[2022] KEHC 9978 (KLR)

Koluna & 3 others v County Assembly of Vihiga (Being sued through its Honourable Speaker); Governor of the County of Vihiga (Interested Party) (Constitutional Petition E006, E005 & E007 of 2021 (Consolidated)) [2022] KEHC 9978 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9978 (KLR)

Republic of Kenya

In the High Court at Vihiga

Constitutional Petition E006, E005 & E007 of 2021 (Consolidated)

PJO Otieno, J

July 5, 2022

IN THE MATTER OF

Between

Amos Kutwa Koluna

1st Petitioner

Pamela Mbagaya Kimwele

2nd Petitioner

Kenneth Elvuna Keseko

3rd Petitioner

Paul Jiseve Mbuni

4th Petitioner

and

County Assembly of Vihiga

Respondent

Being sued through its Honourable Speaker

and

Governor of the County of Vihiga

Interested Party

Ruling

1. Two applications have been presented this afternoon after the ruling was delivered dismissing an application by the Interested Party.

2. The first is by Mr. Musiega seeking stay pending appeal while the second is by Mr. Malenya and Mr. Osore seeking a date for the Governor and one Esther Andisi to attend court and show cause as ordered earlier.

3. I understand Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 to allow an application like that presented by Mr. Musiega, and therefore find and hold that it is not the law that the court lacks jurisdiction to entertain it.

4. However, the ruling I have just delivered dismissed an application. It is a decision that compels one of the party to do anything. It is a negative order. It just lets the proceedings rest where they were prior to the dismissed application. In my learning it is not practical to stay a negative order. Of course it would be a wholly different scenario if it was to be an application for injunction pending appeal. For that reason I see no meaningful purpose to be served by ordering a superfluous stay. I find no merit in the application which is hereby dismissed.

5. On the second application, the court is mandated by law and the constitution, and by the nature of its own existence, to handle disputes presented to it in a just, proportionate and expeditious manner. In fact, the performance contract I have signed with the Presiding Judge is that no file leaves my desk without a date unless after conclusion.

6. That is intended to remind every judicial officer that justice must never be delayed. By nature, constitutional application ought to be prioritized for expeditious disposal. I note that the court is yet to touch the substance of the Petitions, as consolidated, more than a year after they were filed. That is not the attributes the Judiciary created by Kenyans is expected to attract. I see the application by Mr. Malenya to be in consonance with Counsels’ duty to court to help it discharge its mandate.

7. Accordingly, I do allow the application seeking a hearing date on terms that Summons do issue to Dr. Wilber Ottichilo, Governor Vihiga County, and one Esther Andisi, the former Principal Legal Officer of the County Government of Vihiga, to attend Court on the July 21, 2022, at Vihiga Law Courts, and show cause in terms of the Ruling dated December 10, 2021at 11. 30 a.m.

8. Let the proceedings be typed as may be required by parties for appeal purposes.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 5TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Musiega with Mukabi for the Applicant/GovernorMr. Malenya for the Respondent/Petitioner in E006/2021Mr. Sore for the Respondent/Petitioner in E005/2021Mr. Julius Masiva Petitioner in E007/2021Court Assistant: Kulubi