Opiyo v Scrutineer & 8 others [2023] KEHC 2820 (KLR)

Opiyo v Scrutineer & 8 others (Constitutional Petition 126 of 2019) [2023] KEHC 2820 (KLR) (Constitutional and Human Rights) (30 March 2023) (Ruling)

Neutral citation: [2023] KEHC 2820 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 126 of 2019

HI Ong'udi, J

March 30, 2023

Between

Gad Omondi Opiyo

Petitioner

and

Peter Kibinda, Scrutineer

1st Respondent

Robert Kariuki, Scrutineer…………....……..…….2Nd Respondent Julius Kibwage, Scrutineer

2nd Respondent

Julius Kibwage Scrutineer

3rd Respondent

Emma Miloyo , The President of The Architectural Association Of Kenya

4th Respondent

Jacob Mwangi, The CEO of The Architectural Association Of Kenya

5th Respondent

Infotrack Research and Consulting Limited

6th Respondent

Creative Digital Lab Limited

7th Respondent

Mugure Njendu

8th Respondent

Architectural Association Of Kenya (AAk)

9th Respondent

Ruling

1. A perusal of the record reveals that the Petition dated March 28, 2019 was filed on the same date. The respondents by then were eight (8) in number. The 9th respondent filed an application dated April 15, 2019 seeking enjoinment as a respondent. It was enjoined as the 9th respondent vide the ruling by Makau J dated October 24, 2019.

2. The Court was again moved by the 9th respondent vide an application dated October 30, 2019 seeking orders that:i.That the proceedings herein be stayed pending arbitration.ii.That the dispute between the parties be referred to arbitration.

3. In the meantime the contested election proceeded as the Court did not issue any restraining orders against the respondents.

4. Vide its ruling dated November 5, 2020 Makau J stayed all the proceedings herein pending the arbitration that the Court had referred the parties to.

5. It is not disputed that the arbitration did not take place. The Court has also been informed that since the election that was being contested proceeded, the petition has been overtaken by events.

6. Considering all these facts, it would not be just to condemn any party to pay costs. The 9th respondent was never sued by the petitioner. It applied to be enjoined and was allowed. I have noted that the proceedings herein were stayed because of the referral to arbitration which is encouraged by our own Constitution. The referral to arbitration had again been successfully sought for by the 9th respondent.

7. In all fairness I find that an order for costs to be paid to the 9th respondent by the petitioner would not be fair. Following the petitioner’s request to withdraw the petition I make the following orders:i.The Petition dated March 28, 2019 is hereby withdrawn.ii.Each party to bear their own costs.iii.File closed.

Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 30THDAY OF MARCH, 2023 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE