[2023] KEHC 25616 (KLR)

Orwoba v Attorney General & 4 others (Constitutional Petition E283 of 2023) [2023] KEHC 25616 (KLR) (Constitutional and Human Rights) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25616 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E283 of 2023

LN Mugambi, J

November 14, 2023

Between

Gloria Orwoba

Petitioner

and

Attorney General

1st Respondent

Clerk of the Senate

2nd Respondent

Speaker of the Senate

3rd Respondent

The Senate Committee on Powers and Privilegies

4th Respondent

The Senate

5th Respondent

Ruling

1. The petitioner filed a notice of withdrawal of the petition dated 28th September, 2023. She seeks to withdraw the suit/petition against all the respondents with no orders as to costs.

2. Nevertheless, the respondents have opposed the notice of withdrawal on ground that it amounts to abuse of court process.

3. The respondents have set out a chronology of events leading to the said notice of withdrawal.

4. They have explained that on 21st September, the petitioner was granted leave to amend the petition, but instead of amending the petition, she instead, in clear abuse of court process, moved to Machakos High Court where she fled a Judicial Review matter and obtained leave to operate as stay of Senate decision which primarily, emanates from the recommendations of the Senate that she was challenging via this petition.

5. The respondents argue that the petitioner did not disclose the existence of this matter/petition before the High Court in Machakos at the point of filing the Judicial Review Application.

6. The respondent further submitted that per Rule 25 of Order 2(2) only the court can give direction, on filing of any other suit by the petitioner after it has discontinued the suit previously filed suit.

7. Counsel for petitioner in reply insisted that there is nothing left in the current petition that is worth maintaining. He also questioned the entry of Mr. Njoroge and M/s Opala in the matter observing that they are not counsels on record for 2nd, 3rd and 5th Respondents.

8. However, in a quick rejoinder, Mr. Njoroge clarified that they are all officers of the Senate and are holding brief for their colleague Mr. Libendi.

9. Withdrawal of petition is provided for in Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules, 2013: Rule 27 which has the sub-heading: -Withdrawal or Discontinuance.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.

10. From the foregoing, it is crystal clear that a notice of withdrawal only becomes effective upon acceptance/approval by the court. The filing of the notice does not thus cause a withdrawal until it is accepted by the court.

11. I notice that from the court’s CTS platform, the petitioner filed the notice of withdrawal dated 28th September, 2023 on 3rd October, 2023 at 11. 33 a.m.

12. Looking at the affidavit of the respondents, it is deposed that leave to operate as stay was granted by Justice F Olel Rayola on 28th September, 2023 which means that the notice of withdrawal of the petition was filed about 5 days after securing the order from Machakos High Court and before this court has granted approval for the current petition to be withdrawn.

13. The respondents’ contention is that the petitioner did not disclose the pendency of this petition to the Judge in Machakos i.e. the fact it was pending and was challenging the same process as the Judicial Review before him.

14. Under Rule 3(8) of Constitution of Kenya (Protection of Fundamental Freedoms) Practice and Procedure Rules, 2013; the inherent jurisdiction of this court to prevent abuse of its processes is preserved. It provides:3(8) Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

15. It is important for this court to safeguard the integrity of the judicial processes. I have looked at the judicial review proceedings filed at Machakos High Court and also listened keenly to the concerns raised this morning.

16. I am persuaded that it is not proper for this court to allow the withdrawal notice before the Machakos High Court has had a chance to review all the circumstances surrounding the filing of the Judicial Review Application.

17. I, thus order that this matter be mentioned on 30th January, 2024.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF NOVEMBER, 2023. ……………………………L N MUGAMBIJUDGE