Case Citation & Summary

Case Name: Hon. Kawira Mwangaza vs. Speaker of the Senate of Kenya
Citation: Constitutional Petition No. E429 of 2024, High Court of Kenya at Nairobi, Constitutional and Human Rights Division, [2025] eKLR
Date of Judgment: 14 March 2025
Presiding Judge: Hon Bahati Mwamuye

In this pivotal ruling, the High Court of Kenya at Nairobi dismissed a petition by Hon. Kawira Mwangaza, the former Governor of Meru County, challenging her impeachment by the Senate on 21 August 2024. The impeachment stemmed from a motion by the Meru County Assembly on 8 August 2024, upheld by the Senate, citing gross misconduct, abuse of office, and constitutional violations. Mwangaza alleged procedural irregularities, defiance of a Meru High Court order, violation of the sub judice rule, denial of a fair hearing under Article 50(1), and failure to meet the impeachment threshold under Article 181(1) of the Constitution of Kenya, 2010. The court rejected these claims, finding that the Senate acted within its constitutional mandate, no clear court order was defied, the sub judice rule was not breached, and fair hearing standards were met. The judgment affirmed Gazette Notice No. 10351 (Vol. CXXVI-No. 130, 21 August 2024), solidifying the Senate’s decision and reinforcing judicial restraint in legislative impeachment processes.

Introduction

The High Court’s decision in Hon. Kawira Mwangaza vs. Speaker of the Senate of Kenya is a cornerstone in Kenya’s constitutional jurisprudence, particularly within the devolved governance framework established under the 2010 Constitution. This case addresses the judiciary’s role in overseeing impeachment—a quasi-political process designed to ensure accountability of county executives—while clarifying procedural and constitutional boundaries. The ruling tackles critical issues: the extent of judicial oversight over legislative actions, the application of the sub judice rule in parliamentary proceedings, and the standards for fair hearing in quasi-judicial legislative functions. By dismissing Mwangaza’s petition, the court reaffirmed the Senate’s constitutional authority under Article 181 and emphasized that judicial intervention is limited to procedural compliance rather than substantive merit review, unless the legislative decision is manifestly unreasonable. This judgment not only strengthens the Senate’s role in gubernatorial accountability but also highlights the delicate balance between judicial oversight and legislative autonomy in Kenya’s devolved system.

Background of the Case

Hon. Kawira Mwangaza was elected Governor of Meru County in the 8 August 2022 General Elections. Her tenure was marked by persistent impeachment attempts, reflecting political tensions within the county. The impeachment at issue originated from a motion dated 31 July 2024, passed by the Meru County Assembly on 8 August 2024, alleging gross misconduct, abuse of office, and violations of the Constitution and the County Governments Act, No. 17 of 2012. Specific charges included nepotism, financial mismanagement, and breaches of devolved governance principles. The motion was forwarded to the Senate on 9 August 2024, pursuant to Article 181(2) and Section 33 of the County Governments Act.

The Senate convened a special sitting on 14 August 2024, opting not to delegate the matter to a Special Committee but to hear it as a Committee of the Whole House. Hearings occurred on 19 and 20 August 2024, with both the County Assembly and Mwangaza presenting their cases. On 21 August 2024, the Senate voted to uphold the impeachment, with the decision gazetted via Gazette Notice No. 10351 on the same day. Mwangaza challenged this resolution through a petition filed on 21 August 2024, amended on 23 December 2024, alleging multiple constitutional breaches, including defiance of a Meru High Court order from 24 July 2024, violation of the sub judice rule due to pending litigation, and denial of a fair hearing. She sought conservatory orders, granted ex parte on 21 August 2024 and confirmed inter partes on 18 December 2024, pending the petition’s determination.

The case involved several interested parties, including the Council of Governors, FIDA Kenya, and the Meru County Assembly, reflecting its broader implications. Written submissions were filed between January and February 2025, with oral highlights concluding by 26 February 2025. The court delivered its judgment on 14 March 2025, within the 120-day period of the conservatory orders.

Legal Issues and Court’s Reasoning

The High Court identified seven key issues for determination, addressing each with detailed reasoning grounded in constitutional law, statutory interpretation, and judicial precedent. Below is a breakdown of each issue and the court’s findings.

1. Propriety of the Respondent and Orders Against the Senate

Issue: Was the Speaker of the Senate a proper respondent, and could orders issue against the Senate despite its non-joinder?
Arguments: Mwangaza argued the Speaker was the appropriate respondent, citing his role in presiding over the impeachment (Martin Nyaga Wambora v Speaker of the Senate [2014] eKLR). The respondent contended the Senate, not the Speaker, made the decision, rendering the petition defective.
Reasoning: The court held that the Speaker, sued in his official capacity, adequately represented the Senate under Article 125. Citing Rule 5(d)(ii) of the Mutunga Rules and Article 159(2)(d), it emphasized substantive justice over procedural technicalities. Precedents like Trusted Society of Human Rights Alliance v AG [2012] eKLR supported this, noting that misjoinder does not defeat a petition if the institution is effectively represented. The Speaker’s robust defense confirmed no prejudice arose, allowing orders against the Senate if warranted.

2. Defiance of a Court Order

Issue: Did the Senate violate a valid Meru High Court order from 24 July 2024?
Arguments: Mwangaza claimed the order halted all impeachment motions, and a contempt ruling on 13 February 2025 confirmed this. The respondent argued the order applied to an earlier motion (17 July 2024), not the one at issue (31 July 2024), and was not served on the Senate.
Reasoning: The court found the order’s scope ambiguous and not formally communicated to the Senate, a non-party to the Meru proceedings. A contempt ruling postdated the Senate’s actions, and a Court of Appeal stay (Civil Application No. E020 of 2025) on 5 March 2025 suspended its execution. Citing Katiba Institute v Attorney General [2020] eKLR, the court held non-parties are not bound without clear knowledge. Mwangaza’s failure to raise a formal objection before the Senate further weakened her case, granting the respondent the benefit of doubt.

3. Sub Judice Rule

Issue: Did the impeachment violate the sub judice rule due to pending litigation?
Arguments: Mwangaza alleged that charges (e.g., employment disputes) were sub judice, breaching Senate Standing Order 92. The respondent invoked the public interest exception and denied prejudice to judicial proceedings.
Reasoning: The court noted Standing Order 92 permits proceedings in the public interest, as per Kenya National Commission on Human Rights v Attorney General [2020] eKLR. It required Mwangaza to prove substantial prejudice, which she failed to do. The Senate’s resolution did not bind courts, and no threat to the rule of law was shown, preserving legislative autonomy under the separation of powers.

4. Constitutionality of Section 33(8) of the County Governments Act

Issue: Does Section 33(8), allowing reintroduction of impeachment motions after three months, violate Article 50(2)(o) (double jeopardy)?
Arguments: Mwangaza argued it permitted double jeopardy; the respondent countered that impeachment is a political, not criminal, process.
Reasoning: The court declined to rule, noting an identical challenge was pending in Meru High Court Petition No. E013 of 2024. It criticized Mwangaza’s dual litigation as “clever lawyering,” risking conflicting rulings, and deferred to the Meru proceedings filed earlier.

5. Public Participation

Issue: Was public participation adequate in the impeachment process?
Arguments: Mwangaza claimed it was deficient; the respondent argued it was the County Assembly’s responsibility, not the Senate’s.
Reasoning: The court held that Articles 10(2)(a) and 196(1)(b) impose public participation duties primarily on the County Assembly. Since Mwangaza’s challenge targeted the Assembly (pending in Meru) and no orders were sought against it here, the court lacked jurisdiction to assess this issue within this petition’s scope.

