Republic v Clerk of the National Assembly, National Assembly & Okiya Omtatah Okoiti Ex Parte;Applicant Eaa Company Limited [2020] KEHC 2352 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW  APPLICATION NO. 104 OF 2020

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

ORDERS OF PROHIBITION AND CERTIORARI

BETWEEN

REPUBLIC................................................................................................APPLICANT

VERSUS

CLERK OF THE NATIONAL ASSEMBLY...............................1ST RESPONDENT

THE NATIONAL ASSEMBLY.....................................................2ND RESPONDENT

OKIYA OMTATAH OKOITI.......................................................3RD RESPONDENT

EX PARTE APPLICANT:...............................................EAA COMPANY LIMITED

RULING

1.  This Court delivered a ruling on  6th July 2020 in which it declined to grant  orders sought by the ex parte Applicant that the leave  granted herein to institute judicial review proceedings operate as a stay  of the adoption and implementation of the Parliamentary Investments Committee’s Report and Recommendations on the consideration of the Auditor General’s Special Audit Report dated 10th July 2019, insofar as it touches on, refers to, relates to and make recommendations respecting and regarding tender no. KEBS/T010/2019-2021 and the contract entered into by the ex parte Applicant upon participating in the said tender.

2. The ex parte Applicant has now filed a Notice of Motion application dated 15th October 2020, and is seeking the following orders therein:

1.  THAT this application be certified urgent and heard ex parte.

2. THAT the Ruling and Order dated 6th July 2020 on the issue of leave operating as a stay to suspend the implementation of the PIC Report dated 29th May 2020, which was adopted on the 13th October 2020 by the 2nd Respondent, be and is hereby reviewed in the exercise of this Court’s discretion and inherent powers by setting aside the order declining stay.

3. THAT leave to institute these judicial review proceedings granted on the 20th May 2020 shall henceforth operate as a stay to suspend the implementation of the Parliamentary Investments Committee’s Report and Recommendations on the consideration of the Auditor General’s Special Audit Report dated 10th July 2019 only insofar as it touches on, refers to, relates to and make recommendations respecting and regarding tender no. KEBS/T010/2019-2021 and the contract entered into by the applicantupon participating in the said tender.

4.  THAT Costs be to the applicant.

5.  Any other order that is just and equitable.

3. The application is supported by an affidavit sworn on 15th October 2020 by Wycliffe Muga, the ex parte Applicant’s agent in Kenya. The main ground for the application is that the Parliamentary Investments Committee’s Report dated 29th May 2020 on the Special Auditor’s Report dated 10th July 2020, was subsequent to this Court’s ruling adopted by the National Assembly on the 13th October 2020. Further, that unless its implementation is halted or suspended by this Court, the ex parte Applicant’s rights shall to be violated.

4.  In the circumstances I hereby order as follows:

I.  Theex parteApplicant shall serve the Respondents with theNotice of Motion application dated 15th October 2020, skeletal submissions thereon, and a copy of these directions within seven (7) days of today’s date.

II.  The Respondents areat liberty to file a replying affidavit and reply submissions within seven (7) days of service by theex parteApplicant.

III.The hearing of the Notice of Motion dated 15th October 2020 shall take place on 9th November 2020.

IV.Pending the hearing of the saidNotice of Motion on 9th November 2020, interimorders of stay are hereby granted, staying any and furtherimplementation of the recommendations madeinthe Parliamentary Investments Committee’s Report and Recommendations dated 28th May 2020 as adopted on 13th October 2020, only in so far as they touch on and affect tender no. KEBS/T010/2019-2021 and the contract entered into thereto by the ex parte Applicant.

V.The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the ex parte Applicants and Respondent by electronic mail by close of business on Wednesday, 21st October 2020.

VI. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for virtual hearing on9th November 2020.

VII.Parties shall be at liberty to apply.

5.  Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS   16TH DAY OF OCTOBER 2020

P. NYAMWEYA

JUDGE