The Independent Electoral and Boundaries Commission’s failure to start processing applications to recall Members of Parliament has triggered a court battle, just weeks after a new team of commissioners led by Erastus Ethekon took office.

In a statement on July 30, the IEBC said it cannot facilitate the recall of Members of Parliament due to the absence of a clear legal framework. The commission cited a High Court ruling that declared key sections of the Elections Act, 2011 unconstitutional for being discriminatory. 

Critics, however, accuse the IEBC of creating ‘an artificial lacuna’ to shield targeted MPs.

Newton Boore, Dennis Mwaki, Morris Mawira, Agnes Mwende, Seth Kinoti and Christine Kanana told the High Court in Nairobi that Members of Parliament have deliberately failed to enact a law on their recall, while the IEBC has refused to implement Article 104 of the Constitution, which provides for recalling Senators and MPs.

The six had signed a petition to recall Tharaka Nithi Senator Mwenda Gataya, accusing him of discrimination, gross abuse of office, misconduct and failing to conduct public participation during the drafting of the Mug Bean Bill, 2022, also known as the Ndengu Bill.

They claimed the Senator had ignored their concerns. “We wish to free him from such duties so we can give the seat to a Senator who will enact laws that help the people of Tharaka,” the petition reads in part.

Filed by KMK Africa Advocates LLP, the case also argues that once the recall threshold is met, the commission has no powers to reject or withhold a petition for removal.

The petitioners argued that MPs have committed a “double sin” by failing to implement the Constitution while shielding themselves from removal when they fail to serve their constituents.

“In sum, the intentional refusal by MPs to enact or operationalize the necessary legislation makes it difficult for Kenyans to pursue political causes and make political choices they identify with. Where citizens are unhappy with an MP and wish for a different leader with their interests at heart, they cannot realize such change, as the same MPs have declined to implement the Constitution. This impinges on their political rights under Article 38,” court papers state.

The court heard that while Parliament enacted laws to recall Members of County Assemblies and governors, it went silent on legislation for recalling MPs and senators.

Also cited in the case for possible recall are National Assembly Majority Leader Kimani Ichung’wah, Meru North MP Rahim Dawood and Nairobi Woman Representative Esther Passaris.

The petitioners argued that MCAs and MPs perform similar delegated roles; therefore, there should be a process to remove both, not just one.

“The petitioners state that both MCAs and Members of Parliament exercise legislative mandate and oversight at the County and National levels of government and there is no reason why the law should permit the recall of the former and spare the latter. Herein lies the mischief which the Petitioners urge the court to cure,” court papers continue to read.

The petitioners said the public cannot be denied the right to remove non-performing legislators and replace them with accountable, responsive leaders. They argued that the IEBC’s refusal to start the recall process violates the right to fair administrative action.

In his supporting affidavit, Boore noted that the window to recall current members of the August House closes in August 2026. He said they wrote to IEBC CEO Marjan Hussein Marjan when filing the petition, asking the process to begin.

Marjan replied on September 9, 2024, saying the commission was not constituted at the time, as it had no commissioners and no law to process the petition. The petitioners wrote again on July 23, 2025, after the commission was fully constituted, but received no response.

Boore said Kenyans hold the sovereign power to choose their leaders and have an equal right to remove MPs through recall.

“I am convinced that recall of MPs is the most effective tool for oversighting Members of Parliament and that failure to put in place a law to facilitate recall is evidence that MPs do not want to be oversighted. We are still desirous of recalling the Senator of Tharaka Nithi County and are convinced that the failure by the 1st respondent to act on our requests is akin to making the constitutional right afforded under Article 104 illusory and amounts to the 1st respondent suspending the said constitutional provision, which action is illegal,” said Boore.

Calls to recall some MPs have intensified following their support for the contentious Finance Bill 2024, which was later withdrawn by President William Ruto, amid public outcry and deadly protests.

Justice Chacha Mwita ordered that they serve all the parties and appear before him on September 17, 2025. He directed that the parties file their responses and submissions before then.