[2021] KEHC 12588 (KLR)
The court determined that, in accordance with Order 45 Rule 2 of the Civil Procedure Rules, an application for review of an order must be heard by the judge who made the order unless that judge is unavailable or precluded for a specified period. Since Hon. Justice Makau, who issued the order sought to be reviewed,...
Source-derived case information.
- Citation
- [2021] KEHC 12588 (KLR)
- Parties
- Petitioner: Hon. Mike Mbuvi Sonko; Respondent: The Clerk, Nairobi City County Assembly; Respondent: The Speaker, Nairobi City County Assembly; Respondent: The Nairobi City County Assembly; Respondent: The Clerk, Senate of Kenya; Respondent: The Speaker, Senate of Kenya; Respondent: The Senate of Kenya; Respondent: Hon. Attorney General; Respondent: The Independent Electoral and Boundaries Commission (IEBC); Respondent: The Assumption of the Office of the County Governor Committee, Nairobi City County; Respondent: The Acting Governor
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E425 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Review and Directions
- Outcome
- Application referred to original judge for hearing; no determination on merits.
- Judges
- AC Mrima
- Legal Topics
- Judicial Review, Substantial Question of Law, Bench Composition, Stay of Execution, Consolidation of Petitions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Mike Mbuvi Sonko
Petitioner
The Clerk, Nairobi City County Assembly
Respondent
The Speaker, Nairobi City County Assembly
Respondent
The Nairobi City County Assembly
Respondent
The Clerk, Senate of Kenya
Respondent
The Speaker, Senate of Kenya
Respondent
The Senate of Kenya
Respondent
Hon. Attorney General
Respondent
The Independent Electoral and Boundaries Commission (IEBC)
Respondent
The Assumption of the Office of the County Governor Committee, Nairobi City County
Respondent
The Acting Governor
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Review and Directions
Legal Issues
- 1 Whether the application for review, stay, and other orders should be heard by the judge who issued the original order.
- 2 Whether the matter raises a substantial question of law warranting referral to the Chief Justice for empanelment of a bench.
- 3 Whether consolidation of related petitions is appropriate at this stage.
Ratio Decidendi
The court determined that, in accordance with Order 45 Rule 2 of the Civil Procedure Rules, an application for review of an order must be heard by the judge who made the order unless that judge is unavailable or precluded for a specified period. Since Hon. Justice Makau, who issued the order sought to be reviewed, is still attached to the court, the application must be placed before him for determination. The court therefore directed that the matter be dealt with by Hon. Makau, J., and ordered the Deputy Registrar to place the file before him on a specified date, without addressing the substantive merits of the application.
Court Disposition
Application referred to original judge for hearing; no determination on merits.
Orders
- This matter shall henceforth be dealt with by Hon. Makau, J.
- The Deputy Registrar to place the matter before that Court on 20th January, 2021.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
[Coram: A.C Mrima, J.]
CONSTITUTIONAL PETITION NO. E425 OF 2020
HON. MIKE MBUVI SONKO........................................PETITIONER
VERSUS
THE CLERK,
NAIROBI CITY COUNTY ASSEMBLY..............1ST RESPONDENT
THE SPEAKER,
NAIROBI CITY COUNTY ASSEMBLY.............2ND RESPONDENT
THE NAIROBI CITY COUNTY ASSEMBLY....3RD RESPONDENT
THE CLERK, SENATE OF KENYA...................4TH RESPONDENT
THE SPEAKER, SENATE OF KENYA............. 5TH RESPONDENT
THE SENATE OF KENYA................................. 6TH RESPONDENT
HON. ATTORNEY GENERAL…......................7TH RESPONDENT
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION (IEBC)............8TH RESPONDENT
THE ASSUMPTION OF THE OFFICE
OF THE COUNTY GOVERNOR
COMMITTEE, NAIROBI CITY COUNTY.....9TH RESPONDENT
THE ACTING GOVERNOR...........................10TH RESPONDENT
RULING NO. 1
1. The 1st Respondent herein, The Clerk, Nairobi City County Assembly, filed an undated Notice of Motion under Article 165(4) of the Constitution Rules 23, 24 & 25 of the Constitution of Kenya Practice and Procedure Rules, Section 1A, 1B, 3A, 63(c) & (e) of the Civil Procedure Act among other provisions of law. The application sought the following orders: -
1) This Honourable Court be pleased to Order stay of execution of the Order G of the Orders issued by the Hon. Justice Makau on 23rd December 2020 pending the inter partes hearing.
2) The Honourable Court be pleased to stay proceedings herein pending inter partes hearing of this application.
3) The Honourable Court be pleased to discharge, vary, set aside and/or review Order G of the Orders issued by the Hon. Justice J.A Makau on 23rd December, 2020.
4) This Honourable Court be pleased to certify Nairobi High Court Constitutional Petition No. E425 of 2020 as raising a substantial question of law.
5) The Honourable Court be pleased to refer the entire Petition herein to the Honourable Chief Justice for the Composition of a bench of uneven number of Judges to hear and determine the dispute.
6) This Honourable Court be pleased to issue an Order for the Consolidation of HC Petition No. 64 of 2020, HC Pet. No.66 of 2020, HC petition No. 105 of 2020, HC Const. Pet. No. E348 of 2020, HC Const. Petition No. E405 of 2020, HC Pet. No. E425 of 2020, H.C Petition No. E430 of 2020, ELRC Pet. No. 35 of 2020, ELRC Pet. No. 52 of 2020, ACEC Pet. No. 1 of 2020 and any other suit touching on the leadership if Nairobi City County Government (specifically the nomination, appointments, election into the offices of Governor & Dep. Governor), the transfer of functions to the Nairobi Metropolitan Services and Budgeting and appropriation in respect of the County.
7) This Honourable Court be pleased to make such orders as may be necessary for the ends of justice to prevent an abuse of the process of court.
8) The costs of the application be provided for.
2. Before this Court delves into the merits of the application, its attention is drawn to the provisions of Order 45 Rule 2of the Civil Procedure Rules. The provision states as follows: -
(1) An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.
(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.
(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate
3. Given the state of the law, I hereby issue the following orders: -
a) This matter shall henceforth be dealt with by Hon. Makau, J.
b) In view of the urgency in the matter, the Deputy Registrar to place the matter before that Court on 20th January, 2021.
It is so ordered.
DELIVERED, DATEDandSIGNEDat NAIROBI this 20th day of January, 2021.
A. C. MRIMA
JUDGE