[2017] KEHC 8514 (KLR)
Once a matter has been referred to the Chief Justice under Article 165(4) for constitution of a bench, a single judge lacks jurisdiction to determine any substantive application in the matter. The proper procedure is for the Deputy Registrar to ensure compliance with the referral directions, after which the...
Source-derived case information.
- Citation
- [2017] KEHC 8514 (KLR)
- Parties
- Applicant: Okiya Omtatah Okoiti; Applicant: Nyakina Wycliffe Gisebe; Respondent: President Uhuru Muigai Kenyatta; Respondent: Deputy President William Samoei Ruto; Respondent: Henry Rotich; Respondent: Kamau Thugge; Respondent: The Hon. Attorney General; Respondent: Agnes Odhiambo; Respondent: Patrick Ngugi Njoroge; Respondent: Edward Ouko; Respondent: Law Society of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 531 of 2015
- Procedural Posture
- Constitutional Petition / Interlocutory Ruling on Referral to Bench
- Outcome
- Application not determined; matter referred for compliance with earlier directions.
- Judges
- I Lenaola, EC Mwita
- Legal Topics
- Article 165 4 Referral, Panel of Judges, Judicial Procedure, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Okiya Omtatah Okoiti
Applicant
Nyakina Wycliffe Gisebe
Applicant
President Uhuru Muigai Kenyatta
Respondent
Deputy President William Samoei Ruto
Respondent
Henry Rotich
Respondent
Kamau Thugge
Respondent
The Hon. Attorney General
Respondent
Agnes Odhiambo
Respondent
Patrick Ngugi Njoroge
Respondent
Edward Ouko
Respondent
Law Society of Kenya
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Ruling on Referral to Bench
Legal Issues
- 1 Whether the application by the petitioners can be determined by a single judge after referral under Article 165(4).
- 2 Whether the directions to constitute a bench of uneven number of judges have been complied with.
Ratio Decidendi
Once a matter has been referred to the Chief Justice under Article 165(4) for constitution of a bench, a single judge lacks jurisdiction to determine any substantive application in the matter. The proper procedure is for the Deputy Registrar to ensure compliance with the referral directions, after which the appointed panel of judges may hear and determine the pending application. The delay in compliance does not vest jurisdiction in a single judge to proceed contrary to the Constitution.
Court Disposition
Application not determined; matter referred for compliance with earlier directions.
Orders
- Deputy Registrar to expeditiously comply with the directions for referral to the Chief Justice for constitution of a bench under Article 165(4).
- Panel of judges appointed by the Chief Justice to deal with the pending application.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO.531 OF 2015
BETWEEN
OKIYA OMTATAH OKOITI……………………………… 1stPETITIONER
NYAKINA WYCLIFFE GISEBE …………………………2nd PETITIONER
AND
PRESIDENT UHURU MUIGAI KENYATTA…………....1st RESPONDENT
DEPUTY PRESIDENT WILLIAM SAMOEI RUTO…..2nd RESPONDENT
TREASURY CABINENT SECRETARY
HENRY ROTICH…..…....................................................3rd RESPONDENT
TREASURY PRINCIPAL SECRETARY
KAMAU THUGGE…........................................................4th RESPONDENT
THE HON. ATTORNEY GENERAL…………………….5th RESPONDENT
AND
CONTROLLER OF BUDGET
AGNES ODHIAMBO….........................................1st INTERESTED PARTY
CBK GOVERNOR
PATRICK NGUGI NJOROGE……..................….2nd INTERESTED PARTY
AUDITOR GENERAL
EDWARD OUKO…………….….....................….3rd INTERESTED PARTY
LAW SOCIETY OF KENYA…………..…………4TH INTERESTED PARTY
RULING
1. On 5th February 2016, I directed that this matter should be referred to the Hon. the Chief Justice for constitution of an uneven number of Judges under Article 165(4)of theConstitution to hear and determine all aspects of it.
2. I have perused the record and I note that the said directions were never complied with for reasons unknown to me. Instead, an Application dated 20th March 2016 by the Petitioners was to be determined earlier on 15th July 2016 and later on 25th November 2016 by myself. That Application, upon the matter being referred to the Hon. the Chief Justice cannot procedurally be determined by a single Judge.
3. In the circumstances, I am unable to determine the said Application and would instead direct the Deputy Registrar of this Division to expeditiously comply with my earlier directions and thereafter the panel of Judges appointed by the Hon. the Chief Justice can deal with the Application.
4. As there has been delay in the finalisation of this Petition and the said Application attributable partly to circumstances beyond my control and which should be well known to the Parties, I hereby tender to my profuse apologies.
5. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF FEBRUARY, 2017
ISAAC LENAOLA
JUDGE
DELIVERED AND SIGNED AT NAIROBI THIS 24TH DAY OF FEBRUARY, 2017
E. CHACHA MWITA
JUDGE