[2022] KEHC 2622 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 81 OF 2019

PATRON GUSII REGIONAL IDPS STEERING COMMITTEE &

THE IDPS FRATERNITY............................................................................PETITIONERS

VERSUS

THE COUNTY COMMISSIONER NYAMIRA.................................1ST RESPONDENT

THE KCB BANK MANAGER NYAMIRA........................................2ND RESPONDENT

JAMES EVANS MISATI (IDPS PURPOTING LEADER)......................THIRD PARTY

JUDGMENT

1. The genesis of this matter is the infamous post-election violence that occurred following the 2007 general elections. This election saw the petitioners as asserted become internally displaced people. The Government of Kenya as a result purposed to compensate the internally displaced people (IDPs).

2. With reference to the petitioners, they inform that the President of Kenya on 6th/7th June 2017 commissioned a total sum of Ksh.6. 5 billion to compensate the IDPs. Prior to rolling out of this compensation, the National Humanitarian Board while in Court was tasked with the responsibility to invite the IDP’s to register their names in preparation for the compensation payment and ascertain the genuine cases while. On the other hand, Kenya Commercial Bank branches at Kisii, Nyamira and Keroka, were charged with the duty of distributing the commissioned payment. It is however argued that an audit of the genuine cases was never done and that the amount was fraudulently paid to persons who were not genuine IDPs.

3. This consequently triggered the relentless litigation and actions that have been pursued by the petitioners this far. The petitioners sought audience with the Supreme Court through Petition No.5 of 2017 stating that they had failed to receive judgement at the Kisii High Court. The petitioners’ patron failed to state the nature of the matter. The mater was therefore heard by a single judge of the Supreme Court, Justice J.B. Ojwang on 27th April 2017. The application was not allowed due to its failure to adhere to the set procedure in filing an a appeal.

4. The matter was soon after filed in the Chief Magistrate Court’s at Kisii as Civil Suit No.242 of 2017 on 5th June 2017. The suit was conversely referred to the Constitution and Human Rights Division at the High Court in Nairobi under Petition No.224 of 2017 which the petitioners were already party to. When the matter came up for hearing before Justice J.M. Mativo on 13th June, 2017 the suit was likewise transferred to the High Court at Kisii.

5. The matter was filed as Petition No.4 of 2017 at the High Court at Kisii on 30th June, 2017. Aggrieved by Justice Okwany’s decision not to issue the sought stay order and decision to hear the matter on 25th September, 2017 rather than an earlier date, the petitioners decided to move to the Court of Appeal. The petitioners assert vide their supplementary affidavit dated 14th July 2020 that the appeal has since been withdrawn. The withdrawal is dated 30th September, 2019.

6. In addition to that the petitioners proceeded to the Chief Magistrates Court’s at Nyamira under Civil Application No.206 of 2018 seeking to stop the ongoing payments of the commissioned compensation to the IDPs at Kisii, Nyamira and Keroka. This application is what forms the basis of the instant petition.

7. Other than the captured litigation history, the petitioners have also petitioned various government agencies such as the Kenya Human Rights Commission, the Ethics and Anti-Corruption Commission, Commission on Administrative Justice, Office of the Attorney General, Office of the Director of Public Prosecutions, the National Police, the National Assembly and the President of Kenya.

8. The Petitioners in the instant matter filed a petition dated 4th March, 2019 and two Originating Summons applications dated 2nd July, 2019 and 23rd October, 2020 respectively. They filed the petition under Articles 22, 23, 24, 27, 28, 33, 35, 36, 47, 73, 75, 159, 160 and 165 of the Constitution. They did not however record any prayers in the petition but stated that they relied on their Notice of Motion application of even date.

9. The said application sought orders that:

i. The orders issued on 23rd January, 2019 by the Chief Magistrates Court in Court 1 at Nyamira Law Courts which were denounced by Court 3 to take effect;

ii. The applicants herein be enjoined in this petition as interested parties;

iii. The ruling set to be delivered on 25th March 2019 by Nyamira Chief Magistrate’s Court in Court 3 to be stopped and/or set aside pending hearing of this petition;

iv. The honourable Court be pleased to order the patron herein to supervise the payments made by Kenya Commercial Bank and order the Government of Kenya to pay those who were not paid since 2017 as proven by the order of Milimani Law Courts and Court of Appeal Summons annexed herein.

v. This honourable Court to hear this petition and Constitutional Petition No.224 of 2017 at Milimani Law Courts contrary to Justice Mativo’s order to have Petition No.224 of 2017 heard at the High Court at Kisii.

10. The basis of this petition as supported by the patron’s averments in the sworn affidavit of similar date is that the petitioners filed Civil Application No.206 of 2018 on 31st December, 2018. This was at the Chief Magistrate’s Court at Nyamira in Court 1 before Honourable A.C. Towett.

11. The Court scheduled hearing of the applications on 2nd January, 2019 but there was no appearance by the defendants. The defendants subsequently failed to make any appearance before the Court. The Court proceeded on 23rd January, 2019 to issue orders that:

i. By consent of the plaintiff/applicant and Mr. Nyaumo, State Counsel appearing for the 1st defendant, there be stay on the ongoing payments awaiting hearing and determination of this application.

ii. Plaintiff to serve the 2nd and 3rd defendants for inter-partes hearing of the application on the 21st February, 2019 before Court No.3.

12. The petitioners aver that when the matter came before Honourable C.W. Waswa on 21st February, 2019, they were denied a hearing. What is more is that they claim the Court proceeded to denounce the Order dated 23rd January, 2019. They continue to aver that Honourable C.W. Waswa’s pronouncement was compromised and influenced by corrupt malpractices. In addition it is their contention that the Chief Magistrate’s Court order ought to have been denounced by the High Court and not a court of similar status as dictated by the law.

13. The petitioners further filed an Originating Summons application dated 2nd July, 2019 supported by an affidavit dated 27th June, 2019. The application was filed under Order 5 Rule 22, Order 6 Rule 1, Order 10 Rule 3 & 4 of the Civil Procedure Rules, 2010 and Articles 22, 27, 47, 50, 159 and 160 of the Constitution.

14. Accordingly, they seek orders that:

i. This Honourable Court be pleased to declare that the petitioners have a right to be paid their compensation which was launched by the President of Kenya on 6th/7th June, 2017 at Masimba Kisii County and Ekerenyo Nyamira County.

ii. This Honourable Court be pleased to declare that the petitioners are entitled to an Order under Order 10 Rule 3 & 4 of the Civil Procedure Rules, 2010 due to the respondents failure to enter memorandum of appearance, defense or ground of opposition within the prescribed time and failure to appear when served on 24th June, 2019.

iii. This Honourable Court be pleased to declare that there is contempt of Court by the respondents hence a Notice to Show Cause do issue for 6 months conviction to the respondents by summons.

iv. This honourable Court do recommend this petition to the Chief Justice to empanel a three judge bench to hear the matter. This is in case of any unavoidable circumstance that may arise due to the strength of registers received by the office of the President, Ministry of Interior and Co-ordination of National Government, State Department of Interior Secretary National Consultative Coordination Committee on 8th February, 2018 with regard to the IDPs after further discussion with the Chairman, Secretary, Humanitarian Board and office of Principal Secretary of out of cover registers annexed in the affidavit.

v. This Honourable Court grant the petitioners the cost of the suit plus interest at the court rate.

15. The application is grounded on the following summarized grounds reiterated in the supporting affidavit that:

a) The petitioners compensation was paid to people who were not IDPs despite the existence of a Court order stopping the payments by the Chief Magistrate Court at Nyamira.

b) The petitioners have sought assistance from various government agencies as evidenced by the various correspondences for the last 10 years yet have never gotten justice.

c) The respondents and the third party have deliberately not entered appearance in this matter as are using their status and position to cause disarray and embezzle the government’s compensation to the IDPs.

d) Procedural technicalities not be used to deny the petitioners justice.

