[2018] KESC 41 (KLR)

Okoiti v Kenya National Commission On Human Rights & another; Independent Electoral & Boundaries Commission & 14 others (Interested Parties) (Advisory Opinions Application 1 of 2017) [2018] KESC 41 (KLR) (13 July 2018) (Ruling)

Okiya Omtatah Okoiti v Kenya National Commission on Human Rights & 15 others [2018] eKLR

Neutral citation: [2018] KESC 41 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Advisory Opinions Application 1 of 2017

PM Mwilu, DCJ & V-P, MK Ibrahim, JB Ojwang, NS Ndungu & I Lenaola, SCJJ

July 13, 2018

IN THE MATTER OF AN APPLICATION BY THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS FOR AN ADVISORY OPINION UNDER ARTICLE 163(6) OF THE CONSTITUTION –AND– IN THE MATTER OF ARTICLES 2(1) & (2), 3(1), 4(2), 10, 73, 75, 232, 249 AND 259 OF THE CONSTITUTION OF KENYA, 2010 –AND– IN THE MATTER OF SECTION 3 OF THE SUPREME COURT ACT NO. 7 OF 2011 –AND– IN THE MATTER OF CHAPTER 6 OF THE CONSTITUTION ON LEADERSHIP AND INTEGRITY

Between

Okiya Omtatah Okoiti

Applicant

and

Kenya National Commission On Human Rights

1st Respondent

Honourable Attorney General

2nd Respondent

and

Independent Electoral & Boundaries Commission

Interested Party

Ethics & Anti-corruption Commission

Interested Party

Amani National Congress

Interested Party

Chama Cha Mwananchi

Interested Party

Democratic Party Of Kenya

Interested Party

Ford Kenya

Interested Party

Jubilee Party

Interested Party

Kenya African National Union

Interested Party

Labour Party Of Kenya

Interested Party

Maendeleo Chap Chap

Interested Party

Narc-kenya

Interested Party

National Rainbow Coalition

Interested Party

Orange Democratic Movement

Interested Party

Wiper Democratic Movement- Kenya

Interested Party

Director Of Public Prosecutions

Interested Party

(Being an application by the Proposed Interested Party/Applicant seeking to be enjoined as an Interested Party in the Reference filed by the Kenya National Commission on Human Rights, KNCHR for an advisory opinion under Article 163(6) of the Constitution)

Ruling

1. Upon perusing the Notice of Motion application dated 19th May, 2017 and lodged on 22nd May, 2017 by Okiya Omtatah Okoiti seeking to be enjoined in the Reference as an Interested Party and noting that the law or procedural rules Upon which the Application is premised are not stated; and

2. Upon perusing the grounds adduced in support of the Application namely that the Applicant seeks to participate in the Reference as an Interested Party and seeks to submit that;(a)the Kenya National Commission on Human Rights, lacks subject matter locus standi to institute an appeal to this Honourable Court disguised as an application for an advisory opinion under Article 163(3) of the Constitution;(b)the Supreme Court lacks the jurisdiction to entertain appeals under Article 163(6) of the Constitution;(c)the instant Reference for an advisory opinion under Article 163(6) of the Constitution is res sub-judice the following motions pending in the High Court of Kenya at Nairobi, viz(i)Constitutional Petition No. 68 of 2017 Okiya Omtatah Okoiti v Jubilee Party of Kenya & Others and(ii)Constitutional Petition No. 142 of 2017 Okiya Omtatah Okoiti v Hon. Attorney General & 12 Others;(d)the Kenya National Commission on Human Rights is abusing the process of this Honourable Court by invoking the Court’s appellate jurisdiction via its advisory opinion jurisdiction;(e)the Applicant has a duty to help this Court arrive at a just determination of these proceedings; and(f)the grave matter which is before this Honourable Court is of huge public interest as it affects the enjoyment of rights and fundamental freedoms enshrined in the Bill of Rights, and other provisions of the Constitution; and

3. Upon further noting the averment that the Applicant has a right of access to this Court to safeguard his rights and those of other Kenyans from being infringed, and to defend the Constitution in general; and

4. Upon taking notice that none of the other parties to the Reference have filed any pleadings in support of or in objection to the said Application for enjoinment of the Applicant as an Interested Party;

5. And having carefully considered the Application, the Supporting Affidavit and annexures thereto, by a unanimous decision of this Bench, we make the following orders under Section 23(2)(b) of the Supreme Court Act and Rules 21 and 23 of the Supreme Court Rules, 2012; Orders(a)The Application dated 19th May, 2017 and filed on 22nd May, 2017 by the Applicant seeking to be enjoined as an Interested Party in the instant Reference is hereby allowed;(b)The Applicant shall file and serve his submissions on or before 16th July, 2018; and(c)There shall be no orders as to costs.

Reasons(a)The Application has satisfied the conditions and threshold set out in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition No. 12 of 2013 where this Court, at paras. 14 & 18 stated, inter alia;“[An] interested party is one who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or herself appears in the proceedings, and champions his or her cause...”(b)The Applicant has established that he has an identifiable stake in the present proceedings in view of his claim that this Court may not have the jurisdiction to issue an advisory opinion as prayed and the Reference may also be sub-judice in view of the pending proceedings before the High Court in Constitutional Petitions Nos. 68 & 142 of 2017 (Okiya Omtatah Okoiti v Jubilee Party of Kenya & Others and Okiya Omtatah Okoiti v Hon. Attorney General & 12 Others) touching on the same subject matter as the Reference. Further, that the Kenya National Commission on Human Rights may also not have subject locus standi and that therefore the Reference may be an abuse of Court process; and(c)On costs, the nature of the Reference is that it seeks an interpretation of constitutional issues which are public in nature and therefore, in the public interest, there shall be no order as to costs. (See para. 87 Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra)).

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY, 2018……………………………………P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT………………………………………….M. K. IBRAHIMJUSTICE OF THE SUPREME COURT………………………………………….J. B. OJWANGJUSTICE OF THE SUPREME COURT………………………………………….N. S. NDUNGUJUSTICE OF THE SUPREME COURT………………………………………….I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA