Republic v Kenya National Examinations Council Exparte Idris Garat Noor, Abdullahi Omar Hassan, Abdirashid Ore Ahmed, Oran Adan Hussein, Abdi Sheikh Hassan, Ibrahim Ali, Hassan Ado Abdi, Mohammed Noor Bare, Farah Adan Ali, Issack Muhamed Mohamud, Abdi Ahmed Ali, Abdirizak Adan Ibrahim, Abdirizak Abdirahman, Abdullahi Muhammed, Yssuf Kilas Aden, Alinoor M. Abdi, Abdi Dubow Ibrahim, Ali Abdi Hussein & Adan Edin Hussein; Teachers Service Commission (Interested Party) [2021] KEHC 7975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. 13 OF 2019

BETWEEN

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

VERSUS

KENYA NATIONAL EXAMINATIONS COUNCIL..............................RESPONDENT

AND

THE TEACHERS SERVICE COMMISSION...........................INTERESTED PARTY

EX PARTE APPLICANTS:

IDRIS GARAT NOOR

ABDULLAHI OMAR HASSAN

ABDIRASHID ORE AHMED

ORAN ADAN HUSSEIN

ABDI SHEIKH HASSAN

IBRAHIM ALI

HASSAN ADO ABDI

MOHAMMED NOOR BARE

FARAH ADAN ALI

ISSACK MUHAMED MOHAMUD

ABDI AHMED ALI

ABDIRIZAK ADAN IBRAHIM

ABDIRIZAK ABDIRAHMAN

ABDULLAHI MUHAMMED

YSSUF KILAS ADEN

ALINOOR M. ABDI

ABDI DUBOW IBRAHIM

ALI ABDI HUSSEIN

ADAN EDIN HUSSEIN

RULING

1. On 7th December 2020 directed the parties to file and exchange submissions on the ex parte Applicant’s Notice of Motion dated 21st January 2019, and this matter was coming up for reserving of judgment of today. The 1st Respondent has now filed an application by way of a Notice of Motion dated 2nd February 2021, seeking the following orders:

1. THATthe court be pleased to grant leave to the 1st Respondent to file written submissions out of the prescribed time.

2. THATthe Court be pleased to enlarge time by thirty (30) days for the 1st Respondent to file and serve written submissions.

3. THAT the costs of this Application be provided for.

2. The said application is supported by an affidavit deponed to on 2nd February 2021 by Nicholas Weru Munyoro, the 1st Respondent’s advocate. The main grounds for the application are that upon the issuance of this Court’s directions of 6th October 2020, the 1st Respondent moved the Court of Appeal seeking a stay of proceedings pending appeal, and that the Court of Appeal is yet to issue a determination on the application. The 1st Respondent also informed that it had already filed its response to the substantive Notice of Motion on 11th February 2019.

3. In addition, that the 1st Respondent’s intended submissions raise substantial issues of determination whose non-consideration would be highly prejudicial to the Defendant, while the ex-parte Applicant would suffer no prejudice if the application is allowed, as judgement is yet to be delivered in this matter.

4. The 1st Respondent annexed a copy of its replying affidavit.

The Orders

5. In order to expedite the hearing of this matter, and as the ex parte Applicants are also unlikely to be prejudiced as their submissions are not on record, I will consider and determine the 1st Respondent’s Notice of Motion ex parte.

6. The 1st Respondent’s Notice of Motion dated 2nd February 2021 is accordingly allowed to the extent of the following orders:

I.The ex parte Applicant is granted leave to file and servethe Respondent and Interested Party with its submissions on the Notice of Motion dated21st January 2019 within twenty- one (21) days of today’s date.

II. The 1st Respondent isgranted leaveto file and serve its reply submissions on the ex parte Applicant’s Notice of Motion dated21st January 2019 within thirty (30) days of today’s date.

III. There shall be no order as to the costs of the 1stRespondent’s Notice of Motion dated 2nd February 2021.

IV. Judgment on theex parteApplicant’s Notice of Motion dated21st January 2019 shall be reserved at a hearing to be held on 21st April 2021.

V. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the ex parte Applicant’s substantive Notice of Motion dated21st January 2019 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

VI.All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies in word format by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comandasunachristine51@gmail.com.

VII.The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

VIII. The parties shall also be required to file their affidavits evidencing service in the Judiciary’s e-filing system.

IX. The Deputy Registrar of the Judicial Review Division shall send a copy of this ruling to the ex parte Applicant, Respondent and Interested Party by electronic mail by close of business on Thursday, 4th February 2021.

X. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing by email on 21st April 2021.

XI. Parties shall be at liberty to apply.

7. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF FEBRUARY 2021

P. NYAMWEYA

JUDGE