[2023] KEHC 25278 (KLR)

Olweny & 4 others v Registrar of Births & another; Ochieng (Interested Party) (Constitutional Petition 23 of 2019) [2023] KEHC 25278 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25278 (KLR)

Republic of Kenya

In the High Court at Nakuru

Constitutional Petition 23 of 2019

SM Mohochi, J

November 15, 2023

IN THE MATTER OF ARTICLES 10, 19, 20, 21(1), 22(1), 23(1) &(3), 27, 28, 29, 41, 47 165(3)(a),(b), (d) (i) (ii) & 246 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 14 &17 OF REGISTRATION OF PERSONS ACT NO 11A OF 2011 LAWS OF KENYA

Between

Norah Atieno Olweny

1st Petitioner

Linda Beatrice Akinyi Olweny

2nd Petitioner

Irene Awuor Olweny

3rd Petitioner

Dorine Lydia Anyango Olweny

4th Petitioner

John Kelvin Odhiambo Olweny

5th Petitioner

and

The Registrar Of Births

1st Respondent

The Hon Attorney General

2nd Respondent

and

Dr Timothy Ochieng

Interested Party

Judgment

Introduction 1. This petition was filed on the 29th January 2020 supported by under Certificate of Urgency and a Notice of Motion for interluctory relief that was ultimately abandoned by the Petitioners on the 5th February 2020 and directions on the hearing and disposal of the Petition were issued. It is noteworthy that the Petition bears a year 2019 filing date that this court views as an administrative error at the Court Registry.

2. The Petitioners filed their Written Submissions on the 1st July 2020, and by the 10th November 2020, the petition had not been heard and an interested party sought to be admitted and was admitted upon consent while the Petitioners successfully sought leave to amend the petition.

3. On 29th July 2021 the Interested party filed a Replying Affidavit

4. It would appear that the Petitioners never amended the Petition as allowed by the Court and the Petition once again went into a state of limbo until the 23rd March 2023, when the Petition was listed for the Petitioners to show-cause why the same should not be dismissed for want of prosecution. On this day, the Petitioner changed their Advocates and the court allowed the new advocate time to familiarize himself, and fresh directions were issued to the parties, being leave to file written submissions.

5. On the 27th July 2023, the Petitioner indicated they shall be relying on their written submissions as filed on the 1st July 2020, the Respondents had in the meantime filed their written submissions on the 25th May 2023 and the Court reserved the Petition for Judgment.

Description of the Parties 6. The Petitioners are daughters, a brother and a mother, all of Kenyan nationality by birth and who are residing and working for gain within Kenya and Nakuru in particular.

7. The 1st Respondent, is the state agency in charge of registration of births, mandated under the law with the duty of registration of births and the issuance of supporting documents mainly the notification of births and birth certificates as well as the control and management of the register of all citizens born and births registered in Kenya.

8. The 2nd Respondent, is the holder of the Office of the Attorney General of the Republic of Kenya established under Article 156 of the Constitution of Kenya, the constitutionally designated Principal Legal Adviser to the Government of Kenya and in that capacity vested with the legal authority to defend any suit against the National Government.

Petitioners Case 9. The 2nd - 5th Petitioners are born of the 1st Petitioner and are daughters and a brother to mother relationship, were issued with birth certificates, and a notification of birth, the former which they continue to hold on to date, the same having been issued to them.

10. That on or about the month of August, 2019 while the 2nd - 5th petitioners were in search of their Birth certificates, ordinarily in the custody of the 1st Petitioner, at their residence in Nakuru town, the 2nd - 5th Petitioners, failed to get the same and concluded they were lost. On this basis the petitioners then proceeded to source out the same through a renewal process from the Registrar of births.

11. That the Petitioners were required to fill in requisition forms and a search to support the said application in regards to the events at paragraph 2 above.

12. That, the 2nd - 5th Petitioners upon the said search being conducted, were shocked to realize that their, details as original imposed on the Register of births had been radically altered and in principle their sir names had been amended, deleted and or replaced contrary to their original entry.

13. That, the said infractions upon the register and the identification of the 1st Petitioner, and without the consent and or approval of the 2nd – 5th Petitioners, being strange and certainly deliberate, more so when the petitioners are embroiled in a protracted family battle over the estate of the deceased father and husband of the petitioners respectively being Nakuru P&A. No. 243 of 2017.

14. That, the 2nd – 5th Petitioners have since been charged with a criminal case, Nakuru Criminal Case No. 1893 of 2018 R Vs Norah Atieno Olweny in relation to the offending alterations.

15. That, by a statement of search dated 1st September, 2019, the Petitioners were returned as not properly recognized in the register and at no instance of their own or that of the 2nd - 5th Petitioner, thus the intrigue as to who occasioned such falsehood and or alteration in the register of persons and what was the motive propellant to the same.

16. That, the 1st Respondent is the mandated state office, and who despite a request to offer an explanation has availed none, despite the gravity of the grievances committed.

17. That, by this omission and or commission coupled with the failure to safeguard and or protect the sanctity of state documents and private as well as public records, the Petitioners have been aggrieved and now seek remedial measures forthwith.

18. That, the Petitioners rights and freedoms were violated as follows:i.In alteration of the birth certificates of the 2nd - 5th Petitioner, devoid of consent, knowledge and or approval of the 2nd Petitioner in contravention of the National Values and Principles of Governance under Article 10 of the Constitution, 2010 and the Provisions of Articles 22, 27, 28, 29, 33, 35, 38, 40, 43, 45, 47, 232 and 246(3) of the Constitution of Kenya:(a)The Registrar of births of the Republic of Kenya acted unconstitutionally by altering, permitting to be altered, removing the sir name of the 1st petitioner from the Register of persons and of births without following the laid down procedures under the Registrar of Persons Act.(b)The illegal replacement of the maiden name and identity of the 2nd - 5th Petitioners, the registrar of births and persons failed to observe and/or promote the rights to information, right to privacy, and of the person, property, dignity, family, socio-cultural and economic rights, non-discrimination, fair administrative action, and gender parity as envisaged both in the Constitution and the parent Act.(c)The illegal replacement of the identities of the Petitioners from the register of Births, and the deletion of the sir name of the petitioners while altering their identification violated section 14 of the Registration of births Act and the need for credibility and security of the register.(d)The purported amendment, deletion, alteration and or otherwise deliberate tempering with the identity of the petitioners amounted to breach of the privacy, dignity, and identity of the 1st Petitioner devoid of process and the officers of the 1st Respondent continues to be in breach of Article 22, 27, 28, 40, 44, 45, and 47 of the Constitution since the same was meted devoid of validity of process.(e)The attempted illegal, fraudulent alteration, amendment, deletion and or removal from the register of the sir name and identity of the petitioners without due process and or recourse to the law was illegal and unconstitutional.(f)That as a result Norah Atieno Olweny has been charged with offence in relation to the alteration being CMCR CASE NO. 1893 of 2018 which the only intention is the pending Succession dispute involving the estate of Olweny.

19. Petitioners therefore humbly pray for the following reliefs:i.A Declaration that, the Alteration of and removal of the Registered name of Petitioners from the register of births and persons by the Respondents and their agents is inconsistent with, or in contravention of Articles 10, 27, 28, 29. 35, 38, 40, 43, 44, 45, 47 and 251 of the Constitution and Sections 14 and 17 of the Registration of Births Act and is thus illegal, null and void ab initioii.A Declaration that, the alteration and or deletion of the name of the Petitioners from the Register of births in its original form as per the search conducted by the Petitioners at the Registrar of Births dated 1st August, 2019 is inconsistent with, or in contravention of Articles 10, 41 and 246 (3)(a) of the Constitution and is thus illegal, null and void ab initio.iii.An order of prohibition does issue prohibiting the Respondents from illegally replacing the Deputy Inspector General of Police, Kenya Police without due process.iv.An order of certiorari does issues bringing to this Court and quashing all the transfers announced by the 1st Respondent on 1st September, 2015. v.An order suspending and/or terminating Nakuru Chief Magistrate Criminal Case No. 1893 of 2018 Republic -VS- Norah Atieno.vi.Costs and interests of this Petition.vii.Such further, other and consequential orders as this Court may deem fit to make.

The Respondents case 20. The Petition is opposed by the1st and 2nd, Respondents arguing that the petition is premature for not exhausting all other available remedies, that the Petition is fatally incompetent thereby rendering the entire motion incompetent.

21. The Respondents submit that, Norah Atieno Olweny is the biological mother to the 2nd to the 5th Petitioners, however John Kelvin Odhiambo Olweny was born of the 1st Petitioner and Eliakam Washington Olweny (Deceased).

22. The Respondents submit that, the petitioner alleges that they had an agreement with one Eliakamn Olweny to change the names of their children and proceeded to get new birth certificates with the name Olweny added in the birth certificates.