16. The petitioners in the same way filed another Originating Summons application dated 26th October, 2020 supported by an affidavit dated 23rd October, 2020. The application was filed under Order 37 Rule 7 of the Civil Procedure Rules, 2010, Section 38 of the Limitation of Actions Act and Articles 19, 20, 21 of the Constitution.

17. Accordingly, they seek orders that:

i. The Honourable Court be pleased to declare that the applicants have a right to be compensated the sum of Ksh.6. 5 billion which was commissioned by the President on 6th/7th June 2018 at Masimba Kisii County and at Ekerenyo Nyamira;

ii. The Honourable Court be pleased to declare that the applicants are entitled to an Order under Section 38 of the Limitation of Actions Act;

iii. The costs of this suit plus interest thereon at the court rate be granted to the applicants.

18. The application is grounded on the following summarized grounds which are reiterated in the supporting affidavit that:

a) The applicants rights with regards to the petition are an over riding interest.

b) The applicants have been denied their right for over 11 years.

c) The orders are sought in the interest of justice.

19. The record reflects that the respondents herein did not make any appearance in Court neither did they file any response or pleadings in this matter.

20. The petitioners filed written submissions filed on 24th June, 2019. In their submissions they recounted the background of their case as already highlighted herein above.

21. In addition the petitioners submit that they discovered there were strong ties between the Humanitarian Board Chairman and National Secretary Humanitarian Board. This was due to their involvement with government cartels aimed at fraudulently acquiring Government compensation of the years 2008, 2009, 2010, 2011 and 2012. This they submit is the reason why they petitioned the National Assembly before the commissioning of their compensation by the President.

22. They contend that when the Humanitarian Board requested for IDPs to register in Court, there was a total of 3000 IDPs registered in Kisii and a total of 4341 in Nyamira as recorded on 8th February 2018. It is however their case that on the day of payment people who were not IDPs were transported to Kenya Commercial Bank at Nyamira.

23. It is their submission that out of the KShs.50,000 that was allocated, a person would either receive Ksh.10,000 or Ksh.20,000 and the rest retained by the bank. That the retained amount as submitted was shared as between the respondents, plus children and relatives of various state officers and clan elders.

24. In conclusion the petitioners pray that this Court orders for the conviction of the respondents for contempt of Court. Secondly, to order that the government releases the compensation allocated to them as IDPs. Thirdly, to order that the patron of the petitioners supervises the payment of the compensation. Fourthly that on top of the compensation payment they be resettled and structures put up for them as was done for their brothers and sisters in Central region of Kenya.

Analysis and Determination

25. From the foregoing account, the main concern for the petitioners is their quest to be compensated as IDPs. The issues that arise for determination accordingly are:

i. Whether the petitioners have met the threshold set out for constitutional petitions to entitle the government’s compensation.

ii. Whether the prayers sought in the petition are enforceable.

iii. Whether the Civil Procedure Rules,2010 prayers sought under the originating summons are applicable in this matter.

iv. Whether the petitioners are entitled to the reliefs sought.

Whether the petitioners have met the threshold set out for constitutional petitions to entitle the government’s compensation.

26. The petitioners’ central concern is their quest to be compensated as IDPs. It is their assertion that they are entitled to the amount that was distributed by the Government of Kenya. Secondly, that this amount was fraudulently paid out to persons who were not genuine IDPs.

27. In a constitutional petition a party that alleges violation of his or her rights must plead with reasonable precision the manner in which the rights have been violated. This principle established in the Courts’ jurisprudence was pronounced in the case of Anarita Karimi Njeru vs The Republic [1976-1980] KLR 1272. The Court of Appeal while citing this authority with approval in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR observed as follows:

“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:

“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.

