The High Court has dismissed a petition seeking to compel Parliament to enact a law on the recall of Members of Parliament, ruling that lawmakers are already handling the matter through an ongoing legislative process and should be allowed to complete their work before the courts intervene.
In a judgment delivered at the High Court, Justice Roselyne Aburili found that the National Assembly is currently considering the Elections (Amendment) (No. 2) Bill, 2024, which is intended to establish the legal framework for recalling Members of Parliament. The court held that stepping in before Parliament concludes the process would be premature.
Justice Aburili said the constitutional right to recall elected leaders under Article 104(1) of the Constitution exists, but it cannot be enforced on its own because it requires an Act of Parliament to put it into effect.
The judge ruled that both the petitioners and the court should allow Parliament to complete its constitutional duty before seeking judicial intervention.
“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,” Justice Aburili ruled.
The case traces its roots to a 2017 High Court decision in a petition filed by Katiba Institute, where the court declared sections of the Elections Act and the County Governments Act unconstitutional after finding that they imposed what it described as discriminatory and overly restrictive conditions on the recall of elected leaders.
Following that judgment, Parliament amended the County Governments Act in 2020 to introduce a recall process for Members of County Assemblies (MCAs). However, no similar law was enacted to provide a recall process for Members of Parliament.
The latest petition arose after a group of petitioners sought guidance from the Independent Electoral and Boundaries Commission (IEBC) in August 2024 on the procedure for recalling Tharaka Nithi Senator Mwenda Gataya Mo Fire.
The electoral commission responded that it could not process the request because it was not fully constituted at the time and because Parliament had not enacted the law required under the Constitution to operationalise the recall process.
Even after the IEBC was reconstituted with new commissioners, the commission maintained the same position when it received a follow-up request in July 2025.
The petitioners, led by Newton Mugambi, Dennis Mwaki and Agnes Mwende, later moved to the High Court, naming the IEBC, the National Assembly and the Attorney General as respondents.
In its decision, the court clarified that although Article 104(1) guarantees citizens the right to recall elected representatives, that right cannot be implemented without legislation passed by Parliament.
Justice Aburili further held that the IEBC cannot create recall procedures where no law exists, saying such action would amount to taking over Parliament’s constitutional role of making laws.
According to the judgment, the decision protects Parliament’s constitutional mandate while also providing guidance on how the constitutional right to recall Members of Parliament should be implemented.
The court also said the National Assembly should be allowed to conclude consideration of the Elections (Amendment) (No. 2) Bill, 2024 before any further court action is sought, reaffirming that the legislative process should proceed without interference from the judiciary.