Which Majority? Judges' shocker to Kenya Kwanza leadership in National Assembly

Three High Court Judges on Friday turned the tables on the Kenya Kwanza Coalition leadership in the National Assembly, with Speaker Moses Wetang’ula, Kikuyu MP Kimani Ichung’wa, and his South Mugirango counterpart Sylvanus Osoro, being the casualties

With a stroke of the pen, Justices Jairus Ngaah, John Chigiti, and Lawrence Mugambi rendered Ichung’wah and Osoro jobless, stripping them of the majority leader and majority whip positions.

At the same time, the judges placed Wetang’ula between a rock and a hard place by declaring that he could not hold the Ford Kenya party’s leadership and the position of a speaker simultaneously.

The court was determining a case filed by Kenneth Njagi, lawyer Suyianka Lempaa and 11 others.

The Bench ruled that Wetang’ula and Ichung’wa never produced any evidence to show that the 14 members they alleged to have crossed over from Azimio la Umoja One Kenya Coalition Party had any coalition agreement with Kenya Kwanza.

READ: Azimio names MPs for 'Majority Leadership' in the National Assembly

“It is worth noting that the speaker having been sued in his private and official capacity swore an affidavit in opposition of the case. However, he never deposited any evidence of a post-election coalition agreement as alleged by the speaker. None of the respondents, including Kimani Ichung’wa has exhibited any such agreement,” ruled Justices Ngaah, Chigiti and Mugambi.

According to them, Kenyans determined who the majority and minority coalition party in the National Assembly was on August 9, 2022.

The judges observed that following the gazettement of the winners by the Independent Electoral and Boundaries Commission (IEBC) and the submission of the pre-election coalition agreements to the registrar of political parties, Ann Nderitu, it was inescapable that Azimio was the majority in the lower house.

They said that, therefore, the speaker’s alteration of the matrix in favour of his coalition party was unconstitutional and illegal.

According to the Judges, Wetang’ula wrote to Nderitu seeking coalition agreements between the parties when a stalemate between Azimio and Kenya Kwanza arose.

They observed that Nderitu submitted the documents, but Wetang’ula ruled that she had not produced the certified documents.

At the same time, Kimani alleged on the floor of the House that coalition agreements were signed in favour of Kenya Kwanza.

The speaker declared that the ruling coalition was the majority owing to 14 MPs who had allegedly defected from Azimio writing to him.

Therefore, he concluded that Ichung’wa was the majority leader, Osoro was the Majority Whip and nominated MP Sabina Chege was the Deputy Majority Whip.

However, the court found that the move was unconstitutional as the speaker had in his ruling admitted that based on the IEBC gazette notices and the information from Nderitu, Azimio had the majority seats with 171 members while Kenya Kwanza had 165.

“Without this post-election agreement, the speaker had no basis to disregard the coalition agreements between parties in Kenya Kwanza and Azimio. He had no legal basis to rule that the parties had shifted from Azimio to Kenya Kwanza.

Ndetitu’s affidavit drowned Kenya Kwanza in court.

ALSO READ: Speaker Moses Wetangula rules Kenya Kwanza has majority in National Assembly

In her statement, Nderitu said that out of the 26 constituent parties forming Azimio, only one was legally removed.

“As at June 2023, the only party that has legally exited the coalition is the Devolution Empowerment Party. All the other parties as gazetted on April 14, 2022, remain constituent parties of the first interested party (Azimio),” said Nderitu.

At the same time, she told the court that she wrote to Ford Kenya requesting the party’s position on whether Wetang’ula was a leader.

In the letter, Nderitu stated that a public officer cannot hold office in a political party.

“This office has been drawn to the concerns in the public domain, as annexed herein, concerning the speaker of the National Assembly being the Ford Kenya Party Leader,” wrote Nderitu.

She said that the party responded through its lawyers, Millimo, Muthomi and company advocates, indicating no law prohibiting the speaker from holding a political party office.

The registrar argued that the explanation was satisfactory.

Nevertheless, Njagi’s lawyer argued that Wetang’ula cannot hold the office while still being a Ford Kenya member and a Kwanza Coalition principal.

