The High Court has struck out a petition seeking to bar National Assembly Speaker Moses Wetang’ula and his Senate counterpart Amason Kingi from participating in alleged partisan political activities, ruling that the case was filed prematurely before available statutory mechanisms had been exhausted.
Justice David Mburu, sitting at the Milimani Law Courts on Thursday, upheld preliminary objections raised against the petition filed by Vocal Africa, finding that the petitioners should first have pursued remedies provided under the Leadership and Integrity Act.
The judge said the petitioners had not lodged a complaint with the Ethics and Anti-Corruption Commission (EACC) over the alleged violations of Chapter Six of the Constitution before approaching the High Court.
Justice Mburu held that the doctrine of exhaustion applied to the dispute and that the petitioners had not demonstrated circumstances that would justify bypassing the available administrative mechanisms.
The respondents had challenged the petition on grounds of ripeness, arguing that the court had been approached before the relevant statutory bodies had been given an opportunity to consider the allegations.
The court agreed, finding that the objection raised a pure point of law and was therefore properly brought as a preliminary objection.
Justice Mburu also found that the petitioners had failed to provide evidence showing that the administrative agencies mandated to deal with the complaints could not provide an adequate avenue for addressing their grievances.
The petitioners had accused Wetang’ula and Kingi of violating constitutional and statutory provisions governing leadership, integrity and conflicts of interest through their alleged participation in partisan political activities.
However, the court found that they had not sufficiently demonstrated how the Speakers’ conduct amounted to violations of Chapter Six of the Constitution, the Leadership and Integrity Act or the Conflict of Interest Act.
The ruling effectively ended, at this stage, the attempt to secure conservatory orders restricting the two Speakers from appearing at or being represented in alleged organised partisan political events.
Justice Mburu said it was unnecessary to determine the application for conservatory orders after finding that the preliminary objections were merited.
The petition was consequently struck out for failure to exhaust the statutory remedies available under the Leadership and Integrity Act.
Wetang’ula and Kingi had opposed the petition and the application for conservatory orders, arguing that the case lacked a proper legal foundation.
In an affidavit filed before the court, Wetang’ula, who also chairs the Parliamentary Service Commission, accused the petitioners of failing to distinguish between actions undertaken in his official capacity as Speaker and those undertaken as a private citizen.
“It is apparent that the Petitioners seek relief against the respondent as an individual citizen and as a holder of a Constitutional office as Speaker … to the extent that the Petition is directed against the respondent in his personal capacity,” Wetang’ula argued.
He maintained that holding the office of Speaker did not extinguish the constitutional rights and fundamental freedoms he enjoys as a Kenyan citizen.
The respondents further argued that the petitioners had failed to show how granting the conservatory orders would advance the public interest or how declining the orders would prejudice it.
The dispute had raised questions over the extent to which holders of the two Speakers’ offices may participate in partisan political activities while occupying positions that require them to preside over proceedings in Parliament.
Thursday’s ruling did not make a substantive determination on whether Wetang’ula or Kingi had engaged in prohibited political activity. Instead, the court resolved the matter on procedural grounds, holding that the petitioners had approached it before exhausting the mechanisms established by law.
The decision leaves the petitioners free to pursue the allegations through the appropriate statutory channels, including lodging a complaint with the EACC, before seeking judicial intervention where necessary.
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