[2012] KEHC 1866 (KLR)

Source-derived case information.

Citation: [2012] KEHC 1866 (KLR)
Parties: Petitioner: Kipngetich Maiyo; Petitioner: Bernard Asiba; Petitioner: Ruth Jepkemboi Suter; Petitioner: Kipkemboi Kemeu; Petitioner: Kipruto Chirchir Tum; Petitioner: Danson Tororei; Petitioner: John Kerich; Petitioner: Milton Tuwei; Petitioner: Philip Masibai; Petitioner: Flora Jepchirchir Lei; Petitioner: Geoffrey Muasya; Petitioner: Emily Jebitok Salil; Petitioner: Hellen Maritim Tuitoek; Petitioner: Rebecca Bitok Sawe; Petitioner: Eliajh Kipngetich Tirop; Petitioner: Caroline Tallam Kigen; Petitioner: Stephen Maina; Petitioner: Edward Bitok; Petitioner: Busienei Elijah; Petitioner: Samuel Kinui Chirchir; Petitioner: Kenneth Tallam; Petitioner: Simon Lei; Petitioner: Obadia Kipkorir; Petitioner: Joseph Rotich; Petitioner: Joshua Rotich; Respondent: The Kenya Land Commission Selection Panel; Respondent: The Public Service Commission; Respondent: The Attorney General; Respondent: Commission for the Implementation of the Constitution
Court: High Court
Court Station: High Court at Nairobi (Milimani Law Courts)
Jurisdiction: Kenya
Case Number: Petition 426 of 2012
Procedural Posture: Constitutional Petition / Ruling on Application to Strike Out Scandalous Pleadings
Outcome: Paragraph 42(ii) of the petition and paragraph 24(b) of the supporting affidavit are struck out as scandalous.
Judges: DAS Majanja
Legal Topics: Human Dignity, Disability Rights, Scandalous Pleadings
Source Language: en

Constitutional Law Human Dignity Disability Rights Scandalous Pleadings

Source-derived case record

Summary, issues, holding and outcome

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Parties

Kipngetich Maiyo

Petitioner

Bernard Asiba

Petitioner

Ruth Jepkemboi Suter

Petitioner

Kipkemboi Kemeu

Petitioner

Kipruto Chirchir Tum

Petitioner

Danson Tororei

Petitioner

John Kerich

Petitioner

Milton Tuwei

Petitioner

Philip Masibai

Petitioner

Flora Jepchirchir Lei

Petitioner

Geoffrey Muasya

Petitioner

Emily Jebitok Salil

Petitioner

Hellen Maritim Tuitoek

Petitioner

Rebecca Bitok Sawe

Petitioner

Eliajh Kipngetich Tirop

Petitioner

Caroline Tallam Kigen

Petitioner

Stephen Maina

Petitioner

Edward Bitok

Petitioner

Busienei Elijah

Petitioner

Samuel Kinui Chirchir

Petitioner

Kenneth Tallam

Petitioner

Simon Lei

Petitioner

Obadia Kipkorir

Petitioner

Joseph Rotich

Petitioner

Joshua Rotich

Petitioner

The Kenya Land Commission Selection Panel

Respondent

The Public Service Commission

Respondent

The Attorney General

Respondent

Commission for the Implementation of the Constitution

Respondent

Procedural Posture

Constitutional Petition / Ruling on Application to Strike Out Scandalous Pleadings

Legal Issues

1 Whether statements in the petition and supporting affidavit violate the constitutional values of human dignity and equality.
2 Whether the impugned paragraphs are scandalous and should be struck out.

Ratio Decidendi

The court found that the statements in paragraph 42(ii) of the petition and paragraph 24(b) of the supporting affidavit were contrary to the letter and spirit of the Constitution, which emphasizes human dignity, equality, and respect for diversity. The court held that grievances must be expressed in a manner that enhances national values, and that disparagement of any person, disabled or not, cannot be permitted. The impugned statements were deemed scandalous and unfit for the court process, warranting their being struck out.

Court Disposition

Paragraph 42(ii) of the petition and paragraph 24(b) of the supporting affidavit are struck out as scandalous.

Orders

Paragraph 42(ii) of the petition is struck out.
Paragraph 24(b) of the supporting affidavit is struck out.

Full Case Text

Judgment text and source record

44 paragraphs

KIPNGETICH MAIYO

BERNARD ASIBA

RUTH JEPKEMBOI SUTER

KIPKEMBOI KEMEU

KIPRUTO CHIRCHIR TUM

DANSON TOROREI

JOHN KERICH

MILTON TUWEI

PHILIP MASIBAI

FLORA JEPCHIRCHIR LEI

GEOFFREY MUASYA

EMILY JEBITOK SALIL

HELLEN MARITIM TUITOEK

REBECCA BITOK SAWE

ELIAJH KIPNGETICH TIROP

CAROLINE TALLAM KIGEN

STEPHEN MAINA

EDWARD BITOK

BUSIENEI ELIJAH

SAMUEL KINUI CHIRCHIR

KENNETH TALLAM

SIMON LEI

OBADIA KIPKORIR

JOSEPH ROTICH

JOSHUA ROTICH …………………..………...…. PETITIONERS

AND

THE KENYA LAND COMMISSION

SELECTION PANEL …………………….…. 1ST RESPONDENT

THE PUBLIC SERVICE COMMISSION ........ 2ND RESPONDENT

THE ATTORNEY GENERAL …..………...…. 3RD RESPONDENT

COMMISSION FOR THE IMPLEMENTATION

OF THE CONSTITUTION ………….…..…… 4TH RESPONDENT

RULING

1. Paragraph 42(ii) of the petition states that, ‘the Right of the petitioners to human dignity as Kenyans of Kalenjin Ethnic descent have been violated by the nomination of a disabled person to represent them in the National land Commission.”The statement is emphasized by paragraph 24(b) of the Supporting affidavit of Kipng’etich Maiyo.

2. These statements speak for themselves and do not need any elaboration. They are at once contrary to the letter and spirit of the Constitution which according to its preamble, emphasizes that the people of Kenya are proud of their diversity and recognizes the aspiration of all Kenyans to the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.

3. Whatever grievance a party may have, it must be expressed in a manner that enhances the fundamental values of the nation among them human dignity as set out in Article 10. Furthermore, this court cannot permit the disparagement of any person, disabled or not. Persons with disabilities are recognized as persons requiring special consideration by the Constitution.

4. I have stated enough to show that paragraph 42(ii) of the Petition and paragraph 24(b) of the Supporting Affidavit cannot be allowed to deface the court process. They are scandalous and are hereby struck out.

DATED and DELIVERED at NAIROBI this 2nd day of October 2012

D.S. MAJANJA

JUDGE

Mr E. Ondieki instructed by Ondieki and Ondieki Advocates for the petitioners in Petition No. 373 of 2012.

Mr O. Wanyaga instructed by Kinoti and Kibe and Company Advocates for petitioners in Petition No. 426 of 2012.

Mr S. Munyi, Litigation Counsel, instructed by the State Law Office for the respondents.

Mr Lando, Advocate, instructed by Dr. Samuel Kipng’etich Tororei, interested party.

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