Analysis and Determination
9.Having considered the pleadings herein and the submissions on record, the court finds the issues for determination to be (a) whether the Petition and the Notice of Motion filed thereunder is competent; (b) the grant of prayers sought will amount to grant of the final orders of the Petition; and (c) whether the application for conservatory orders pending hearing of the petition is merited.
Right of appeal under Standing Order 155?
10.In allowing the application dated 3/5/2023 to proceed to hearing despite the respondents’ strong urging for the doctrine of constitutional avoidance or judicial restraint in matters capable of resolution by other lawful means, the court had considered that it had not been demonstrated that there existed an alternative process for challenging the suspension under the law or standing orders.
11.The Counsel for the 1st respondent pointed to Standing Order No. 155 of the Isiolo County Assembly Standing Orders and urged that there was right there a procedure for appealing the Speaker’s decision to the Committee on Privileges. Whether the said Standing Order provides for an appeal from the decision of a Speaker under Standing Order 112 is a matter for determination at the hearing of the Petition.
12.At this stage, having read the Standing Order No. 155, the Court considers that there is an arguable case that no procedure for appeal is provided for, and consequently, the petitioners’ right to fair hearing is to the extent of lack of an appeal or other procedure to challenge the adverse decision.
Anerita Karimi Njeru standard
13.The Counsel for the 2nd respondent objected to the Notice of Motion on grounds that the petitioners had not complied with the rule on specificity of pleading in constitutional cases as established in Anerita Karimi Njeru v. AG and approved in Mumo Matemu supra. This Court has previously considered the Rule in Anerita Karimi Njeru in the case of Nairobi Hc Petition No. 284 of 2016, Bryson Mangla v. Attorney General & Others, as follows:
14.The test is one for (a) “reasonable degree of precision that of which he complains”, (b) “the provisions said to be infringed”, and (c) “the manner in which they are alleged to be infringed”. The Applicants are accused of reciting Articles of the Constitution in the petition without particularly demonstrating how the same were violated, as authoritatively stated in the Anarita Karimi Njeru Case (Supra). The Court considers that the Applicants/Petitioners’ case for breach of constitutional right to fair hearing is reasonably discernable from the facts supporting the petition as one alleging breach of due process and the unavailability of an avenue for appeal against an impugned decision, and the Respondents and the Court are no embarrassed in understanding the case they, respectively, have to respond to and adjudicate on. The Court finds that the petitioners’ case is “clear and elaborate to enable the respondent know the case it has to meet and the court the question it will be asked to determine.”
15.While the Petitioners may not have pleaded their case in an elegant manner, connecting each fact to the relevant constitutional violation alleged, this court does not see that the respondents were in any way embarrassed in their response by the manner of pleading in the Petition. The Petitioners’ case appears simply to be that the 2nd respondent’s decision made through the internal memo offended the petitioners’ rights to fair trial, etc. While the Petitioners set out paragraphs 18-44 of the Petition the constitutional, statutory and regulatory provisions relied on, the facts of breach of the constitution, statute and regulations is set out in the statement of facts at paragraphs 6-17 of the Petition as follows:
16.The Petitioners clearly comply with the requirements of specificity set out in Anerita Karimi Njeru v. The Republic case. This Court finds that in the alleged failure to afford the Applicants a fair hearing and/or a mechanism for appealing against the decision, the Petitioners have presented a prima facie case, or an arguable case at the very least, fit for further investigation upon full hearing of the Petition by the court. With respect, and without making a concluded view on the matter, the Court does not find that Standing Order 155 of the Isiolo County Assembly Standing Orders afford the necessary procedure for appeal from the decision of the 2nd Respondent impugned herein.
17.All parties agreed on the applicable principles for the grant of conservatory orders as set out by the Supreme Court of Kenya in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Civil Application no. 5 of 2014,  eKLR, (para. 86) that –
18.The appreciation of this court of these principles was set out in Nairobi Const. Pet. No. 206 of 2016 Satinderjit Singh Matharu V. Armajit Singh Gahir & 5 Others, as follows:
19.The Applicants are only concerned with the actions of 28/3/2023 and not those of 27/3/2023. The Applicants are in this petition challenging the constitutionality of the internal memo of 28/3/2023 suspending them from house sittings for a period of 21 days. And therefore, the question before the court is whether the said suspension was in accordance with the law and the Constitution. The issues of sub judice and res judicata, regurgitated by Counsel Lesaigor for the 1st Respondent and Theuri for the 2nd Respondent during their oral submissions in this application, with respect, have been exhaustively addressed by this court in its ruling dated 5/6/2023 rejecting the Preliminary Objection thereon.
