[2023] KEELRC 1163 (KLR)
The court found that the petitioners failed to cure the fundamental defect that led to the striking out of their petition, namely the lack of signature as required by the mandatory provisions of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The court...
Source-derived case information.
- Citation
- [2023] KEELRC 1163 (KLR)
- Parties
- Applicant: Paul Omala Omala; Applicant: Matthew Samson Ouma; Applicant: George Odunga Agola; Applicant: Evans Ebu Epuret; Applicant: John Rendale Omguramunge; Applicant: Stephen Majebe; Applicant: Jeremiah Odoi Ekakoro; Applicant: Dedan Maende Oleket; Applicant: John Cheptai Ochemo; Applicant: Peter Zephson Imoh; Applicant: Ojanji Ogongola Sibiya; Applicant: Ferdinand Khalitsa Shinanda; Applicant: Gaulkey George Kweya; Applicant: Charles Wanjala Ogema; Applicant: Protus Wesonga Musumba; Respondent: Hon Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Motion to Set Aside Order Striking Out Petition
- Outcome
- motion dismissed
- Judges
- S Radido
- Legal Topics
- Fundamental Rights Enforcement, Petition Striking Out, Procedural Irregularities, Military Service Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Omala Omala
Applicant
Matthew Samson Ouma
Applicant
George Odunga Agola
Applicant
Evans Ebu Epuret
Applicant
John Rendale Omguramunge
Applicant
Stephen Majebe
Applicant
Jeremiah Odoi Ekakoro
Applicant
Dedan Maende Oleket
Applicant
John Cheptai Ochemo
Applicant
Peter Zephson Imoh
Applicant
Ojanji Ogongola Sibiya
Applicant
Ferdinand Khalitsa Shinanda
Applicant
Gaulkey George Kweya
Applicant
Charles Wanjala Ogema
Applicant
Protus Wesonga Musumba
Applicant
Hon Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Motion to Set Aside Order Striking Out Petition
Legal Issues
- 1 Whether the failure to sign a constitutional petition is a curable defect under the applicable rules.
- 2 Whether the petitioners demonstrated sufficient interest and diligence to warrant setting aside the order striking out their petition.
- 3 Whether the court should exercise discretion to reinstate the petition despite procedural defects.
Ratio Decidendi
The court found that the petitioners failed to cure the fundamental defect that led to the striking out of their petition, namely the lack of signature as required by the mandatory provisions of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The court held that such a defect is not curable and renders the petition invalid. Additionally, the petitioners demonstrated a lack of diligence and seriousness in prosecuting the matter, as evidenced by their delayed and casual approach to seeking directions and compliance with court orders. Consequently, the court declined to set aside or vacate the order striking out the petition and...
Court Disposition
motion dismissed
Orders
- The motion dated 7 May 2019 and filed on 23 May 2019 is dismissed.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
69 paragraphs
Omala & 14 others v Attorney General (Petition 4 of 2017) [2023] KEELRC 1163 (KLR) (17 May 2023) (Ruling)
Neutral citation: [2023] KEELRC 1163 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Petition 4 of 2017
S Radido, J
May 17, 2023
IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTIONS 70(a), 72(3), 74(1) AND 77 OF THE CONSTITUTION OF KENYA, 1969 AND IN THE MATTER OF THE ARMED FORCES ACT (CHAPTER 199 OF THE LAWS OF KENYA) AND IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2013
Between
Paul Omala Omala
1st Petitioner
Matthew Samson Ouma
2nd Petitioner
George Odunga Agola
3rd Petitioner
Evans Ebu Epuret
4th Petitioner
John Rendale Omguramunge
5th Petitioner
Stephen Majebe
6th Petitioner
Jeremiah Odoi Ekakoro
7th Petitioner
Dedan Maende Oleket
8th Petitioner
John Cheptai Ochemo
9th Petitioner
Peter Zephson Imoh
10th Petitioner
Ojanji Ogongola Sibiya
11th Petitioner
Ferdinand Khalitsa Shinanda
12th Petitioner
Gaulkey George Kweya
13th Petitioner
Charles Wanjala Ogema
14th Petitioner
Protus Wesonga Musumba
15th Petitioner
and
Hon Attorney General
Respondent
Ruling
1. The 15 Petitioners who were servicemen and officers with the Armed Forces of Kenya until their arrest, and detention for allegedly participating in the coup attempt of 1 August 1982 sued the Honourable Attorney General on 11 January 2017, alleging violation of their bill of rights.
