Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others [2014] KECA 211 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that county assemblies and the Senate run a governor's impeachment, but courts can still review it for constitutionality.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the learned Judges err in law in holding that the County Assembly and the Senate (as opposed to the courts), were best placed to determine whether a motion for the removal of a Governor was in accordance with the Constitution?
- 2.Did the learned Judges err in law by failing to exercise their constitutional mandate under Article 165 (3) (d) (iii) and (iv) of the Constitution to determine whether the grounds for removal of the 1st appellant met the constitutional threshold under Article 181 of the Constitution?
- 3.Must there be a nexus between the allegations in the motion tabled in the County Assembly and the 1st appellant?
- 4.Was impeachment and removal of the 1st appellant as governor in accord with the Constitution and the County Governments Act?
Key legal issues
#Whether courts or the political organs are the forum for determining the validity of a Governor's removal
Removal of a Governor is a constitutional and political process, sui generis and quasi-judicial; the County Assembly and Senate are the organs vested with the mandate to initiate, consider and hear the removal, and courts have no role in those sequential steps
Article 181 as read with Section 33 of the County Governments Act establishes a hierarchical, three-step process: initiation by an MCA, resolution by two-thirds of the County Assembly, and hearing of charges by the Senate. Courts are not vested with jurisdiction at any step, consistent with the core function test and separation of powers. The court's role is confined to deciding individual rights.
Jurisdiction of the High Court over the impeachment process
The High Court has four distinct constitutional jurisdictions relevant to removal: supervisory jurisdiction under Article 165(6); jurisdiction to determine inconsistency with the Constitution under Article 165(3)(d)(ii); jurisdiction over constitutional powers of state organs in respect of county governments under Article 165(3)(d)(iii); and jurisdiction to interpret the Constitution. Article 181 and Section 33 are not ouster clauses.
The Senate and County Assembly are state organs subject to High Court jurisdiction. In its supervisory role the court ensures procedure and threshold are followed but cannot replace the competent organ's decision. Access to courts can only be removed by clear and unambiguous words, which do not exist here.
Nexus, personal wrongdoing and collective responsibility
Nexus between the Governor and the alleged gross violation must be proved; an element of personal knowledge including intentional, brazen or willful gross violation must be established. Collective responsibility is a policy, governance and accountability concept, not a principle of personal liability.
The removal process is neither a civil nor criminal trial but a sui generis quasi-judicial process. Kenya's legal system is premised on individual and personal liability. Treating collective responsibility as culpability would render all county officials answerable for subordinates' acts, which is not its intendment. The High Court erred in failing to determine whether nexus was established on the facts.
Standard of proof and definition of gross violation
The standard of proof is above a balance of probability but below beyond reasonable doubt; gross violation is determined case by case and includes violation of Article 10 values, Chapter Six, or intentional and/or persistent violation of any Article or other law. The charges must expressly allege gross violation with particulars.
The Constitution does not define gross violation; the court adopts the High Court's criteria (serious, substantial and weighty allegations; nexus; precise charges) and draws analogy with criminal charges requiring express particulars. The word 'gross' was omitted from the charges against the Governor, denying him proper notice.
Equal protection in the removal thresholds for Governor, President and MCA
The difference in procedure and grounds for removal of the President, Governor or MCA does not vitiate the constitutional process; different treatment of different offices is equality of treatment. 'Gross violation' and 'gross misconduct' in Articles 145 and 181 bear the same meaning.
Provisions in pari materia are construed to have the same meaning. However, equality does not connote absolute equality; the rule of differentiation is inherent in the doctrine of equality. Parliament has prescribed different procedures for different offices, and for MCAs the High Court must confirm grounds while for Governors the supervisory jurisdiction suffices.
