The High Court in Kisii has struck out a constitutional petition filed by Member of County Assembly Bouse Mairura challenging his six-month suspension from the Kisii County Assembly.
Justice Nixon Sifuna on Wednesday struck out the petition and an accompanying application seeking to suspend the implementation of the disciplinary decision, ruling that Mairura had failed to exhaust internal dispute resolution mechanisms available within the Assembly.
Mairura had moved to court on June 3, 2026, challenging a decision by the Assembly’s Committee of Powers and Privileges to suspend him from the House for six months.
He argued that the disciplinary action violated his constitutional rights, including the right to dignity, freedom from discrimination, fair hearing and fair administrative action.
The Speaker of the Kisii County Assembly and the County Assembly opposed the petition, arguing that the dispute had already been determined in an earlier case and that Mairura had failed to pursue available internal remedies before approaching the court.
However, Justice Sifuna rejected the argument that the matter was res judicata, noting that the earlier petition, determined by Justice Odera on May 21, 2026, concerned the legality of the disciplinary proceedings rather than the eventual suspension.
The judge ruled that the earlier court had declined to stop the Committee from conducting disciplinary hearings but had not determined the merits or propriety of any punishment that could subsequently be imposed.
He held that the legality of the suspension could only be challenged after the Committee had completed the disciplinary process and made its recommendations.
On the question of exhaustion, the court found that Mairura had failed to invoke Standing Order 46(2)(a) of the Kisii County Assembly Standing Orders, which provides for a motion to rescind, vary or discharge a decision of the Assembly with the Speaker’s permission.
Justice Sifuna held that the petitioner should have pursued the available internal mechanism before seeking judicial intervention.
He said that the doctrine of exhaustion does not strip courts of jurisdiction but requires them to defer exercising it until available alternative dispute resolution mechanisms have been pursued.
The judge, however, faulted the respondents for raising the exhaustion issue through a preliminary objection, holding that determining whether a litigant had exhausted internal remedies involved examining facts.
The judge held that a preliminary objection must be based on a pure point of law that can be determined without investigating disputed facts.
Consequently, Justice Sifuna dismissed the preliminary objection as improperly raised but struck out the petition and the accompanying application for failure to exhaust internal dispute resolution mechanisms.
The court ordered each party to bear its own costs of the preliminary objection, application and petition.
“Hence this objection was an improper Preliminary Objection,” ruled the court.
“This ruling having already found that there was non-exhaustion and held that this Petition has offended the doctrine of exhaustion, the Preliminary Objection is consequently dismissed, while the Petition as well as the Application, are hereby struck out.”
Email your news TIPS to Editor@Kahawatungu.com — this is our only official communication channel
