[2024] KEHC 1845 (KLR)
The court determined that, given the cultural and communal significance of the dispute and the potential for further division if adversarial proceedings continue, it is appropriate to stay the proceedings and refer the matter to court-annexed mediation. The court emphasized the constitutional imperative to promote...
Source-derived case information.
- Citation
- [2024] KEHC 1845 (KLR)
- Parties
- Applicant: Nyandiko Ongadi; Applicant: Thomas Achando; Applicant: Sialas Olala Abong'; Applicant: Okeyo Abebe; Applicant: Margaret Nyambok; Applicant: Oduogo Gwena; Applicant: Felix Okal; Applicant: Pius Odote Wanga; Applicant: Stephen Oludhe; Respondent: James Aggrey Bob Orengo, Governor of Siaya County; Respondent: Peter Anyang Nyong'o, Governor of Kisumu County; Respondent: Gladys Wanga, Governor of Homabay County; Respondent: George Mbogo Ochilo Ayako, Governor of Migori County; Respondent: County Government of Siaya; Respondent: County Government of Kisumu; Respondent: County Government of Homabay; Respondent: County Government of Migori; Interested Party: Odungi Randa
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E002 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Referral to Mediation and Stay of Proceedings
- Outcome
- Proceedings stayed and matter referred to court-annexed mediation.
- Judges
- DO Ogembo
- Legal Topics
- Community Rights, Cultural Rights, Court Annexed Mediation, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyandiko Ongadi
Applicant
Thomas Achando
Applicant
Sialas Olala Abong'
Applicant
Okeyo Abebe
Applicant
Margaret Nyambok
Applicant
Oduogo Gwena
Applicant
Felix Okal
Applicant
Pius Odote Wanga
Applicant
Stephen Oludhe
Applicant
James Aggrey Bob Orengo, Governor of Siaya County
Respondent
Peter Anyang Nyong'o, Governor of Kisumu County
Respondent
Gladys Wanga, Governor of Homabay County
Respondent
George Mbogo Ochilo Ayako, Governor of Migori County
Respondent
County Government of Siaya
Respondent
County Government of Kisumu
Respondent
County Government of Homabay
Respondent
County Government of Migori
Respondent
Odungi Randa
Interested Party
Procedural Posture
Constitutional Petition / Ruling on Referral to Mediation and Stay of Proceedings
Legal Issues
- 1 Whether the dispute concerning the Luo Council of Elders and related community interests should proceed to full hearing or be first subjected to alternative dispute resolution.
- 2 Whether pending applications for contempt of court should be heard before or after mediation.
Ratio Decidendi
The court determined that, given the cultural and communal significance of the dispute and the potential for further division if adversarial proceedings continue, it is appropriate to stay the proceedings and refer the matter to court-annexed mediation. The court emphasized the constitutional imperative to promote alternative dispute resolution mechanisms and the need to preserve community unity. The pending contempt applications will be held in abeyance during the mediation process, with the possibility of being revived if mediation fails. The court will mention the matter after 60 days to assess the progress of mediation and issue further directions as necessary.
Court Disposition
Proceedings stayed and matter referred to court-annexed mediation.
Orders
- Proceedings in the petition are stayed.
- The matter is referred for court-annexed mediation.
Full Case Text
Judgment text and source record
55 paragraphs
Ongadi & 8 others (Suing on their own behalf, on behalf of the Luo Council of Elders, on behalf of the elders and other residents of Siaya, Kisumu, Homabay and Migori Counties, and in public interest) v Orengo, Governor of Siaya County & 7 others; Randa (Interested Party) (Constitutional Petition E002 of 2023) [2024] KEHC 1845 (KLR) (28 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1845 (KLR)
Republic of Kenya
In the High Court at Siaya
Constitutional Petition E002 of 2023
DO Ogembo, J
February 28, 2024
Between
Nyandiko Ongadi
1st Petitioner
Thomas Achando
2nd Petitioner
Sialas Olala Abong'
3rd Petitioner
Okeyo Abebe
4th Petitioner
Margaret Nyambok
5th Petitioner
Oduogo Gwena
6th Petitioner
Felix Okal
7th Petitioner
Pius Odote Wanga
8th Petitioner
Stephen Oludhe
9th Petitioner
Suing on their own behalf, on behalf of the Luo Council of Elders, on behalf of the elders and other residents of Siaya, Kisumu, Homabay and Migori Counties, and in public interest
and
James Aggrey Bob Orengo, Governor of Siaya County
1st Respondent
Peter Anyang Nyong'o, Governor of Kisumu County
2nd Respondent
Gladys Wanga, Governor of homabay County
3rd Respondent
George Mbogo Ochilo Ayako, Governor of Migori County
4th Respondent
County Government of Siaya
5th Respondent
County Government of Kisumu
6th Respondent
County Government of Homabay
7th Respondent
County Government of Migori
8th Respondent
and
Odungi Randa
Interested Party
Ruling
1. I have considered the submissions of the learned counsel involved in this matter.
2. By its nature, this Petition goes to the roots of the Culture of Luo Community. This court has in the past expressed its opinion that despite the apparent differences that exist between the different parties involved in this matter, and whatever the outcome of this case if it were to proceed to full hearing, there is still the need to retain and maintain the unity of the community. After all, this matter is of concern, not only to the parties involved in this matter, but to probably million other persons who belong to the Luo Community. This court therefore, must be at the forefront of propagating the unity of the community. And any orders that this court may give must be geared towards this realization.
3. The court should therefore be hesitant to issue any orders (even rightly so) that would further widen the differences between the parties. It is for this reason that I am persuaded by the submissions of the Respondents that before this matter can proceed to hearing before the court, the parties ought to be accorded the opportunity to first pursue any possible settlement through an Alternative Dispute Resolution Mechanism by way of Court Annexed Mediation.
4. Yes, there are already two applications filed before this court on alleged disobedience of this court’s orders. They touch on contempt of this court. There is no doubt that contempt of court is a serious issue which the court cannot tolerate. However, it is in my view feasible to proceed with the ADR mechanism even as the applications for contempt are placed in abeyance. Should the ADR mechanism be successful, at the end of it, the issue of contempt of court orders would have been canvassed and settled in the process. If not, the parties would still have the opportunity to resurrect the same and pursue the same to their logical conclusion.
5. In the circumstances, I order that the proceedings herein before the court be stayed. This matter be referred for Court Annexed Mediation.
6. I also order that the appointed mediator would summon and convene the parties involved and give the necessary directions and guidance. I shall fix this matter for mention in 60 days for confirmation of the extent that the Alternative Dispute Resolution process would have progressed to and for any other directions that would be suitable in the circumstances. It is so ordered. Mention on 8/5/2024.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 28TH DAY OF FEBRUARY, 2024D.O. OGEMBOJUDGE28/2/2024Mr. Okanda:We apply for certified copies of the ruling.Court:Certified copies of the ruling to be supplied to the parties.D.O. OGEMBOJUDGE28/2/2024