Legal principles established
#- Removal of a Governor is a constitutional and political process, sui generis and quasi-judicial in nature; the County Assembly initiates the motion, the Senate hears the charges, and courts are not vested with jurisdiction to initiate a motion, consider a resolution or hear the charges
- The High Court retains supervisory and interpretive jurisdiction over the impeachment process under Article 165(3)(d)(ii), (iii) and 165(6), and Article 181 and Section 33 are not ouster clauses
- The political question doctrine and separation of powers cannot oust the High Court's jurisdiction to determine the constitutionality of any action
- In its supervisory role the High Court cannot substitute its decision for that of the competent organ; it may only find fault with the decision for unconstitutionality, irrationality or procedural impropriety
- The standard of proof for removal of a Governor is above a balance of probability but below beyond reasonable doubt
- There must be a nexus between the alleged gross violation and the conduct of the Governor; collective responsibility is not a principle of personal liability and personal knowledge including intentional, brazen or willful gross violation must be established
- Where gross violation is alleged, the motion and charges must expressly state the words 'gross violation' and give specific particulars
- 'Gross violation of the Constitution' in Articles 145 and 181 bears the same meaning and the provisions are construed in pari materia
Court orders
#- 1.Save as expressly stated in the judgment, the judgment of the High Court dated 16th April, 2014 is affirmed
- 2.A declaration that the learned Judges did not err in holding that the County Assembly and the Senate were best placed to determine whether a motion for removal of a Governor was in accordance with the Constitution, subject to the supervisory and interpretation jurisdiction of the High Court under Article 165
- 3.A finding that the learned Judges erred in law by failing to exercise their constitutional mandate under Article 165(3)(d)(ii) and (iii) to determine whether the removal of the 1st appellant was inconsistent with or in contravention of the Constitution
- 4.A finding that the learned Judges erred in law by failing to exercise supervisory jurisdiction under Article 165(6) to determine whether the constitutional threshold for removal of the 1st appellant had been proved and whether nexus existed between the allegations and the 1st appellant
- 5.A declaration that the political question doctrine and separation of powers cannot oust the jurisdiction of courts to interpret the Constitution under Article 165(3)(d)(iii)
- 6.A declaration that what constitutes gross violation of the Constitution is determined on a case by case basis, including violation of Article 10 values and Chapter Six, or intentional and/or persistent violation of any Article or of any other law
- 7.The 5th and 6th respondents to bear half the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kerugoya
- Petition No. 3 of 2014 (consolidated with Petition No. 4 of 2014, Judicial Review No. 6 of 2014 & Misc. Applic. No. 4 of 2014)
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction; High Court jurisdiction under Articles 165(3)(d) and 165(6) of the Constitution
- Consolidated with
- High Court Petition No. 4 of 2014, Judicial Review No. 6 of 2014, Miscellaneous Application No. 4 of 2014 (High Court, Kerugoya)
Relief refused
#Declaratory orders nullifying the Embu County Assembly impeachment proceedings for failure to meet the Article 181 threshold
The High Court had already declared those proceedings null and void and quashed them, and no appeal was lodged against that part of the decision; a court cannot act in vain
An order that the impeachment threshold for a Governor be equated with that for removal of the President or recall of an MCA (equal protection argument)
The offices are different; differentiation between offices is inherent in equality and the differing procedures do not vitiate the constitutional process
Costs
The 5th and 6th respondents shall bear half the costs of this appeal
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.
It is our considered view that the following issues arise for determination
In totality, we find this appeal has merit and is partly allowed. The final orders of this Court are as follows
Save as expressly stated in this judgment and as ordered here below, the judgment of the High Court dated 16th April, 2014, is hereby affirmed.
The 5th and 6th respondents shall bear half the costs of this appeal.
removal of a Governor is not about criminality or culpability but is about accountability, political governance as well as policy and political responsibility.
No Parliament, no official and no institution is immune from judicial scrutiny
"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's Court for the determination of his rights is not to be excluded except by clear words.
the motion to remove a Governor from office and particulars of the charge must expressly state that the alleged violation is gross and give particulars of the alleged gross violation.
Issues in the judgment
#The County Governments Act is cited inconsistently as No. 12 of 2012 in paragraph 9 and No. 17 of 2012 in paragraph 29 within the same judgment
The judgment identifies counsel Mr. Njenga submitting for the respondents although the respondents' counsel is earlier named as Mr. Ndegwa
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others [2014] KECA 211 (KLR)", Case Analysis (2014). Civil Appeal No. 21 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/211/eng@2014-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.