[2022] KEHC 12518 (KLR)

Kipkemoi v Attorney General & 2 others; Mike Sonko & 3 others (Interested Parties) (Petition E010 of 2022) [2022] KEHC 12518 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12518 (KLR)

Republic of Kenya

In the High Court at Eldoret

Petition E010 of 2022

RN Nyakundi, J

May 16, 2022

In The Matter Of: The Constitution Of Kenya 2010 And In The Matter Of: Articles 1,2,3,10,20 (3&4), 24, 25, 38, 50, 73, 75, 80, 88, 99, 137, 140,145 159,163,165,180,181,193,258,259 & 260 Of The Constitution Of Kenya 2010 And In The Matter Of: The Interpretation And Application Of The Constitution Pursuant To Articles 75, 99, 165, 180, 181, 258 And 259 Of The Constitution Of Kenya, 2010 And In The Matter Of: The Eligibility And Qualifications Of A Person Seeking To Be Elected To An Elective Office Under The Constitution Of Kenya 2010 And The Elections Act, 2011 And In The Matter Of: An Immediate & Threatened Abuse & Grievous Violation Of The Constitution Of Kenya, 2010 And In The Matter Of: Chapter Six Of The Constitution On Leadership And Integrity And In The Matter Of: The County Governments Act, 2012 And In The Matter Of: Ethics And Anti Corruption Commission Act And In The Matter Of: The Doctrine Of Legitimate Expectations

Between

Silvestrer Kipkemoi Arap

Petitioner

and

The Attorney General

1st Respondent

The Indpendent Electoral and Boundaries Commission

2nd Respondent

Ethics and Anti- Corruption Commission

3rd Respondent

and

Mike Sonko Gideon Mbuvi Kioko

Interested Party

Ferdinand Ndungu Waititu Babayao

Interested Party

The Kenya Human Rights Commission

Interested Party

Katiba Institute

Interested Party

Ruling

1. The petitioner Silvestrer Kipkemoi on May 6, 2022 by way of a constitutional petition grounded on the supreme law of the Republic and corresponding statutes applied for various declarations under article 23 of the Constitution. Infused to the substantive petition is a notice of motion seeking conservatory orders pending hearing and determination of the petition. On the same date this court certified both the notice of motion and the petition urgent ex-parte in the first instance. Given the weight in the issues raised by the petitioner an interim interdict was granted, to effect service and thereafter an inter-parte hearing on the efficacy of the conservatory orders scheduled for the May 13, 2022.

2. This led to the aforementioned parties to proceed to file their brief rejoinders to the petition. The court properly constituted on the due date had the opportunity to hear from the various legal counsels appearing on behalf of the parties whether there exist any outstanding procedural issues to impair canvassing of the notice of motion.

3. It became apparent that Dr Khaminwa SC leading a team of other counsels appearing on behalf of the 1st interested party that the petition as filed is unlikely to proceed for hearing. In the skeleton case conference submissions Dr Khaminwa urged the court to take judicial notice that besides this petition, there are other petitions referenced as E017 of 2022 and E090 of 2022 domiciled at Mombasa and the Constitutional and Human Rights Division in Nairobi. Further, to this senior counsel informed the court that the two petitions though filed earlier than the instant petition they are yet to be heard and determined. He therefore held the view that proceeding with this petition bearing the same textual and context of the subject matter similar to the ones in Nairobi and Mombasa was likely to occasion a mistrial as a consequence of the conflicting decisions from the concurrent courts.

4. It was his recommendation that the instant petition find it’s way to either Nairobi or Mombasa for purposes of consolidation.

5. Other central tenets which were brought to the attention of the court involved non-service of the petition to the cited parties. In addition, senior counsel pointed to the court that in the same breadth as the litigation stands though the petitions filed at different locations share a common denominator of the parties involved and the subject matter to be adjudicated under theConstitution there is a variance with the Eldoret petition by virtue of the ex-parte interim orders. That to him runs contra to the status of E017 & E090 of 2022.

