Leina Konchellah, Mohsen Abdul Munasar, National Assembly and the Senate, Third Way Alliance Kenya, Office of Attorney General, Tom Ojienda, Centre for Rights Education & Awareness, Nthaatu Ntoogo, Claire Amdany & Adrian Kamotho Njenga v Chief Justice of the Republic of Kenya, Office of the Attorney Genaral, Speaker of National Assebly & Speaker of the Senate [2020] KEHC 1633 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

HCCHRPET/E291/2020  LEINA KONCHELLAH AND MOHSEN ABDULMUNASAR VS. HON.JUSTICEDAVIDKENANIMARAGA AND (OFFICE OF ATTORNEYGENERAL) AND 2 OTHERS

HCCHRPET/E300/2020   THE NATIONAL ASSEMBLY AND THE SENATE VS. THE CHIEFJUSTICEOF THEREPUBLICOF KENYA AND THE HONOURABLEATTORNEY GENERAL

HCCHRPET/E302/2020  THIRDWAY ALLIANCE KENYA VS OFFICE OFATTORNEY GENERAL ANDSPEAKER OFTHE NATIONAL ASSEMBLY AND ANOTHER

HCCHRPET/E305/2020  OFFICE OF ATTORNEY GENERAL VS. SPEAKER OF THE NATIONALASSEMBLYAND SPEAKER OF THE SENATE

HCCHRPET/E 314/2020  PROF. TOM ODIENDA VS. HON. ATTORNEY GENERAL AND HON.  JUSTICEDAVID KENANIMARAGA AND 2 OTHERS

HCCHRPET/E317/2020  EDWIN KIMATU SALUNY VS. (OFFICE OF ATTORNEY GENERAL) AND  SPEAKER OF THE NATIONAL ASSEMBLY AND 2 OTHERS

HCCHRPET/E337/2020   CENTRE FOR RIGHTS EDUCATION & AWARENESS VS.HON. AG& OTHERS

PET. 228/2020   NTHAATU NTOOGO VS. THE CHIEF JUSTICEOF THE REPUBLIC OF KENYA AND ANOTHER

PET. 229/2020   CLAIRE AMDANY AND ANOTHER VS. THECHIEF JUSTICE AND PRESIDENTOF THESUPREME COURT OF KENYA AND ANOTHER

JR E1108/2020 ADRIAN KAMOTHO NJENGA VS. THE HON.CHIEF JUSTICE & 4 OTHERS

RULING

1. The above listed matters were coming up today for mention for directions and this bench noted that there is a Notice of Motion application dated 16th October, 2020 filed in Petition No. E300/2020 and a Notice of Preliminary Objection dated 19th October, 2020 filed in Petition No. E291/2020, that raise the question of the competence of this Bench to hear the two petitions. The issue of the competence of this Bench is a matter that is likely to affect all the listed matters today and for this reason, we sought the views of the Parties on the way forward.

2. Three options were proposed by the parties during the mention. The first proposed by the Petitioner in Petition No. E300/2020 is that its application should be referred back to the Chief Justice without argument for direction that a Single Judge should hear it since it raises the very issue of the constitution of this Bench. The second proposal was that the matter be referred back to the Chief Justice for constitution of a new bench. The third option that was proposed was that the application by the Petitioner in Petition No. E300/2020 and the Notice of Preliminary Objection by the Petitioner in Petition No. E291/2020 should be served on all the other parties and argued inter partes.

3. An additional issue was raised during the mention as regards joinder of persons who have made applications to be joined in various capacities, in the various suits herein and there were differing views thereon. First was that such persons should not be joined until the question of the competence of this Bench is resolved. Second, was that those parties should be joined to participate in the proceedings about the competence of this Bench. There was however no objection from the 1st and 2nd Petitioners in Petition No. E337/2020 to the joinder of the National Gender and Equality Commission as a Co-Petitioner in that Petition.

4. In giving our directions on the way forward, we are guided by the provisions of Article 159 of the Constitutionas to the exercise of judicial authority. In particular, the Constitution obliges us to ensure that justice shall be done to all; justice shall not be delayed; substantive justice shall be administered without undue regard to procedural technicalities and this court is also enjoined to promote the purpose and principles of the Constitution. Specifically, with respect to the interest of the parties before us, this court is enjoined to ensure that there is fair administrative action and a fair hearing of all the parties in accordance with Article 47 and Article 50 of the Constitution.

