SARAH ABDI, ORIETA MARTIPAN & PAUL MERO v MOHAMUD NURA HUKA, IBRAHIM HALAKE FAYO, GOLO FUGICHA, HASSAN BALLA, YARROW HASSAN, HASSAN DIBA KUMPA, ISMAIL ALI GALMA, JARSO CHUCHA HARRO, ALI ADI KALA, GODANA TACHE, ALI DABASO ALI, HASSAN HALAKE, HUS [2011] KEHC 1347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CONSTITUTION PETITION NO. 7 OF 2011

LESIIT, J

IN THE MATTER OF CONTRAVENTION AND THREAT TO, VIOLATION AND BREACH FUNDAMENTAL RIGHTS,

FREEDOMS OF CONSCIENCE, RELIGION, AND OPINION AND EQUALITY AND FREEDOM FROMDISCRIMINATION

UNDER ARTICLES 22(1) 23(1), 27, 32(1), 81 AND 258 OF THE CONSTITUTION OF KENYA.

BETWEEN

1. COUNCILOR SARAH ABDI MRS................................................................................1ST PETITIONER

2. COUNCILOR ORIETA MARTIPAN(MRS)..................................................................2ND PETITIONER

3. COUNCILOR PAUL MERO.........................................................................................3RD PETITIONER

V E R S U S

1. COUNCILOR MOHAMUD NURA HUKA..................................................................1ST RESPONDENT

2. COUNCILOR IBRAHIM HALAKE FAYO...................................................................2ND RESPONDENT

3. COUNCILOR GOLO FUGICHA.................................................................................3RD RESPONDENT

4. COUNCILOR HASSAN BALLA.................................................................................4TH RESPONDENT

5. COUNCILOR YARROW HASSAN...........................................................................5TH RESPONDENT

6. COUNCILOR HASSAN DIBA KUMPA.....................................................................6TH RESPONDENT

7. COUNCILOR  ISMAILALI GALMA...........................................................................7TH RESPONDENT

8. COUNCILOR JARSO CHUCHA HARRO.................................................................8TH RESPONDENT

9. COUNCILOR ALI ADI KALA.....................................................................................9TH RESPONDENT

10. COUNCILOR GODANA TACHE......................................................................10TH RESPONDENT

11. COUNCILOR ALI DABASO ALI.....................................................................11TH RESPONDENT

12. COUNCILOR HASSAN HALAKE...................................................................12TH RESPONDENT

13. COUNCILOR HUSSEIN SALA.......................................................................13TH RESPONDENT

14. COUNCILOR MOHAMED BILALI..................................................................14TH RESPONDENT

15. COUNCILOR IBRAHIM GABALE.................................................................15TH RESPONDENT

16. COUNCILOR ADAN IBRAHIM GEDI............................................................16TH RESPONDENT

17. COUNCILOR  SELESIO KIAMBI.................................................................17TH RESPONDENT

18. COUNTRY COUNCIL OF ISIOLO..............................................................18TH RESPONDENT

RULING

The applicants in this Petition filed a petition invoking articled 22(1) 23(1) 27, 32(1) 81 and 258  of the Constitution 2010. Simultaneously with the Petition they file a Chamber summons application dated 12th July 2011.   They are seeking orders in terms of Order 3 of the application which stipulates:-

“3. That pending the hearing and determination of the petition herein an injunction be issued restraining the 1st to 18th Respondents jointly and severally or/and by themselves their servants, agents, employees, or representatives or whomsoever from holding or conducting Council elections or any other election on 14th July, 2011 or any other date thereafter unless the constitution is fully complied with or further orders of the court are granted.”

The grounds of the application are cited on the face of the application as follows:-

(a)That the Petitioners/Applicants are councilors in the County Council of Isiolo.

(b)That the 1st to 16th Respondents have started a movement which is undemocratic, illegal and unconstitutional and are discriminating against minority tribes, people of others faiths and women.

(c)That they have taken an oath before Imam which very dangerous.

(d)That the Respondents actions are making a nonsense of the Constitution.

