[2020] KEHC 1431 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

(Coram: Odunga, J)

CONSTITUTIONAL PETITION NO. 6 OF 2020

IN THE MATTER OF: - ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 1, 2, 3, 10,19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 35, 36, 40, 47, 50, 73, 156, 157, 159, 160, 165, 176, 179, 180, 201, 258 AND CHAPTER SIX OF THE CONSTITUTION OF THE REPUBLIC OF KENYA 2010

AND

IN THE MATTER OF: - THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

AND

IN THE MATTER OF: - VIOLATION OF THE PROVISIONS AND POWERS OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS AND ACT, NO. 2 OF 2013

AND

IN THE MATTER OF: - THE APPLICATION AND OPERATIONALIZATION OF THE WITNESS PROTECTION ACT CHAPTER 79 LAWS OF KENYA

AND

IN THE MATTER OF: - SECTION 24 OF THE INTERPRETATION AND GENERAL PROVISIONS ACT CHAPTER 2 LAWS OF KENYA

AND

IN THE MATTER OF: - FAIR ADMINISTRATIVE ACTIONS ACT NO. 4 OF 2015

AND

IN THE MATTER OF: PUBLIC FINANCE MANAGEMENT ACT NO. 18 OF 2012

AND

IN THE MATTER OF: THE PUBLIC AUDIT ACT NO. 34 OF 2015

AND

IN THE MATTER OF: - THE CHIEF MAGISTRATE MILIMANI ANTI-CORRUPTION COURT CASES NO. 31 OF 2019, 32 OF 2019 AND 1 OF 2020, REPUBLIC -VS- H.E HON. MBUVI GIDION KIOKO MIKE SONKO & OTHERS

BETWEEN

H. E HON. MBUVI GIDION KIOKO MIKE SONKO......................PETITIONER

VERSUS

ETHICS AND ANTI-CORRUPTION COMMISSION............1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS...........................2ND RESPONDENT

WITNESS PROTECTION AGENCY........................................3RD RESPONDENT

THE HONOURABLE ATTORNEY GENERAL......................4TH RESPONDENT

THE CHIEF MAGISTRATE MILIMANI

ANTI-CORRUPTION COURT.................................................5TH RESPONDENT

AND

PETER MBUGUA KARIUKI & OTHERS.....................INTERESTED PARTIES

RULING

1. The Petitioner herein, who discloses that he is a resident of Kathimani Village, Kitanga Sub-Location, Katheka Kai Location, Vota Division of Machakos Sub-County in Machakos County, describes himself as a Kenyan citizen of sound mind and disposition. He brings this Petition in his capacity as a Kenyan citizen in defense and enforcement of the Constitution of the Republic of Kenya 2010 pursuant to Article 258(1)(2)(c) of the Constitution and in his capacity as the 1st Accused Person in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others.

2. The 1st Respondent is described as a public body established under inter aliaSections 3 (1), 11 and 13 of the Ethics and Anti-Corruption Commission Act, 2011 whose mandate is to combat and prevent corruption, economic crime and unethical conduct in Kenya and as by law provided through law enforcement, prevention, public education, promotion of standards and practices of integrity, ethics and anti-corruption.

3. The 2nd Respondent is the holder of the office of the Director of Public Prosecutions established under Article 157 of the Constitution of Kenya 2010, responsible for instituting and undertaking criminal proceedings against any person before any court (other than a court martial) in Kenya with respect of any offence alleged to have been committed provided always to have regard to the public interest, the interest of the administration of justice and the need to prevent and to avoid abuse of the legal process.

4. The 3rd Respondent is a body corporate established by an Act of Parliament which came into force in the year 2008 and with perpetual succession and a common seal capable of suing and being sued whose object and purpose is to provide the framework and procedures for giving special protection, on behalf of the State, to persons in possession of important information and who are facing potential risk or intimidation due to their cooperation with prosecution and other law enforcement.

5. The 4th Respondent is the Head of the Kenya State Law Office established under Article 156 of the Constitution as the principal legal adviser to the Government of Kenya, and an ex officio Member of Parliament and Cabinet.

6. The 5th Respondent is a subordinate court established by Article 169(1)(a) of the Constitution of Kenya 2010.

7. It is pleaded that the Interested Parties save for number 17, 18, and 19 are accused persons in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & OthersandNo. 48 of 2018 - Republic -vs- Simeon Lemminte Ole Kirgortty & 20 Others whereof the said matters are all pending hearing and determination before the said respective courts.

8. The 17th, 18th and 19th Interested Parties, it is pleaded, are accused persons in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 OF 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others andNo. 48 of 2018 - Republic -vs- Simeon Lemminte Ole Kirgortty & 20 Others, but the respective charges were questionably, unlawfully, unconstitutionally, corruptly and without any justification in law secretly, connivingly and conspiratorially withdrawn, vacated or completely dropped.

9. According to the Petitioner, the Governor of Nairobi County, he previously served as the Member of Parliament for Makadara Constituency and as Senator for Nairobi County.

10. It was averred that the Petitioner was arrested and arraigned in court on the 9th day of December 2019 and subjected to plea variously in Anti-Corruption Case Numbers 31 of 2019and32 of 2019 - Republic vs. H.E. Hon. Kioko Mike Sonko & Others.According to the Petitioner, on the 14th day of January 2020, this court issued ex parte orders to the effect that witness protection orders be granted for the protected witnesses’ statements be redacted; that witness protection orders be and are hereby granted for the protected witnesses to testify in a closed session; that witness protection orders be and are hereby granted for the protected witnesses to use pseudonyms during the hearing of their evidence; and that witness protection orders be and are hereby granted for the protected witnesses to use witness box during the taking of their evidence.

11. It was pleaded that the Anti-Corruption Case Numbers 31 of 2019 and 32 of 2019 -Republic vs H.E. Hon. Kioko Mike Sonko & Others were consolidated by the Chief Magistrate Hon. D.N. Ogoti for purposes of bail and pre-trial directions and the same came up on 27th January 2020 when the Chief Magistrate directed that the Respondent/prosecution discloses evidence to the defence within two weeks. According to the Petitioner, his Advocates on record attended Integrity Centre on the directions of the 1st Respondent for purposes of collecting the documentary exhibits and upon analysing the documents supplied, noted that most were illegible, un-paginated and fundamentally, completely or totally redacted. When, on the 18th February 2020, the said matters came up for mention to confirm compliance with the directions given on 27th January 2020, the Defence including the Petitioner raised objection based on the issues on legibility of the documents supplied to them and further indicated to the court that the documents were not paginated and were fundamentally, completely or totally redacted. They informed the court that due to the fact that most of the documents supplied had been fundamentally redacted, the same contravened the Constitution especially on fair trial, fair administrative action, logic and law, but also the rules of redaction since they left no substance for the defence to use to prepare for the trial.

12. According to the Petitioner, the actions by the Respondents in choosing what and how to redact contravened not only the Constitution, but also the impugned Witness Protection Order unprocedurally issued on the 14th of January 2020 as the same neither allowed the prosecution to redact any document nor obliterate the same save for witness statements.

13. Accordingly, the Chief Magistrate directed the 2nd Respondent/Prosecution to file inventories capturing every document that it had supplied to the defence, and the defence to confirm the contents of the inventory by signing the said inventories and the matter was to be mentioned on 26th February 2020 to confirm compliance. On the said date however, the Respondent/prosecution had not fully complied with the court’s directions and sought for another 4 days to do so.

14. Pursuant to the aforesaid directions as well as this Court’s order issued on 14th January 2020, on 14th August 2020, the Defence received links to access the scanned and paginated documents from the 1st Respondent. According to the Petitioner, the scanned and paginated documents aforesaid contained fully or partially redacted witness statements which offended the laid down principles and international best practices and standards on redaction for witness protection.

15. In was pleaded that nevertheless, on the 14th of September 2020, Anti-Corruption Case 1 of 2020- Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others commenced hearing against the accused persons. Prior to that, the 1st and 2nd Respondents sent to the Defence the unredacted witness statements of D6, D7 and D8 on 12th September 2020 at 9:00 pm and the witness statement of D1 on 13th of September, 2020 at 10:37 pm. The Petitioner lamented that the time given to the Petitioner to prepare his defence was not sufficient in terms of Article 50(2)(c) of the Constitution and Legal Notice 1340 of 2016 and that the Judiciary Criminal Procedure Bench Bookat Part VII obligates the Prosecution to supply the Accused Person with all the evidence whether exculpatory and inculpatory in adequate time and to be provided facilities to prepare a defence. Apart from that the prosecution Policy issued by the DPP recognizes the constitutional rights to a fair trial which are fair, open and with integrity.