28. The Court went further to state that:

“We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (Supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent…”

29. Likewise, the Court in the case of Husus Mugiri v Music Copy Right Society of Kenya & another [2018] eKLRheld as follows:

“18. In order for a petition to qualify to be a constitutional petition that seeks to enforce or protect fundamental rights and freedoms under the bill of rights, it must meet the test set in Anarita Karimi Njeru vs. Republic [1979] eKLR. That is, the applicant must specify which specific provisions of the Constitution that declare the rights, the specific rights and freedoms that have been or are threatened to be infringed or violated and the manner in which the respondent has infringed the subject rights. This position has been reiterated time and again.”

30. In the same way, the Court restated the position in Meme v Republic [2004] eKLR as follows:-

“Where a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with reasonable degree of precision that of which he complains, the provisions said to have been infringed and the manner in which they are alleged to have been infringed and that the applicant’s instant application had not fully complied with the basic test of constitutional references, as it was founded on generalized complaints without any focus on fact, law or Constitution, hence it had nothing to do with the constitutional rights of the appellants”.

31. Similarly, for a constitutional petition to be sustained the essence of well drafted pleadings cannot be overstated. Pleadings contain the ingredients that make or break a party’s petition. The importance of well drafted pleadings was captured in the case of Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLRwhere it was opined as follows:

“33. The core issue here is to understand the function of and purpose of good pleadings. In this regard, I recall the words of the Australian Court[31]where Vickery J said this of the principles of good pleading:-

"In a mathematical proof, elegance is the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance is minimum motion with maximum effect. In filmmaking, elegance is a simple message with complex meaning. The most challenging games have the fewest rules, as do the most dynamic societies and organizations. An elegant solution is quite often a single tiny idea that changes everything.

… Elegance is the simplicity found on the far side of complexity.

While elegance in a pleading is not a precondition to its legitimacy, it is an aspiration which, if achieved, can only but advance the interests of justice. A poorly drawn pleading, on the other hand, which does not tell a coherent story in a well ordered structure, will fail to achieve the central purpose of the exercise, namely communication of the essence of case which is sought to be advanced.

Pleading should not be dismissed as a lost art. It has an important part to play in civil litigation conducted within the adversarial system. Crafting a good pleading calls for precision in drafting, diligence in the identification of the material facts marshalled in support of each allegation, an understanding of the legal principles which are necessary to formulate complete causes of action and the judgment and courage to shed what is unnecessary.

Although a primary function of a pleading is to tell the defending party what claim it has to meet, an equally important function is to inform the court or tribunal of fact precisely what issues are before it for determination.

34. The function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial; The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action; a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it.”

32. My interpretation of the above provision is that for a constitutional petition to be sustainable it must satisfy the threshold set out in the authorities cited above. It therefore follows that the mere citing of constitutional provisions is not enough. The petitioners must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated and the manner in which the said provisions have been violated from the facts and evidence of the case.

33. The petitioners in this matter filed this petition under Articles 22, 23, 24, 27, 28, 33, 35, 36, 47, 73, 75 and 159 of the Constitution. Demonstration of violation of these rights requires putting down the factual basis upon which the rights are said to be infringed, by way of evidence.

34. The Court in the case of Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLRdescribed this component in the following way:

“72. Section 107 (1) of the Evidence Act [36] provides that "whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." Sub-section (2) provides that "when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person." Additionally, I have severally stated that all cases are decided on the legal burden of proof being discharged (or not). Lord Brandon once remarked:-[37]”

35. The Court went on to stat0e that:

“73. Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd[38] :-

“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him”

It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.”

36. To make the determination required, an examination of the facts presented in this case is necessary. The Petitioners have maintained that they are among the genuine IDPs in the Kisii, Nyamira and Keroka Counties. They have additionally alleged that the government compensation was paid out to the wrong persons. To support this claim various documentation and correspondences were annexed to the petition.

37. With reference to the claim that they are genuine IDPs no material was supplied to demonstrate this fact. What is produced is a list of names without any explanation as to who the parties are or verification of the document to show that it is official e.g. an official stamp or even letter head.

38. The only document supplied bearing an official stamp of the Deputy County Commissioner is that of the payment made out to the IDPs on various dates. Interesting to note is that the petitioners aver that the National Humanitarian Board was tasked with the duty to invite the IDPs to register them in preparation for the compensation payment. These names were said to have been recorded in Court. This must have been a serious issue. Being courts of record, the Register where these names were allegedly written should have been produced or even sought to be produced by the Kisii court.

39. Furthermore the Internally Displaced Persons and Affected Communities Act No. 56 of 2012 defines an “internally displaced person” under Section 2 as:

“Aperson or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, large scale development projects, situations of generalized violence, violation of human rights or natural or human made disasters, and who have not crossed an internationally recognized state border.”

40. In essence, even without this register a demonstration of this element by the petitioners would suffice. The petitioners only submit their sworn testimony through the supporting affidavit sworn by the Patron. The contents of the affidavit only make reference to their application at the Chief Magistrate’s Court overlooking the question on how the fraternity of the said IDPs falls within the above definition. It is honestly not clear whether the list of names of the IDPs’ fraternity attached to the supporting affidavit are genuine IDPs as claimed. There is no back-up in form of evidence for these assertions.

41. The petitioners further rely on published newspaper articles which speak to how the real IDPs were swindled of their government compensation. To show that the IDPs were paid less than the allocated Ksh.50,000, the petitioners make reference to boda boda riders’ testimony as sourced from the newspaper articles. It is imperative to note that neither the boda boda riders or any IDP who was paid this amount is party to these proceedings to testify on the veracity of this claim.

42. It goes without saying that newspaper articles do not form part of the evidence that a Court can make a determination on. The Court of Appeal was clear on this matter in the case of Monica Wangu Wamwere v Attorney General [2019] eKLR.when it held that:

“Counsel for the appellant was convinced that the eyewitness account as given by the appellant and the subsequent newspaper cuttings were sufficient as proof of torture. We respectfully disagree: a party who files suit bears the burden and obligation to tender evidence to prove the elements that would assure success of the claim. Mere claims without solid evidence remain sentimental hopes which are no good. The appellant had an obligation to prove her case on a balance of probabilities and from the evidence before the court, and we say this not without sympathy and respect, it was not sufficient.”

43. The Court went further to note that:

“Still, on the issue of the newspapers, the appellant specifically relied on three (3) articles from a newspaper known as The Society published on 23 March 1992, titled; “The Time Is Now”, “State Tyranny, Suffering With Bitterness” and “The Gallant Sons of Kenya” in support of her case. Her counsel argued that the articles together with her oral evidence and the uncontroverted affidavit were sufficient to prove the appellant’s case. In opposition the learned State Counsel pointed out that newspaper articles are not covered under section 35 of the Evidence Act. We also have jurisprudence that shows this Court’s position on newspaper articles produced in court in evidence which we adopt in;

Gitobu Imanyara & 2 others v Attorney General (supra) the Court stated;

“In Wamwere vs The A. G and Randu Nzau Ruwa & 2 Others –vs-Internal Security Minister & Another [2012] eKLR; If we may borrow the words of the court in the Ruwa case, with tremendous respect to the appellants, these media articles, taken alone, are of no probative value and do not demonstrate any effort on the part of the 2nd appellant to demonstrate losses he suffered.”

A similar position was held in the case of Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR by the Court;

“On our part, having considered the evidence on record and the law relating to admissibility and probative value of newspaper cuttings, we find that a report in a newspaper is hearsay evidence. We are conscious of Section 86(1) (b) of the Evidence Act which provides that newspapers are one of the documents whose genuineness is presumed by the Court. This section prima facie makes newspapers admissible in evidence. However, a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. Even if newspapers are admissible in evidence without formal proof, the paper itself is not proof of its contents. It would merely amount to an anonymous statement and cannot be treated as proof of the facts stated in the newspaper. On a comparative basis, in the Indian case of Laxmi Raj Shetty -v- State of TamilNadu1988 AIR 1274, 1988 SCR (3) 706, the Supreme Court held that a newspaper is not admissible in evidence.”

