Tatu City Limited & Kofinaf Company Limited v National Assembly, Stephen Mbugua Mwagiru & Winfred Wanjiku Gitonga [2018] KEELC 1257 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CONSTITUTION PETITION NO.8 OF 2018

IN THE MATTER OF:  ARTICLES 1, 2, 3, 10, 20, 23, 50, 93, 95, 229, 124,

159, 164 AND 164 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF:  THE CONTRAVENTION OF ARTICLES 2, 10,

50, 95, 119 AND 159 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF:  PETITION TO PARLIAMENT

(PROCEDURE) ACT CHAPTER 7C LAWS OF KENYA

AND

IN THE MATTER OF:  THE STANDING

ORDERS OF THE NATIONAL ASSEMBLY

BETWEEN

TATU CITY LIMITED............................................1ST PETITIONER

KOFINAF COMPANY LIMITED.........................2ND PETITIONER

-VERSUS-

THE NATIONAL ASSEMBLY...................................RESPONDENT

AND

STEPHEN MBUGUA MWAGIRU........1ST INTERESTED PARTY

WINFRED WANJIKU GITONGA...........2ND INERESTED PARTY

DIRECTIONS

The Petitioners herein filed this Constitution Petition dated 11th June 2018 and sought for various reliefs from the Respondent and interested parties among them that the Petition presented by Winfred Wanjiku Gitonga before the National Assembly had been brought in bad faith and otherwise amounts to abuse of the right to petition Parliament under Article 119(1) of the Constitution of Kenya 2010 and the  process of  the National Assembly because it relates to matters outside the authority of the National Assembly.

Simultaneously, the Petitioner also filed a Notice of Motion application even dated and sought for conservatory orders by way of an Order of Prohibition to restrain the National Assembly, the Respondent and Departmental Committees from considering, deliberating, debating and/or making any recommendations on the Petition dated 28th May 2018 presented by Winfred Wanjiku Gitonga, the 2nd Interested Party herein.

Interim orders were granted in terms of prayer no.2 and the application was set down for hearing on 18th June 2018.

On the 18th June 2018, the Petitioners were represented by Mr. Issa.  Mr. Mwendwa appeared for the Respondent and Mr. Osundwa appeared for the Interested Parties.  However, Mr. Issa informed the court that from the Replying Affidavitby Mr. Sialai for the Respondent, he has confirmed that the saidPetition to the National Assembly was rejected.  He further submitted that he had earlier urged theNational Assembly to reject the said Petitionand since that confirmation was not forthcoming, the Petitioners decided to file the instant Petition to safeguard their interests.  However, with the confirmation that the Petitionwas now rejected, Mr. Issa found no need of proceeding with the Petition and he sought to withdraw it with no orders as to costs or alternatively that each party should bear its own costs.

Mr. Osundwa however argued that if the Petition was to be withdrawn, it had to be withdrawn with costs.

Mr. Mwendwa too for the Respondent urged the Court to withdraw the Petition with costs to the Respondent.

However, Mr. Issa submitted that the Petitioners should not be condemned to pay costs as the National Assembly compelled them to file the instant Petition because of their inaction over the elaborate letter written to the Clerk of the National Assembly on why the Petition was an abuse of the Parliamentary privileges and which threatened the Incorporation of Companies in Kenya to carry out business.

In the final analysis, the Court allowed the withdrawal of the Petitionand Notice of Motionapplication filed by the Petitioners but reserved the directions on costs to a further date.

The matter herein was brought as a Constitution Petition wherein the Petitioners argued that there was a violation of their rights as the Petitionfiled at the National Assembly was against Standing Order No.89(1) of the National Assembly on Subjudice Rule.

If the Notice of Motionapplication had been anchored under the Civil Procedure Actand Rules, the Court would have been guided by Section 27 of the said Actwhich provides that costs of the suit shall be granted at the

discretion of the court and costs of any action shall follow the event.

However, this is a Constitution Petitionand the Court will be guided by numerous decided cased which have settled the issues of cost in Constitution  References or Petitions.  The Petitioners herein came to court because they felt their rights were being violated and in determining whether to award costs or not, this Court will borrow the words used by the South African Constitutional Court which observed that:-

“an award of costs may have a chilling effect on the who might wish to vindicate their constitutional rights”

The above words were quoted by Mativo J Constitutional Petition No.86 of 2017 and I would agree and concur with them entirely.

For the above reasons, the court finds that the Petitioners were entitled to withdraw the instant Petitionand the accompanying Notice of Motion application which were withdrawn entirely on 18th June 2018.

However, on the issue of costs, the Court directs that each party to bear its own costs.

It is so ordered.

Dated, Signed and Delivered at Thika this 19th day of  October 2018.

L. GACHERU

JUDGE

In the presence of

Mr. Maina holding brief for Mr. Issa for Petitioners

No appearance for Respondent

Mr. Ngira holding brief for Mr. Osundwa for 1st Interested Party

2nd Interested Party

Lucy - Court clerk.

L. GACHERU

JUDGE

Court – Directions read in open court in the presence of the above stated advocates.

L. GACHERU

JUDGE

19/10/2018