16. It was pleaded that at the hearing of the Anti-Corruption Case 1 of 2020, - Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersit emerged that 17th, 18th and 19th Interested Parties through the 17th Interested Party had been turned into Accusers/Prosecution Witnesses under the guise and ambit of the impugned Order of 14th January, 2020 of Nairobi High Court Misc. Application No. 1 of 2020. In the Petitioner’s view, the Respondents in bad faith and in abuse of their powers and guided by the values of conniving, conspiracy, fraudulent, discriminatory, biased, illegal, unjustifiably, unconstitutional turn of events hence occasioning loss of public funds the Respondents withdrew the charges against the 17th, 18th and 19th Interested Parties to testify against the Accused Persons including the Petitioner. Further, at the hearing of Anti-Corruption Case 1 of 2020- Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others Prosecution Witness No. 2 who had been classified as a protected witness identified himself by name Danson Muchemi and therefore defeated the purposes of placing him under witness protection. The said Danson Muchemi,it was pleaded was initially a suspect in Anti-Corruption Case 1 of 2020, - Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others but the 2nd Respondent discriminately and in abuse of his powers entered into an illegal and unholy alliance to exonerate and excuse him and protect him from glaring culpability by withdrawing and/or dropping the charges against him.

17. According to the Petitioner, the said Danson Muchemi has been adversely mentioned in Anti-Corruption Case 1 of 2020- Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others and therefore the 2nd Respondent’s criteria of cherry picking who can be a state witness and who cannot be was fraught with irregularities, illegalities and is invalid for violating article 2(4) of the Constitution. It was disclosed that the said Danson Muchemi is the CEO of Web Tribe Limited and jointly with 19 other persons, were charged in Nairobi Anti-Corruption Case 48 of 2018 for embezzlement of public funds over Kshs.1,100,000,000. 00 belonging to the National Health Insurance Fund a matter whose notoriety led to public outcry and unprecedented public interest.

18. It was pleaded that following the 2nd Respondent’s illegal and unconstitutional agreement with Danson Muchemi and Web Tribe Limited; the 2nd Respondent on 23rd September 2020 applied to withdraw the charges against them in Anti-Corruption Case 48 of 2018 which application was allowed. In the Petitioner’s view, in making Danson Muchemi a State Witness in Anti-Corruption Case 1 of 2020- Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others and further withdrawing charges against him in Anti-Corruption Case 48 of 2018, public funds to the tune of over Kshs.1,100,000,000. 00 were lost since there was no agreement for him to repay the said amount and hold him responsible on behalf of the public for his criminal acts and culpability, an action which is tantamount under article 156 (11) of the Constitution in abuse of the process of criminal prosecutions.

19. Further, Danson Muchemi and Web Tribe Limited have been persistently, consistently and insistently adversely indicted in successive Auditor General’s Audit Reports for Nairobi County for the Financial Years 2014, 2015, 2016, 2017, 2018 and 2019 as having misappropriated public funds. Through a contract to provide cashless revenue collection solution to Nairobi County, Danson Muchemi and Web Tribe Limited provided a solution called Jambo Pay System,through which the two are indicted by Auditor General, National Assembly, County Assembly, the Senate, Directorate of Criminal Investigation, EACC and ODPP FOR: -

i. Contravening Article 207 of the Constitution, Section 109 (2) of the Public Finance Management Act, 2012 and regulation 63 (4) of Public Finance Management (County Governments) Regulations, 2015 (See the Auditor-General’s Report for the year ended June, 2018 at page 5)

ii. He irregularly then paid 4. 5% of all funds collected by Nairobi County without any support of law.

iii. He irregularly paid himself cash of 1. 25% of all funds collected.

iv. In 2017, the system had down time that resulted in loss of money for the Nairobi City County and it also became apparent that JAMBO PAY had a trust account system for money collected for the County that resulted in money being delayed in the trust account as opposed to being forwarded to the county. It also became clear that the county had no control of the said trust account,

v. In 2016, the Controller and Auditor General in his report indicated that JAMBO PAY/WEB TRIBE Revenue Collection System failed to remit funds to the County Government within 72 hours upon receipt as per the contract with the County Government. This resulted in loss of funds.

vi. In 2015, the Auditor General cited inadequacies of the Service Level Agreement between the County and Web Tribe Limited, lack of clarity on how much money had been collected by Jambo Pay and losses of money and over billing by Web Tribe of the County.

20. It was disclosed that at the hearing of Anti-Corruption Case 1 of 2020- Republic vs. H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others evidence was led to the effect that a civil society group by the name of Bunge la Mwananchi had made a report to the DCI on the loss of public funds to the tune of Kshs. 15,000,000,000/- in the County of Nairobi as a result of theft and misappropriation of funds by Web Tribe through the Jambo Pay System. It also became apparent that the DPP had written to the DCI asking for a progress report of the said investigations, but notwithstanding the pendency of the said investigation and in an obvious conflict and paradox the Respondents proceeded to insulate Danson Muchemi and Web Tribe Limited from the investigations by placing him under witness protection and excusing him from responsibility and criminal culpability which threatens the loss of public funds to the tune of Kshs. 15,000,000,000/- property of Nairobi County government and the public at large.

21. The Petitioner averred that from the foregoing Danson Muchemi and Web Tribe Limited cannot have rightfully, lawfully and constitutionally obtained pardon from the public through the Respondents whereof the public is condemned to suffer double and even multiple jeopardy and that apart from the loss suffered by the public at the NHIF heist amounting to Kshs. 1,100,000,000/- and apart from the Kshs. 15,000,000,000/- loss suffered by the public at the Nairobi County heist where the recovery of the same stands compromised by the impugned acts of the respondents the public must maintain the prestigious treatment of protection enjoyed by Danson Muchemi.

22. The Petitioner averred that the Respondents being public officers are bestowed with public trust and the same ought to be exercised in a manner that is consistent with the objects of the Constitution and in particular provisions Articles 73 of the Constitution and the Section 8 of the Leadership and Integrity Act No. 19 of 2012 and therefore ought to exercise public trust in their respective office in a manner that is consistent with the purposes and objects of the Constitution; demonstrate respect for the people; brings honour to the nation and dignity to the office; promotes public confidence in the integrity of the office; exercise state power in the interest of the people of Kenya; carryout the duties of their respective offices efficiently and honestly; carryout their duties in a transparent and accountable manner; not to discriminate against any person; maintain high standards of performance and level of professionalism to avoid misuse of their office in favour of Danson Muchemi, Web Tribe Limited and Robert Muriithi especially in any suspicious manner that would enrich them unjustly; and not to engage in activities that would amount to an abuse of office and to avoid conflict of interest at all times.

23. From the foregoing it was pleaded that the Respondents have breached and/or violated the Constitution and other provisions of the law in the following manner:

a) The Respondents’ actions of redacting the entire witness statements and documents violates the Petitioner’s right to a fair hearing as enshrined in Article 50(2)(j) of the Constitution which includes the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.

b) The Respondent’s actions of providing the Petitioner with unredacted witness statements 36 hours before the hearing violates the Petitioner’s right to fair trial as enshrined under Article 50 (2) (c)(k) of the Constitution which includes the right to have adequate time and facilities to prepare a defence.

c) The Respondents’ omission of providing the Petitioner with original copies of the documents they intend to rely upon violates the Petitioner’s right to a fair trial as enshrined under Article 50 (2) (k) of the Constitution which includes the right to adduce and challenge evidence.

d) The Respondents’ actions in purporting to admit the 17th, 18th and 19th Interested Parties to a privilege regime under the Witness Protection Program and arbitrarily without cause in law and wanton bias of cherry picking who gets to be a state witness and who does not, violates Article 27 of the Constitution which guarantees the Petitioner the right to equality and freedom from discrimination, equal protection and benefit of the law.

e) The Respondents’ actions also violate Article 10 on National values and principles which espouses rule of law, integrity, non-discrimination and transparency. This constitutional values and principles also create legitimate expectation that State Officers and Public officers will protect, promote, observe and fulfil those constitutional values.

f) The Respondents have violated article 47(1)(2) of the Constitution as read with sections 3 and 4 of the Fair Administrative Action Act 2015 because their actions violate the fundamental rights of the Petitioner as required by the Fair Administrative Action Act 2015.

g) The actions of the 2nd Respondent of converting an accused/suspect in a matter that he or she has already been charged for embezzlement of public fund into a state witness and placing him or her in witness protection using public funds violates Articles 201 of the Constitution of Kenya is ultra vires the law and the Constitution and aiding him to get away with loss of public funds.

h) In exercising the powers conferred upon the second respondent the ODPP is under bounded obligation to have regard to the public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process. In supplying fundamentally, completely or totally redacted witness statements and documents, as well as arbitrarily and without any justification in law, deal making and cherry picking who gets to be a state witness and who does not, are in clear violation of the duties and obligation bestowed upon the holders of the Office of the Director of Public Prosecution as enshrined in Article 157 of the Constitution of Kenya.

i) The actions of the Respondents are imbued in bad faith, malice, ill -will and impropriety.

