REPUBLIC v CONSTITUENCY DEVELOPMENT COMMITTEE, KILGORIS CONSTITUENCY & 2 others Ex-parte JOHN KIRANGAS KORINKO & 4 others [2009] KEHC 311 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII

Miscellaneous Civil Application 69 of 2008

IN THE MATTER OF: AN APPLICATION BY JOHN KIRANGAS KORINKO, DAVID REMPU OLE MOISITE, LEPOSO KOROROM, DANIEL LEURU OLE KALASINGA& NICHOLAS BETT FOR JUDUCIAL REVIEW (PROHIBITION & MANDAMUS)

AND

IN THE MATTER OF: CONSTITUENCY DEVELOPMENT

FUND ACT,

AND

IN THE MATTER OF: CONSTITUTION OF THE

LOCATIONAL COMMITTEE

AND

IN THE MATTER OF: CONVENTION OF LOCATIONAL MEETINGS

AND

IN THE MATTER OF: KILGORIS CONSTITUENCY

BETWEEN

REPUBLIC …………………………………….. APPLICANT

VERSUS

THE CONSTITUENCY DEVELOPMENT  COMMITTEE,

KILGORIS CONSTITUENCY …………………………. 1ST RESPONDENT

NATIONAL CONSTITUENCIES DEVELOPMENT

FUND MANAGEMENT COMMITTEE ………….….... 2ND RESPONDENT

HON. GIDEON KONCHELLA, MEMBER OF PARLIAMENT,

KILGORIS CONSTITUENCY ……………….….……. 3RD RESPONDENT

EX-PARTE:

JOHN KIRANGAS KORINKO

DAVID REMPU OLE MOISITE

LEPOSO KOROROM

DANIEL LEURU OLE KALASINGA

NICHOLAS BETT

RULING

After delivery of this court’s ruling dated 2nd March, 2009, this matter was forwarded to the High Court Central registry, Nairobi. But following variation of Gazette Notice No. 300 of 2007 that required all judicial review matters to be heard at Nairobi, this file was returned to this court.

Mr. Ochwangi for the applicant urged this court to give its ruling in respect of the preliminary issues that had been raised by Mr. Bosire for the respondent on 19th February, 2009. The issues had been highlighted in the earlier ruling aforesaid.

I have considered the submissions made by counsel. The Constituencies Development Fund Amendment Act No. 16 of 2007 abolished the National Constituencies Development Fund Management Committee and replaced it with a Development Fund Board. The Board is a corporate entity and capable of suing and being sued, unlike the abolished committee.

In that regard, the second respondent is non-existent and cannot therefore be sued.

As regards the first respondent, the Constituency development Committee, it is trite law that the members of that committee can only be sued in their specific names, not generally as a Committee.

The third respondent is the patron of Kilgoris Constituency Development Fund Committee. In the absence of the first and second respondents who have wrongly been sued, the ex-parte applicants’ application cannot be sustained against

the third respondent alone.

The application is bad in law and is struck out with costs to the first and third respondents.

DATED, SIGNED AND DELIVERED AT KISII THIS 3RD DAY OF DECEMBER, 2009.

D. MUSINGA

JUDGE.

3/12/2009

Before D. Musinga, J.

Mobisa – cc

Mr. Oguttu for the Applicant

N/A for the Respondent

Court:Ruling delivered in open court.

D. MUSINGA

JUDGE.