The High Court has dismissed a Petition that sought to have Parliament found in breach of its mandate over delayed enactment of a Law for recall of elected leaders by the electorate.
In the Judgement delivered by Justice Roselyne Aburili, the Court ruled that the said Petition had been filed prematurely as the National Assembly was in the process of considering the requiscite Law to operationalize the recall process pursuant to Article 104 (1) of the Constitution.
The Court indicated that the National Assembly was currently considering the, Elections (Amendment) (No. 2) Bill, 2024; thus Parliamemt ought to be allowed to complete the legislative process without judicial interference.
“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,” Ruled Justice Aburili.
The said Petition dates back to July 14, 2017 when the High Court; in a Petition then filed by Katiba Institute, decalared sections of the Election Act and the County Governments Act as unconstitutional for imposing “discriminatory and overly restrictive conditions,” as it failed to provide a clear legal mechanism for recall for all cadres of elected representatives including MPs and Members of County Assemblies (MCAs).
Following that Judgment, Parliament amended the County Governments Act in 2020 to provide a workable recall mechanism for Members of County Assemblies (MCAs) but failed to enact one for MPs.
It was in the aftermath of that process that a group of Petitioners wrote to the Independent Electoral and Bounderies Commission (IEBC) on August 21, 2024 inquiring on the modalities and procedures for recalling the Senator for Tharaka Nithi County, Sen. Mwenda Gataya Mo Fire.
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The IEBC on September, 9, 2024 indicated that it could not recall MPs on the premise that it was not fully constituted at the time and that the enabling Law to effect the process had not yet been enacted.
Upon reconstitution of the IEBC with the appointment of new commissioners, the Petitioners wrote a followup letter to the IEBC on July, 23,2025 to which the Commission issued a public statement reiterating its earlier position.
Aggrieved by the said response; the Petitioners including Mr. Newton Mugambi, Mr. Dennis Mwaki, Ms Agnes Mwende and three others challenged the IEBC position before the High Court in the suit where the National Assembly and the Office of the Attorney General were also listed as respondents.
In the final Judgement, Justice Aburili ruled that the constitutional right to recall under Article 104(1) is not self-executing and can only be operationalized through enabling legislation enacted by Parliament.
Additionally, the Court clarified that the IEBC cannot create substantive recall procedures in the absence of legislation, as this would amount to usurping Parliament’s legislative function.
The judgment therefore preserves Parliament’s constitutional role, provides clear guidance on the operationalization of the right to recall, and gives the National Assembly the necessary space to complete the legislative process.
It thus held that the petition was premature because Parliament is actively considering the requisite legislation and underscored the need to allow the legislative process to run its course without judicial interference.