2. The Petitioners sought the following orders:(a)A declaration that the Petitioners’ rights and freedoms were violated from the time of arrest till the date of sentencing by the Court.(b)A declaration that the Petitioners’ fundamental rights and freedoms under sections 72(3), 72(5) and 74(1) of the Constitution of Kenya, 1969 were contravened and grossly violated by the Kenya Army officials and Kenya Prisons officers of the Kenya Government on these dates from 2nd August 1982. (c)A declaration that the Petitioners are entitled to payment of damages and compensation (sic) of the fundamental rights and freedoms under the Constitution of Kenya.(d)General, exemplary and aggravated damages under section 84(2) of the Constitution law (sic) for the unconstitutional contract of the government secretary. (sic)(e)Any other further orders unit directors (sic) as it has cost my client fair and expedient is grant in the circumstances. (sic).(f)Cost to the suit.(g)Interest at cost (sic) rates on 27, 28 and 30 above.
3. The Honourable Attorney General was served but did not file an appearance or Response within the prescribed time.
4. Consequently, on 8 June 2017, the Petitioners filed a Motion seeking leave for judgment against the Respondent. The Motion was accompanied with a Request for Judgment.
5. However, the Respondent filed a replying affidavit to the Petition on 19 June 2017 without leave.
6. On 18 July 2017, the Petitioners caused the Petition to be mentioned on 26 September 2017 and on this date, the Court held that the Petition was invalid because it had not been signed.
7. The Court also noted that the supporting affidavit to the Motion filed with the Petition was sworn by the advocate and not one of the Petitioners.
8. The Court, therefore struck out the Petition.
9. The Petitioners applied for copies of proceedings on 24 July 2018 to enable them appeal against the decision striking out the Petition). It is not clear whether an appeal was preferred against the order striking out the Petition.
10. When the parties next appeared before the Court on 12 April 2018, the Court reiterated that the Petition had been struck out.
11. On 2 October 2018, the Petitioners filed a Motion seeking an order setting aside or vacating the order striking out the Petition.
12. The Motion was fixed for hearing on 17 December 2018 at the request of the Petitioners.
13. The Petitioners did not attend Court on 17 December 2018, and the Court declined the application.
14. On 23 May 2019, the Petitioners filed a fresh Motion seeking orders setting aside or vacating the order striking out the Petition. The Motion was fixed for hearing on 31 October 2019, but the Court did not sit on that date.
15. The Deputy Registrar rescheduled the hearing of the Motion to 6 June 2020. The record does not indicate what happened on this date.
16. The Court, thereafter issued to the Petitioners a Notice to Show Cause why the Petition should not be dismissed, and the parties addressed the Court on it on 27 March 2023, when the Court directed the Respondent to file and serve a response to the Petitioners’ Motion filed on 23 May 2023. The parties were also directed to file and exchange submissions.
17. The Respondent filed his submissions on 15 May 2023 (the Petitioners submissions were not on record by the agreed timelines).
18. The Court has considered the Petitioners’ Motion filed in Court on 23 May 2019 and come to the conclusion that the orders sought should be declined.
19. First, the Petitioners did not (and have not attempted) attempt to cure the defects which led the Court to strike out the Petition.
20. Second, Rule 10(2)(f) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provide in mandatory terms that a Petition shall be signed by the advocate on record or the Petitioner.
21. The failure to sign a Petition is, therefore, not a curable defect (see Vipin Maganlal Shah & another v Investment & Mortgages Bank Limited & 2 Ors (2001) eKLR and Southern Engineering Co. Limited v Heady Berge Limited & Ar (2019) eKLR).
22. Third, the Petitioners have treated the proceedings casually as they only waited for the Court to issue a Notice to Show Cause before seeking directions on the Motion which had been filed nearly 3 years earlier.
23. The lack of interest and seriousness on the part of the Petitioners is further signified by the failure to comply with the directions issued on 27 March 2023.
24. The Motion dated 7 May 2019 and filed in Court on 23 May 2019 is dismissed.
25. There will be no order on costs as the Respondent failed to file a response within the agreed timelines.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 17TH DAY OF MAY 2023. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor Petitioners Agina & Associates AdvocatesFor Respondent Office of the Attorney GeneralCourt Assistant Chrispo Aura