The High Court has dismissed a petition that sought to have Parliament declared in breach of its constitutional duty over the delayed enactment of a law to recall elected leaders.
Justice Roselyne Aburili of the Milimani High Court ruled that the case was filed prematurely, saying the National Assembly is already considering legislation to operationalise the recall process under Article 104(1) of the Constitution.
The judge said Parliament should be allowed to complete the legislative process before the courts intervene, noting that the National Assembly is currently considering the Elections (Amendment) (No. 2) Bill, 2024, which seeks to provide the legal framework for the recall of elected leaders.
“This petition is premature and not ripe for determination, and that the petitioners, as well as the Court, should let Parliament legislate and wait for the outcome,” Justice Aburili ruled.
The case was filed after concerns that Parliament had delayed putting in place a law to guide voters seeking to recall elected representatives, including Members of Parliament and Members of County Assemblies.
The dispute dates back to July 14, 2017, when the High Court, in a petition filed by Katiba Institute, declared sections of the Elections Act and the County Governments Act unconstitutional for placing “discriminatory and overly restrictive conditions” on the recall process.
The court at the time found that the laws did not provide a clear legal mechanism for recalling all categories of elected representatives, including MPs and MCAs.
Following the judgment, Parliament amended the County Governments Act in 2020 to create a recall mechanism for Members of County Assemblies, but did not pass a similar law for Members of Parliament.
The latest petition arose after a group of petitioners wrote to the Independent Electoral and Boundaries Commission (IEBC) on August 21, 2024, seeking details on the procedures for recalling Tharaka Nithi Senator Mwenda Gataya alias Mo Fire.
The IEBC responded on September 9, 2024, saying it could not initiate the recall of Members of Parliament because the commission was not fully constituted at the time, and the required law to guide the process had not been enacted.
After new commissioners were appointed to the IEBC, the petitioners wrote a follow-up letter to the commission on July 23, 2025. The commission later issued a public statement maintaining its earlier position.
Dissatisfied with the response, Newton Mugambi, Dennis Mwaki, Agnes Mwende and three others moved to court to challenge the IEBC’s position. The National Assembly and the Office of the Attorney General were listed as respondents in the case.
In her final judgment, Justice Aburili ruled that the constitutional right to recall elected leaders under Article 104(1) is not automatic and can only be implemented through enabling legislation passed by Parliament.
The court further held that the IEBC cannot develop recall procedures without a law from Parliament, as doing so would amount to taking over the legislative role of the National Assembly.
The judgment affirmed the separation of powers between state institutions and gave Parliament room to complete the process of enacting the law required to operationalise the recall of elected leaders.
The court concluded that the petition was premature because Parliament was already considering the necessary legislation and should be allowed to complete the process without interference from the Judiciary.
Comments
Sign in with Google to comment, reply, and like comments.
Continue with Google