County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party)
The bottom line
#Supreme Court: MCAs' term not reduced; office is a public trust, not property.
What this practically means
#The County Assemblies Forum argued that MCAs elected in 2013 had their term shortened by eight months because the next election was in August 2017 instead of March 2018. They wanted compensation. The Supreme Court said no. The Constitution works together: the election date is fixed for all positions, and the first term fell under transitional rules. Public office is not a property right, so MCAs cannot claim damages for serving a shorter term.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court is clothed with the requisite jurisdiction to determine this appeal?
- 2.The interpretation of article 177(1) and 177(4) of the Constitution; and whether there is a conflict between the said provisions vis-à-vis the date of the second general election of MCAs under the Constitution.
- 3.Whether there was a reduction of the term of office of MCAs elected in the first general election under the Constitution by virtue of the second general election being held on August 8, 2017;
- 4.If so, whether the MCAs in question had proprietary rights and/or legitimate expectation of holding their offices to the end of the elective term; and what reliefs, if any, are they entitled to.
- 5.Who should bear the costs of the appeal?
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear this appeal
The Court has jurisdiction because the appeal involves the interpretation and application of the Constitution, specifically articles 177(1) and 177(4).
The 2nd respondent challenged jurisdiction arguing the matter was an election dispute or employment dispute. The Court held that the central questions—interpretation of articles 177(1) and 177(4) and whether MCAs are entitled to damages—involve constitutional interpretation. The appeal originated from a Court of Appeal case where issues revolved around constitutional interpretation, satisfying the Lawrence Nduttu test. The Court also noted the High Court had jurisdiction under articles 22, 23 and 165 to hear rights enforcement claims, and joinder of SRC was unnecessary as the issue was not about quantum of compensation.
Whether there is a conflict between articles 177(1)(a) and 177(4) of the Constitution regarding the term of MCAs
There is no conflict between the two provisions; they can both be given effect simultaneously.
The Court applied the principle of holistic interpretation under article 259. Article 177(1)(a) provides that MCAs are elected on the same day as MPs, being the second Tuesday in August in every fifth year. Article 177(4) provides that a county assembly is elected for a term of five years. The Court noted that the 2017 elections were held on August 8, 2017, and the 2022 elections on August 9, 2022, demonstrating that both provisions can operate together. The first elections in 2013 were held under transitional provisions (sixth schedule), and the eight-month gap was a necessary consequence of the transition, not a conflict in the permanent provisions.
Whether MCAs had proprietary rights or legitimate expectation to hold office for the full five-year term
MCAs had no proprietary rights or legitimate expectation to hold office for the full five-year term; public office is not property.
The Court reviewed extensive comparative jurisprudence from the US, Philippines, and South Africa, and its own decisions in Tunoi and Rawal. It held that public office is a public trust, not the private domain of the office holder. The right to hold office under article 38(3)(c) is subject to the Constitution's other provisions. The MCAs' term ended by operation of the Constitution (the requirement to hold elections on the second Tuesday in August), not by an arbitrary act. There was no express, clear promise by a public authority to sustain a legitimate expectation claim. The reduction was a transitional compromise affecting all elective offices.
Legal principles established
#- Article 177(1)(a) and 177(4) can both be applied; there is no conflict.
- The election date for MCAs is the same as for other elective positions: second Tuesday in August every five years.
- Public office is not property; the holder has no proprietary right or legitimate expectation to hold the full term.
- Transitional provisions are temporary; once they serve their purpose, the permanent provisions apply.
- The eight-month reduction in the first MCAs' term was a necessary compromise of the transition.
- The Supreme Court has jurisdiction under Article 163(4)(a) for constitutional interpretation appeals.
Court orders
#- 1.The petition of appeal dated December 22, 2017 by the appellant is hereby dismissed.