23. That the question the Respondents seek to answer is Whether the petition as it is, is merited and hence the prayers sought can be granted.

24. The Respondents submit that, Section 7 of Registration of Births and Deaths Act provides that:7. Register of births and deaths(1)It shall be the duty of every registrar to keep a register of births and a register of deaths and to enter therein, the prescribed particulars of every birth and death notified to him(2)The registrar appointed to register births and deaths occurring outside Kenya shall keep a register of births occurring outside Kenya and a register of deaths occurring outside Kenya

25. The Respondents submit that, from the understanding of the above section, it is the sole responsibility of the registrar of births to make any entries as required by law since he is the sole custodian of the register.

26. That the Petitioners argue that the registrar erroneously made entries to the effect of change in the names of the children. Such an argument to us is self-defeating as the petitioner failed to disclose material facts that led to the change of the names. The registrar cannot suo moto effect any changes to names of individual's certificate.

27. The Respondents submit that, the court should take judicial notice that, there is a criminal case against the petitioner herein where the Petitioners has been charged with 8 counts contrary to Section 320 of the penal code. More relates to the fraudulent registration of the birth being criminal case number 1893 of 2018 obtaining registration by false pretense specifically count I-VII of the charge sheet certificates of the 2nd to the 5th Petitioners and a choreographed scheme to hold herself out as a wife to children as those of the deceased and thus entitled.

28. The Respondents submit that, this was an elaborate scheme for the late Eliakam Washington Olweny and her to a claim of the benefits of the estate of the deceased should not benefit from their Wrongdoings. the case It is trite law that and also in equity that one of Olympic Company Trading Ltd & Another v Said Mohamed & 4others (2014) eKLR and the case of Macharia Mwangi Muna & 87 Others vs Davidson Mwangi Kairi (2014]eKLR where the Court observed that:“This Court is a court of law and a court of equity; Equity shall suffer no wrong without a remedy; no man shall benefit from his own wrongdoing; and equity detests unjust enrichment.The petitioners herein presented information that was misleading to the Registrar of births and it is upon the information that the registrar acted and effected the changes that are a subject to this petition.”

29. It would be an upfront of justice to allow the portioners to benefit from their inequities. Further it is the petitioner's case that the registrar was in contravention of Section 14 and 17 of registration of births act. the act provides as follows:14. Change of name of child after registrationWhere the birth of any child has been registered before it has received a name, or where the name by which it was registered is altered, the parent or guardian of such child may within two years of the registration, on payment of prescribed fee, and providing such evidence as the registrar may think necessary, register the name that has been given to the child.

30. The understanding of the above section is that the registrar can only act on the information as presented to them by the parent of the child.

31. Section 17 further states that:17. Duty to notify deaths were registration compulsory Upon the death of any person the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of e very other relative of the deceased dwelling or being in the same registration area as the deceased, and, in default of such other relatives, of each person present at the death and of the occupier of the house in which to his knowledge the death took place, and, in default of the persons hereinbefore in this section mentioned, of each inmate of such house, or of any person finding or taking charge of the body of such person or causing the body of such person to be buried or otherwise disposed of. to give notice within such time as may be prescribed to the registrar of the registration area in which the death took place.

32. The Respondent find the section more related to the issue of deaths more than it should be to the one of births.

33. The Respondent is of the considered view the current petition by the petitioners is a nonstarter and are entitled to no favour from this Honorable court.

34. The Pray that the same be dismissed with costs

Interested Party’s Case 35. The Interested Party is the Son of the Late Washington Olweny who was also allegedly husband to the 1st Petitioner and father to the 5th Petitioner.

36. The interested Party deponed that, the Petition is devoid of merit, mischievous, an abuse of the court process and only meant to advance an illegality otherwise connived as a fundamental constitution right.

37. The interested Party deponed that, in so far as the constitutional provision is purposed on protecting fundamental human rights, the said rights are not meant to shield any criminal activity or to conceal evidence of crime from the criminal justice process.

38. The interested Party deponed that, it matters not, how many times it has been canvased in reiterating the fundamental constitutional provisions, the same does not however sanitize a patently illegal action or inaction as explicitly perpetrated by the Petitioners.

39. The interested Party deponed that, the amended petition herein has indeed been camòuflaged as a Constitutional petition in an attempt to shield the petitioners from criminal culpability and as such, such a smoke-screen tactic should be declined ab initio.

