[2023] KEHC 2820 (KLR)
The court found that since the election at the heart of the petition had already proceeded and the arbitration ordered by the court did not take place, the petition had been overtaken by events. The 9th respondent was not originally sued but had applied to be enjoined and successfully sought referral to arbitration....
Source-derived case information.
- Citation
- [2023] KEHC 2820 (KLR)
- Parties
- Applicant: Gad Omondi Opiyo; Respondent: Peter Kibinda; Respondent: Robert Kariuki; Respondent: Julius Kibwage; Respondent: Emma Miloyo; Respondent: Jacob Mwangi; Respondent: Infotrack Research and Consulting Limited; Respondent: Creative Digital Lab Limited; Respondent: Mugure Njendu; Respondent: Architectural Association Of Kenya (AAK)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 126 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Withdrawal and Costs After Stay Pending Arbitration
- Outcome
- Petition withdrawn; each party to bear their own costs; file closed.
- Judges
- HI Ong'udi
- Legal Topics
- Right to Fair Administrative Action, Election Disputes, Arbitration Referral, Withdrawal of Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gad Omondi Opiyo
Applicant
Peter Kibinda
Respondent
Robert Kariuki
Respondent
Julius Kibwage
Respondent
Emma Miloyo
Respondent
Jacob Mwangi
Respondent
Infotrack Research and Consulting Limited
Respondent
Creative Digital Lab Limited
Respondent
Mugure Njendu
Respondent
Architectural Association Of Kenya (AAK)
Respondent
Procedural Posture
Constitutional Petition / Ruling on Withdrawal and Costs After Stay Pending Arbitration
Legal Issues
- 1 Whether the petition should be withdrawn following the petitioner's request.
- 2 Whether any party should be condemned to pay costs given the circumstances, including the referral to arbitration and the fact that the election proceeded.
- 3 Whether the 9th respondent, who was not originally sued but enjoined itself, should be awarded costs.
Ratio Decidendi
The court found that since the election at the heart of the petition had already proceeded and the arbitration ordered by the court did not take place, the petition had been overtaken by events. The 9th respondent was not originally sued but had applied to be enjoined and successfully sought referral to arbitration. Given these circumstances, and in the interest of fairness, it would not be just to condemn any party to pay costs. The court exercised its discretion to allow the withdrawal of the petition and ordered that each party bear their own costs, thereby closing the file.
Court Disposition
Petition withdrawn; each party to bear their own costs; file closed.
Orders
- The Petition dated March 28, 2019 is hereby withdrawn.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
40 paragraphs
Opiyo v Scrutineer & 8 others (Constitutional Petition 126 of 2019) [2023] KEHC 2820 (KLR) (Constitutional and Human Rights) (30 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2820 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Constitutional and Human Rights
Constitutional Petition 126 of 2019
HI Ong'udi, J
March 30, 2023
Between
Gad Omondi Opiyo
Petitioner
and
Peter Kibinda, Scrutineer
1st Respondent
Robert Kariuki, Scrutineer…………....……..…….2Nd Respondent Julius Kibwage, Scrutineer
2nd Respondent
Julius Kibwage Scrutineer
3rd Respondent
Emma Miloyo , The President of The Architectural Association Of Kenya
4th Respondent
Jacob Mwangi, The CEO of The Architectural Association Of Kenya
5th Respondent
Infotrack Research and Consulting Limited
6th Respondent
Creative Digital Lab Limited
7th Respondent
Mugure Njendu
8th Respondent
Architectural Association Of Kenya (AAk)
9th Respondent
Ruling
1. A perusal of the record reveals that the Petition dated March 28, 2019 was filed on the same date. The respondents by then were eight (8) in number. The 9th respondent filed an application dated April 15, 2019 seeking enjoinment as a respondent. It was enjoined as the 9th respondent vide the ruling by Makau J dated October 24, 2019.
2. The Court was again moved by the 9th respondent vide an application dated October 30, 2019 seeking orders that:i.That the proceedings herein be stayed pending arbitration.ii.That the dispute between the parties be referred to arbitration.
3. In the meantime the contested election proceeded as the Court did not issue any restraining orders against the respondents.
4. Vide its ruling dated November 5, 2020 Makau J stayed all the proceedings herein pending the arbitration that the Court had referred the parties to.
5. It is not disputed that the arbitration did not take place. The Court has also been informed that since the election that was being contested proceeded, the petition has been overtaken by events.
6. Considering all these facts, it would not be just to condemn any party to pay costs. The 9th respondent was never sued by the petitioner. It applied to be enjoined and was allowed. I have noted that the proceedings herein were stayed because of the referral to arbitration which is encouraged by our own Constitution. The referral to arbitration had again been successfully sought for by the 9th respondent.
7. In all fairness I find that an order for costs to be paid to the 9th respondent by the petitioner would not be fair. Following the petitioner’s request to withdraw the petition I make the following orders:i.The Petition dated March 28, 2019 is hereby withdrawn.ii.Each party to bear their own costs.iii.File closed.
Orders accordingly.
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 30THDAY OF MARCH, 2023 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE