Case declines to kick out Wetang'ula as speaker

The High Court in Nairobi yesterday declined to find that National Assembly speaker Moses Wetang’ula violated the law and ought to be kicked out as a speaker for declaring Kenya Kwanza as the majority party in the house, despite their finding that Azimio was.

While finding that their declaration remained unless overturned by the Court of Appeal, High Court Judges Jairus Ngaah, Lawrence Mugambi and John Chigiti ruled that there was no evidence to show the speaker violated any of their orders.

“ The application is hereby dismissed with no orders as to costs,” the trio ruled in a verdict read by Justice Mugambi.

At the same time, they ruled that they could not force him to resign for holding dual positions, in Kenya Kwanza and Ford Kenya as a leader. They said once they delivered their judgment, they became functus officio, adding that there no exceptional errors shown in the case to warrant their intervention.

The petitioners led by Kenneth Njagi Njiru wanted the High Court to find that Wetang’ula cannot continue sitting as speaker as he allegedly overturned the High Court’s judgment through the back door by declaring that Azimio la Umoja one Kenya Coalition Party remains the minority party in the lower house.

According to lawyer Kibe Mungai, the speaker continued to advance the ruling administration’s agenda even after the court ruled that he could not hold the position as well as be Ford Kenya and Kenya Kwanza’s leader.

“ Bearing in mind the finding of this Honourable Court that the 4 Respondent cannot simultaneously hold the position of Speaker of the National Assembly on one hand and the position of leader of Ford-Kenya party and member of the Kenya Kwanza Coalition Leaders Party Summit and member of its parliamentary group, the Ruling delivered on 12 February, 2025 is unlawful, null and void ab initio,” argued Kibe.

He urged the court to find that all the proceedings in the house, after the judgment, are null and void. The lawyer asked the court to find that Wetang’ula cannot continue sitting as a speaker.

“ A declaration be issued to declare that the fouth respondent - Hon. Moses Masika Wetangula - cannot continue to serve as Speaker of the National Assembly unless and until he resigns as the political leader of Ford-Kenya and as leader in the Kenya Kwanza Coalition - the 19th and the respondents herein,” argued Kibe.

The three Judges placed Wetang’ula between a rock and a hard place by declaring that he cannot hold Ford Kenya party’s leadership and the position of a speaker simultaneously.

Following the verdict, Wetang’ula was to either let Ford Kenya slip away or surrender the speaker’s position. If Wetang’ula lets Ford Kenya go, he will be out of the picture on the day-to-day running of the party, and it will be easy for President William Ruto to push for it to fold and join the United Democratic Alliance (UDA) bandwagon.

The bench headed by Justice Ngaah ruled that Wetang’ula and Kimani Kimani 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.

“It is worth noting that the speaker having being sued on 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 for 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.

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, with regard to 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.