Kenya: Court Dismisses Petition Against Muturi's Speakership

12 August 2020

Nairobi — The High Court has dismissed a petition challenging the election of Justin Muturi as the Speaker of the National Assembly in August 2017.

In a ruling delivered electronically by Justice James Makau, the constitutional and human rights division upheld Muturi's preliminary objection challenging its jurisdictions and dismissed the petition with costs to the respondents.

"This Court is alive to the fact that the Court can examine and even impeach Parliamentary proceedings, however I find that in this case, the threshold for the exercise of such powers has not been met."

"I find that the actions that are subject to these proceedings are matters relating to the internal proceedings of the National Assembly which it is mandated to exercise control over its internal proceedings and it ought to be allowed to regulate its own affairs without undue interference by the court or anyone. This position is firmly rooted in the Constitution of Kenya 2010 as provided under Article 117 and 124 of Constitution," he ruled.

The petitioner, Dr. Noah Migudo Winja, had requested the High Court to nullify the elections claiming that "the elections had been conducted without the required quorum thereby rendering it outside the provisions of the Constitution and the Standing Orders".

He had further requested that the High Court orders the Clerk of the National Assembly to declare him as the only candidate who was duly qualified for the said elections, thereby naming him the Speaker of the National Assembly of the 12th Parliament.

In striking out the petition, Justice Makau said Dr Winja had failed to provide sufficient proof to support his allegations.

"I find that it is not enough for a party to allege a breach of the Constitution without providing particulars of the alleged breach. I find upon perusal of the petition as drawn and filed, that it does not qualify as a Constitutional Petition, nor does it raise any constitutional issues and same should be struck out

Makau agreed with the argument by Speaker Muturi's legal team which cited that under the Constitution and the Standing Orders of the National Assembly, the election of the Speaker of the National Assembly " is a matter to do with internal arrangements of Parliament, adding that the doctrine of Separation of Powers demands that the Courts do not interfere with such arrangements".

"This Court will not question each and every Procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of Government must not be endangered by the unwarranted intrusions into the workings of one arm by another," Justice Muturi stated as he cited the Supreme Court determination in the case of Speaker of the Senate & another v. AG & 4 others Reference 2 of 2013.

Muturi, in his response to Petition which he'd filed December 2017, said as a result of the principle of separation of power, the court ought to exercise restraint when it comes to questioning parliamentary procedures as long as they do not breach the Constitution or are not in excess of their mandate.

In his petition, Dr. Winja claimed the Clerk of the National Assembly Micheal Sialai erred in clearing Muturi to participate in the poll because he was not properly cleared by the IEBC before 9.00a.m. on the 29th of August, 2017 hence he was not qualified to take part in the 31st August election.

Dr. Winja further asserted that Muturi did not adhere to the regulations set for one to qualify as a candidate.

"Muturi, having collected signatures from over 210 members of Parliament instead of the prescribed 20, denied other contenders the opportunity to also collect signatures and should therefore be declared unfit to occupy public office by reason of having used unethical methods to deny Kenyans the right to exercise their constitutional mandate, under Article 38 of the constitution of Kenya," he stated.

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