- 2.Given the nature of this matter, being one of public interest, we order that each party shall bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 147 of 2017
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the Court of Appeal violated constitutional rights of MCAs under articles 10, 38(3)(c) and 177(4)
The Court found no conflict between articles 177(1)(a) and 177(4) and that the MCAs' term ended by operation of the Constitution, not by violation of rights.
Order setting aside the Court of Appeal judgment and reinstating the High Court judgment
The Supreme Court upheld the Court of Appeal's finding that there was no conflict between the provisions and that the High Court's award of compensation was erroneous.
Compensation for the unexpired eight-month term of MCAs
Public office is not property; MCAs had no proprietary right or legitimate expectation to hold office for the full five-year term given the transitional context.
Costs
each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we are clear in our view, that there does not exist a conflict between articles 177(4) and 177(1) of the Constitution, apparent or otherwise.
public office to which a portion of the sovereignty of the people, either legislative, executive or judicial, attaches for the time being and which is exercised for the benefit of the public, does not vest in the holder of the office the right to property of the office.
The eight-month gap was a compromise that the Kenyan people and by extension, their elected leaders had to make in order to complete the transition from the old constitutional order to the new.
The petition of appeal dated December 22, 2017 by the appellant is hereby dismissed.
Given the nature of this matter, being one of public interest, we order that each party shall bear their own costs.
Key timeline
#Practical implications
#Constitutional interpretation guided
When arguing conflicts between constitutional provisions, adopt a holistic approach under Article 259. The Court rejected claims of irreconcilable conflict and showed both provisions can operate together. Also, arguments based on legitimate expectation or property rights in public office will fail unless a clear, express promise is shown.
No property rights in offices
Businesses dealing with county governments should note that elective offices are not contractual positions. If a business relies on an MCA's continued tenure for a contract, the MCA's term may end by operation of law without compensation. Plan for transitions and do not assume fixed five-year terms for MCAs.
Voters: term fixed by law
As a voter, you can expect MCA elections to align with other national elections every five years on the second Tuesday in August. The first term after the 2010 Constitution was a one-time transitional adjustment. Your vote determines who holds office, but the term length is set by the Constitution, not by the officeholder.
Frequently asked questions
#Do MCAs in Kenya have a fixed five-year term?+
Yes, under Article 177(4) the county assembly is elected for a term of five years. However, the election date is fixed by Article 177(1)(a) as the second Tuesday in August every five years. The first MCAs elected in 2013 served a slightly shorter term due to transitional arrangements, but the permanent provisions now give a full five-year term.
Can MCAs in Kenya sue for reduced term and compensation?+
No, the Supreme Court in County Assemblies Forum v Attorney General (2023) held that public office is not property. MCAs have no proprietary right or legitimate expectation to hold office for the full five years if the term ends by operation of the Constitution. They cannot claim damages for a reduction caused by transitional provisions.
Is there a conflict between Article 177(1)(a) and 177(4) in Kenya?+
The Supreme Court ruled there is no conflict. Article 177(1)(a) sets the election date (second Tuesday in August every five years), and Article 177(4) sets the term at five years. Both can be applied together. The first MCAs' eight-month reduction was a transitional compromise, not a contradiction.
What is the election date for MCAs in Kenya?+
Under Article 177(1)(a) of the Constitution, Members of County Assemblies (MCAs) are elected on the same day as Members of Parliament: the second Tuesday in August in every fifth year. This applies to all general elections, as confirmed by the Supreme Court in County Assemblies Forum v Attorney General (2023).
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wamalwa & another v Cabinet Secretary, Ministry of Education & 12 others (Constitutional Petition E011 of 2024 & Petition E009 of 2024 (Consolidated)) [2025] KEELRC 2615 (KLR)[2025] KEELRC 2615 (KLR)26 Sept 2025
- Attorney General & another v Muiu & another (Civil Appeal E146 of 2021) [2025] KECA 816 (KLR)[2025] KECA 816 (KLR)9 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party)", Case Analysis (2022). Petition 22 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/66/eng@2022-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.