44. From the foregoing analysis and the material placed before this Court it is my humble view that the petitioners’ petition has not met the threshold of a constitutional petition and neither have they discharged their burden of proof. This is because although the petitioners state that they filed this petition under Articles 22, 23, 24, 27, 28, 33, 35, 36, 47, 73, 75 and 159 of the Constitution, they failed to demonstrate the manner in which these rights were violated nor adduce evidence to prove any violation. I therefore find myself in agreement with the holding in the case of Edward Akong'o Oyugi & 2 others (supra) where it was observed that:

“…Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.”

45. I am accordingly compelled to find that the petitioners are not entitled to the government compensation sought, as they have not established that any of the constitutional provisions cited have been violated.

Whether the prayers sought in the petition are enforceable.

46. The other question this Court should consider is whether the prayers sought by the petitioners are enforceable as prayed. This is because the heart of the prayers lies in this Court’s action in existing Court Orders. First is to have the Civil Application No.206 of 2018 at the Chief Magistrate’s Court stopped and secondly to overrule the directions granted in Constitutional Petition No.224 of 2017 that was transferred to the High Court in Kisii.

47. To commence this examination it is noted that the petitioners have not produced the impugned Court Order made by Honourable C.W. Waswa as alleged. They only state that the Court failed to uphold the Court Orders issued on 23rd January 2019 by Honouable A.C. Towett. In addition to this it is their claim that the Court’s decision was compromised and influenced by corrupt malpractices. I note that these allegations are not proved as per the material before this Court. Besides what seems to be clear is that the petitioners are intent on having the payment of the compensation to the IDPs stayed while seeking a favourable pronouncement.

48. The petitioners are seeking to have petition No.224 of 2017 consolidated with this one. No reasons whatsoever have been floated for such a move under Rule 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. For that reason no such unsupported consolidation can be done.

49. It is well appreciated that this Court must restrain itself from aiding an illegality by usurping the jurisdiction of the Chief Magistrate’s Court and undermining an Order granted by that Court where the circumstances don’t justify such an interference. It is prudent that even in seeking justice parties should adhere to the procedure of attaining this justice, one of which is obedience of Court Orders. Where a party is not pleased with a Court’s decision they have the right to seek an appeal of the pronouncement as set out in law.

50. I find the case of Republic v Principal Secretary, Ministry of Defence Ex-Parte George Kariuki Waithaka [2018] eKLR appropriate in the circumstances of this case. The Court suitably opined as follows:

“28. It must however be remembered that Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828, Ibrahim, J (as he then was) stated:

“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void”.

29. This position was confirmed by the Court of Appeal in Refrigerator & Kitchen Utensils Ltd. vs. Gulabchand Popatlal Shah & Others Civil Application No. Nai. 39 of 1990. In Wildlife Lodges Ltd vs. County Council of Narok and Another [2005] 2 EA 344 (HCK) the Court expressed itself thus:

“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…The inherent social limitations afflicting most people in a developing country such as Kenya have the tendency to restrict access to the modern institutions of governance, and more particularly to the judiciary which is professionally run, on the basis of complex procedures and rules of law. Yet, this same Judiciary is generally viewed as the impartial purveyor of justice, and the guarantor of an even playing ground for all, a perception which ought to be strengthened, through genuine respect for the courts of justice, and through compliance with their orders. Consistent obedience to court orders is required, and parties should not take it upon themselves to decide on their own which court orders are to be obeyed and which ones overlooked, in the supposition that this oversight will not impede the process of justice…Justice dictates even-handedness between the claims of parties; and if it be the case that the plaintiff/applicant has not been accorded a level playing ground for the realisation of its economic activities, a matter that of course can only be established through evidence in the main suit, then the court ought to provide relief, by applying the established principles of law, one of these being the law of contempt…An ex parte order by the court is a valid order like any other and to obey orders of the court is to obey orders made both ex parte and inter partes since the Court by section 60 of the Constitution is the repository of unlimited first instance jurisdiction, and in this capacity it may make ex parte orders where, after a careful and impartial consideration, it is convinced that issuance of such an order is just and equitable. There is nothing potentially oppressive in an ex parte order, since such an order stands open to be set aside by simple application, before the very same court…Where a party considers an ex parte order to cause him undue hardship, simple application will create an opportunity for an appropriate variation to be effected thereto; and therefore there will be no excuse for a party to disobey a court order merely on the grounds that it had been made ex parte and this argument will not avail either the first or the second defendant”.

