Ousted Leader of the Majority in the County Assembly of Mombasa has been temporarily reinstated by a court pending hearing and determination of a petition challenging his ouster.
The High Court in Mombasa issued an interim order restraining Speaker of the County Assembly, County Assembly and Ms Priscilla Mumba from preventing or interfering with Mr Athman Mwamwiri’s execution of his duties as the Leader of Majority in the assembly.
It further issued a conservatory order to protect, preserve and conserve the status of Mr Mwamwiri as the Leader of Majority, Mombasa County Assembly as prevailed as at August 4, 2025 (before his ouster).
The court issued the orders pending hearing and determination of a petition by Mr Mwamwiri challenging his ouster as the Leader of Majority.
“I am satisfied that the applicant has made out case for grant of the interim reliefs pending the hearing of the main petition,” ruled Justice Jairus Ngaah.
The court noted that the Speaker’s characterisation of the dispute as a "purely intra-party affair" was not self-evidently correct on the pleadings before it.
“The petitioner (Mr Mwamwiri) does not confine his complaint to the propriety of the Orange Democratic Movement (ODM) caucus decision,” the court noted.
It further noted that he also complains of the way the decision (to oust him) was communicated to and acted upon by the Speaker and the County Assembly, entities exercising public power under the constitution and the County Governments Act.
The court also said that the petitioner also complains of the consequential administrative acts taken against him in his public capacity, including the termination of his personal assistant's contract withdrawal of privileges attaching to the office.
“Whether those downstream acts are properly amenable to constitutional and judicial review notwithstanding the intra-party origin of the underlying decision, and whether Section 40 of the Political Parties Act ousts this court's jurisdiction over such acts, are live and arguable questions that this court is better placed to determine after full submissions at the hearing of the petition,” ruled Justice Ngaah.
The Speaker denied having played any part in the decision to remove Mr Mwamwiri maintaining that his role was to communicate, as a matter of formal House business, a decision that had already been made internally by the majority of ODM members.
The County Assembly told the court that the process leading to Mr Mwamwiri's removal was lawful and procedural and in accordance with Standing Order 15.
It said that upon the communication being made Ms Mumba was duly sworn in as Leader of Majority Party of the County Assembly and that the orders sought in the application by Mr Mwamwiri have been overtaken by events.
In his main petition, Mr Mwamwiri says he was not accorded notice of allegations against him, opportunity to be heard and was denied access to the documents forming the basis of his purported removal.
Mr Mwamwiri who is also the Likoni MCA has sued the Speaker, County Assembly of Mombasa and Ms Mumba who had been elected to replace him.
He says that the actions of the respondents in purporting to remove him from the position of Leader of the Majority party constituted an administrative action and were subject to strict procedural and substantive requirements.
Mr Mwamiri says that his appointment as Majority leader was never revoked, reviewed or set aside by ODM–the sponsoring political party- nor was any resolution lawfully passed by majority members of the assembly to effect his removal.
He says that on August 5 last year, the Speaker notified members of the assembly of his purported removal from office of the Leader of Majority after which a vote was taken by all members irrespective of their political party’s membership.
Mr Mwamwiri says that he is aggrieved by the irregular, unconstitutional and unlawful actions of the respondents in effecting his removal as the Leader of the Majority party.
“The removal or replacement of party leadership within legislative bodies is fundamentally an internal party matter. The role of the legislative assembly is limited to the formal affirmation of the party’s decision effected through the procedural mechanisms prescribed by its standing orders,” argues Mr Mwamiri.
Mr Mwamiri also argues that Standing Order 15 (3) provides that the removal of the Leader of the Majority Party shall be effected by a resolution supported by a majority of all members belonging to the largest party or coalition of parties in the county assembly.
“It is our firm view that this mandatory critical procedural requirement was not adhered to and therefore the assembly lacked jurisdiction to consider and entertain the removal of the petitioner as the Leader of the Majority Party,” says Mr Mwamwiri.
The petitioner argues that his removal was neither initiated by nor approved by the majority members of ODM in the assembly.
He further argues that the requirement that the speaker be notified in writing by the majority party of any change in its leadership was not complied with and instead the respondents purported to remove him through an internal order paper without valid correspondence or approval from ODM.
The petitioner also says that there is no evidence of any notification having been issued either by the majority party whip or any other member of the majority party convening a meeting for the purpose of considering his removal.
“The absence of such notice renders the process procedurally irregular, unlawful and in violation of the principles of fair administration action, party rules and due process,” argues Mr Mwamiri.
Mr Mwamwiri also argues that it is the prerogative of the majority party or coalition to determine its leadership internally and to communicate the decision to the assembly for formal recognition.
“It is not the role of the of the entire assembly comprising members from the majority party nor to purport to communication such decision to the party,” the Likoni MCA argues.
He argues that the import of a letter from the Executive Director of ODM was to direct the suspension of his purported removal as majority leader pending the exhaustion of internal disputes resolution mechanism in accordance with the party’s constitution.
Mr Mwamwiri says that the mandatory procedures governing the removal of the Leader of Majority party were not complied with and that material allegedly relied to justify the removal are non-existent or have not been availed for verification.
“This constitutes a clear indication that the purported removal of the petitioner was not only procedurally and substantially flawed but also an unlawful scheme orchestrated by the respondents driven by ulterior motives extraneous to the ideals and internal process of ODM,” says Mr Mwamwiri.
He also argues that his purported removal by the respondents without a valid resolution of the majority members of the county assembly, prior sanction of the ODM party and affording him the right to be heard amounts to an unreasonable restriction on his political rights.
Mr Mwamwiri is seeking a declaration that his purported removal as leader of the majority party in the county assembly was unconstitutional, unlawful null and void for want of compliance with the constitution, the County Governments Act, Standing Orders of the Mombasa County Assembly, the Political Parties Act and the ODM’s constitution.
He also wants an order issued quashing and setting aside the resolution of the county assembly dated August 5, 2025, together with all consequential actions, proceedings or decisions purporting to remove him from the position of the Leader of the Majority party.