24. As regards the operationalization and application of the Witness Protection Actand Rules and Regulations made there under it was averred that:

i. The Witness Protection Act was assented on 30th December, 2006 and came into force on 1st September, 2008

ii. The Witness Protection Act and the rules and regulations made there under are supposed to be in harmony with the principles and values of the Constitution of Kenya 2010

iii. The application and operationalization of the Witness Protection Act and the rules and regulations made there under should protect all stake holders in the criminal justice system including the accused persons.

iv. The Witness Protection Act and the rules and regulations made there under should recognize and implement the purpose, spirit, purport, objects, values and principles of fair trial under of Article 25(c) as read with the provisions of Article 50 the Constitution which protects and promotes a fair hearing and protection of the law.

v. The Witness Protection Act and the rules and regulations made there under should recognize and appreciate that the accused persons are major stakeholders in the administration of justice and should therefore be notified in advance and given sufficient reasons why parts of statements have redacted incompliance with the provisions of Article 47 of the Constitution.

vi. The Witness Protection Act and the rules and regulations made there under apply within the context of Article 10 of the Constitution which binds all state officers, state organs, public officers and individuals. The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others,the implementation of the Act, Rules and Regulations should be in accord with the principles and values that underpin Article 50 of the Constitution for the benefit of the Accused persons.

vii. The Witness Protection Act and the rules and regulations made there under should be applied objectively and impartially to ensure that the prosecution and adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersis done in an open, transparent and accountable manner.

viii. The Witness Protection Act and the rules and regulations made there under serve the larger interest of the society which includes all stakeholders including the Petitioner and interested parties it follows therefore that the adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersshould be conducted in a manner that protects, promotes, and fulfils the principles and values of the Constitution of Kenya 2010.

ix. The Witness Protection Act and the rules and regulations made there under should be implemented in a manner that reflect the hopes and aspirations as contained in the preamble and Article 10 of the Constitution in terms of their application and implementation in the adjudication of the cases in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others

x. The Witness Protection Act and the rules and regulations made there under should be enforced in a holistic manner. In their application in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersand the Court should take cognizant of the challenges of COVID-19 which have complicated the implementation of fair trial principles.

xi. The Witness Protection Act and the rules and regulations made there under comply with the doctrine of legitimate expectation under Article 10 of the Constitution in its application in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersand also take into account COVID 19 has brought challenges which were never contemplated under the fair trial principles and values have the resultant effect that the order does not take into consideration the practical court room environment including the facilities to serve the ends of justice.

xii. The Witness Protection Act and the rules and regulations made there under are meant to enhance the principles of access to justice, fair trial, protection of the Law and administration of justice generally and the adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Others should fully comply with the principles of access to justice, protection of the Law and due process recognizing the right of victims, witnesses and accused persons.

xiii. The Witness Protection Act and the rules and regulations made there under are unconstitutional to the extent that their application in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othershave the resultant effect of denying the accused persons the fullest extent of disclosure of documents, evidence and witness statements.

xiv. The Witness Protection Act and the rules and regulations made there under should add value by giving assurances to all the stakeholders including witnesses, victims and accused persons in the application and operationalization of the Act in regard to The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherswhich will avoid issues of conflict of interest, objectivity and legitimate expectation regarding the implementation of the principles of fair trial.

xv. The Witness Protection Act and the rules and regulations made there under should be applied and implemented in impartial manner in the adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherstherefore giving all the stakeholders a chance to objectively interrogate the evidence against them.

xvi. The Witness Protection Act and the rules and regulations made there under should be applied in a manner that recognizes international good practice as contemplated by Article 2 (5) (6) of the Constitution in the adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherswhich will ensure that all stake holders including the Petitioner have a fair chance to interrogate and challenge evidence in a manner that is not restricted in terms of time and/or formalities to the prejudice of the substance.

xvii. The Witness Protection Act and the rules and regulations made there under should be in harmony with the principles and values of Article 160 and 169 which protects the independence of the judiciaryThe Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersand it is the duty of the Court to ensure that the principles and values of fair trail and protection of the Law are strictly observed, promoted and fulfilled by all the stakeholders.

xviii. The Witness Protection Act and the rules and regulations made there under should recognize and implement the principles of fair trial in its application in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersand that even where witnesses testify from a witness box, the Petitioner and all the other stakeholders should be allowed unlimited time to cross examine the witness and challenge the credibility of their testimony.

xix. The Witness Protection Act and the rules and regulations made there under should be in harmony with the principles and values of the Constitution in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othersand further that where the witness is in the witness box then the Petitioner and all the other stakeholders should be given sufficient time to impeach their character.

xx. The Witness Protection Act and the rules and regulations made there under should be harmonized in their application with regard to the application and implementation of the Act in respect of the adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherswhen applied and implemented properly it will enhance the implementation of the administration of justice.

xxi. The Witness Protection Act and the rules and regulations made there under should be reconciled with Article 25(c) as read with Article 50 of the Constitution in the adjudication of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Othershave the resultant effect giving the prosecution and the Respondents generally unrestricted, unregulated, unsupervised, unfettered, illegal carte blanche to keep away the parent miscellaneous application for obtainance of the witness protection orders whereas the same is place under lock and key and unjustifiably in accessible to the defence or to the trial court.

25. It was the contention of the Petitioner that the said Witness Protection Act was unconstitutional for want of public participation in that:

i. Article 10, 118 as read with Article 1 and 2 of the Constitution binds all in authority and all arms of government to allow the public to participate in legislative and official processes that determine the application of public authority and power whose resultant effect is governance, legislation and policy

ii. The Witness Protection Act and the rules and regulations made there under were not subjected to public participation before the enactment, during the legislative process or commencement and operationalization contrary to Article 10, 118, 201 and Chapter 6 of the Constitution as read with Article 1 and 2 thereof and the provisions of the Public Finance Management Act and rules made there under.

iii. The Respondents failed to facilitate public participation and involvement of the public in the legislation process leading to the formulation of policy, enactment of the law, operationalization of the act and any of the plethora of amendments thereof.

iv. The Witness Protection Act and the rules and regulations made there under are illegal for want of actual, quantitative and qualitative public participation, as no fora or any enabling environment was availed to secure a public interest and safe guard against the resultant effect suffered by the Petitioner amounting to discriminatory application of law and unfair hearing, abuse of the process of court and impunity and a hearing which is a debacle.

v. The Witness Protection Act and the rules and regulations made there under has the resultant effect of invalidating, vitiating and vulgarizing the provisions of pre-trial directions envisaged, contained and published in Gazette Notice No. 1340 of 2016 on case management to criminal cases.

26. According to the Petitioner he risks suffering the following prejudice:

i. At the hearing of The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherthe resultant effect of the protection orders in High Court Misc. 1 of 2020 and the application of the impugned Act by the Court was that the trial magistrate was compelled to admit evidence that was in violation of the provisions of the Evidence Act and in particular the contravention of Sections 65, 68, 69, 70, 71, 106 B, 107, 108 and 109 of the Evidence Act where computer printed evidence (computer printouts) and illegally obtained was allowed to be produced without the statutory certificate and the burden under Woolmington -vs- DPPAC 1935 462was vitiated and set aside.

ii. The Defence and the Accused were denied access to evidence.

iii. The Defence and Accused were supplied with completely illegible redacted documents

iv. The Defence and the Accused were denied adequate facilities to prepare a defence when the courts restricted access to unredacted witness statements within reasonable time.

v. The Prosecution and Respondents redacted as many statements and documents as they could without any regulation or reference to any authority thereby denying fair access to facilities, information and access to evidence.

vi. The Prosecution and Respondents supplied part of the evidence to be relied upon 36 hours before the hearing of the matter.

vii. The hearing was conducted at night and threatened to be conducted over the weekends on account of the compelling orders ensuing from the Witness Protection Order and Proceeding thereby greatly prejudicing fair trial and the ability of the accused to participate in fair hearing.

viii. The Defence, Accused and the Trial Court have been denied access to the file and information in High Court Miscellaneous 1 of 2020 where from the witness protection orders were obtained thereby denying the accused and trial court right to authenticate the orders obtained therein.

ix. The Defence, Accused and the Trial Court have been denied access to the file and information in High Court Miscellaneous 1 of 2020 where from the witness protection orders were obtained thereby whereas the impugned order provides no connection or nexus whatsoever with The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020 - Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Other.

x. The DPP has abused and misused the illegal provisions of the Witness Protection Act and to obtain orders ex parte which have constricted the court’s into submitting into the illegality thereby greatly prejudicing the rights of the Accused especially the Petitioner.

xi. The Respondents have misapplied, misapprehended and abused the Witness Protection Act and the rules and regulations thereto by selectively, connivingly, recklessly, conspiratorially, maliciously cherry picking on the 17th, 18th and 18th Interested Parties when in fact they have caused great public loss of funds and damage to confidence in the manner in which discretion and public authority has been applied consequently discriminating against the Petitioner contrary to the provisions and guarantees provided in the Constitution.

xii. The Court having applied the full extent in High Court Miscellaneous No. 1 of 2020 (Protection Order) as well as the trial Court applying the Witness Protection Act, the rules and regulations made thereunder, the net effect is that the trial court in The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherdenied the Defence and the Accused the right and opportunity to impeach the character and demeanour of the protected witnesses.

xiii. The Court having applied the full extent in High Court Miscellaneous No. 1 of 2020 (Protection Order) as well as the trial Court applying the Witness Protection Act, the rules and regulations made thereunder, the net effect is that the trial court in The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherdenied the Defence and the Accused the right and opportunity to be heard by an open and impartial tribunal since the whim afforded to the Respondents is to choose the option for closed sessions.

xiv. The Court having applied the full extent in High Court Miscellaneous No. 1 of 2020 (Protection Order) as well as the trial Court applying the Witness Protection Act, the rules and regulations made thereunder, the net effect is that the trial court in The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherthe resultant effect is that the order does not take into consideration the practical court room environment including the facilities to serve the ends of justice such as sound and audibility of the witnesses.

27. The Court having applied the full extent in High Court Miscellaneous No. 1 of 2020 (Protection Order) as well as the trial Court applying the Witness Protection Act, the rules and regulations made thereunder, the net effect is that the trial court in The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherapplications of the witness protection orders with unrestricted and undelineated carte blanche to the Respondents was to the extent that the names and identity of the witnesses is unregulated unsupervised, unfettered, unrestricted with complete liberty with the respondents to apply the order on any persons they deem fit, on any matter they deem fit and within any time lines they deem fit.

28. In this petition, the petitioner seeks the following reliefs as a result of what in his opinion is a consequence of the blatant violation of the Constitutional provisions enumerated herein above:-

a) A declaration that the fundamental rights and freedoms of the Petitioner under article 25(c) and 50 (2) (c), (d), (j), (k), (l) 50(4) of the Constitution have been violated, denied, infringed and/or threatened to his prejudice.

b) A declaration to issue that sections 3D, 4, 5, 6, 14, 15 and 16 of the Witness Protection Act Cap. 79 Laws of Kenya and Rules 5, 9 and 14 of the Witness Protection Rules 2015 are inconsistent with the Constitution, in contravention of the Constitution and thereby void to the extent of that inconsistency.

c) An order of stay be issued by this Honourable Court in The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Other staying further proceedings and/or hearing or any further hearing in the said matters until the Petition herein is heard and determined.

d) A declaration that once the rights to fair trial under article 25(c) as read with article 50(2) of the Constitution have been violated there is no cure to these breaches and the Petitioner is entitled to an acquittal notwithstanding the nature of evidence against him/her

e) An order prohibiting the 5th Respondent from hearing or presiding conduct and hearing The Chief Magistrate Milimani Anti-Corruption Court 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Other.

f) This Honourable Court be pleased to issue a declaration that the 17th, 18th and 19th Interested Parties are not protected witnesses perse within the meaning, the purport, object, Letter, intention and spirit of the Constitution and are culpable and liable to be prosecuted in law.

g) In the alternative to (f) above, this Honourable Court be pleased to issue a declaration that the 17th, 18th and 19th Interested Parties cannot be witnesses or held out to be witnesses in The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020 - Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otheras they are already accomplices and any evidence of their testimony be denied, negated and expunged and not to form any part of any official Court record as it violates article 50(4) of the Constitution.

h) Any agreement, memorandum, accommodation or deal entered between the 17th, 18th and 19th Interested Parties and the Respondents either jointly or severally be declared null and void ab initioand has no effect whatsoever to the The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020 - Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherfor having violated Article 2(4) of the Constitution.

i) This Honourable Court be pleased to issue an order of Certiorari calling into this court The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020 - Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherand quash them for violating fair trial values and principles under article 25 and 50 of the constitution.

j) A declaration that the rights and freedoms of the Petitioner have been violated and infringed rendering further prosecution of The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020 - Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Other untenable.

k) Any other relief and/or orders that court may deem just and expedient in the circumstances of this case.

l) That the costs of this petition be borne by the Respondents.

29. In response to the Petition, the 2nd Respondent raised a Preliminary Objection in respect to the Application and urged that it ought to be struck out in limine on the GROUNDS:

1. THAT this Honourable court does not have the requisite jurisdiction to entertain the application and the petition.

2. THAT the application as filed is fatally and incurably defective and ought to be dismissed and/or struck off suo sponte.

3. THAT the application and the petition is a duplication of HCACEC Miscellaneous Application No. 23 of 2020 filed at Milimani High Court Anti-Corruption Division and is scheduled for direction before Hon. Justice Wakiaga on 19th November 2020.

4. THAT the application and the petition is otherwise a blatant abuse of the court process and is aimed at circumventing and defeating the cause of justice.

5. THATthe application and the petition is vague, amorphous, ambiguous and aimed at taking this Honourable court on a wild goose chase.

30. The second ground was later abandoned upon the realisation that there is in fact a petition on record.

31. In respect of the other grounds, it was submitted on behalf of the 2nd Respondent by Mr Akula, that though the Court is clothed with the jurisdiction under Article 165 of the Constitution, the High Court (Organisation and Administration) Act (the Act) in sections 11 and 12 provides for the establishment of the High Court Stations and the jurisdiction to supervise the Station Courts. In that regard Regulation 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) provide that for a party to seek redress on violation of rights, it has to be at the station where the alleged violation occurred. According to the 2nd Respondent, this matter is in respect of a matter that took place within Nairobi County.

32. It was submitted that under Regulations 1,2 and 5A of the Gazette Notice No. 153 of 9th December, 2016, the Practice Directions for the Anti-Corruption and Economic Crimes Division of the High Court, the said directions provide that anti-corruption matters be heard by the Anti-Corruption Division in Nairobi and if the same are filed in the sub registry the same are to be transferred to Nairobi. It was contended that Regulation 5 elaborate on the said matters as including Constitutional Petitions and Judicial Review Applications. While appreciating the Court’s role under Article 165, it was noted that the Constitution provides for the High Court (Organisation and Administration) Act.

33. It was therefore submitted that this Court has no jurisdiction to entertain this petition since it is not the Anti-Corruption Division which is a special court dealing with such matters. In support of this submission, the 2nd Respondent relied on the decision in Hadija Mlao Mlingo vs. Director of Public Prosecutions & Others [2020] eKLR.

34. It was further submitted that there is Miscellaneous Criminal Application No. 1 (E03) of 2020 which is subsisting before Wakiaga, J, a matter which was before that Court the same morning the preliminary objection was being heard. It was submitted that prayers 5 and 7 in the instant application seek similar orders as those sought in the said referred matter and they both have to do with the trial in Nairobi pursuant to section 362 of the Criminal Procedure Code. It was contended that this Court cannot supervise a court outside Machakos when there are competent courts in Nairobi to perform the same function. The 2nd Respondent accused the Petitioner of failing to disclose the existence of the said proceedings. It was therefore submitted that both matters cannot be dealt with simultaneously since section 68 of the CPC as read with section 15 of the Civil Procedure Act, prohibit such conflict.

35. As regards prayer 2 in the instant application, it was submitted that this Court cannot supervise other High Court by empanelling a bench and disqualifying other judges, which is a personal matter.

36. It was further disclosed that there exist other matters before the Court of Appeal being Appeal No. 24 of 2020, High Court Nos. 36 and 38 of 2019 and No. 23 of 2020 all of which are subsisting and where the issue of empanelling of a bench and cross-cutting issues have been raised. It was submitted that Rule 10 of Mutunga Rules require parties to disclose relevant material of the existing cases in order to benefit from equity. It was reiterated that under Regulation of the said Rules, the place of filing must be the place of violation. It was further submitted that Rule 10 requires that the constitutional provisions alleged to have been violated be disclosed and the injury suffered specified as well as the reliefs sought.

37. In support of the objection the 2nd Respondent relied on Collin Bett Trading as C K BEtt vs. Eco Bank Kenya Limited & Another [2014] eKLR, (page 2 para 7), Owners of Motor Vesel Lilian “S” Case, Anne Mumbi Hinga vs. Attorney General & 5 Others [2017] eKLR, (page 3 paras 1 and 6), Republic vs. Doyo Galgalo& 3 Others [2019] eKLR (page 3 para 9), Joseph Lendrix Waswa vs. Republic [2020] eKLR, (pages 11 and 12).

38. The 2nd Respondent also submitted that there was misjoinder of parties to the petition.

39. According to the 2nd Respondent, Witness Protection Act is a specific Legislation that provides that witness protection proceedings ought to be carried out in camera.

40. Based on the foregoing the Court was urged to strike out the petition.

41. The said objection was supported by Mr Murei, Learned Counsel for the 1st Respondent. Learned Counsel associated himself with the submissions by the 2nd Respondent and referred the Court to page 52 of the Annexture MM-2 at page 52 where, according to counsel, it is clear that the basis of the Petition is an order by Ogembo, J which order has not been sought to be reviewed or appealed against. Accordingly, the Court cannot be asked to make a decision based on the said order. Learned Counsel also stressed that the proper forum to institute these proceedings is the Anti-Corruption Division based on Gazette Notice No 9123 of 2015 (Notification of Practice Directions on the Division of the High Court of Kenya), dated 8th December, 2015 as well as Gazette Notice No. 153 of 9th December, 2016, the Practice Directions for the Anti-Corruption and Economic Crimes Division of the High Court. It was submitted that the Complaint by the Petitioner revolves around an order made by the CM’s Court, Nairobi and it is immaterial that the Petitioner claims that he resides in Machakos County.

42. It was contended that though the Petitioner contends that the Judges have rendered an unjust decision, there are administrative options available to address the issue. To seek the same orders before different forums, it was submitted amounts to an abuse of the process of the court.

43. On his part, Mr Omari, Learned Counsel for the 3rd Respondent associated himself with the submissions made on behalf of the 1st and 2nd Respondents and added that witness protection proceedings are special proceedings that are totally independent of the trial. It is a process with its clear Rules to guide courts on how to deal with cases involving protected witnesses and any party aggrieved by witness protection orders should challenge them before the Court that issued them since in accordance with Rule 4 of the Witness Protection Rules, the Court satisfied itself as to the matter. Learned Counsel similarly urged the Court to strike out the application.

44. The objection was however opposed by Mr Miller, Learned Counsel for the Petitioner. On the issue of jurisdiction, he relied on the decision in Hadija Mlao Mlingo vs. Director of Public Prosecutions & Others [2020] eKLR. for the holding that the Court has unlimited jurisdiction and that where sub registries are not set up it can strip the Court of jurisdiction under the Constitution. It was submitted that Mutunga Rules have limitation and cannot override the jurisdiction of the Court since the Rules themselves provide that the Court should further the overriding objective under Article 159 of the Constitution. Accordingly, it was submitted that this Court has the jurisdiction to entertain this matter.

45. As regards the defects in the petition, reliance was placed on Nicolaas Hendrick Claasen vs. Commissioner of Lands & 4 Others [2016] eKLR and it was submitted that the main concern for the Court is to do substantive justice as opposed to technicalities. Though the Petitioner denied that there were defects, he nonetheless submitted tat under Article 159(2)(d) justice should be administered without undue regard to technicalities.

46. In The Petitioner’s view, the issue of duplication is misguided since the issues raised in Miscellaneous Application No. 1 of 2020 deal with the matters in the Nairobi matter and there is no petition. The Court was referred to ground three of the instant application which deals with the issue of supply of illegible documents hence this matter is distinguishable from the one in the Nairobi Case. It was submitted that the matter before this Court deals with a determination of the constitutionality of the Witness Protection Act as regards the inconsistency of the said Act with the Constitution of Kenya hence there is no similarity with the Nairobi Case. While the instant application is based on 24 grounds, the Nairobi matter is based on 8 grounds and has nothing to do with the Constitution. Further the reliefs sought in the instant petition are 12 and are totally different from those in Miscellaneous Application No. 1 (or 23) in Nairobi. The Petitioner insisted that there was disclosure of the said existing proceedings in the petition.

47. As regards Appeal No. 24 of 2020, High Court Nos. 36 and 38 of 2019 and No. 23 of 2020Appeal No. 24 of 2020, it was submitted that the said cases have not been provided and that the Court of Appeal matter does not arise from a constitutional petition while Case Nos. 36 and 38 of 2019 sought bail pending arrest and the same have since been overtaken by events. This Petition, it was submitted is based on case Nos. 1, 31 and 32 which are pending in Nairobi and in which it is alleged that the Constitution has been flouted in respect of the provisions of the Witness Protection. As regards the matter before Wakiaga, J it was submitted that what is pending before him is a review of the Judge’s orders.

48. According to the Petitioner, this petition is not caught up by the principle of res judicata since this is a separate petition. The allegation of misjoinder was explained on the basis that while some of the interested parties are still accused persons before the lower court, other interested parties were removed from the criminal cases before taking pleas and have testified against the Petitioner after they were accorded the status of protected witnesses under the Witness Protection regime. According to the Petitioner, he is challenging the applicability of Article 157(11) of the Constitution as opposed to the decision of Wakiaga, J. It was stressed that the petition revolves around the applicability of the anti-corruption laws in violation of the Constitution. The Court was therefore urged to dismiss the objection.

Determinations

49. I have considered the issues raised in the preliminary objection which in my view are as follows:

1) Whether there is misjoinder of parties and the effect thereof.

2) Whether there is non-disclosure of material facts and the effects thereof.

3) Whether the subject of this matter is similar to the ones pending before other courts.

4) Whether the orders being sought herein are capable of being granted by this Court.

5) Whether this Court has the jurisdiction to entertain this matter.

50. Before delving into the said issues, it is important to set out the principles guiding preliminary objections on matters of law such as the one before me.

51. In NBI High Court (Civil Division) Civil Case No 102 of 2012 - Cheraik Management Limited vs. National Social Security Services Fund Board of Trustees & Anotherthis Court expressed itself, inter alia, as follows:

“Ordinarily, a preliminary objection should be based on the presumption that the pleadings are correct. It may also be based on agreed facts. It, however, cannot be entertained where there is a dispute as to facts for example where it is alleged by the defendant and denied by the plaintiff that a condition precedent to the filing of the suit such as the giving of a statutory notice was not complied with, unless the fact of non-giving of the notice is admitted so that the only question remaining for determination is the legal consequence thereof. It may also not be entertained in cases where the Court has discretion whether or not to grant the orders sought for the simple reason that an exercise of judicial discretion depends largely on the facts of each particular case which facts must be established before a Court may exercise the discretion…In this case both parties have adopted the unusual mode of arguing the preliminary objection by filing affidavits in support and in opposition thereof respectively. Accordingly part of the Court’s task would be to determine what are the agreed facts contained therein whether expressly or by legal implication.”[Emphasis added].

52. In arriving at that decision, the Court relied on the celebrated case of Mukisa Biscuits Manufacturing Ltd. vs. West End Distributors Ltd. Civil Appeal No. 9 of 1969 [1969] EA 696 in which case Law, JA was of the following view:

“A preliminary objection consists of a point of law which has been pleaded, or which arises from a clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”[Emphasis added].

53. Per Newbold, P:

“A preliminary objection is in the nature of what used to be called a demurrer.It raises a pure point of law, which is argued on the assumption that all the facts pleaded are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”

54. In Omondi vs. National Bank of Kenya Ltd & Others [2001] KLR 579; [2001] 1 EA 177 it was held that:

“The objection as to the legal competence of the Plaintiffs to sue (in their capacity as directors and shareholders of the company under receivership) and the plea of res judicataare pure points of law which if determined in the favour of the Respondents would conclude the litigation and they were accordingly well taken as preliminary objections…In determining both points the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae(as of right) but as a matter of judicial discretion.”

