[2017] KEHC 770 (KLR)

Source-derived case information.

Citation: [2017] KEHC 770 (KLR)
Parties: Applicant: Michael Kojo Otieno; Applicant: Samora Machel Alosi; Respondent: County Government of Homa Bay; Respondent: Cyprian Otieno Awiti; Respondent: County Treasury of Homa Bay; Respondent: County Secretary of Homa Bay; Respondent: County Executive of Homa Bay; Respondent: County Executive for Tourism & Sport; Respondent: County Executive for Transport & Infrastructure; Respondent: County Assembly of Homa Bay; Respondent: The Ethics and Anti Corruption Commission; Respondent: The Attorney General
Court: High Court
Court Station: High Court at Homa Bay
Jurisdiction: Kenya
Case Number: Petition 2 of 2017
Procedural Posture: Constitutional Petition / Preliminary Directions Before Hearing
Outcome: Directions issued for expedited filing of responses and further affidavits; hearing to proceed.
Legal Topics: Public Funds Misuse, Legitimate Expectation, Right to Fair Administrative Action, Public Interest Litigation, Constitutional Rights Enforcement
Source Language: en

Constitutional Law Administrative Law Public International Law Public Funds Misuse Legitimate Expectation Right to Fair Administrative Action Public Interest Litigation Constitutional Rights Enforcement

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Parties

Michael Kojo Otieno

Applicant

Samora Machel Alosi

Applicant

County Government of Homa Bay

Respondent

Cyprian Otieno Awiti

Respondent

County Treasury of Homa Bay

Respondent

County Secretary of Homa Bay

Respondent

County Executive of Homa Bay

Respondent

County Executive for Tourism & Sport

Respondent

County Executive for Transport & Infrastructure

Respondent

County Assembly of Homa Bay

Respondent

The Ethics and Anti Corruption Commission

Respondent

The Attorney General

Respondent

Procedural Posture

Constitutional Petition / Preliminary Directions Before Hearing

Legal Issues

1 Whether the respondents have violated constitutional provisions regarding the use and management of public funds.
2 Whether the doctrine of legitimate expectation applies to the petitioners in the context of county governance.
3 Whether the respondents have breached the petitioners' rights to fair administrative action and access to information.

Ratio Decidendi

The court determined that all parties had been properly served and that the matter was of significant public interest, warranting expedited proceedings. Recognizing the urgency and the need for all parties to adequately prepare, the court granted a short extension for the filing and service of responses and supplementary affidavits. The court also clarified the procedure for the 10th respondent to seek removal or enjoinment as amicus. The directions were issued to ensure procedural fairness and to facilitate the just and efficient determination of the constitutional issues raised in the petition.

Court Disposition

Directions issued for expedited filing of responses and further affidavits; hearing to proceed.

Orders

All counsel to file and serve appropriate responses within 3 days from today.
Applicants at liberty to file supplementary affidavit within 3 days of service.

Full Case Text

Judgment text and source record

32 paragraphs

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

PETITION NO.2 OF 2017

IN THE MATTER OF: THE PREAMBLE AND ARTICLES 1, 2, 3, 4(2), 10, 19, 20, 21, 22, 23, 24, 25, 27, 28, 35, 47, 50(1), 73, 75, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF: THE ALLEGED VIOLATION OF ARTICLES 10, 21, 27, 35, 47, 73, 75, 159, 165, 201, 210, 232, 258, AND 259 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF: DOCTRINE OF LEGITIMATE EXPECTATION

IN THE MATTER OF: THE CONTINUING MISAPPROPRIATION AND NEGLIGENCE BY THE COUNTY TREASURY IN MIS USE OF PUBLIC FUNDS

IN THE MATTER OF: THE PUBLIC FINANCE MANAGEMENT ACT, THE PUBLIC PROCUREMENT AND DISPOSAL ACT AND THE ANTI CORRUPTION AND ECONOMIC CRIMES ACT

BETWEEN

MICHAEL KOJO OTIENO..................................................1ST PETITIONER

SAMORA MACHEL ALOSI................................................2ND PETITIONER

VERSUS

COUNTY GOVERNMENT OF HOMA BAY....................1ST RESPONDENT

CYPRIAN OTIENO AWITI................................................2ND RESPONDENT

COUNTY TREASURY OF HOMA BAY...........................3RD RESPONDENT

COUNTY SECRETARY OF HOMA BAY.........................4TH RESPONDENT

COUNTY EXECUTIVE OF HOMA BAY..........................5TH RESPONDENT

COUNTY EXECUTIVE FOR TOURISM & SPORT........6TH RESPONDENT

COUNTY EXECUTIVE FOR TRANSPORT &

INFRASTRUCTURE............................................................7TH RESPONDENT

COUNTY ASSEMBLY OF HOMA BAY............................8TH RESPONDENT

THE ETHICS AND ANTI CORRUPTION

COMMISSION......................................................................9TH RESPONDENT

THE ATTORNEY GENERAL...........................................10TH RESPONDENT

RULING

This matter was coming for hearing today. Several counsel are not ready reply has not been filed. From the affidavit of service what I can see is that service was effected on 13th and 14th and infact there are receipt stamped to testify to that. What may have happened is as explained by Mr. Nyauke that he was instructed on Friday and has not adequately prepared. Mrs Dhikusoka has also indicated she needs time to prepare and get adequate instructions from her employer.

The truth here is that all parties have been served and that this is a public interest litigation – the longer it takes to resolve the greater the tension and anxiety by those interested. The matter was certified as urgent. I will therefore direct that all counsel do file and serve appropriate responses within 3 days from today.

(2) The applicants are at liberty to file supplementary affidavit if need be within 3 days of service.

(3) The 10th Respondent if it wishes to be enjoined as an amicus and to be removed as a Respondent must make a formal application to be filed and served within 3 days hereof.

(4) Hearing of the application shall proceed.

H.A. OMONDI

21. 03. 2017

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