[2022] KEHC 9784 (KLR)

Omboga v Obuor & another (Constitutional Petition 4B of 2022) [2022] KEHC 9784 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9784 (KLR)

Republic of Kenya

In the High Court at Migori

Constitutional Petition 4B of 2022

RPV Wendoh, J

July 13, 2022

Between

Ochieng Michael Omboga

Petitioner

and

Hon. Paul Obuor

1st Respondent

Fred Wagoro

2nd Respondent

Ruling

1. The petitioner filed a petition dated 21/6/2022. It is supported by his affidavit. The petitioner’s claim was that the respondents fabricated a withdrawal notice purportedly drawn by himself and presented it to the Independent Electoral and Boundaries Commission to withdraw his candidature for the position of the Member of National Assembly Rongo Constituency. The petitioner sought the following orders:-i.A declaration that the conduct of the respondents of fabricating a withdrawal notice purportedly drawn by the petitioner and presenting the same to the IEBCwithout the knowledge and/or express authority of the petitioner and their conduct of attempting to withdraw the candidature of the petitioner for the position of the member of National Assembly without following due procedure and without informing the petitioner as stated above are unconstitutional and is in violation of his rights and freedoms of the petitioner, his supporters and the electorate of Rongo Constituency under Articles 10, 28, 35, 38, 48 and 50 (1) of the Constitution of Kenya.ii.A declaration that the conduct of the 1st respondent is repugnant to the provisions of the Constitution more particularly chapter six of the Constitution and thus unfit to hold office as a member of National Assembly and/or run for the said office; an order disqualifying the 1st respondent from running for any public office.iii.An order against the 1st and 2nd respondent compelling them to unconditionally withdraw the withdrawal letter dated 10/6/2022 drawn by both of them purportedly on behalf of the petitioner and to offer a public apology both to the petitioner and the electorate of Rongo Constituency.iv.A declaration that the conduct of the 2nd respondent of drawing and presenting a letter allegedly on behalf of the petitioner when he had no instructions from the petitioner amounts to professional misconduct for which he should be struck off the roll of advocates.v.The court be pleased to order for compensation for general damages to issue for violation of the petitioners’ rights and an inquiry into quantum be undertaken.vi.A declaration that the respondents are escapists and morbid.vii.Costs of this petition.

2. The petition was opposed. The 1st respondent filed a replying affidavit and a notice of preliminary objection all dated 30/6/2022 and submissions dated 5/7/2022.

3. The 2nd respondent filed a replying affidavit, a notice of preliminary objection, grounds of opposition all dated 30/6/2022 and submissions dated 6/7/2022.

4. Directions were taken and the matter was scheduled for highlighting of the submissions on 7/7/2022. However, the petitioner filed a notice of withdrawal of the petition dated 6/7/2022 under Rule 27 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. This ruling is in respect to the notice of withdrawal. The 1st respondent, through his Counsel Adhiambo Omondi & Co. Advocates filed a letter dated 6/7/2022. In the said letter, the 1st respondent is not objecting to the withdrawal of the petition.

5. Ms. Okal represented the 2nd respondent, opposed the withdrawal. She stated that they had not received any notice of withdrawal and the petitioner has never reached out to the 2nd respondent with intention to withdraw. Counsel submitted that the allegations made against the 2nd respondent were very serious and she wanted the petition to be determined so that the 2nd respondent can be able to have his name and integrity cleared. The allegations it was stated, are defamatory as the actions which he is accused of are serious.

6. Counsel further stated that the 2nd respondent filed a response and has an advocate who has suffered loss; that for the petition to be withdrawn without orders as to costs is a slap on the wrist as they filed their response on time. If the withdrawal is allowed, it would mean that anybody can come to court with unfounded allegations against another and then withdraw as they wish.

7. Mr. Nanda, Counsel for the petitioner submitted that the notice of withdrawal is in line with Rule 27 (1) (a) and (b) which applies on withdrawal of constitutional petitions. It was submitted that what should be decided is whether or not the 2nd respondent was ever served. The allegations in the petition involved investigative agencies. It was submitted that there is already a settlement and proceeding with the petition will be a waste of court’s time.

