[2017] KEHC 3551 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CONSTITUTION PETITION NO. 4 OF 2016

IN THE MATTER OF ARTICLES 1(2), 1(4)(b), 2(5), 2(6), 10, 22, 45, 53, 73, 75, 165, 193, 194 & 258 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF RULES 10(1), 11(1) & 13 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS)

PRACTICE AND PROCEDURE RULES, 2013

AND

IN THE MATTER OF THE LEADERSHIP AND INTERGRITY ACT, THE COUNTY GOVERNMENTS ACT, THE CHILDREN’S ACT, THE SEXUAL OFFENCES ACT AND THE PROHIBITION OF THE FEMALE GENITIAL MUTILATION ACT

BETWEEN

LTODIYAN LEKANOI.............................1ST RESPONDENT

MASULANI LEKALASIMI......................2ND RESPONDENT

LEGIRA LEMELEN................................3RD RESPONDENT

MPERESU LOMOTIN ...........................4TH RESPONDENT

EMET LENTIIPO...................................5TH RESPONDENT

NAITAMANY LEPETA..........................6TH RESPONDENT

LTARIANA LEKUPE............................7TH RESPONDENT

KOASI LENTIIPO ................................8TH RESPONDENT

SIMIITE LESHIMPIRO..........................9TH RESPONDENT

NGAMOLE LEKENIT...........................10TH RESPONDENT

MALINDIN LEKUPE.............................11TH RESPONDENT

NGOLON LEPARPURE.......................12TH RESPONDENT

GIRO KEKURAO................................13TH RESPONDENT

NACHOIYE LENGIJI............................14TH RESPONDENT

BEATRICE LESHIMPIRO....................15TH RESPONDENT

DICKSON LEIPELE............................16TH RESPONDENT

MR ATITAL LESORIA .......................17TH RESPONDENT

SAMBI LENTILEIYE...........................18TH RESPONDENT

MOSES NABUNI OLE SEYI................19TH RESPONDENT

JOSEPH LOSEK LENGURO...............20TH RESPONDENT

EAST AFRICA CENTRE FOR

LAW AND JUSTICE.......................... 21ST RESPONDENT

(Suing on their own behalf and on behalf

of ANGATA – NANYUKIE WARDRESIDENTS)

VERSUS

HON. JOHN LEPIL LOLKILE......................RESPONDENT

THE ETHICS AND ANTI-CORRUPTION

COMMISSION...........................1ST INTERESTED PARTY

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.....2ND INTERESTED PARTY

THE ATTORNEY GENERAL........3RD INTERESTED PARTY

JUDGMENT

1. This court directed on 15th June 2017 that the petition filed in this matter be heard by oral and affidavit evidence on 27th July 2017. On that date however neither party tendered oral evidence and because this court declined to grant an adjournment the delivery of judgment was fixed for today.

2. The twenty one petitioners have through the present petition sought on their own behalf and on behalf of residents of Angata – Nanyukie ward in Samburu County the prayers in the petition. The respondent was in the years 2013 to 2017 a members of the county assembly in the Samburu County. The petitioners seek from this court the following orders:-

(a) A declaration be issued that the respondent has contravened the constitution of Kenya and is not fit to hold public /state office;

(b) A declaration that the representation of the people of Angata – Nanyukie Ward has been violated by the respondent;

(c) A declaration that the right of the minor girls have been violated by the respondent;

(d) That the court make such further orders as it deems just and expedient to meet the ends of justice; and

(e) That respondent do pay costs of the petition.

3. The only evidence before this court on which the petition relies upon is affidavit evidence by Ltodiyan Lekanoi. The deponent describes himself as a resident and a voter of Angata – Nanyukie Ward. The deponent deponed in his affidavit that:-

The respondent failed to maintain close contact with the electorate and that he does not consult the electorate or present their views, opinion or proposals before the county assembly;

The respondent does not have professional knowledge experience or specialized knowledge of the issues discussed at the county assembly;

The respondent does not reside nor does he have an office within the ward he represents;

The respondent does not have integrity for his office because he lies and cheats, misleads the electorate, abuses people, drinks, behaves aggressively and has impregnated under age girls;

The respondent does not inform the electorate of matter concerning the ward;

That the respondent had impregnated 5 minors girls; and

That the respondent had committed the offence of bigamy.

4. Needless to say that the issues stated in the affidavit in support o the petition are very weighty and serious. Because they are weighty and serious the petitioners needed to prove the same and more importantly to adduce oral evidence to give the respondent opportunity to test the evidence by cross examination. In the absence of that evidence the petition remains hollow with no substance to lead to the granting of far reaching prayers sought. The petition was not proved on the required standard of proof. It is for that reason that it fails.

5. The 1st interested party had sought by a Notice of Motion dated 21st June 2017 for an order to cease participating in the hearing of petition. However since the finding of the court is that the petition must fail it would be in vain to order the 1st interested party to cease participating in this matter that has failed. I am however of the view that the 1st interested party is entitled to the costs of that application.

6. In the end the orders of the court are:-

(a) The petition is hereby dismissed with costs to all the parties.

(b) The 1st interested party is awarded costs against the petitioner on the Notice of Motion dated 21st June 2017.

DATED and DELIVERED at NANYUKI this 21st day of SEPTEMBER 2017.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant – Njue/Mariastella

Petitioners: ………………..

For Petitioners …………....

For the Respondents: …...

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE