Willis Ogola Okendo - Rarieda v Clerk, National Assembly & Attorney General [2022] KEHC 2496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CIVIL CASE NO. E010 OF 2021

CORAM: R.E. ABURILI, J

WILLIS OGOLA OKENDO - RARIEDA...............................PLAINTIFF

VERSUS

THE CLERK, NATIONAL ASSEMBLY........................1ST DEFENDANT

ATTORNEY GENERAL................................................2ND DEFENDANT

RULING

1. I have considered the Plaint and documents attached to the Plaint and prayers sought in this suit filed on 11/11/2021. I observe that the Plaint seeks for orders which this court is incapable of granting as this court has no power to question the constitutionality of a constitutional provision (see Article 2 of the Constitution). In addition, this court has no power or authority to amend the Constitution or direct an amendment to the Constitution or any part thereof by directing Parliament to do so, as sought by the plaintiff herein.  The manner in which the Constitution can be amended is stipulated in Articles 255 and 256 of the Constitution.

2. This Court has taken time and explained to Plaintiff and guided him to seek probono legal advice on the matter before he can consider approaching this Court on the same.  This is so because the plaintiff claims that his rights are violated under Article 22 of the Constitution by the presence of Article 85 of the Constitutionwhich discriminates Independent Candidates who are not entitled to payment from the Political Parties Fund. What I also understand from the plaintiff’s pleadings is that Independent Candidates should also have an account where they can deposit money so that Independent Candidates Founders can also be paid a fee just like the Political Parties get funding deposited into their accounts from their members and candidates and eventually they benefit from the Political Parties Fund. He also claims that as the person who‘authored’the Independent Candidates Chapter in the Constitution, which efforts were recognized by the Kenya National Commission on Human Rights among others, he deserves to be paid for such a commendable job. I can’t agree more that the plaintiff, a senior Citizen of this country could have played a very important role in the constitution making process. However, to challenge a constitutional provision in Article 85 of the Constitution by way of a plaint urging the Court to direct The National Assembly to amend the same is a tall order.

3. For all the above reasons and for reasons that a constitutional provision cannot be challenged before any Court of law on account of violation of a constitutional right or for being unconstitutional, I hereby find and hold that this Court is devoid of and is deprived of any power, authority or jurisdiction to make determinations that challenge the constitutionality of constitutional provisions as impugned. The suit herein is found to be a non-starter and fatally incompetent on arrival. It must not only be struck out, but it must and is hereby dismissed with no orders as to costs.

4. These proceedings and Ruling to be typed and supplied to the Plaintiff free of charge. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF FEBRUARY, 2022

R.E. ABURILI

JUDGE