[2020] KEHC 424 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

PETITION NO. 64 OF 2020

(AS CONSOLIDATED WITH PETITION NOS. 66 & 105 OF 2020)

OKIYA OMTATAH OKOITI..................................................................1ST PETITIONER

MUTEMI KIAMA...................................................................................2ND PETITIONER

VERSUS

THE NATIONAL EXECUTIVE OF THE REPUBLIC OF KENYA.......1ST RESPONDENT

THE NAIROBI CITY COUNTY GOVERNMENT.............................2ND RESPONDENT

THE HON, ATTRONEY GENERAL...................................................3RD RESPONDENT

AND

THE COUNCIL OF GOVERNORS.........................................1ST INTERESTED PARTY

KATIBA INSTITUTE.................................................................2ND INTERESTED PARTY

THE LAW SOCIETY OF KENYA............................................3RD INTERESTED PARTY

RULING

Clause 4 of Article 165 of the Constitution of Kenya acknowledges that of the various constitutional petitions that are filed in this honourable court from time to time, some raise substantial questions of law on whether any right in the Bill of Rights has either been denied, violated, infringed or threatened. It also recognises that a substantial question of law would also include the interpretation of the Constitution on such issues as whether any law is inconsistent with or in contravention of the Constitution; or whether anything said to be done under the authority of the Constitution or any other law is, in fact inconsistent with, or in contravention of the Constitution; or, any matter relating to the Constitutional powers of state organs in respect of county governments and any matter concerning their relationship with the national government; or, any questions relating to conflict of laws of the county government and the national legislation.

The Constitution regards all these questions substantial questions of law. The phrase ‘a substantial question of law’ is not employed in vain; instead, it bears some degree of legal consequence. This is so because once this court certifies a matter as having raised ‘a substantial question of law’, the Chief Justice is tasked with the duty of empanelling a bench of uneven number of judges to determine such a question.

Before me are four constitutional petitions that, by and large, stem from an agreement signed by the Governor of Nairobi City County and the Cabinet Secretary in Charge of Devolution, surrendering certain functions of the Nairobi city county to National Government. Generally speaking, the petitioners are unanimous that this action, of itself, and the actors violated the Constitution, in one way or the other. No doubt, it is for this reason that the petitions have been consolidated.

The Petitioner in Petition No. 66 of 2020 applied to have the petition to be certified as raising a substantial question of law and which, for this reason, ought to be addressed by uneven number of judges empanelled by the Honourable Chief Justice.

When parties appeared before me yesterday on 8 December 2020, none of them raised any serious concerns about the Petitioner’s bid in Petition No. 66 of 2020 to have this petition settled by a bench of uneven number of judges.

And this is not surprising because the action or actions that precipitated these petitions would, in my humble view, squarely fall under any of the category of matters which the constitution in article 165 (3) (d) (ii) and (iii) regards as raising ‘a substantial question of law’ and therefore fit for determination by uneven number of judges. To understand their relevance to the question at hand, one needs to look at Clause 4 of article 165 which, in a way, introduces them; this clause reads as follows:

(4) Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

And clause (3) (d) (ii) and (iii) spells out some of these elevated questions as follows:

(3) Subject to clause (5), the High Court shall have—

(a)…

(b)…

(b)…

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i)…

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv)…

Based on these provisions of the law and taking into account the material before court, I am satisfied that the consolidated petition raises substantial questions of law that deserve attention by a bench of uneven number of judges duly constituted by the Honourable Chief Justice in accordance with article 165 (4) of the Constitution. The petition is so certified.

Accordingly, I direct the Deputy Registrar of this Court to facilitate the placement of this petition before the Honourable Chief Justice for the empanelling of an appropriate bench to hear and determine this petition. It is so ordered.

Signed, dated and delivered on 9 December 2020.

Ngaah Jairus

JUDGE