Mungai was also representing lawyer Suyianka, Meshack Suba, Teddy Muturi, Amos Wanjala, Stephen Kihonge, Sophie Dola, Winnie Thuo, Victor Ng’ang’a, Simon Lkoma, Caroline Mogaka and Francis Kenya.  

He said that the ruling coalition illegally took the majority seat through the speaker’s ruling,

Mungai asserted that Wetang’ula had no power to rule over who the majority and minority were before the National Assembly. Instead, he said, the minority and majority position was sealed during the election.

“National Assembly had already asked the registrar of political parties who were in which party. It was not in the powers of the National Assembly speaker to alter the gazetted mandate of the people of Kenya,” argued Kibe.

At the same time, Kibe said that the speaker was of the view that Wetang’ula was partisan owing to him being a member of Kenya Kwanza.

He stated that IEBC had cleared that Azimio had 171 members while Kenya Kwanza had 165, making it the minority coalition.

“The fact that he was a member of Ford Kenya was raised by the registrar but it was not followed. The significant problem is that the speaker decided that his own political coalition was the majority. This would have been different if the speaker was neutral,” argued Kibe.

He explained that there was a coalition agreement in place which in the first place, made him ineligible to be elected as a speaker.

At the same time, another lawyer Ndegwa Njiru argued that it is unconstitutional for him as a principal of Kenya Kwanza take a position outside and then come back to preside the same before the floor of the house.

“The constitution requires that if an issue involves you, you cannot be an arbiter. The speaker makes a lot of rulings. That cannot be made by a person who is not impartial,” argued Njiru.

According to Njiru, Wetang’ula cannot be compared with his predecessor Justin Muturi as the latter never held any position in the Jubilee government.

“Wetang’ula has been an active political player. This is against the spirit of multipatism and independence of parliament,” said Njiru.

He said that Gathungu was also not neutral as she failed to instil political discipline.

“All is not well because a party that started with 40 MPs ends up with 60 others defeating multipatism. If you are given a function to protect the Constitution is to ensure that you protect it while carrying out a mandate. When the ruling happened, she did nothing,” argued Njiru.

Njiru said their clients also wanted the court to quash Sabina and Kanini Kega's notice indicating that they had removed the Jubilee Party from the Azimio Coalition.

He also claimed that the chaos revolving budgets can be traced back to failure to stick to the numbers.

On the other hand, Wetang’ula argued that he was erroneously included in the case. He added that because the case involved political parties, it should have been filed before the Political Parties Dispute Tribunal (PPDT).

He observed that other parties such as Kenya Revenue Authority (KRA) were named despite them having nothing to do with the political duel.

The speaker further argued that the issues raised also touched on the Finance Act, of 2023, which was a different issue.

“The case cannot be severed. It is so interwoven and the only remedy is to strike out the petition. Let them go back to the swing board, be guided by the law and pursue the right person who they have perceived to be on the wrong side,” argued Wetang’ula.

His lawyer, Judy Guserwa, argued that he cannot be pursued in person in civil or criminal court.

ALSO READ: Azimio, Kenya Kwanza fight over numbers in search for majority

On the other hand, Azimio La Umoja and Jubilee supported the case. Azimio's lawyer Anold Oginga argued that a case should not be struck out.

He asserted that Wetang’ula could be sued in person before any court. According to him, Parliament and its speakers can be oversighted by the courts.

He accused the speaker, Kenya Kwanza and AG of selectively reading the case. According to him, PPDT has no power over the speaker.

“This is the right forum to decide this case owing to the policentricity of this case,” argued Oginga.

Meanwhile, lawyer Njiru, for Jubilee, argued that the issue was about a parliamentary dictatorship.

“Has Parliament developed a thick skin that it cannot be penetrated? What is this that Parliament is immune from? If it is an action about legislation, then immunity can be argued as a shield,” argued Njiru.

Lawyer Mungai told the court that the case was filed by Kenyans who are not part of political parties.

According to him, the issue of who is the majority party was settled in the ballot. Kibe asserted that Wetang’ula was wrong to give Kenya Kwanza the majority mantle.

“When you go through all the submissions, you will not be told that all the reliefs can only be given by this court,” argued Kibe.

According to him, Azimio had 171 seats, while Kenya Kwanza had 165.