The High Court has dismissed a petition seeking to compel Parliament to enact legislation providing for the recall of Members of Parliament, ruling that lawmakers should be allowed to complete the ongoing legislative process without court interference.
In a judgment delivered by Justice Roselyne Aburili, the court held that the petition was premature because the National Assembly is already considering the Elections (Amendment) (No.2) Bill, 2024, which seeks to operationalise the constitutional right to recall elected leaders under Article 104(1) of the Constitution.
Justice Aburili said both the petitioners and the court should allow Parliament to conclude the legislative process before any legal challenge can be entertained.
“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,” the judge ruled.
The case has its roots in a July 14, 2017 High Court judgment in a petition filed by Katiba Institute, which declared sections of the Elections Act and the County Governments Act unconstitutional for imposing discriminatory and restrictive conditions on the recall of elected leaders.
The court then found that the laws failed to establish a clear legal framework for recalling all categories of elected representatives, including Members of Parliament and Members of County Assemblies (MCAs).
Following that decision, Parliament amended the County Governments Act in 2020 to provide a recall mechanism for MCAs but did not enact a similar framework for MPs.
The current dispute arose after a group of petitioners sought to initiate the recall of Tharaka Nithi Senator Mwenda Gataya Mo Fire.
On August 21, 2024, the petitioners wrote to the Independent Electoral and Boundaries Commission (IEBC) seeking guidance on the procedures for recalling the senator.
The commission responded on September 9, 2024, stating that it could not facilitate the process because it was not fully constituted at the time and because Parliament had not enacted the necessary legislation governing the recall of MPs.
After the appointment of new IEBC commissioners, the petitioners wrote again on July 23, 2025. However, the commission maintained its earlier position through a public statement.
Dissatisfied with the response, the petitioners, including Newton Mugambi, Dennis Mwaki and Agnes Mwende, alongside three others, moved to the High Court. They sued the IEBC, with the National Assembly and the Office of the Attorney General listed as respondents.
In her judgment, Justice Aburili held that the constitutional right to recall elected leaders under Article 104(1) is not self-executing and can only take effect through legislation enacted by Parliament.
The judge also ruled that the IEBC cannot create substantive recall procedures in the absence of an enabling law, saying doing so would amount to usurping Parliament’s legislative mandate.
The court said its decision preserves Parliament’s constitutional role in lawmaking while providing clarity on how the right to recall should be implemented.
It concluded that since Parliament is actively considering the necessary legislation, the legislative process should be allowed to run its course without judicial interference.