51. Taking into consideration the circumstances of this case, I find that the petitioners are not entitled to the orders sought and most importantly the orders are not capable of being enforced by this Court hence their issuance would be in vain.

Whether the Civil Procedure Rules,2010 prayers sought under the originating summons are applicable in this matter

52. Moving over to the other applications, the petitioners seek to be granted reliefs under Order 10 Rules 3 & 4 of the Civil Procedure Rules, 2010 which provides as follows:

Failure to serve [Order 10, rule 3. ]

Where a defendant fails to serve either the memorandum of appearance or defence within the prescribed time, the court may on its own motion or on application by the plaintiff, strike out the memorandum of appearance or the defence as the case may be and make such order as it deems fit in the circumstances.

Judgment upon a liquidated demand [Order 10, rule 4. ]

(1)Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.

(2)Where the plaint makes a liquidated demand together with some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the Court shall, on request in Form No. 13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of costs shall await judgment upon such other claim.

53. It is noted that the instant petition was filed under Article 22 of the Constitution of Kenya. The applicable law and procedure upon which constitutional petitions are filed is found under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. These rules were made pursuant to Article 22(3) and Article 23(3) of the Constitution as read together Article 165(3) of the Constitution.

54. This basically means that the Civil Procedure Rules do not apply to proceedings under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Protection Rules, 2013. This has been appreciated by Courts severally. A case in point is that of Offshore Trading Company Limited v Attorney General & 2 others [2021] eKLR

“29. Secondly the matter pending before this Court is a Constitutional Petition in which Civil Procedure Rules are not applicable in regard to filing of Constitutional Petitions. The applicable law and procedure of filing Constitutional Petitions is provided for under “The Protection of Rights and Fundamental Freedoms, Practice and Procedure Rules, 2013, otherwise known as Chief Justice Mutunga Rules which provide the procedure for filing of Constitutional Petitions…”

55. Likewise, this position was appreciated in the case of Redempta Igwatai Imoo v Moses Omuse Ekabten & 2 others [2019] eKLRwhere the court held:

“The petition as filed had an affidavit sworn in support which is within the provision of the rules (protection of Rights and Fundamental freedoms, Practice and Procedure Rules 2013) governing procedures in Constitutional Petitions…”

56. It is accordingly evident from the analysis and circumstances of this case that the Civil Procedure Rules, 2010 are not applicable with regards to the reliefs sought by the petitioners under Order 10 Rule 3 & 4 of the Civil Procedure Rules, 2010. That said, Rule 28 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 offers insight into the petitioners’ prayer as follows as follows:

If the respondent does not dispute the facts in the petition whether wholly or in part, the Court shall, after hearing the parties, make such orders as it may deem fit.

57. Correspondingly, the petitioners filed the two originating summons following the petition. It is worthy to note that applications made under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 are required to be by way of Notice of Motion. This is provided for under Rule 19 as follows:

A formal application under these rules shall be by Notice of Motion set out in Form D in the schedule and maybe supported by an affidavit.

58. Owing to the case made out in this analysis, I am of the humble conclusion that the petitioners’ petition and applications are not only defective but lack merit. Against this backdrop I am convinced that the petitioners are not entitled to the reliefs sought in the petition and preceding originating summons applications as set out above.

59. The upshot is that the petition and originating summons applications lack merit and are hereby dismissed. There shall be no orders as to costs.

Delivered virtually, signed and dated this 3rd day of February, 2022 in open court at Milimani, Nairobi.

HEDWIG ONG’UDI

Judge of the High Court