{"id":145974,"date":"2026-07-07T13:02:54","date_gmt":"2026-07-07T13:02:54","guid":{"rendered":"https:\/\/chezaspin.com\/blog\/court-says-mp-recall-cannot-proceed-until-parliament-enacts-enabling-law\/"},"modified":"2026-07-07T13:02:54","modified_gmt":"2026-07-07T13:02:54","slug":"court-says-mp-recall-cannot-proceed-until-parliament-enacts-enabling-law","status":"publish","type":"post","link":"https:\/\/chezaspin.com\/blog\/court-says-mp-recall-cannot-proceed-until-parliament-enacts-enabling-law\/","title":{"rendered":"Court says MP recall cannot proceed until Parliament enacts enabling law"},"content":{"rendered":"

NAIROBI, Kenya, Jul 7 \u2013 The High Court has declined to compel the Independent Electoral and Boundaries Commission (IEBC) to process petitions seeking the recall of Members of Parliament.<\/strong><\/p>\n

The court ruled in a decision rendered on Tuesday that the constitutional right cannot be operationalised until Parliament completes legislation providing the grounds and procedures for removing lawmakers from office.<\/p>\n

Justice Roselyne Aburili held that while Article 104 of the Constitution guarantees voters the right to recall their MPs, the petition before it was premature because Parliament is already considering amendments to the Elections Act to cure a legal vacuum created after key recall provisions were struck down in 2017.<\/p>\n

\u201c\u2026I am in agreement with the 3rd respondent and the 2nd interested party that 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.\u201d<\/p>\n

The petition had been filed after the IEBC declined to advise citizens on the process of recalling the Senator for Tharaka Nithi, maintaining that it lacked the legal framework to process such requests following the 2017 Katiba Institute judgment, which invalidated several sections of the Elections Act governing the recall of MPs.<\/p>\n

The petitioners argued that the constitutional right of recall is self-executing and urged the court to compel the electoral commission to rely on the surviving provisions of the Elections Act together with the framework used for recalling Members of County Assemblies until Parliament enacted a new law.<\/p>\n

Justice Aburili, however, found that intervening while the legislative process was ongoing would amount to judicial interference with Parliament\u2019s constitutional mandate.<\/p>\n

\u201cParliament is currently seized with the matter and therefore this court must exercise restraint until the process is completed,\u201d she asserted.<\/p>\n

\u201cTherefore, any intervention at this point will cripple the legislative process and interfere with the legislative mandate of Parliament which will lead to an infraction of the doctrine of separation of powers.\u201d<\/p>\n

The judge nevertheless rejected arguments by the National Assembly and Senate that the petition ought to have first been presented to Parliament under Article 119 of the Constitution before approaching the courts.<\/p>\n

\u201cArticle 119 of the Constitution does not oust the right of the petitioners to present this petition to court and I therefore find that the failure to approach Parliament under Article 119 of the Constitution does not offend the doctrine of exhaustion of remedies.\u201d<\/p>\n

In her analysis, Justice Aburili underscored that courts remain the ultimate arbiters of constitutional disputes even where Parliament has the power to legislate.<\/p>\n

The court was asked to declare that the IEBC\u2019s refusal to process recall petitions violated Articles 1, 10, 27, 38, 47 and 104 of the Constitution and to issue orders compelling both the electoral commission and Parliament to operationalise the constitutional right within 90 days.<\/p>\n

Instead, the court held that Parliament should be allowed to conclude consideration of the Elections (Amendment) (No. 2) Bill, 2024, which seeks to amend the recall provisions that were declared unconstitutional and provide a fresh legal framework.<\/p>\n

The judgment means Kenyans remain unable to initiate the recall of Members of Parliament until the legislative amendments are enacted, despite Article 104 of the Constitution guaranteeing the right.<\/p>\n

Justice Aburili dismissed the petition and ordered each party to bear its own costs, citing the public interest nature of the case.<\/p>","protected":false},"excerpt":{"rendered":"

NAIROBI, Kenya, Jul 7 \u2013 The High Court has declined to compel the Independent Electoral and Boundaries Commission (IEBC) to process petitions seeking the recall of Members of Parliament. The court ruled in a decision rendered on Tuesday that the constitutional right cannot be operationalised until Parliament completes legislation providing the grounds and procedures for […]<\/p>\n","protected":false},"author":0,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-145974","post","type-post","status-publish","format-standard","hentry","category-uncategorized","entry"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/posts\/145974","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/comments?post=145974"}],"version-history":[{"count":0,"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/posts\/145974\/revisions"}],"wp:attachment":[{"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/media?parent=145974"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/categories?post=145974"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/chezaspin.com\/blog\/wp-json\/wp\/v2\/tags?post=145974"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}