8. Ms. Okal briefly responded that there has been no discussion between the petitioner and the 2nd respondent. The Notice was served the previous day in the evening with no discussions. It is the petitioner who came to court with frivolous allegations. If the withdrawal can be done, then it should be with orders as to costs.

9. I have considered the arguments by both parties. The question to be determined is whether the withdrawal of the petition is regular.

10. Withdrawal of suits is governed by Order 25 Rule 3 of the Civil Procedure Rules. A party may withdraw the suit either before or even when the suit has been set down for hearing. Unlike in civil suits, Constitutional petitions are not subject to the Civil Procedure Rules. There is a different regime which governs Constitutional Petitions. Pursuant to Legal Notice No. 118 of 2013, the Chief Justice of Kenya Hon. Willy Mutunga, made the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, commonly referred to as the “Mutunga Rules.”

11. Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides:-“ 27. (1)The petitioner may -(a)on notice to the court and to the respondent, apply to withdraw the petition; or(b)with the leave of the court, discontinue the proceedings.(2)The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision.(3)Despite sub rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a case petition in spite of the wish of the petitioner to withdraw or discontinue the proceedings.”

12. In Kofinaf Company Limited & another vs Nahashon Ngige Nyagah & 20 others(2017) eKLR it was held:-“ And it has to be said that unlike some other procedural rules, The Civil Procedure Rules, in respect to order 25 Rule 1, does not have any provisions requiring the Leave of Court to Discontinue a suit or withdraw a claim. The Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, 2013, for example provides as follows in rule 27(1):-27(1) The Petitioner may;(a)On notice to Court and the Respondent, apply to withdraw the Petition; or(b)With Leave of the Court, Discontinue the proceedings.2)The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effect of that decision.3)Despite sub-Rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a case in spite of the wish of the Petitioner to withdraw or discontinue the proceedings”.Similarly, The Elections (Parliamentary and County Elections) Petition Rules, 2017 requires that Leave of an Election Court be sought before there can be a withdrawal of an Election Petition. The requirement for Leave in both Constitutional and Election Petitions extends to where the Petition has not been set down for hearing.”

13. The Court of Appeal in Harry John Paul Arigi & 2 others vs. Board, Kenya Ports Authority & 2 others(2016) eKLR rendered itself:-“ We are satisfied that the right of a petitioner to withdraw a constitutional petition is circumscribed by rule 27; that rule 27 like all the other rules enshrined in the 2013 rules, is constitutionally underpinned and is not a mere technicality; and that the rule is justified granted the public significance of an application alleging violation of the Bill of Rights, literally the heart of the Constitution. To the extent that the withdrawal of constitutional petitions is regulated by a specific regime that is traceable directly to the provisions of the Constitution, the appellants were obliged to comply with rule 27 before they could competently withdraw the petition.”The Court further expounded as follows:-“ Rule 27(1)(a) allows a petitioner who wishes to withdraw a Petition to apply to withdraw the same after giving notice of his intention to both the Court and the Respondent. Clearly, under that provision the withdrawal of the Petition is not automatic and is not achieved merely by notice.”

14. The procedure of withdrawal of a Consitutitional Petition is that the petitioner must first notify the court and the respondent of his intention to withdraw the petition. The mere filing of a notice of withdrawal of the petition, is not tenable in law. The petitioner should have applied to the court first stating his intention to discontinue with the petition and thereafter with leave of court discontinue the proceedings. The withdrawal thereof was illegal. From the court record, all parties filed their respective responses and submissions except the petitioner who did not file his submissions.

15In the end, I find that the petitioner did not comply with Rule 27 on withdrawal of petitions and did not satisfy the court why he needed to withdraw. Guided by the decision of the Court of Appeal in Harry John Paul Arigi & 2 others (supra) I direct that the petition be heard to its logical conclusion. Costs shall be in the cause.

DATED, SIGNED and DELIVERED at MIGORI this 13THday of JULY 2022R. WENDOHJUDGERuling delivered in the presence of;Mr. Sigei h/b for Mr. Nanda for the Petitioner.N/A for the 1st Respondent.Ms. Okoth h/b for Mr. Ngala for the 2nd Respondent.Nyauke - Court Assistant.