40. The interested Party deponed that, the matter herein is an actuate and resonates from the Estate of the late Eliakim Washington Olweny whose untimely demise occurred on the 28th day of November, 2016.

41. The interested Party deponed that, he is a bonafide beneficiary of the Estate of the late Eliakim Washington Olweny by dint of being his son.

42. The interested Party deponed and provided Evidence “TOO1” that, the Petitioners claimed to be beneficiaries of the estate of the late Eliakim Washington Olweny vide Nakuru Chief Magistrate’s Court Civil Suit No. 1284 of 2016, by virtue of being wife and children of the deceased respectively.

43. The interested Party deponed that, it is a culmination of such claim that other beneficiaries and himself sought to ascertain the veracity of their claim and the authenticity of the registration documents presented by the Petitioners; which documents came into his possession by virtue of being the 3rd defendant in Nakuru Chief Magistrate’s Court Civil Suit No. 1284 of 2016.

44. The interested Party deponed that, it is as a result of such investigation that it transpired that the 1st Petitioner had illegally and fraudulently executed double registration of Birth Certificates of the 2nd, 3rd, 4th and 5th Petitioners which documents in issue, the 1st Petitioner has all along been relying on.

45. That, in perpetrating the fraud aforesaid, the 1st Petitioner falsely represented that the 2nd, 3rd, 4th and 5th Petitioners herein were children of the deceased and hence procured registration of their Birth Certificates indicating that the deceased was their father, a fact she knew to be untrue,

46. The interested Party deponed that, he lodged an official complaint with the Directorate of Criminal Investigation giving rise to Nakuru Chief Magistrate’s Court Criminal Case Number 1893 of 2018 where he is a Complainant and a witness.

47. The interested Party deponed that, the 1st Petitioner was thereafter charged with 8 counts of, Obtaining Registration by false pretense, contrary to Section 320 of the penal code, wherein fraudulent registration of Birth count I-VIII of the Charge sheet relates to Certificates of the 2nd, 3rd, 4th and 5th Petitioners.

48. The interested Party deponed that, Consequently, upon recommendation by the Directorate of Criminal Investigations, the said fraudulent registrations have since been cancelled by the Director of Civil registration, as being double registration.

49. The interested Party deponed that, the Petitioners have in essence approached the court with unclean hands against the basic principles of equity and the court should decline any whatsoever invitation to condone an illegality connived as a constitutional petition under the fundamentals of Bill of rights; as perpetrated by the Petitioners.

50. The interested Party claims that, it is therefore perceptible that the fraudulent registration by the 1ST Petitioner was done in furtherance of a scheme to hold herself as a wife to the late Eliakim Washington Olweny and her children as those of the deceased thus claim a benefit in the estate of the deceased when such was never the case.

51. That the court should not be used as a conduit to perpetrate an illegality otherwise connived as a constitutional petition under the Bill of rights.

52. The interested Party deponed that, the issues pertaining the veracity and authenticity of the registration particulars of the petitioners were fully and comprehensively adjudicated by competent institutions and as such, the Petitioners should not endeavor to circumvent such findings at the pendency of other cases auxiliary to the same matter.

53. The interested Party deponed that, the Petitioners' move to file the petition herein is ill- advised, misinformed and premature in the realm of justice; the same lacks limbs to stand on; it must fail.

54. That it is in the circumstances and in the best interest of Justice that such an illegality should never see the light of the day and the prayers sought in the amended petition be dismissed with cost.

Determination 55. From the pleadings, dispositions and submissions, I have framed the following issues for my determination:1. Whether the Court has jurisdiction to entertain the petition?*

56. I have carefully considered the pleadings, the responses, the written submissions and the various decisions referred to by the parties. One of the preliminary issues raised by the Respondent has a jurisdictional inclination. It is contended that the Petition fails the test of raising constitutional issues and as such, this Court ought to down its tool.

57. For the reason that the issue impugned the jurisdiction of this Court, this Court must determine it at the earliest. (See the Supreme Court of Kenya in Petition No. 7 of 2013, Mary Wambui Munene v. Peter Gichuki Kingara and Six Others [2014] eKLR).

58. Article 2 of the Constitution which provides that:(1)This Constitution is the Supreme law of the Republic and binds all persons and all state organs at both levels of government.(2)No person may claim or exercise state authority except as authorised under this Constitution.