20.The Applicants in their application dated 3/5/2023 seek conservatory orders to resume their duties at the County Assembly of Isiolo and leave to apply for certiorari for purposes quashing the internal memo dated 28/3/2023 for being in breach of standing orders 42, 108, 109, 110, 111, 112, 158 and 160 of the County Assembly of Isiolo Standing Orders and Articles 47, 48 and 50 of the Constitution.
21.According to the internal memo dated 28/3/2023, the Applicants are accused of attacking the persona of the Speaker, a conduct deemed to be gravely disorderly, thereby violating the provisions of Standing Order 112 (1a,c) of the Isiolo County Assembly Standing Orders. That Standing Order provides that:
22.The Applicants seek conservatory orders to resume their roles and functions as members of the county assembly of Isiolo with the privileges accruing thereto ante 27th of March 2023. There can be no dispute that the act of attacking the persona of the Speaker within the precincts of the Assembly is in itself uncouth and it deserves punishment in line with the provisions of Standing Order 112 of the County Assembly of Isiolo Standing Orders. The applicants’ case, however, appears to be that before the said punishment is inflicted upon them, the Applicants must be accorded a fair hearing and/or an avenue for appeal against the said decision in line with the provisions of Articles 47 and 50 of the Constitution.
23.That is what the rights to a fair administration act and fair hearing under Articles 47 and 50 of the Constitution entail. The Court in Republic v Firearms Licensing Board &another; Ex parte Jimi Wanjigi  eKLR, (John M. Mativo J. as he then was), while appreciating the importance of the right to a fair hearing held that:
24.There is, of course, the allegation that the 2nd respondent Speaker’s exercise of the disciplinary powers under the Standing Orders were taken “outside the precinct of the house [when] the 2nd respondent made an adverse, irrational, arbitrary and in open abuse of discretion a decision against the Applicants who opposed the attempts to breach House Standing Orders and Procedures and suo moto suspended them for 21 sittings.”It would appear that Standing Order No. 112 prescribes discipline with regard to conduct, as relevant here, “in the Chamber or Committee”.
Final orders at Interlocutory stage
25.The court notes that the Petitioners in their Petition seek specific reliefs thatThe court is minded, as urged by Counsel for the 2nd Respondent, that in granting those orders in those terms at this interlocutory stage would summarily determine the Petition without affording the parties herein an opportunity to be heard on the full petition.
26.The Court accepts that the grant of prayer no 3. of the Notice of Motion on judicial review in the context of this constitutional petition would be to grant an aspect of a final order. It is a clear misapprehension by the Petitioners of the remedy of judicial review under article 23 of the Constitution. The grant of leave to commence judicial review application is only necessary in proceedings under Order 53 of the Civil Procedure Rules. Under Article 23 (3) of the Constitution, the Court is empowered to grant appropriate relief including an order of judicial review, which is the final orders of certiorari, mandamus and prohibition not leave to commence proceedings which the petitioner by the constitutional petition will already have commenced. Prayer no. 3 of the Notice of Motion herein is, with respect, misconceived.
27.In prayer no. 2 of the Notice of Motion which the petitioners, by prayer no.4 thereof seek in the interim pending the hearing of the Petition, an order is sought for –
28.The grant of this order in whole would be the grant of the prayer no. 3 of the Petition. The Court considers, however, that there is scope under the prayer No. 4 of the Notice of Motion to fashion appropriate orders in accordance with the provisions of Article 23 (3) of the Constitution limited to the interlocutory stage and leaving the main petition for full hearing.
