orders or by other Orders of the Senate, any procedural question shall be decided by the Speaker.2.The decisions made in paragraph (1) shall be based on the Constitution of Kenya, statute law and the usages, forms, precedents, customs, procedures and traditions of the Parliament of Kenya and other jurisdictions to the extent that these are applicable to Kenya.
93.In my view, the question before this Court is the conduct of the 2nd Respondent in allowing withdrawal of committee report without allowing debate on it and eventual passing of legislation which the Petitioner insists was done in violation of the Constitution. This Court has jurisdiction under Article 165 (3) (d) (ii) to determine whether anything said to be done under the authority of the Constitution or any law is inconsistent with or is in contravention of the Constitution.
94.Nevertheless, in so doing, this Court is fully conscious of the principle of separation of powers where due deference is accorded to other constitutional organs to facilitate performance of their constitutional mandates. In Law Society of Kenya v Attorney General & another; National Commission for Human Rights & another (Interested Parties) [2020] eKLR the Court held as follows:36.It is my view that where a constitution has reposed specific functions in an institution or organs of state, the Court must give those organs sufficient time or leeway to discharge their constitutional mandate and only accept an invitation to intervene when those organs or bodies have demonstrably been shown to have acted contrary to their constitutional mandate or in contravention of the Constitution.”
95.Further, the bench in Mark Obuya, Tom Gitogo & Thomas Maara Gichuhi Acting for or on Behalf of Association of Kenya Insurers & 5 others vs. Commissioner of Domestic Taxes & 2 others [2014] eKLR pronounced itself as follows:32.The legislature is the law making organ and it enacts the laws to serve a particular object and need. In the absence of a specific violation of the Constitution, the court cannot question the wisdom of legislation or its policy object…”
96.This bar is principally based on the doctrine of Separation of powers. The Supreme Court in the Matter of the Interim Independent Electoral Commission (supra) expressed itself as follows:“The effect of the Constitution's detailed provision for the rule of law in the process of governance, is that the legality of executive or administrative actions is to be determined by the courts, which are independent of the executive branch. The essence of separation of powers, in this context, is that in the totality of governance-powers is shared out among different organs of government, and that these organs play mutually-countervailing roles.”
97.Likewise, the Constitutional Court in South Africa addressing the issue of separation of powers in Doctors for Life International vs Speaker of the National Assembly and Others (CCT1205) [2006] ZACC 11 stated that:“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.”
98.Similarly, in Francis Maliti vs County Assembly of Machakos & 2 others; Governor, Machakos County (Interested Party) [2019] eKLR the Court added as follows:“The broad principle of “separation of powers”, certainly, incorporates the scheme of “checks and balances”; but the principle is not to be applied in theoretical purity for its ultimate object is good governance, which involves phases of co-operation and collaboration, in a proper case. This perception emerges from Commission for the Implementation of the Constitution v National Assembly of Kenya, Senate & 2 Others [2013] eKLR where Njoki, SCJ opined that:“The system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power apply equally to the Executive, the Legislature and the Judiciary. No one arm of Government is infallible, and all are equally vulnerable to the dangers of acting ultra vires the Constitution. Whereas, the Executive and the Legislature are regularly tempered and safeguarded through the process of regular direct elections by the people, the discipline of an appointed and unelected judicial arm of Government is largely self-regulatory. The parameters of encroachment on the powers of other arms of Government must be therefore clearly delineated, [their] limits acknowledged, and restraint fully exercised. It is only through the practice of such cautionary measures, that the remotest possibility of judicial tyranny can be avoided.”
99.Lending its voice on the topic the Court of Appeal in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others (supra) stated as follows:“Separation of powers does not only proscribe organs of government from interfering with the other’s function, but also entails empowering each organ of government with countervailing powers which provide checks and balances on actions taken by other organs of government. It also warned that such powers are, however, not a license to take over functions vested elsewhere, and recommended that there must be judicial, legislative and executive deference to the repository of the function.”
100.Having carefully examined the Petitioners grievances in regard to what transpired in the Senate; He stated that the Senate Committee Report that contained amendments to the Bill was tabled in the sitting of 1912023 but was withdrawn by the Chairman without the consent of the members of the Committee and that the House proceeded to deliberate on the Bill in its original form excluding the report that had amendments that were informed by the public participation exercise.
101.The issue that the Chairman of the Committee acted without the consent of the Committee in withdrawing the report and the allegation that the Speaker acted unlawfully for not stopping his move to withdraw the Report is in my view an internal matter on Parliamentary procedure and not a constitutional issue as the Court cannot purport to direct the Speaker on how to deal with such an internal Parliamentary grievance that involves application or interpretation of the standing orders. That is an issue that should have be picked up with the Speaker in the House at the point when direction and guidance of the Speaker was required.
102.This Court cannot purport to review Speaker’s decision on an issue that involve, guidance of the House regarding the procedure of the proceedings in the Senate. For this reason, I find the doctrine of judicial restraint applies on that particular issue, that the consent of the Committee was not obtained before the report was withdrawn as this an internal parliamentary affair of the Senate that squarely fall within the mandate of the Speaker. However, the complaint that the withdrawal of the report amounted to invalidation of the public participation exercise as that was the committee only instrument that Senate had applied in its engagement with the public is a major issue in view of Article 118 (1) (b) which requires my further consideration, hence the next issue.