59. Article 165(6) of the Constitution provides that: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

60. This matter focuses on the parameters of constitutional Petitions. Articles 22 and 258 of the Constitution remain the anchor provisions relating to the locus standi in instituting Petitions.The Constitution, the law as well as Courts have expressed themselves on the manner in which Petitions ought to be presented to Court. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’) provide for the contents of Petitions. Rule 10 thereof provides seven key contents of a Petition as follows: -Form of petition.10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.(2)The petition shall disclose the following—(a)the petitioner’s name and address;(b)the facts relied upon;(c)the constitutional provision violated;(d)the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;(e)details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;(f)the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner.

61. Rule 10(3) and (4) of the Mutunga Rules also have a bearing on the form of Petitions. They provide as follows:-(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.(4)An oral application entertained under sub rule (3) shall be reduced into writing by the Court.

62. Rules 9 and 10 are on the place of filing and the Notice of institution of the Petition respectively.

63. The Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others (2014) eKLR had the following on Constitutional Petitions:-Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

64. The issue of prematurity of or mootness of petition was dealt with in the case of Wanjiru Gikonyo and Others v National Assembly of Kenya and 4 Others Petition No. 453 of 2015 [2016] eKLR Onguto J held as follows:27. Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix, for determination.28. Conversely, the court is also prevented from determining an issue when it is too late. When an issue no longer presents an existing or live controversy, then it is said to be moot and not worthy of taking the much-sought judicial time.35. It is however to be noted that the court retains the discretion to determine whether on the circumstances of any matter before it still ought to be determined.

65. The Impugned action by the 1st Respondent under contest was an administrative act for which the petitioners could have addressed administratively, no demonstration in this regard to exhaust the provisions of section 4 and seven of the Act has been presented.

66. The Petitioners have equally not presented any evidence of illegality in action by the 1st Respondent not withstanding alleging so.

67. The conduct of constitutional Petitions is also guided by various laws. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to constitutional Petitions and affidavits in Section 2 thereof. The provision provides as follows: -1. This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.2. Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.

68. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof as follows:(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

69. 109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

70. A Constitutional and Human Rights Court is supposed to exclusively deal with constitutional issues. Courts have defined what constitutional issues are. In Fredricks & Other vs. MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC), the Constitutional Court of South Africa rightly so, delimited what a constitutional issue entails and the jurisdiction of a Constitutional Court as follows:-The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…

71. That a constitutional petition should set out with a degree of precision, the Petitioners complaint, the provisions infringed and the manner in which they are alleged to be infringed in the body of the Petition, the Petitioner has not shown how their individual or collective rights have been infringed by the 1st Respondent thus has failed in what is the most basic ground rudimentary of requirements as there are no constitutional issue raised as was stated in the case of Mape Building & General Engineering V Attorney General & 3 Others 20161 EKLR where the court cited the case of Anarita Karimi Njeru Versus The Republic (1976-1980) KLR 1272 where it was held thot:“It is now well settled that parties coming to court and alleging violation of Constitutional rights must with reasonable precision spell out the relevant Articles of the Constitution and further particularize with reasonable precision the alleged violations as well as how the violations were committed".

72. In the case of Anarita Karimi And Mumo Matemu V Trusted Society Of Human Rights Alliance And 5 Others (2013) eKLR it was held that:"any Petitioner who seeks redress under the constitution must state his claim with precision by reference to the provisions of the constitution allegedly violated and explain how the provisions were violated".

73. The case of Grays Jepkemoi Kiplagat V Zakayo Chepkoga Cheruiyot [2021] EKLR further emphasized on the threshold for a petition where it was held that;“it is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints".x

74. The Petition had a sloe supporting Affidavit by the 2nd Respondent and it is curious that the 1st Respondent never swore an affidavit in support. It is equally noteworthy that the 1st, 3rd, 4th and 5th Respondents never swore Affidavits in support or gave authority to the 2nd Respondent to tender evidence on their behalf.

75. This Court has been invited to terminate the ongoing Nakuru Chief Magistrate Criminal Case No. 1893 of 2018 Republic -VS- Norah Atieno without any basis whatsoever.

76. While I find the court to be of jurisdiction to entertain the petition the same has not been presented with any evidence of transgression(s) on the part of the 1st Respondent

77. Consequently, the following final orders do hereby issue:a.This Court finds the Petition to be lacking in merit and accordingly dismiss the same.b.There shall be no Orders as to costs.Orders accordingly.

DATED, SIGNED AND DELIVERED IN NAKURU ON THIS 15TH DAY OF NOVEMBER, 2023MOHOCHI S.MJUDGE OF THE HIGH COURT