[2012] KEHC 5533 (KLR)

[2012] KEHC 5533 (KLR)

The court held that the petition was fundamentally a collateral attack on an existing judgment of a court of concurrent jurisdiction (Justice Ngugi's decision in the consolidated County Commissioners cases), which is not permitted under Kenyan law. The issues raised by the petitioners were inextricably linked to the facts and findings of the earlier judgment, and granting the reliefs sought would effectively set aside or review that judgment. The High Court's jurisdiction to interpret the Constitution under Article 165 must be exercised in the context of a real controversy, not to answer academic or hypothetical questions. Since the petition did not present a new or distinct controversy...

Citation
[2012] KEHC 5533 (KLR)
Parties
Applicant: Andrew Okiya Omtatah Okoiti; Applicant: Michael S. Chepkwony; Applicant: Simon L. Kalale; Applicant: Peter Njoroge; Respondent: The Hon. Attorney General; Respondent: Commission for Implementation of the Constitution
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
14 December 2012
Case Number
Petition 351 of 2012
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection/strike Out
Outcome
petition struck out as abuse of process
Legal Topics
Presidential Immunity, Justiciability, Separation of Powers, Abuse of Process
Source Language
English
Constitutional Law Civil Procedure Presidential Immunity Justiciability Separation of Powers Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Andrew Okiya Omtatah Okoiti

Applicant

Michael S. Chepkwony

Applicant

Simon L. Kalale

Applicant

Peter Njoroge

Applicant

The Hon. Attorney General

Respondent

Commission for Implementation of the Constitution

Respondent

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection/strike Out

Legal Issues

  1. 1 Whether the High Court has jurisdiction to adjudicate on actions and omissions of the President during his tenure of office under the Constitution.
  2. 2 Whether the petition constitutes a collateral attack on a judgment of a court of concurrent jurisdiction.
  3. 3 Whether the issues raised are justiciable or amount to academic questions lacking a real controversy.

Ratio Decidendi

The court held that the petition was fundamentally a collateral attack on an existing judgment of a court of concurrent jurisdiction (Justice Ngugi's decision in the consolidated County Commissioners cases), which is not permitted under Kenyan law. The issues raised by the petitioners were inextricably linked to the facts and findings of the earlier judgment, and granting the reliefs sought would effectively set aside or review that judgment. The High Court's jurisdiction to interpret the Constitution under Article 165 must be exercised in the context of a real controversy, not to answer academic or hypothetical questions. Since the petition did not present a new or distinct controversy...

Court Disposition

petition struck out as abuse of process

Orders

  • The petition is struck out.
  • No order as to costs.