55. It is therefore clear that a preliminary objection is an objection based on law that is argued on the assumption that the facts as pleaded are correct. In other words, a person raising a preliminary objection must be prepared to argue the same on the assumption that the facts as they are pleaded are correct. As long as that is done, it is not objectionable for the party raising the objection to refer to the facts on record. What the Court does not permit is the attempt to reconcile factual disputes in a preliminary objection.

56. The first ground of objection is based on misjoinder of parties. Rule 5(b) of Mutunga Rules provides that:

A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceedings deal with the matter in dispute.

57. What I understand that rule to be saying is that even where there is misjoinder or non-joinder, the discretion as to the manner of dealing with the matter is left to the Court. Since preliminary objection is not permissible where the discretion as to the matter of proceeding is discretionary, it follows that that point as a preliminary objection cannot be sustained.

58. Further, as held in the above cited decisions, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. The question is therefore whether the alleged misjoinder even if true, is capable of disposing of the suit. In Garden Square Limited vs. Sammy Boit Kogo & Another Nairobi (Milimani) HCCC No. 1266 of 2003 [2003] KLR 20, the Court held, a holding I associate myself with that misjoinder is not a proper point of preliminary objection for misjoinder cannot itself defeat the suit and should be canvassed in a substantive application for striking out the name since a preliminary point of law is a pure point of law which if successfully taken, would have the effect of disposing the suit or application entirely.

59. The second issue is whether there is non-disclosure of material facts and its effects. However, what is material and what is not must depend on the particular circumstances of the case. The issue was deliberated upon at length in Bahadurali Ebrahim Shamji vs. Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997 where the Court of Appeal stated:

“The material facts are those which it is material for the judge to know in dealing with the application made; materiality is to be decided by the court and not the assessment of the applicant or his legal advisers…it is not every omission that the injunction will be automatically discharged. A locus pentitentiae (chance of repentance) may sometimes be afforded. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to make a new order on terms: when the whole of the facts, including that of the original non-disclosure, are before it, the court may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed…It is accepted that in cases of ex parte proceedings there must be full and frank disclosure to the court of all material facts known to the applicant but in the instant case everything was in the court record and was available to the learned judge for perusal. There was no deliberate concealment on the part of the respondents.”

60. It is clear from the foregoing that the decision whether or not there is material non-disclosure rests purely on the court and not on the legal advisers. Secondly, even where there is non-disclosure the court has to weigh and determine the weight to be attached to the same and the Court may, notwithstanding the non-disclosure excuse the same. In other words, the decision whether or not to decline a relief based on material non-disclosure is discretionary. In this case the Respondents are yet to respond to the application and the petition. Once they do so and all material is placed on record the Court will be able to determine, based on the same whether or not the orders sought are merited. At this stage it is my view that it is premature for this Court to conclusively decide on the materiality of the undisclosed facts. Accordingly, that ground similarly fails the test of preliminary objection.

61. The next issue for determination is whether the subject matter of this matter is similar to the ones pending before other courts. In other words, is this matter sub judice? That an issue going to the locus and whether the matter is res judicata can properly be taken as preliminary objections as long as the other conditions precedent are satisfied was appreciated in Omondi vs. National Bank of Kenya Ltd & Others [2001] KLR 579; [2001] 1 EA 177 where it was held that the objection as to the legal competence of the Plaintiffs to sue and the plea of res judicataare pure points of law which if determined in the favour of the Respondents would conclude the litigation and they were accordingly well taken as preliminary objections. That must be so because a court is barred from entertaining an issue which has been finally determined by a Court of competent jurisdiction.

62. The doctrine of sub judice is, however, codified in Section 6 of the Civil Procedure Act which provides as hereunder:

No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

63. Therefore, for the principle to apply certain conditions precedent must be shown to exist: First, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit; proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and such suit or proceeding must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

64. The rationale for this principle was restated in Kampala High Court Civil Suit No. 450 of 1993 - Nyanza Garage vs. Attorney General in which the Court held that:

“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”

65. It was therefore held in Barclays Bank of Kenya Ltd vs. Elizabeth Agidza & 2 Others [2012] eKLR that:

“…if the controversy in the subsequent suit can be conveniently and properly adjudicated upon in the previous suit, by virtue of the enactment of Sections 1A and 1B of the Civil Procedure Act, Section 6 will still apply. This is so because the overriding objective of the Civil Procedure Act is for expeditious and proportionate resolution of civil disputes between parties. My view is that the circumstances obtaining in 1953 when the Jadna Karsan –vs- Harnam Singh Bhogal was decided are completely different from the circumstances obtaining now. The circumstances obtaining at the time of the enactment of Sections 1A and 1B of the Civil Procedure Act were that there is constraint in judicial time and therefore a lot of pressure on the courts to expedite resolution of civil disputes. My view therefore is, if a substantial part of the matters in issue of controversy in the subsequent suit is covered by the previous suit, Section 6 should be invoked to save the precious judicial resources.”

66. Therefore, for this Court to determine whether or not the conditions guiding the invocation of sub judice exist in these proceedings, it would be necessary for this Court to peruse the proceedings referred to by the Respondents and as rightly submitted by the Petitioner some of those proceedings are not before this Court. That determination being a factual one, it cannot form the subject of a preliminary objection unless the facts are agreed. As held by Ojwang, J(as he then was) in Oraro vs. Mbaja [2005] 1 KLR 141:

“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. The first matter relates to increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence. If the applicant’s instant matter required the affidavit to give it validity before the Court, then it could not be allowed to stand as a preliminary objection clearly out of order and, apart from amounting to a breach of established procedure, it had the unfortunate effect of provoking filing of the respondent’s very detailed “affidavit in reply to an affidavit in support of preliminary objection”, which replying affidavit was expressed to be “under protest”…The applicant’s “notice of preliminary objection to representation” cannot pass muster as a procedurally designed preliminary objection. It is accompanied by affidavit evidence, which means its evidentiary foundations are not agreed and stand to be tested. Secondly, the essential claims in the said preliminary objections are matters of great controversy, as their factual foundations are the subject of dispute.”

67. Where facts are not agreed the issue of sub judice ought to be raised in a replying affidavit by exhibiting copies of the proceedings in the related suit or suits. It must be noted that where a party raises an objection barring the Court from proceedings with a matter, the burden is upon that party to satisfy the Court that the conditions favourable to the grant of such orders do exist since the Court does not ordinarily bar a party from accessing the seat of justice without compelling reasons. It was therefore upon the Respondents to place before this Court, materials upon which the Court would be in a position to make a definite finding that in fact the issues in this application and the petition and in the said related proceedings are similar or substantially the same. This Court cannot be expected to call for a matter pending before a Court of concurrent jurisdiction or a more superior one such as the Court of Appeal as opposed to an inferior tribunal, peruse the same and in the secrecy of the chambers make a determination prejudicial to a party without affording the said party an opportunity of being heard on the same. To do so would amount to a violation of the principles of natural justice.

68. Apart from that, the said principle provides, where it applies, that the subsequent proceedings are to be stayed and not terminated unless the Court is satisfied that the action of the applicant also amounts to an abuse of the Court process. Accordingly, that preliminary objection fails since even if it were to be upheld, this Court would only stay these proceedings as opposed to terminating the same.

69. Are the orders sought herein particularly, the order that this Petition annexed hereto be placed before the Chief Justice for appointment of a bench of an uneven number of judges being not less than three (3) and which empanelled bench shall not compose of judges from the High Court Anti-Corruption and Economic Crimes Division and in particular Honourable Lady Justice Mumbi Ngugi and Honourable Justice J. N. Onyiego; and Honourable Justice James Wakiaga of the High Court Criminal Division, capable of being granted? In my view that is a matter that cannot be dealt with by way of a preliminary objection for the simple reason that even if I was to agree with the Respondents, it would only dispose of one prayer in the application rather than the whole matter.

70. That brings me to the issue whether this Court has the jurisdiction to entertain this matter. The first limb of that objection is that this court has no territorial jurisdiction to entertain the matter based on Sections 12 to 15 of the Civil Procedure Act, Article 165(3)(a) and (b) of the Constitution as well as rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.

71. The cited provisions of the Civil Procedure Act provide for the territorial jurisdiction of the Court. The preamble to the Civil Procedure Act, however provides that it is:

An Act of Parliament to make provision for procedure in civil courts.

