Okiya Omtatath Okoiti,Nyakina Wycliff Gisebe,Charles Omboko,David Munyao Mwanzia & Vincent Muili Muindi v Attorney-General,Kenya Law Reform Commission,National Assembly,Justin Bedan Njoka Muturi,Kenneth Makelo Lusaka & Cabinet Secretary, Ministry of Information Communication and Technology;Council of Governors,Katiba Institute,Law Society of Kenya,Child Welfare Society of Kenya & Communication Authority of Kenya & 4 others (Interested Parties) [2019] KEHC 3896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

PETITION NO. 163 OF 2019

(FORMERLY MACHAKOS PETITION 7 OF 2019)

BETWEEN

OKIYA OMTATATH OKOITI.................................................1ST PETITIONER

NYAKINA WYCLIFF GISEBE...............................................2ND PETITIONER

CHARLES OMBOKO.............................................................3RD  PETITIONER

DAVID MUNYAO MWANZIA.................................................4TH PETITIONER

VINCENT MUILI MUINDI.....................................................5TH PETITIONER

VERSUS

THE HON. ATTORNEY-GENERAL.....................................1ST RESPONDENT

KENYA LAW REFORM COMMISSION.............................2ND RESPONDENT

THE NATIONAL ASSEMBLY...............................................3RD RESPONDENT

THE HON. JUSTIN BEDAN NJOKA MUTURI.................4TH RESPONDENT

THE HON. KENNETH MAKELO LUSAKA......................5TH RESPONDENT

CABINET SECRETARY, MINISTRY OF INFORMATION

COMMUNICATION AND TECHNOLOGY........................6TH RESPONDENT

AND

THE COUNCIL OF GOVERNORS..........................1ST INTERESTED PARTY

THE KATIBA INSTITUTE.......................................2ND INTERESTED PARTY

THE LAW SOCIETY OF KENYA...........................3RD INTERESTED PARTY

CHILD WELFARE SOCIETY OF KENYA............4TH INTERESTED PARTY

COMMUNICATION AUTHORITY OF KENYA...5TH INTERESTED PARTY

RULING NO. 2

This Petition was scheduled for hearing today. Before commencement of the hearing, Mr. Njoroge Regeru for the 2nd Respondent made an oral application to vacate the hearing date and stay the hearing of this Petition. The application by the 2nd Respondent was supported by the other Respondents and the interested parties who support them.  We also heard the submissions in opposition by the Petitioners and the 2nd Interested Party.

We are being asked to vacate today’s hearing date and to stay the hearing of this petition pending the finalization of the hearing of the consolidated Petitions No, 56, 58 and 59 of 2019, which have been substantially heard by this Bench, and in which the issues raised are similar to some issues in this petition. The Petitioners and 2nd Interested Party oppose the application on the grounds that this is not a good reason to adjourn the hearing, and that the application for stay of this petition is not grounded in law.

We take the view that the hearing of this Petition cannot be dependent on the determination of the consolidated Petitions No, 56, 58 and 59 of 2019.  This is because in our view, this petition raises important issues that merit hearing. We are however cognisant of the fact that there are issues relating to the National Integrated Identity Management System (NIIMS) that are raised in this Petition that are also raised in the consolidated Petitions, as argued by Mr. Regeru.   This is what has informed our previous decisions to hear this petition immediately after the consolidated Petitions, so as to avoid a situation in which conflicting decisions are given on the cross- cutting issues. It is for this reason that the hearing date of this Petition has always been given in tandem with the hearing dates of the Consolidated Petitions.

As submitted by Mr. Regeru, it was indeed envisaged that the hearing of the consolidated Petitions would be concluded on 26th September 2019, and this petition then heard today.  The intention of the court was to consider and determine both petitions simultaneously to save on time, and to avoid giving conflicting decisions on the cross-cutting issues as aforestated.  Now that the consolidated Petitions are yet to be concluded, and noting Mr. Regeru expressed intentions to file supplementary submissions on the cross-cutting issues as a result of developments at the hearing of the consolidated Petitions this week, we find that these are justifiable reasons for an adjournment.

On the application for stay of this petition, we reiterate that this petition requires to be heard on it merits.  It is only the timing of the hearing  that shall be affected by the hearing of the consolidated Petitions as indicated in the foregoing paragraphs. We accordingly decline to stay this petition.

We however, vacate today’s hearing date, and direct that this petition shall be mentioned on 3rd October 2019 at 3. 30pm, when we shall give appropriate directions, including on a new hearing date.

It is so ordered.

DATED AND SIGNED AT NAIROBI THIS  27TH DAY OF SEPTEMBER 2019

P. NYAMWEYA                 MUMBI NGUGI             W. KORIR

JUDGE                                 JUDGE                             JUDGE