The High Court in Kitui has suspended the November 17, 2026, Migwani Ward Member of County Assembly (MCA) by-election for 30 days pending a hearing on the constitutional validity of the declaration of the ward seat as vacant.
In a ruling delivered on Thursday, October 22, 2026, Justice S.N. Riechi issued interim conservatory orders halting the electoral process initiated by the Independent Electoral and Boundaries Commission (IEBC), including ongoing candidate clearance and registration activities.
The decision followed an urgent application by Francis Musili Kauta in Constitutional Petition No. E011 of 2026, challenging circumstances surrounding the appointment of Harrison Maluki Mawia as the substantive Clerk of the Kitui County Assembly and the subsequent declaration of the Migwani Ward seat as vacant.
However, the court declined to determine the legality of Mawia’s recruitment and appointment, ruling that the matter falls within the jurisdiction of the Employment and Labour Relations Court (ELRC).
Court separates clerk recruitment dispute from by-election challenge
Justice Riechi held that disputes concerning recruitment, appointment and deployment fall within the jurisdiction of the ELRC under Article 162(2)(a) of the Constitution.
In reaching the determination, the judge cited the Supreme Court precedent in Moi Teaching and Referral Hospital v. Gikenyi (2026), which addresses the jurisdiction of courts in employment-related disputes.
The ruling means that the challenge to Mawia’s appointment as Clerk must be pursued before the appropriate employment court rather than determined in the current constitutional petition.
The High Court, however, retained jurisdiction to examine whether the IEBC’s declaration, gazettement and notification of the Migwani Ward MCA vacancy complied with the Constitution.
The court directed that the petition be heard on November 11, 2026, at 2:00 pm, with proceedings restricted to the validity of the declaration of the vacancy and the related electoral notices issued by the IEBC.
Why the Migwani Ward seat is contested
The dispute followed Mawia’s transition from his position as Migwani Ward MCA and Majority Leader in the Kitui County Assembly to the substantive position of Clerk.
He was sworn in as Clerk on August 6, 2026, after which the Assembly declared the Migwani Ward seat vacant, paving the way for the IEBC to schedule a by-election for November 17, 2026.
Kauta challenged the recruitment process, alleging that Mawia did not meet the minimum five years of professional experience required under Section 13(2)(c) of the County Governments Act, 2012.
The petitioner also raised concerns about a possible conflict of interest, citing Mawia’s position as Majority Leader during the recruitment process.
These remain allegations raised in the petition and should not be treated as findings by the High Court. The judge did not determine the merits of the recruitment challenge in the October 22 ruling.
Court addresses withdrawal of related Machakos case
The ruling also addressed arguments concerning a related case filed in Machakos under Employment and Labour Relations Constitutional Petition No. E017 of 2026, which the petitioner said had been withdrawn.
Justice Riechi held that, under Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, commonly known as the Mutunga Rules, a constitutional petition cannot simply be withdrawn unilaterally without the court’s formal endorsement following consideration of the parties’ positions.
The court’s position underscores the procedural requirements governing the withdrawal of constitutional petitions.
What happens next?
All parties are expected to return to the High Court in Kitui on November 11, 2026, at 2:00 pm, when the court will consider the constitutional validity of the IEBC’s declaration and notification of the Migwani Ward vacancy.
Meanwhile, any party seeking to challenge Mawia’s recruitment and appointment as Clerk must pursue that dispute before the Employment and Labour Relations Court.
The interim order places the November 17 by-election on hold for the time being. Its eventual status will depend on further directions and determinations by the court concerning the validity of the vacancy declaration.
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