72. The petition before me seek the application and interpretation of the Constitution. It cannot therefore be deemed to be “civil proceedings”as contemplated under the Civil Procedure Act so as to invoke Sections 12 to 15 thereof with a view to defeating the petition. In my view, the provisions of the said Act do not apply to petitions alleging violation of constitutional rights or contravention of the Constitution in so far as the jurisdiction of the High Court is concerned.

73. Article 165(3)(a),(b) of the Constitution provides that:

(3) subject to clause (5), the High Court shall have-

“(a) unlimited jurisdiction in criminal and civil matters

(b) jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened.

74. As regards rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013,the same provides that:

Every case shall be instituted in the high court of Kenya within whose jurisdiction the alleged violations took place.

75. As was appreciated Nyamu, J (as he then was) in Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728:

“The Courts guard their jurisdiction jealously, but recognize that it may be precluded or restricted by either legislative mandate or certain special contexts. Legislative provisions which suggest a curtailment of the Courts’ power of review give rise to a tension between the principle of legislative mandate and the judicial fundamental of access to courts. Judges must search for critical balance and deploy various techniques in trying to find it. The Court has to look into the ouster clause as well as the challenged decision to ensure that justice is not defeated. In our jurisdiction, the principle of proportionality is now part of our jurisprudence. Anyone bred in the tradition of the law is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the Court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some other tribunal…It is a well settled principle of law that statutory provisions tending to oust the jurisdiction of the Court should be construed strictly and narrowly. It is a well established principle that a provision ousting the ordinary jurisdiction of the Court must be construed strictly meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the Court.”

76. Therefore, any provision purporting to limit the jurisdiction of the High Court must itself derive its validity from the Constitution itself and must do so expressly and not by implication unless the implication is necessary for the carrying into effect the provisions of the Act.

77. In matters of jurisdiction of superior courts, it is my view that one ought to take in consideration the well-known principle as enunciated in East African Railways Corp. vs. Anthony Sefu [1973] EA 327,where it was held that

“It is, a well established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.”.

78. Although that rule applies the word “shall” it is my view, that the provision cannot be successfully invoked in order to dismiss a constitutional petition particularly in light of the clear constitutional provisions regarding the jurisdiction of the High Court. It is my view the mere fact that the said Rules applies the word “shall” rather than “may” does not necessarily connote that the requirement is mandatory. The intention of the rule making authority has to be examined before a determination is made as to whether the provision is mandatory or merely directory. In Velji Shahmad vs. Shamji Bros. and Popatlal Karman & Co. [1957] EA 438 it was held:

“Such expressions as “may”, “shall be empowered”, “may be exercised”, in certain circumstances are to be construed as having a compulsory or imperative force. The test is whether there is anything that makes it the duty on whom the power is conferred to exercise that power. Where a statute confers an authority to do a judicial act, in a certain sense there would be such a right in the public as to make it the duty of the justices to exercise that power: to put it another way where the exercise of an authority is duly applied for by a party interested and having a right to make the application, the exercise depends upon proof of the particular case out of which the power arises.”

79. In my view the said provision is merely directory and directs the parties on where to institute their proceedings and therefore in appropriate cases the court where the proceedings are instituted may direct that the same be heard and determined in a particular place. That, however, is a different thing from saying that the court has no jurisdiction in the matter. Where the court before which a petition is filed is of the view that the matter ought to have been instituted elsewhere, the court is perfectly entitled to direct that the same be heard by the High Court sitting at a particular place but the Court cannot by invocation of the said rule strike out or dismiss the petition. In other words, the place of institution of a petition is not necessarily the same thing as jurisdiction of the High Court.

80. It is true that the High Court (Organisation and Administration) Act (the Act) in sections 11 and 12 provides for establishment of Divisions and the distribution of the Stations of the High Court. Section 11 provides that the said Divisions are to be established for purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance and the Chief Justice is empowered to create the same where the workload and the number of judges in a station permit. That provision does not provide that it can be invoked to restrict the High Court’s jurisdiction as conferred under Article 165 of the Constitution. The section is meant for the purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance. As I have stated above, any provision purporting to limit the jurisdiction of the High Court must itself derive its validity from the Constitution itself and must do so expressly and not by implication. In my view, the High Court (Organisation and Administration) Act (the Act) which is the parent Act, in sections 11 and 12 only provides for establishment of Divisions and the distribution of the Stations of the High Court. It does not purport to limit the jurisdiction of the High Court as provided in the Constitution. In other words, where Divisions are existing in a particular High Court station, the distribution of the matters to be handled by a particular Division may be prescribed. However, where no such Divisions exist, the Act cannot oust the Constitutional provisions dealing with the jurisdiction of the High Court.

81. In Gazette Notice No. 9123 of 2015 (Notification of Practice Directions on the Division of the High Court of Kenya), dated 8th December, 2015, the Chief Justice acting pursuant to the said provision established the High Court Division on Anti-corruption and Economic Crimes Division in Nairobi and Admiralty Division in Mombasa and it was provided that in Nairobi all disputes relating to Anticorruption and economic crimes matters shall be lodged and heard before the said Division which was to have its own registry and was to determine the categorisation of the matters that may be lodged and heard in the Division. That Gazette Notice also established the Admiralty Division in Mombasa and also provided for applications for international adoptions.

82. However, this Gazette Notice was subsequently superseded by Gazette Notice No. 153 of 9th December, 2016, the Practice Directions for the Anti-Corruption and Economic Crimes Division of the High Courtwhich was dated 9th December, 2016. By that Gazette Notice, all new cases relating to corruption and economic crimes were required to be filed in the Principal Registry of the Anti-corruption Division at Nairobi for hearing and determination. The said instrument however expressly stated that the Division would at all stages of any hearing facilitate accessible adjudication of all disputes related to corruption and economic crimes. It also set out the matters to be heard in that Division and provided that all pending matters of that nature filed in other stations or Divisions whose hearing had not commenced would be transferred to that Division.

83. The said Practice Directions were subsequently amended vide Kenya Gazette Notice No. 7262 of 2018 and direction 3 thereof provides:

The Chief Justice may establish additional Sub-registries outside Nairobi.

84. It cannot be emphasised that the power to establish High Court Divisions is donated under section 11 of the High Court (Organisation and Administration) Act. That Act expressly provides that it was enacted pursuant to Article 165(1)(a) and (b) of the Constitution which provide as follows:

(1) There is established the High Court, which—

(a) shall consist of the number of judges prescribed by an Act of Parliament; and

(b) shall be organised and administered in the manner prescribed by an Act of Parliament.

85. It is trite law that Acts of Parliament must comply with the letter and spirit of the Constitution. Similarly, secondary legislation and practice directions must comply with the parent legislation and by extension the Constitution. In our case, Article 48 of the Constitution provides that:

The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

86. Apart from that Article 6(6) of the Constitution provides that:

A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.

87. Therefore, in enacting Legislation whether primary or secondary and in promulgating practice directions, it is necessary that the right to access to justice as well as reasonable access to judicial services in all parts of the Republic must always be kept in mind. That is my understanding of section 12 of the High Court (Administration and Organization) Act which provides that:

The Chief Justice shall, in consultation with the Principal Judge, facilitate reasonable and equitable access of the services of the Court and establish at least one station of the Court in every county.

88. Though the Gazette Notice No. 9123 was superseded by Gazette Notice No. 153 of 2016, I take it that the latter did not revoke the former since the Anti-corruption and Economic Crimes Division was in fact established by the former and the former clearly stated that the said Division was created in the interest of effective case management.

89. In my view, where a strict adherence to the practice directions would result into a negation of the letter and spirit of Article 48 aforesaid, the Court must take an action that upholds the letter and the spirit of the Constitution. Mine is not a voice shouting in the wilderness. I am not breaking any jurisprudential ground by the said view. Ogola, J dealt with the same issue in Hadija Mlao Mlingo vs. Director of Public Prosecutions & 3 others; Wilberforce Malanga Wambulwa & 5 Others (Interested Parties) [2020] eKLR in which, while referring to Shakeel Ahmed Khan & Another vs. Republic & 4 Others [2019] eKLR and Ethics and Anti-Corruption Commission & Another vs. William Baraka Mtengo & 4 Others [2017] eKLR, expressed himself as hereunder:

“In the case of Ethics and Anti-Corruption Commission & another vs. William Baraka Mtengo & 4 others [2017] eKLR the court had the occasion to consider the argument that the Practice Directions have taken away the jurisdiction of the High Court and observed as follows:

‘The Respondent contends that the said Practice Directions have taken away the jurisdiction of this Court and that the Chief Justice has no power to take away jurisdiction from the High Court. I entirely agree with the Respondent that the Chief Justice has no authority whatsoever to take away jurisdiction from any court or to confer jurisdiction to any court.’

