The High Court has dismissed a petition seeking to have Parliament declared in breach of its constitutional mandate for failing to enact a law governing the recall of elected leaders by voters.
In a judgment delivered on July 7, Justice Roselyne Aburili ruled that the petition was filed too early because the National Assembly is already considering a Bill to implement the recall process.
The court held that Parliament should be allowed to complete the legislative process without judicial interference, reaffirming the constitutional doctrine of separation of powers.
“This petition is premature and not ripe for determination and that the petitioners as well as the Court should let Parliament legislate and wait for the outcome,” Ruled Justice Aburili.
Additionally, the court also said the IEBC cannot come up with rules for recalling elected leaders unless Parliament first passes a law.
High Court Throws Out Petition Challenging Delay in Recall Law
Hence, the High court stated that Parliament should be allowed to complete the legislative process without judicial interference, reaffirming the constitutional doctrine of separation of powers.
Justice Aburili noted that the National Assembly is currently considering the Elections (Amendment) (No. 2) Bill, 2024, which seeks to provide the legal framework for the recall of elected leaders by the electorate.
The petitioner had argued that Parliament had failed to fulfil its constitutional obligation by delaying the enactment of the legislation needed to implement the recall law, which grants voters the right to recall elected representatives before the end of their term.
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Case Background
The issue arose from a High Court judgment delivered on July 14, 2017, in a case filed by Katiba Institute.
The court found parts of the Elections Act and the County Governments Act unconstitutional because they made it difficult for voters to recall elected leaders.
Following that decision, Parliament amended the County Governments Act in 2020 to create a recall process for Members of County Assemblies (MCAs). However, it did not pass a similar law for Members of Parliament.
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The latest case began after a group of petitioners sought to recall Tharaka Nithi Senator. In August 2024, they wrote to the Independent Electoral and Boundaries Commission (IEBC) asking how they could begin the recall process.
The IEBC responded that it could not process the request because it did not have a full team of commissioners at the time and because Parliament had not enacted the law needed to facilitate the recall of Members of Parliament.
After the IEBC was fully reconstituted, the petitioners wrote to the commission again in July 2025. However, the commission maintained that it could not proceed without the required law.
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