29.The Court is empowered to fashion a suitable remedy under the circumstances of the case before it in terms of Article 23 (3) of the Constitution which provides as follows:
30.The appropriate relief in this matter having regard to all the circumstances of the case is for an order that uphold the representation of the people of the County Assembly Wards affected while holding in abeyance the question of the privileges and allowances of Members of the County Assembly. This interlocutory order pending the hearing of the Petition is fashioned as an appropriate relief by way of a conservatory order to facilitate the participation of the Members in the deliberations of the County Assembly and therefore representation of inhabitants of their respective Wards of the County Assembly of Isiolo. This flows from the prayer no. 2 as read with No. 4 of the Notice of Motion, and, with respect, the court does not thereby address, as urged by Mr. Theuri, Counsel for the 2nd respondent, an unpleaded matter.
31.The issue of bestowal and payment of any privileges and allowances, which is personal and private to the office of the particular Members of the County Assembly must await the determination of the Petition on the validity of the suspension by the 1st Respondent Speaker of the County Assembly. Private law factor of substantial loss or ““the prospects of irreparable harm” occurring during the pendency of the case” as held in Peter Gatirau Munya case is not a consideration for grant of conservatory orders. The Court does not consider as substantial loss, even if that were an ingredient of the test for conservatory order, such loss of allowances whether to the petitioners or persons and offices associated with them as Mr. Mwendani, Counsel for the Petitioners, sought to introduce by submissions before the court. In any event, not being pleaded evidence of the specific loss of allowances may not be introduced by way of submissions, written or oral.
32.When all is said and done, Counsel for the Petitioners has failed to present a compelling case for the issue of the conservatory orders sought herein for the resumption of the suspended petitioners to the privileges, prestige, allowances, or perks of their offices.
33.However, as regards the complaint urged in that the members of the affected Wards of the County of Isiolo are denied representation by the continued suspension, if wrongful suspension, of the Petitioners there is a public interest element consistent with the object of conservatory orders “to facilitate ordered functioning within public agencies”. While the Court investigates the validity of the suspension, the same may be stayed in the public interest consideration that the inhabitants, voters and the residents, of the Wards are continuously represented in the County Assembly, but the issue of private entitlements to the Members must await the determination on the validity of the suspension.
34.It is indubitable that the Respondents have power to discipline errant members of the County Assembly. It would be a strange thing to argue that a member of County Assembly who behaves in a manner dishonourable to the Assembly, its members, leadership or officers or and violently causes disruption of the proceedings of the House cannot be disciplined! The County Assembly is an august House whose business, proceedings and deliberations must be dignified and conducted with utmost honourable conduct, and there is no place for boisterous verbal and or violent physical attacks, real or threatened, or the reasonable apprehension thereof, among members or against the House leadership or the officers of the House.
35.While the Court does not condone breach of discipline by the Honourable Members of the County Assembly, and consequently would uphold the provisions of standing orders which empower the Speaker and the County Assembly to discipline by suspending a misbehaving member, it must also uphold the constitutional rights of a member to fair hearing before a decision to suspend is arrived at by either of the two competent authorities. Where such fair hearing is allegedly not given, the affected party in enforcement of his rights may appeal, in accordance with the procedure therefor prescribed, if any, and or to the Court as the guarantor of constitutional Bill of Rights.
36.For avoidance of doubt, the Court makes an order staying the suspension of the Members to the extent only that they are allowed to participate in the debate in committee and plenary sessions, as applicable, to enable them effectively represent their constituencies. The question of privileges and payment of any allowances to the Members of the County Assembly petitioners herein shall await the determination of the Petition, or further orders of the Court.
37.Accordingly, for the reasons set out above the Notice of Motion dated 3/5/2023 filed herein is allowed in terms of prayer no. 2 as read with prayer no. 4 thereof, to the extent limited to allow the attendance and participation of the Petitioners as Members of County Assembly in the debates and proceedings of the County Assembly and its Committees for the effective representation of the inhabitants of the respective Wards of the County Assembly that they represent.
38.For clarity, the Court does not authorize the resumption of the Petitioners to the membership and or leadership of Committees of the Isiolo County Assembly from which they may have been removed or de-whipped by the Kenya Kwanza Coalition Party, which matter is pending determination before the Political Disputes Tribunal as PPDT E001/2023 Nairobi or elsewhere.
39.Further, the Court does not make any order for the stay of the suspension with regard to privileges and payment of allowances, which will remain in force until the hearing and determination of the Petition or further orders of the Court.
40.There shall be no order as to costs.Order accordingly.