High Court of Kenya at Nairobi (Milimani Law Courts) – Constitutional and Human Rights Division
Delivered on 5th December 2025 by Justices Ngaah , Chigiti & Mugambi
Background
The petitioners, citizens and registered voters affiliated with Jubilee Party and the Azimio la Umoja One Kenya Coalition, filed a constitutional petition challenging the political conduct of the 1st and 2nd Respondents, who were elected as Governor and Deputy Governor of Isiolo County during the 9th August 2022 General Election on the Jubilee Party ticket. The Petitioners contended that the Respondents defected to the United Democratic Alliance (UDA) Party during their term of office, thereby breaching the Constitution, the Political Parties Act, and the socio-political contract with their electorate.
Issues for Determination
The first issue for determination was whether the High Court had jurisdiction to determine a petition alleging political party defection by a Governor and Deputy Governor. The second issue for determination was whether a Governor and Deputy Governor who allegedly defect from the political party on whose ticket they were elected are deemed to have resigned from office, thereby attracting constitutional or statutory consequences.
Court’s Determination
On the first issue, the court held that it had jurisdiction to hear and determine the petition. The court reasoned that although the Political Parties Act establishes internal dispute resolution mechanisms and the Political Parties Disputes Tribunal (PPDT) for party-related disputes, the petition before it raised substantial constitutional questions concerning the interpretation and application of Articles 1, 3, 4, 10, 38, 73, 75, 181 and 182 of the Constitution. Such questions fell squarely within the High Court’s constitutional mandate under Articles 165(3)(b) and (d).The court further held that the petition was not a mere internal party dispute, but one implicating the legality of continued occupation of the offices of Governor and Deputy Governor, which are constitutional offices. Accordingly, the remedies available before political party organs or the PPDT were neither adequate nor effective to address the constitutional dimensions of the dispute.
On the argument that the court was being asked to remove a Governor and Deputy Governor contrary to the procedure set out under Article 181 of the Constitution and section 33 of the County Governments Act, the Court held that the petition did not directly seek removal through impeachment, but rather sought a constitutional declaration on the legal effect of alleged party defection. As such, the jurisdictional objection was premature and misconceived.
On the second issue for determination, court held that defection from a political party by a Governor or Deputy Governor does not automatically result in loss of office, and that in the present case, no defection—actual or deemed—was proved.
The court affirmed that while party discipline and political accountability were fundamental to Kenya’s multi-party democracy, the Constitution draws a clear distinction between the consequences of party defection for Members of Parliament and Members of County Assemblies under Article 103 and Article 194, and those applicable to Governors and Deputy Governors. Notably, the Constitution does not provide that a Governor or Deputy Governor vacates office merely by ceasing to be a member of the sponsoring political party.
The court further held that resignation or deemed resignation from a political party was a formal, evidentiary process governed by section 14 of the Political Parties Act, requiring proof of resignation, expulsion, or lawful termination of membership. In this case, the Petitioners failed to discharge their burden of proof. There was no evidence of written resignation, no notification to the Registrar of Political Parties, and no party resolution terminating the Respondents’ membership.
In the absence of such evidence, the Court found that the alleged public announcements and political realignments did not meet the legal threshold for defection or deemed resignation. Consequently, the court declined to declare that the 1st and 2nd respondents had resigned from their offices or to grant the consequential reliefs sought.
The court in its final determination dismissed the petition in its entirety, with no order as to costs.