High Court Dismisses Recall Law Petition as Premature

Kenya, July 7, 2026 - The High Court has dismissed a petition seeking to compel Parliament to enact legislation governing the recall of elected leaders, ruling that the case was filed prematurely because the National Assembly is already considering a Bill to operationalise the constitutional right.

In a judgment delivered on Tuesday at the Milimani Law Courts, Justice Roselyne Aburili reaffirmed the constitutional doctrine of separation of powers, holding that only Parliament has the mandate to enact laws establishing the procedures for recalling Members of Parliament.

The court found that the National Assembly is actively considering the Elections (Amendment) (No. 2) Bill, 2024,which seeks to provide the legal framework required under Article 104(1) of the Constitution.

“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 decision effectively gives lawmakers time to complete the legislative process without judicial intervention.

Justice Aburili held that while Article 104(1) of the Constitution guarantees citizens the right to recall elected representatives, that right is not self-executing and can only be implemented through legislation passed by Parliament.

The judge further ruled that the Independent Electoral and Boundaries Commission (IEBC) cannot formulate substantive recall procedures in the absence of such legislation, as doing so would amount to assuming Parliament's constitutional role.

"The constitutional right to recall under Article 104(1) is not self-executing and can only be operationalized through enabling legislation enacted by Parliament," the court ruled.

The judgment also clarified that the IEBC's mandate is limited to implementing laws enacted by Parliament and does not extend to creating legal mechanisms where none exist.

The dispute traces its origins to a landmark High Court judgment delivered on July 14, 2017 ,in a petition filed by Katiba Institute.

In that case, the court declared sections of the Elections Act and the County Governments Act unconstitutional for imposing restrictive and discriminatory conditions on the recall of elected leaders, finding that the law failed to establish a clear mechanism for recalling all categories of elected representatives, including Members of Parliament and Members of County Assemblies (MCAs).

Following the ruling, Parliament amended the County Governments Act in 2020 to establish a recall process for MCAs. However, no equivalent legislation was enacted for Members of Parliament.

The latest case arose after a group of petitioners, including Newton Mugambi, Dennis Mwaki, Agnes Mwende and three others, sought to initiate the recall of Tharaka Nithi Senator Mwenda Gataya Mo Fire.

In August 2024, they wrote to the IEBC seeking guidance on the procedures for recalling the senator.

The electoral commission responded that it could not process such a request because it lacked a fully constituted commission 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 in July 2025. The commission maintained its earlier position through a public statement, prompting the group to move to court.

The petition named the IEBC, the National Assembly and the Office of the Attorney General as respondents.

In dismissing the petition, Justice Aburili emphasized that courts should not interfere with an ongoing legislative process where Parliament is actively considering the necessary law.

The ruling reinforces the constitutional principle of separation of powers by recognizing Parliament's exclusive mandate to enact legislation while limiting the judiciary's role to interpreting the law once enacted.

Legal analysts say the judgment provides important clarity on the implementation of Article 104 of the Constitution and affirms that any mechanism for recalling Members of Parliament must first be established through legislation before the IEBC can administer the process.

The National Assembly is now expected to continue deliberating on the Elections (Amendment) (No. 2) Bill, 2024, which seeks to provide the long-awaited legal framework for the recall of Members of Parliament by the electorate.