(e)That it is only this court that can save the situation.

The  application is further supported by an affidavit in support of the application sworn by the three petitioners.

The application was opposed.   The 1st to the 17th Respondents rely on a replying affidavit sworn on their behalf by 1st Respondent.   The 18th Respondent the County Council of Isiolo relies on a Replying Affidavit sworn on its behalf by the clerk to the County Council of Isiolo.

I have carefully considered the application and all the affidavits sworn for and against the Petitioners Chamber Application.

Mr. Rimita urged the application on behalf of the Petitioners. For the 1st to 17th Respondents Mr. C. Kariuki represented them.   For the 18th Respondent Mr. Kimabi opposed the application on its behalf.

The application has been brought under Provisions of the Constitution of Kenya 2010.   The Petitioners have applied to this court to invoke the provisions of Articles 22 to 23 of the Constitution to stop a threat of a breach of the Constitution.   In particular Mr. Rimita urged that there was a threat  of violation and breach of fundamental rights, freedoms of conscience, religion, opinion, equality and freedom from discrimination counsel urged that the petitioners have deposed in the supporting affidavit that the 1st to 17th Respondents had taken an oath before a Muslim Iman not to elect women, minority tribes and non muslims to the various leadership positions of the council.   That in the circumstances the said respondents had bound themselves with an oath to breach provisions of our Constitution afore mentioned.

Mr. Rimita urged that if nothing else the Gender Rule of 1/3 has provided under Article 81(b) and other Articles was under threat of being breached.

There are other complaints highlighted by Mr. Rimita in his submissions as deposed to in the supporting affidavit.   These include the fact the 1st to 17th Respondents had travelled to Kitengela to ensure each of them observed their oath.

Mr. C. Kariuki challenged the depositions supporting affidavits for failing to disclose place, date and venue of oath or Imam who administered it, and that the source of the information was also not discussed.

Mr. Kariuki urged that the 1/3 rule on gender provided under Article 81 and Chapter 7 of the Constitution will only be operational upon enactment of Legislation by virtue of Schedule 6(2) (a) there under.

Mr. Kiambi on behalf of the 18th Respondent urged that his client was non partisan and was not supporting any party.   Counsel urged that the application should be declined so that the elections could be held before August 15th as provided under Cap 265 Laws of Kenya.   He urged that if elections were not conducted the operations of the council may ground to a halt.

I have considered the oral arguments of the petitioners and Respondents.   Having carefully considered these arguments, I have come o a conclusion of the matter.

The petitioners had the burden to establish that there was real threat of violation of the Constitutional provisions cited in their Petition and Chamber Summons application.   It is my view that the burden was not discharged for reason there was material non disclosure of important particulars that could have established the alleged threat.   The Petitioners have not disclosed how they came by the information that the Respondents had taken an oath to bind themselves to take certain acts, which acts would result in a violation of the Constitution 2010. The petitioners did not disclose the Imam who administered the alleged oath, or the place, date and time of the alleged oath taking.

I also considered the glaring omission by the Petitioners/Applicants to which of the Respondents were present.

In the absence of the said disclosures the threats and or threatened violations have not been sufficiently established. The Petitioners complaints are as of now mere allegation without basis.

I agree with Mr. Kiambi’s submissions that every right and freedom under the Constitution gives reciprocal rights.   In fact they give reciprocal rights, obligation and freedoms for the enjoyment and benefit of all.

I find that the Petitioners have failed to establish a prima facie case, they are undeserving of the orders sought.

The petitioners should set the Petition for substantive hearing and file further other affidavits in support of their petition.

I decline to confirm the interim injunction granted at the ex-parte stage.   I accordingly set aside the interim injunction issued on 13th July 2011 with no orders as to costs.

As to the Chamber Summons Application filed by the 1st to 17th Respondents dated 14th July 2011, the same is superfluous.   All the prayers sought in the said application have been over taken by events.   The same is MOOT.   Accordingly I make no orders in its respect.

Those are my orders.

DATED SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF JULY 2011

J. LESIIT

JUDGE