A group of six Kenyans has moved to court to challenge the Independent Electoral and Boundaries Commission (IEBC) over its refusal to process recall petitions against Members of Parliament.

The petitioners Newton Boore, Dennis Mwaki, Morris Mawira, Agnes Mwende, Seth Kinoti, and Christine Kanana want the High Court to compel the newly reconstituted IEBC, chaired by Erastus Ethekon, to begin acting on recall petitions as provided for under Article 104 of the Constitution.

In court documents filed by KMK Africa Advocates LLP, the petitioners argue that Parliament has deliberately failed to enact legislation required to operationalise the constitutional provision, while the IEBC has used this legislative gap as an excuse to avoid processing legitimate recall attempts.

The petitioners accuse the electoral body of creating ‘an artificial legal lacuna’ to shield underperforming or unpopular legislators.

They assert that the Constitution already provides for the right to recall, and the absence of enabling legislation cannot be used to suspend or nullify that right.

At the heart of the dispute is a recall petition against Tharaka Nithi Senator Mwenda Gataya, whom the six accuse of discrimination, abuse of office, misconduct, and failure to conduct public participation in the drafting of the controversial Mug Bean Bill, 2022 commonly known as the Ndengu Bill.

“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.

The court papers argue that once a recall petition meets the legal threshold, the IEBC has no authority to reject or ignore it.

They further accuse MPs of committing a ‘double sin by failing to enact the required law and shielding themselves from democratic oversight.

“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,” the petitioners state.

“This impinges on their political rights under Article 38.”

The petition also raises questions about unequal treatment of elected officials. The petitioners argue that while the law allows the recall of Governors and Members of County Assemblies, no similar framework exists for MPs and Senators despite the similarity in their oversight and legislative roles.

“There is no justification for permitting the recall of MCAs while sparing MPs, who exercise a parallel legislative mandate at the national level,” the court papers read.

Also named in the petition are other legislators facing possible recall, including National Assembly Majority Leader Kimani Ichung’wah, Meru North MP Rahim Dawood, and Nairobi Woman Representative Esther Passaris. The petitioners say the right to remove non-performing MPs is central to democratic accountability.

In a supporting affidavit, lead petitioner Newton Boore said the group had written to IEBC CEO Marjan Hussein Marjan in 2024, asking the commission to begin the recall process. At the time, Marjan responded that the commission lacked commissioners and was therefore not fully constituted.

A follow-up letter sent on July 23, 2025 after the new commissioners were sworn in went unanswered.

Boore argues that the delay and inaction by the IEBC are unconstitutional: “The failure by the 1st respondent [IEBC] to act on our requests is akin to making the constitutional right afforded under Article 104 illusory. This amounts to suspending the said constitutional provision, which action is illegal.”

The group says the recall window for current MPs closes in August 2026, and time is running out to hold legislators accountable especially in light of mounting public anger over MPs who supported the now-withdrawn Finance Bill 2024.

High Court Judge Chacha Mwita has ordered that the IEBC and other respondents be served and appear before him on September 17, 2025. All parties are required to file their responses and submissions ahead of that hearing. By Irene Mwangi, Capital News