6. Impeachment Threshold

Issue: Did the charges meet the Article 181(1) threshold?
Arguments: Mwangaza argued the allegations were administrative, not gross violations; the respondent asserted they were substantiated as gross misconduct.
Reasoning: Adopting Wambora [2014] eKLR , the court limited its role to process review unless the Senate’s decision was manifestly unreasonable. It found the charges (e.g., nepotism, mismanagement) met Article 181(1) standards, and Mwangaza failed to prove the Senate’s analysis was so flawed as to warrant interference.

7. Fair Hearing

Issue: Was Mwangaza denied a fair hearing under Article 50(1)?
Arguments: Mwangaza cited limited debate time, chaos, gender bias, and a predetermined outcome; the respondent defended the process as fair, with adequate opportunities provided.
Reasoning: The court examined six sub-issues:

• Opportunity to Present Case: Hansard and video evidence confirmed Mwangaza had sufficient chances to speak, represented by counsel (Republic v PPARB Ex parte Gibb Africa [2012] eKLR).
• Senators’ Deliberation: Three-minute debate limits, approved by a 31-9 vote, were procedurally sound (Judicial Service Commission v Mbalu Mutava [2015] eKLR).
• Disruptions: Alleged chaos was not prejudicial (Dry Associates v CMA [2012] eKLR).
• Gender Bias: No specific evidence of discrimination was shown.
• Predetermination: Date discrepancies in documents were clerical, not proof of bias (Section 107, Evidence Act).
• Overall Process: The Senate followed standard procedures, ensuring fairness. The court rejected Mwangaza’s claims, finding no substantive violation.

The judgment exposes procedural challenges, notably Mwangaza’s dual litigation strategy, which the court criticized as fragmented. This highlights a need for streamlined impeachment litigation, possibly through consolidated proceedings or legislative reforms to clarify public participation and multi-jurisdictional coordination. The court’s deference on Section 33(8) and public participation to the Meru case underscores judicial comity but leaves unresolved questions about double jeopardy and citizen engagement standards.

Comparison with Other Jurisdictions

Kenya’s approach contrasts with other jurisdictions:

• United States: Nixon v United States (506 U.S. 224, 1993) deems impeachment a political question, barring judicial review, unlike Kenya’s limited process review.
• South Africa: Economic Freedom Fighters v Speaker [2018] ZACC 47 permits constitutional compliance checks, akin to Kenya, though South African courts may probe fairness more deeply.
  Kenya’s hybrid model balances legislative discretion with constitutional oversight, reflecting its devolved governance structure, distinct from the U.S.’s restraint and South Africa’s broader interventionism.

Conclusion

The High Court’s dismissal of Constitutional Petition No. E429 of 2024 reaffirms the Senate’s constitutional role in gubernatorial impeachments while delineating judicial oversight limits. By rejecting claims of sub judice violations, fair hearing breaches, and court order defiance, the ruling upholds procedural integrity in quasi-judicial legislative functions and strengthens the separation of powers. However, it reveals gaps in managing multi-jurisdictional litigation and public participation, suggesting areas for reform. This decision will guide future impeachment challenges, ensuring accountability mechanisms remain robust and constitutionally compliant.

References

• Statutes:
  • Constitution of Kenya, 2010 (Articles 1, 10, 50, 96, 125, 159, 165, 181, 196).
  • County Governments Act, No. 17 of 2012 (Section 33).
  • Evidence Act, Cap 80 (Section 107).
  • Parliamentary Powers and Privileges Act, No. 29 of 2017 (Section 12).
• Case Law:
  • Martin Nyaga Wambora v Speaker of the Senate [2014] eKLR.
  • Mike Sonko v County Assembly of Nairobi [2021] eKLR.
  • Trusted Society of Human Rights Alliance v AG [2012] eKLR.
  • Katiba Institute v Attorney General [2020] eKLR.
  • Moses Kiarie Kuria v Attorney General [2021] eKLR.
  • Judicial Service Commission v Mbalu Mutava [2015] eKLR.
  • Nixon v United States, 506 U.S. 224 (1993).
  • Economic Freedom Fighters v Speaker [2018] ZACC 47.
• Rules:
  • Senate Standing Order 92.
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules).