SUMMARRY OF FACTS ALLOWED IN THE PETITION
2.The Petition is grounded on the following facts, summarized herein;-
3.That section 33 of the County Government’s Act No 17 of 2012 that was enacted to give effect to Article 174 of the constitution on the objects of devolution to Article 175 principles of devolved government and Article 181 on removal of a County Governor are inconsistent and renders the governors impeachment invalid under Article 2(4) of the Constitution.
4.The Constitution has provided removal of county Governors under Article 181(1) on four grounds but has failed to declare whose mandate it is to remove County governors.
5.Article 181(2) merely empowered parliament to enact legislation on procedure of removing county governors but not the entity that would have carried out the mandate.
6.That parliament is regarded article 181(2) and enacted section 33 County Governments Act No 17 of 2012 which overreached itself and conferred removal of / impeachment mandate upon 47 County Assemblies and senate that impeached 4th and 5th interested partied who have been barred from seeking /holding public office.
7.That Article 200 (1) of the Constitution empowers Parliament to enact legislation to give effect to chapter 11 of the Constitution on devolution which read with Article (2) (d) and (e) does not empower parliament to confer impeachment of county governors upon county assemblies’ member.
8.That refusal of the 6th interested party to register candidacy of the 4th and 5th Respondent violated the constitutional provisions and right and freedoms guaranteed in the Constitution.
9.That denotation of the role of impeachment to the County Assembly and the Senate under section 33 county government Act No 17 of 2012, Parliament acted ultra vires.
10.That role accorded to the county assembly under Article 185(3) was an oversight over the county executive committee and any other county executive organ but the Constitution did not anticipate oversight role would extend to or include removal or impeachment of County Governor Act No 17 of 2012 purported to do.
11.That Parliament acted inconsistently with Article 6(2) constitution that provides county levels are distinct and inter-dependent and shall conduct their roles on the basis of cooperation.
12.Parliament failed its obligation under Article 190 (1) of the constitution to enact legislation that would ensure County governments have adequate support to enable them perform their functions.
13.That role ascribed to senate in removal of impeachment of governors under section 33 county Governments Act No 17 of 2012 is inconsistent to mandate given to senate under Article 96 (1) Constitution.
14.The Constitution could have been specific if it intended for the senate to participate in impeachment of County Governors as it did under Article 96(4) where it granted the senate oversight role over state officers.
15.That 4th and 5th Respondent are entitled to protection under the Constitution and their removal from office was premature, void and invalid and cannot be allowed to stand.
16.Consequently standing orders applied by county Assemblies of Nairobi and KIambu and senate to impeach 4th and 5th interested parties were founded on impugned section 33 of the County Government’s Act No 17 of 2012 are unconstitutional, void and invalid.
17.On whether a prima facie case has been made out, the Petitioner submitted that this is a public interest petition as set out under paragraph 10 of the Amended Petition dated 8th September 2022 which is a novel case that questions the constitutionality of Section 33 of the County Government Act No. 17 of 2012 on grounds that:
18.Article 181 (2) of the Constitution empowered Parliament to enact legislation only on the procedure for the removal of county governors on the four (4) grounds enumerated under Article 181 (1) thereat. However, Parliament overreached itself and acted ultra vires Article 181 (2) of Constitution by deciding on the mode of removal through impeachment, and by empowering both the County Assemblies and the Senate to impeach county governors which powers were not granted by the Constitution;
19.If removal of county governors under Article 181 (1) of the Constitution were to be by impeachment, through the County Assemblies and the Senate, then the Constitution should have expressly provided so, as it provided elsewhere under Article 104 and 145 (1) on the mode and manner of recalling a Member of Parliament and the impeachment of the President of the Republic of Kenya respectively, or even granted parliament powers to enact enabling laws over and above the guiding or procedural laws that Parliament was empowered to enact under Article 181 (2) of the Constitution;
20.The County Assemblies’ oversight role under Article 185 (3) of the Constitution does not extend to the county governors or to the impeachment of county governors or to participate in their removal from office but has a limited role over county executive members;
21.The Senators’ role under Article 96 (1) of the Constitution to represent the counties and to protect the interest of counties and their governments, or under Article 98 (2) thereof that empowers it to only vote on matters affecting counties generally or as a collegiate, did not empower it to deal, as a collegiate, with the issue of impeachment as a specific county government, which is the sole business of that county government, of course within the parameters of the Rule of Law: there is no power, within the Constitution, that permits the senate to impeach county governors;
22.Parliament, by enacting section 33 of the County Governments Act No. 17 of 2022 as it did, therefore acted ultra vires its mandate under Article 190 (1) and 200 (1), (2) (d) and (e) of the Constitution;
23.Articles 259 (3)(a) and (11) of the Constitution bound parliament, the County Assemblies and the Senate to only exercise powers prescribed to them, in the manner prescribed;
24.All these public institutions therefore violated the cardinal precept of Constitutional Law, the supremacy of the Constitution, which is guaranteed under Article 2 (1) of the Constitution, and which provides that the Constitution is the supreme law of the Republic of Kenya which binds all persons and all state organs at both levels of government. In addition, they usurped Article 2 (2) of the Constitution that provides that no person may claim or exercise State authority except as authorized under the Constitution; and
25.Consequently, the 1st and 2nd Respondent’s standing orders on impeachment of county governors and their respective decisions or resolutions to impeach the 4th and 5th interested parties are unconstitutional, invalid, null and void, and so are the subsequent decisions that implemented those impeachment decisions, or the actions that proceeded in the enforcement or legitimization: the 4th respondent’s decision to bar both the 4th and 5th interested parties from participating in the general elections of 23rd August 2022 for the Kiambu County gubernatorial elections for Mombasa on the 29th August 2022, those elections, the declaration, gazettment and swearing in of the county governors, now especially of the 6th interested party as the county governor of Mombasa that is scheduled for the 15th September 2022.
26.The petitioner therefore humbly submits that the case has a high probability of success, having raised a prima facie case that demonstrates the unconstitutionality of the legal provisions, the standing orders and the decision to impeach the 4th and 5th interested parties.
27.On whether irreparable harm shall be suffered unless interim relief to stop the swearing in and assumption of office by the Mombasa County Governor elect, the 7th Interested Party is stopped or stayed, the Petitioner submitted that Article 176 (1) of the Constitution establishes the county government which consists of the county assembly and the county executive, of which the county governor and his deputy are the chief executive and the deputy chief executive of the county respectively under Article 179 (4) thereunder. The county governor is discretely elected by registered voters in the county under Article 180 (1) of the Constitution. That by locking out the 4th and 5th interested parties from contesting the gubernatorial elections of Mombasa and Kiambu counties respectively, the public, rate payers and citizens of those counties were denied the opportunity to elect their respective leaders from an array of qualified contesters which, in turn, violated their, and the 4th and 5th interested parties’ political rights that is protected under Article 38 of the Constitution.
28.The Petitioner submitted that the Applicant has lodged the application herein to stop the swearing in of the 6th interested party in order to arrest the constitutional violations set out in the petition, which shall be rendered nugatory, otiose and a mere academic exercise if the swearing in scheduled for the 15th September 2022 by this court proceeds.
29.The Petitioner further submits that it shall be in the public interest to allow the interlocutory application, and further that there shall be no vacuum or lacunae even if the orders sought is granted. Indeed, in the absence of the county governor, the county executive committee, currently in office, shall continue in office till a new county executive committee shall take over 21 days from the swearing in of the members of the county assembly of Mombasa, under section 42 (2) of the County Governments Act No. 17 of 2011. That moreover, the executive authority of the county government is exercised by the county executive committee and not the county governor unilaterally, under Article 179 (1) of the Constitution. That consequently, stopping the assumption of office of the 6th interested party shall not prejudice the functions of the subject county, but shall protect the rights of the public in that county.
30.The Petitioner relied on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others  eKLR which was adopted in Adrian Kamotho Njenga v Selection Panel for the Appointment of commissions of the Independent Electoral and Boundaries Commission (2021) & 2 Others; Independent Electoral and Boundaries Commission  eKLR where it was held that conservatory orders, consequently, should be granted on the inherent merit of the case, bearing in mind the public interest, the constitutional values, and the proportionate magnitude, and priority levels attributed to the relevant causes. The Petitioner also cited the case of Katiba Institute & Anor v The Attorney General & Anor  eKLR and the Council of Governors & 3 Others v Senate & 53 Others  eKLR.
ANALYSIS AND DETERMINATION
31.Having considered the application the grounds and the supporting affidavit by the Petitioner/ Applicant, this court finds that a prima facie case has not been established to warrant the grant of a conservatory order as it is not satisfactory that the Respondent and Interested Parties were properly served.
32.The reliefs being sought by the Applicant are a declaration that Sec. 33 of the County Governments Act is unconstitutional and inconsistent with several articles of the constitution and it is not directly related to the assumption of the office of the Governor of Mombasa County alone but also the impeachment of the 4th & the 5th Interested Party who were governors of Nairobi and Kiambu Counties respectively. It is therefore the view of this court that before any far reaching orders are issued, the parties ought to be given an opportunity to respond to the petition which should then be disposed as per the directions of the court.
33.The Amended Notice of Motion dated 26th August 2022 is not allowed. The Petitioner should serve the persons holding the offices cited herein as parties for directions on disposal of the substance of the petition on 19th September 2022 before the Presiding Judge.