5. Since the parties are not agreeable on the way forward, we are of the view that we need to hear all the parties before we make a decision on our competence or otherwise.

6. In the premise, we hereby direct and order as follows:

a. The Notice of Motion dated 20th November, 2020 filed in Petition E337/2020 by the National Gender and Equality Commission is hereby allowed, and the said Commission is hereby joined as the 3rd Petitioner in Petition No. E337/2020. The Petitioners in Petition No. E337/2020 are granted leave to file and serve their Amended Petition within seven (7) days.

b. Petitions No. E291/2020, E300/2020, E302/2020, E305/2020, E314/2020, E317/2020, E337/2020, Nairobi Petition No. 228/2020, Nairobi Petition No. 229/2020 and Nairobi J.R. No. 1108/2020 are hereby consolidated only for purposes of hearing and determination of the issue of this Bench’s competence.

c. The lead file for purposes of recording proceedings shall be that of Petition No. E291/2020.

d. In light of the fact that the Notice of Motion application dated 16th October, 2020 and the Notice of Preliminary Objection dated 19th October, 2020 are impugning the decision of the Deputy Chief Justice to constitute this Bench, the Deputy Chief Justice is hereby joined as an Interested Party in Petition No. E300/2020 only for the purposes of the hearing of the Notice of Motion application dated 16th October, 2020 filed in Petition No. E300/2020 and the Notice of Preliminary Objection dated 19th October, 2020 filed in Petition No. E291/2020. Prayer 2 of the Petitioner’s Notice of Motion dated 16th October, 2020 filed in Petition No. E300/2020 is accordingly dispensed with.

e. Bearing in mind that the subject matter herein is of great public interest, the Kenya Human Rights Commission, Federation of Women Lawyers (FIDA) and Okiya Omtatah are hereby joined as the 10th, 11th and 12th Interested Parties respectively in Petition No. E291/2020 and at this stage, their participation is limited to the hearing of the Notice of Motion application dated 16th October, 2020 filed in Petition No. E300/2020 and the Notice of Preliminary Objection dated 19th October, 2020 filed in Petition No. E291/2020.

f. The Notice of Preliminary Objection dated 19th October, 2020 filed in Petition No. E291/2020 and the Notice of Motion application dated 16th October, 2020 filed in Petition No. E300/2020 shall be heard and determined together, including the question of whether this Bench can hear the said Notice of Preliminary Objection and Notice of Motion application.

g. The Petitioners in Petition No. E291/2020 and Petition No. E300/2020 shall serve all the parties in the consolidated suits with their Notice of Preliminary Objection dated 19th October, 2020 and Notice of Motion application dated 16th October, 2020 respectively, by close of business on 25th November, 2020.

h. All the other parties in the consolidated suits are at liberty to file and serve their responses to the Notice of Motion application dated 16th October, 2020 filed in Petition No. E300/2020 by close of business on 2nd December, 2020.

i. The Petitioners in Petition No. E291/2020 and Petition No. E300/2020 shall thereafter file and serve their respective written submissions on the Notice of Preliminary Objection and the Notice of Motion application by close of business on 8th December, 2020.

j.  All the other parties are granted leave to file and serve reply submissions to the said Notice of Preliminary Objection and Notice of Motion application by close of business on 15th December, 2020.

k. All the pleadings and submissions shall be filed using the Judiciary’s E-Filing system and in addition, the parties in Nairobi Petition No. 228/2020, Nairobi Petition No. 229/2020 and Nairobi J.R. No. 1108/2020 shall send electronic copies via email through chrmilimani@gmail.com.

l. All submissions shall be limited to a maximum of ten (10) pages in Font 14.

m.The consolidated suits herein shall be mentioned on 17th December, 2020 at 2. 30 p.m. to confirm compliance and set a ruling date on the Notice of Preliminary Objection dated 19th October, 2020 and the Notice of Motion application dated 16th October, 2020.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF NOVEMBER, 2020.

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HON. L. A. ACHODE                                 HON. P. NYAMWEYA

JUDGEJUDGE

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HON. G. V. ODUNGA                               HON. J. A. MAKAU

JUDGE                                                    JUDGE

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HON. A. K. NDUNG’U

JUDGE