[2022] KEHC 10935 (KLR)
The court found that while some issues raised in the petition may have been addressed in previous litigation, there remain substantive constitutional questions, such as the legality of the President's invitation to the 2nd respondent, that have not been conclusively determined. The court emphasized the need to...
Source-derived case information.
- Citation
- [2022] KEHC 10935 (KLR)
- Parties
- Applicant: Moraa Gesicho; Respondent: Uhuru Muigai Kenyatta; Respondent: Raila Odinga; Respondent: Speaker of the National Assembly; Respondent: Speaker of the Senate
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 321 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Application to Set Aside Dismissal and Reinstate Petition
- Outcome
- Application allowed; dismissal order set aside; petition reinstated.
- Judges
- AC Mrima
- Legal Topics
- Res Judicata, Presidential Powers, Constitutional Petitions, Reinstatement of Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moraa Gesicho
Applicant
Uhuru Muigai Kenyatta
Respondent
Raila Odinga
Respondent
Speaker of the National Assembly
Respondent
Speaker of the Senate
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Set Aside Dismissal and Reinstate Petition
Legal Issues
- 1 Whether the dismissal of Petition 321 of 2018 should be set aside and the petition reinstated.
- 2 Whether the doctrine of res judicata applies to bar the hearing of the petition.
- 3 Whether there are unresolved constitutional issues regarding the President's invitation to the 2nd respondent to assist in governance.
Ratio Decidendi
The court found that while some issues raised in the petition may have been addressed in previous litigation, there remain substantive constitutional questions, such as the legality of the President's invitation to the 2nd respondent, that have not been conclusively determined. The court emphasized the need to balance the interests of justice by allowing unresolved issues to be heard. Accordingly, the court exercised its discretion to set aside the dismissal order and reinstate the petition, directing that the applicability of res judicata be addressed during the substantive hearing. The court further ordered that costs of the application abide the outcome of the petition.
Court Disposition
Application allowed; dismissal order set aside; petition reinstated.
Orders
- The order dismissing Petition 321 of 2018 made on December 15, 2021 is set aside.
- The parties shall take directions on the hearing of the Amended Petition.
Full Case Text
Judgment text and source record
34 paragraphs
Gesicho v Kenyatta & 3 others (Constitutional Petition 321 of 2018) [2022] KEHC 10935 (KLR) (Constitutional and Human Rights) (23 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10935 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Constitutional and Human Rights
Constitutional Petition 321 of 2018
AC Mrima, J
June 23, 2022
Between
Moraa Gesicho
Petitioner
and
Uhuru Muigai Kenyatta
1st Respondent
Raila Odinga
2nd Respondent
Speaker of the National Assembly
3rd Respondent
Speaker of the Senate
4th Respondent
Ruling
1. This ruling relates to the petitioner’s application by way of a Notice of Motion dated December 21, 2021. The application seeks the following orders: -1. That the application be certified urgent and be heard ex-parte in the first instance.2. That this court sets aside the order of dismissal of Petition 321 of 2018 issued on December 15, 2021. 3.That this court reinstates Petition 321 of 2018, which was dismissed on December 15, 2021. 4.That Costs for this application be in the course.
2. The application is premised on some 26 grounds appearing on its body. It is also supported by the Petitioner’s affidavit and written submissions.
3. The application was duly served. In response thereto, it is only the 2nd Respondent herein who opposed it. The rest of the parties did not participate in the hearing of the application.
4. The 2nd respondent relied on his grounds of opposition dated January 15, 2022, the replying affidavit of one Arnold Ochieng Oginga sworn on January 15, 2022 and written submissions.
5. I have carefully considered the application. The petitioner has, in great detail, narrated the genesis and history of this matter. She, as well, explained the events that led to her non-attendance before Court on December 15, 2021.
6. In opposing the application, the 2nd Respondent posited that the Petition was not only based on the non-attendance, but on merit since the current Petition was res-judicataHigh Court Petition No. 451 of 2018 Third way Alliance & others vs. Attorney General & others, High Court Petition No. E282 of 2020 David Ndii & others vs. Attorney General & Others and Court of Appeal Civil Appeal No. E291 of 2021 Attorney General vs. David Ndii & Others.
7. In their written submissions, the parties rooted for their rival positions.
8. This court has perused the Amended Petition and the responses thereto. The petitioner outlined several issues for the court’s determination in the Amended Petition. They included the constitutionality of the invitation which H.E. Hon. Uhuru Kenyatta, as the President of Kenya, extended to Hon. Raila Odinga to assist him govern the Country.
9. The petitioner also sought for several declarations and orders.
10. A careful look at this matter reveals that whereas there may be some issues which might have been settled by previous litigation before courts, there are, as well, some issues which remain unattended to. An example is the constitutionality of the invitation which H.E. Hon. Uhuru Kenyatta, as the President of Kenya, extended to Hon. Raila Odinga, famously referred to as ‘the Handshake’.
11. This court is, therefore, called upon to strike a balance between the rival parties with a view of according an opportunity to the parties and the court to deal with the issues which are yet to be determined, to be so settled.
12. In attaining such a bar, and by considering the parties’ positions and submissions, this court hereby determines the Notice of Motion dated December 21, 2021 and makes the following orders: -(a) The Order dismissing the Petition made on December 15, 2021 be and is hereby set-aside.(b) The Parties shall take directions on the hearing of the Amended Petition.(c) The extent of the applicability of the doctrine of res judicata in this matter shall be dealt with in the course of the hearing of the Petition.(d) The costs of the application to abide the outcome of the Petition.Orders of the Court.
DELIVERED, DATED and SIGNED at NAIROBI this 23rd day of June, 2022. A. C. MRIMAJUDGE