A Milimani High Court has dismissed a petition that was filed in August 2025, seeking the right to recall the Members of Parliament (MPs) before the end of the term on any of the grounds of mismanagement of public resources or upon conviction of an offence. 

Six petitioners moved to court to challenge the Independent Electoral and Boundaries Commission (IEBC) letter dated September 9, 2024, indicating that it could not recall MPs on the premise that it was not fully constituted and the absence of enabling legislation. 

Justice Roselyne Aburili, on July 2, 2026, dismissed the petition, citing that she did not find anything in article 88(4) of the constitution or section 4 of the IEBC Act that suggests that the IEBC should make the procedures for the recall of MPs. 

Further, Judge Aburili noted that Article 104 of the Constitution is explicit that that role is for Parliament, and therefore, in the absence of the enabling law to effectuate Article 104(1), the IEBC cannot process the applications and requests for the recall of MPs. 

“The 1st respondent (IEBC) cannot, therefore, be said to have violated the provisions of Articles 1, 2, 3, 10, 20, 27, 38, 47 and 104 of the Constitution,” Judge Aburili ruled. 

“On the whole I find and hold that the petition dated August 1, 2025, is not merited, and the same is hereby dismissed,” Justice Aburili added.

Further, Judge Aburili states that the court can not cite the National Assembly for violation of the constitutional provisions cited by the six petitioners after it was revealed that the august house is currently seized with the matter and is in the process of amending the provisions of the Elections Act that were declared unconstitutional.

“It, therefore, cannot be said that they have violated the constitutional provisions cited by the petitioners unless the process is completed. I further find that the petitioners have not demonstrated how those rights have been violated,” the court ruled. 

What petition said

In their submission, the petitioners argued that the refusal by IEBC to process applications and requests for recall of MPs and the failure of the National Assembly, listed as the 3rd respondent, to enact enabling legislation violates constitutional provisions.

The petitioners averred that the Elections Act, 2011 (Elections Act) initially provided a framework for the recall of MPs under sections 45, 46, 47 and 48, stipulating grounds such as violation of Chapter Six of the Constitution, mismanagement of public resources or conviction of an offence under the Elections Act.