Whether the action of withdrawing the Committee amendments to the IEBC (Amendment Bill, 2022) negated the public participation exercise
103.The alleged unconstitutionality of the impugned Act is based on a lack of compliance with Article 10 and 118 of the Constitution that provides for public participation. Public participation is captured under Article 10(2)(a) and Article 118 (1) (b) of the Constitution as follows:Article 10:(2)The national values and principles of governance include –a.patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;Article 118:Parliament shall-b)Facilitate public participation and involvement in the legislative and other business of Parliament and its Committees.
104.The three-judge bench in Institute of Social Accountability & another v National Assembly & 4 others (2015) eKLR discussing this principle observed as follows:76.How public participation is given effect will vary from case to case but it must be clear, upon examination of the legislative process, that a reasonable level of participation has been afforded to the public. In Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para. 630, Sachs J., noted that;The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”
105.The guiding principles in establishing whether this principle has been upheld were set out by the Supreme Court in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) vs Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) (2019)eKLR as follows:“Guiding Principles for public participation(i)As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.(v)Public participation is not an abstract notion; it must be purposive and meaningful.(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.(ix)Components of meaningful public participation include the following:a.clarity of the subject matter for the public to understand;b.structures and processes (medium of engagement) of participation that are clear and simple;c.opportunity for balanced influence from the public in general;d.commitment to the process;e.inclusive and effective representation;f.integrity and transparency of the process;g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”
106.According to the Petitioner, the Senate Committee Report which had incorporated amendments arising from views gathered by the Committee from the public was not considered after the same was withdrawn on the floor of the House and the Bill was debated in its original form. The fact that the only mode through which public views were gathered was through the sittings of the Committee is not disputed by the Respondents. What however became of those views following the withdrawal of the report that contained amendments that were informed by the views gathered from public participation is not disclosed or discussed by the Respondents. As was held in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) vs Cabinet Secretary for the Ministry of Health & 2 others; (supra) public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement and there is need for both quantitative and qualitative components in public participation.
107.The Respondents are not coming out clean about what became of the public views that had been gathered and had informed the Senate’s Committee report in making recommendations for amendments after this report was withdrawn without being debated. The Bill reverted to its prior state, which means, it was passed without considering the public participation input and the logical inference from the conduct of the Senate is that the public participation it conducted was meaningless and majorly cosmetic. Although the Parliament has legislative authority donated by Article 94 (1) and must be allowed to do its work without undue interference from the judicial arm of Government, that immunity is lost if it demonstrated that Parliament in carrying its mandate has violated the Constitution as Article 3 obligates all persons to respect, protect and uphold the Constitution. Article 2 also declares that the Constitution is Supreme and binds all State Organs. This resolve was emphatically endorsed by the Court in Council of Governors & 6 others vs Senate [2015] eKLR, which held thus:“…This Court vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under Article 165(3) of the Constitution, has the duty and obligation to intervene in actions of other arms of Government and State Organs where it is alleged or demonstrated that the Constitution has either been violated or threatened with violation….To our mind, this Court has the power to enquire into the constitutionality of the actions of the Senate notwithstanding the privilege of inter alia, debate accorded to members of the Senate. That finding is fortified under the principle that the Constitution is the Supreme Law of this country and the Senate must function within the limits prescribed by the Constitution. In cases where it has stepped beyond what the law and the Constitution permit it to do, it cannot seek refuge in illegality and hide under the doctrine of parliamentary privilege….In that regard, we have already found that the Constitution is the supreme law of the land and all state organs have an obligation to uphold it and the Senate must always act in accordance with the Constitution. Its procedures and resolutions must be made within the purview of the same constitution and it cannot purport to violate the Constitution and seek refuge in the doctrine of separation of powers. This Court, under Article 165(3) (d) (ii) of the Constitution is constitutionally mandated to examine whether anything done under the authority of the Constitution is well within the four corners of the Constitution. The Senate cannot therefore act in disregard of the Constitution and at the same time claim to exercise powers under the same Constitution. This Court will continue to exercise its jurisdiction and judicial authority as conferred by the people of Kenya to assert the authority and supremacy of the Constitution and when the Senate has violated the Constitution, it must be told so.”
108.Article 94 (1) must be read together with Article 118 (1) (b) and also Article 10 (2) (a) of the Constitution. Parliament cannot be allowed to circumvent or take public participation lightly. Apart from representative democracy, our constitution retains participatory democracy where views of the people must be taken into account when decisions are being made in matters affecting them including the passing of legislation. The fact that the Bill could have undergone public participation in the National Assembly cannot absolve the Senate, which is constitutionally independent from National Assembly, from appraising itself of the issues of concern to the people as far as this legislation it intended to pass is concerned. Conducting public participation and discarding the report without deliberating on the same shows that no appropriate or any consideration was given to the public views by the Senate.
109.In the circumstances, I find that the processing of the Bill in the Senate violated Articles 118 (1) (b) and 10(2) (a) of the Constitution hence the ensuing Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional null and void.
110.I grant the following reliefs:
a.A declaration that the Independent Electoral and Boundaries Commission (Amendment) Act No. 1 of 2023 is unconstitutional and, therefore, invalid, null and void.b.Each Party shall bear its costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF DECEMBER, 2024.…………………………………..L N MUGAMBIJUDGE
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Cited documents 40

Judgment 37
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Act 3
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