90. The learned Judge proceeded to hold that:

“21. I totally agree. However, I will appraise Direction 4 of the Practice Directions. It lays down the overriding objective of the Practice Directions which is the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes. This leads to the conclusion that the Practice Directions, were among other things, intended to aid the efficient and timely disposal of the matters identified therein. To that extend, I agree with the Respondent/Petitioner that the overriding objective of the Practice Directions of the Anti-Corruption and Economic Crimes Division of the High Court and the Constitution of Kenya, 2010 is to have expeditious and accessible dispensation of justice to all parties.

22. Whereas the Constitution at Article 48 requires that justice be accessible, the same Constitution at Article 159(2)(b) demands that justice shall not be delayed. Time and again this court has held the preposition that the right to access justice ought to be balanced with the need to ensure that justice should not be delayed. As earlier noted, the subject of the Petition herein is the continued prosecution of the Petitioner in Mombasa Chief Magistrate’s Court Anti-Corruption Case No. 10 of 2011. To now direct that the matter be transferred to the Anti-Corruption and Economic Crimes Division in Nairobi would in my view delay the hearing of the same. Likewise, the intention of the Practice Directions to facilitate the efficient and timely disposal of the matter would be defeated. If the sub registries or divisions are not established outside Nairobi, the Practice directions will not only fly in the face of the Constitutional imperative that Justice shall not be delayed, but will also increase the cost of justice.

23. For the reasons stated in this Ruling, allowing this application will militate against the overriding objective of the very practice directions of the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes. The upshot of the foregoing is that I disallow the 2nd Respondent/Applicant’s Application dated 10/06/2019. Parties shall fix a hearing date for the petition at registry on priority basis.”

91. In Shakeel Ahmed Khan & Another vs. Republic & 4 Others [2019] eKLR, Thande, Jexpressed herself as hereunder:

“Access to justice and the right to a fair trial are fundamental rights enshrined in Articles 48, 49 and 50 the Constitution of Kenya 2010. Indeed Article 25 clearly stipulates that the right to a fair trial is one of the rights which shall not be limited. The question this Court has to consider is whether the transfer of the Main Application to the ACEC Division in Nairobi will hinder the Applicants’ right to access to justice or limit their right to a fair trial or indeed delay the hearing and determination of the Main Application. Direction 6 of the Practice Directions lists the matters that shall be heard by the ACEC Division…Direction 2 of the Practice Directions requires that all cases such as the present one involving corruption and economic crimes shall be filed in Nairobi…The 2018 Practice Directions amended the 2016 Practice Directions...Article 165(3) of the Constitution of Kenya 2010 confers upon this Court unlimited original jurisdiction in criminal and civil matters. Does Direction 2 have the effect of taking away the jurisdiction of this Court?...The Chief Justice as head of the Judiciary has power under Section 16 of the High Court (Organization and Administration) Act to establish sub-registries of the ACEC Division and indeed full ACEC divisions outside Nairobi. The failure to do so has in my view the net effect of stripping the High Court in stations outside Nairobi of the jurisdiction conferred upon it by the Constitution…Direction 4 of the Practice Directions lays down the overriding objective of the Practice Directions which is the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes. The Main Application was filed on 24. 4.19 and was on the same date certified urgent and a priority hearing date given. To now direct that the matter be transferred to the ACEC Division in Nairobi would in my view delay the hearing of the same. The intention of the Practice Directions to facilitate the efficient and timely disposal of the matter would be defeated. Corruption and economic crimes have become rampant in this country to the extent that there have been calls to declare corruption a national disaster. As long as sub-registries or divisions are not established outside Nairobi, the Practice Directions will not enhance the overriding objective but will do the exact opposite including increasing the costs of justice. The Practice Directions will also fly in the face of the constitutional imperative that justice shall not be delayed…My conclusion is that allowing this application will militate against the overriding objective of the very practice directions relied upon by the 4th Respondent of the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes."

92. I agree with the said holdings and add that where the said Directions clearly manifest a stripping of the High Court’s jurisdiction under Article 165 of the Constitution, the Court is well advised not to apply them line, hook and sinker. I shudder to think of for example a person charged with the offence of soliciting for a bribery of say fifty shillings committed somewhere in Kapedo being required to travel all the way to Nairobi to challenge the said charges. Such a requirement would defeat the letter and spirit of Articles 48 as read with Article 159 of the Constitution. As noted in the above decisions, there is no evidence that the Chief Justice has established the sub-registries outside Nairobi pursuant to direction 3 of the Kenya Gazette Notice No. 7262 of 2018. In my view, where a remedy provided under the Act is made illusory with the result that it is practically a mirage, the Judges of the High Court as the High Priests of the Constitutional Temple of justice ought not to not shirk from their Constitutional mandate to ensure that the letter and spirit of the Constitution including Articles 6(6) and 48, which guarantees the right to access to justice and enjoins national State organs of which the Judiciary is one to ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service, are respected, upheld and promoted. A holistic reading of the two Articles leads me to the conclusion that the spirit of the Constitution is to spread the services of the national State organs as wide as possible and to discourage the centralisation of the same at the national capital.

93. As was rightly stated in Republic vs. Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya HCMCA No. 13 of 2008it is the responsibility of the Court to ensure that there is no gap in the application of the rule of law. Therefore, where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court, the Court is perfectly within its rights to investigate the allegations. To fail to do so would be to engender and abet an injustice.

94. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that:

“the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.”

95. However, where the proceedings being challenged are pending within the supervisory jurisdiction of one High Court, for the purposes of efficient administration of justice, challenge to the same ought to be made at the High Court where the trial Court is situate pursuant to rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. That is however a purely administrative matter rather than a jurisdictional matter. That must be so because as was appreciated by the Court of Appeal in Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates vs. Salama Beach Hotel Limited & 3 Others [2017] eKLR:

“We must reiterate that the High Court of Kenya remains one and the same court, only that it sits at different locations in the country, such as Malindi and Nairobi. The location where it sits cannot therefore affect its jurisdiction. The practice and requirements that suits be filed in particular stations of the High Court are purely for administration and convenience in the hearing and determination of suits. That is not in any way to suggest that such requirements or practice is unreasonable or unnecessary; it is intended to reduce costs of transporting witnesses from one corner of the country to another for hearing of cases and to expedite hearing and determination of suits, thus giving meaning to the overriding objective and the constitutional value in Article 159 which emphasize the need to reduce costs and delay in the hearing and determination of suits.”

96. I must however disabuse the notion that the High Court can only supervise a subordinate court within its own jurisdiction. The jurisdiction of the High Court is countrywide and not countywide hence it can supervise a decision of any inferior tribunal made anywhere within the Republic of Kenya.

97. In this case, it was submitted that this Petition is based on The Chief Magistrate Milimani Anti-Corruption Court Cases No. 31 of 2019, 32 of 2019 and 1 of 2020, Republic -vs- H.E Hon. Mbuvi Gidion Kioko Mike Sonko & Otherswhich are pending in Nairobi and in which it is alleged that the Constitution has been flouted in respect of the provisions of the Witness Protection Act. It is therefore clear that this petition is closely intertwined with the said pending matters. The Petitioner herein is the Governor of Nairobi County and he previously served as the Member of Parliament for Makadara Constituency and as Senator for Nairobi County. Considering the issues herein as well as the parties, it is my view that whereas this Court’s jurisdiction is not necessarily ousted, for the efficient and orderly conduct of proceedings, these proceedings ought to be heard in Nairobi pursuant to rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.

98. In the premises since Nairobi has a Division that has been set up to deal with such matters, while I decline to strike out this Petition, I hereby direct that the Petition be placed before a Judge in the Anti-corruption and Economic Crimes Division, Nairobi on 3rd December, 2020 for directions and further orders. That Division is competent to refer the matter to the Chief Justice as sought as well as to determine whether the Judges mentioned can excuse themselves from hearing the matter.

99. The costs will be in the cause and it is so ordered.

Read, signed and delivered in open Court at Machakos this1st day of December, 2020

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Miller for the Petitioner

Mr Murei for the 1st Respondent

Mr Nyamache with Mr Kihara, Mr Khakula and Miss Kabinga for the 2nd Respondent.

Mr Nyamache for Mr Omare for the 3rd Respondent