6. The submissions adverted to by senior counsel quite conceivably were not opposed by the respective other counsels save for Mr Ombego for the petitioner who urged this court to give the parties an opportunity to canvass the various interlocutory issues before admitting any of the concerns raised by senior counsel on his behalf and the rest of the team.

7. I have anxiously and carefully listened to each counsel who attended this case conference to lay down the ground rules for the hearing and determination of the petition. In the same vein I have read petition E010 of 2022 indexed at Eldoret High Court and the annexed extracts premised in Petition No E017 of 2022 & E090 of 2022 both of Mombasa and Nairobi respectively. In my view despite the strong opposition from Mr Ombego for the petitioner in E010 of 2022 in response to the issues raised by the lead Snr counsel Dr Khaminwa I am persuaded to make the following directions.a.It will be observed, that this court has the jurisdiction to try the issues as appertains to petition E010 of 2022. However, there are only two interests to be served in avoiding repetitious litigation i.e the public interest in conservation and economical utilization of judicial energies, and the interest of the respondents in avoiding double vexation. The multiplicity of suits on the same subject matter as evidenced by the three petitions filed in three different locations are likely to yield conflicting orders and judgments. Wise judicial administration is required to weigh in on this issue to compulsorily consolidate the petitions to facilitate the just, expeditious, proportionate, and affordable resolutions of the cause of action. The argument that I continue holding to the jurisdiction of this petition without first sorting out the issue of consolidation is admittedly to me like a labourer who labours in vain.b.Whereas the Eldoret petition for all intent and purposes was at an infant stage, the substantial questions of law agitated by the petitioner on account of chapter 6 of theConstitution on leadership and integrity as a whole is a matter I could have requested for empanelment of an extra ordinary bench to distill the issues notwithstanding the jurisdiction of a single judge. It is impossible to maintain that position given the prima facie evidence that they are legally previously initiated petitions with a shared interlocking factual matrix to draw from in granting the remedies under article 23 of theConstitution.c.In this respect the petitions taken as one integral whole ought to find their way for consolidation so that each part of the petition sustains the other. It is the duty of this court to refer this petition to the Chief Justice of the Republic of Kenya to issue an administrative order as to the consolidation and forum of conveniens in the event Eldoret High Court is found to be forum non-conveniens to canvass both the interlocutory applications and the substantive petitions.d.Further, it was the 1st and 2nd interested parties’ counsels that given the developments on existence of other petitions touching on the same constitutional matter and also makes reference to them as persons of concern, the issuance of interim orders ought to be revisited. This was a contention vehemently opposed by legal counsel for the petitioner. Both purpose and effect of the alleged interim interdict granted ex-parte must be considered and construed appropriately.e.Therefore, it has to be appreciated that the respondents and the interested parties were to be accorded an opportunity on the May 13, 2022 on the assertion of the efficacy of granting conservatory orders as expressed in the notice of motion dated May 6, 2022. It is also a fact that time is of essence for the constitutional court to exercise jurisdiction on matters alluded to in the petition. The plethora of authority conferred to the High Court on equality of arms gives substantial guidance for the interim orders to be varied to permit an equal opportunity of the parties in the proceedings to ensure procedural equality. That fair balance to afford parties to this constitutional petition an opportunity to be heard on this issue, are matters that may arise from the judicial directions by the Chief Justice upon referral of this petition by the court.f.The next questions to be answered shall be governed following the directions on consolidation of the petition and forum of conveniens by the Chief Justice of the Republic of Kenya. It is so instructive of the case conference.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 16TH DAY OF MAY 2022. R NYAKUNDIJUDGEParticipating counsels:.Dr KhaminwaMr MagoloMr KinyanjuiMr OdhiamboMr Assa KibagendiMr YegoM/s CheruiyotMr OmbegoM/S Ashitba