Njau & another v County Government of Nyeri [2022] KEHC 13927 (KLR)

Njau & another v County Government of Nyeri (Constitutional Petition 17 of 2014) [2022] KEHC 13927 (KLR) (19 October 2022) (Directions)

Neutral citation: [2022] KEHC 13927 (KLR)

Republic of Kenya

In the High Court at Nyeri

Constitutional Petition 17 of 2014

JN Njagi, J

October 19, 2022

Between

Robert Gakinya Njau

1st Petitioner

Jackson Nderitu Wanjage

2nd Petitioner

and

County Government of Nyeri

Respondent

Directions

1. By a ruling delivered by Justice Mshila on the September 16, 2021, the learned Judge determined that this court lacks jurisdiction to hear and make a determination in the petition. The Judge found that the court with the requisite jurisdiction is the Environment and Land Court. She accordingly made an order transferring the petition to the said court for hearing and determination.

2. The Respondent, was aggrieved by the order transferring the matter to the ELC Court instead of striking it out and thereupon filed an appeal with the Court of Appeal. They then filed with this court an application dated September 27, 2021 seeking for stay of execution of the order transferring the petition to the ELC pending the hearing and determination of the appeal pending at the Court of Appeal. A Notice of cross-appeal was filed with the Court of Appeal by Lucy Waruguru Mwai, Interested Party, seeking that the order declining the exercise of jurisdiction by the High Court be set aside and reversed.

3. Meanwhile, the 1st Petitioner filed a notice of withdrawal of the entire suit dated March 11, 2022.

4. The matter came up for mention before me on May 5, 2022. Mr. Wahome Gikonyo for the Respondent argued that as the 1st Petitioner had given a notice of withdrawal of the suit, the matter stands withdrawn. That the only step that the court could take in the matter is to hear him on his application for stay pending appeal or to make an order that the matter stands withdrawn.

5. Mr. Nderi for the Interested Party informed the court that the Interested Party had filed an application dated 2/3/2021 seeking to take over the petition. He urged the court to first deal with the notice of withdrawal. He said that his client has a right to oppose the said notice. He sought to be given time to file a notice of opposition to the withdrawal. He said that the question would be whether the application should be heard by this court or the ELC. He was of the view that it is the ELC that should deal with the application.

6. Mr. Wahome in reply stated that there is an application for stay of execution pending hearing at the Court of Appeal.

7. I have considered the issues raised by the advocates for the parties. In view of the conflicting positions taken by the advocates for the parties and considering that the court has already made a ruling that it has no jurisdiction to entertain the matter, it is my considered view that the advocates should address the court on whether the application for stay pending appeal by Mr. Wahome and the issue of notice of withdrawal of the suit together with the intended application by Mr. Nderi to oppose the notice of withdrawal of the suit should be dealt with by this court. The court should then make a ruling on the issues upon receiving submissions from the advocates.

8. I accordingly direct that the advocates take a date when they can address the court on the aforesaid issues.

SIGNED THIS 14TH SEPTEMBER 2022. J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 19TH DAY OF OCTOBER, 2022. ByHON. JUSTICE M. MUYAJUDGEIn the presence of:Nderi : for PetitionerWahome : for RespondentAbsent: for Interested partyCourt Assistant: Kinyua30 days R/A.