[2017] KEHC 1799 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CONSTITUTIONAL PETITION NO 10 OF 2014

ROSEMARY WAKUTHII NJINE…………………….……..PETITIONER

VERSUS

1. SPEAKER, MURANG’A COUNTY ASSEMBLY

2. MURANG’A COUNTY ASSEMBLY…………………RESPONDENTS

D I R E C T I O N S

1. In the amended petition herein dated 05/11/2014 the Petitioner alleged certain facts as follows, inter alia –

(a) That the members of the County Assembly of Murang’a who belonged to the National Alliance Party (just like herself) had “been running their affairs in a clandestine manner” to her detriment.

(b) That the said members had “been flouting party rules and democratic principles,” again to her detriment.

(c) That one member of the County Assembly of Murang’a called Anderson Mucemi Waweru had assaulted her on 18/06/2014, “which incident she reported to the police”.

(d) That further, the said Anderson Mucemi Waweru had threatened the Petitioner with “unspecified consequences which the Petitioner strongly believes led to her irregular impeachment”.

(e) That her said impeachment “was gender-biased and an affront on her rights as a woman”.

2. The background to the petition was that on 20/05/2014 at a meeting of the National alliance Party members of the County Assembly of Murang’a whose agenda was “briefing about Nakuru meeting an advance preparation”, “way forward” and “A.O.B.”, a motion was mischievously introduced to discuss the character of the Petitioner (who was the Deputy Majority Leader) in the assembly; that during the ensuing discussion on her person the Petitioner was requested to step out; that therefore she did not get to know the allegations made against her, or defend herself, or know her accusers or interrogate the process of her impeachment; and that the said deliberations of 20/06/2014 in her absence led to her removal from being the Deputy Majority Leader.

3. The Petitioner then framed a number of Questions for determination by the Court and sought the following main orders and declarations –

(a) A “mandatory order” to restrain the Respondents from the Petitioner’s impeachment and/or adopting it, or swearing in a replacement of the Petitioner as Deputy Majority Leader.

(b) An order to annul the “Move” by “the 2nd Respondent’s” to impeach the Petitioner on 20/06/2014, and the Petitioner do “continue as the Deputy Majority Leader of the County Assembly of Murang’a enjoying all the benefits associated with the position”. Or if already removed to be reinstated.

(c) A declaration to declare that Article 47 of the Constitution of Kenya, 2010 extends to political parties and democratic institutions within the State.

(d) A “mandatory order” to direct the 2nd Respondent’s members who belong to the National Alliance Party “to observe the Constitution in conducting party affairs”.

4. Together with the petition the Petitioner also filed a notice of motion dated 24/10/2014 seeking interim and temporary relief pending disposal of the application inter partes and the petition. A consent order was entered on 03/11/2014 by which, inter alia, “the Petitioner shall continue to enjoy all the benefits attendant to the office of Deputy Majority Leader, Murang’a County Assembly, until disposal of the application. The application is still pending disposal.

5. On 18/11/2014 the 1st and 2nd Respondents filed a replying affidavit in response to the amended petition. It is sworn by the then Speaker of the County Assembly of Murang’a, Mr. Leonard Nduati Kariuki. The affidavit depones to certain facts that are in direct conflict with the factual background as laid by the Petitioner in her petition.

6. It appears that the 3rd Respondent never filed any response to the petition at all.

7. On 04/12/2014 the parties through their counsels agreed that the amended petition be disposed of by way of submissions upon the affidavits on record, with liberty to file and exchange written submissions and highlight. An order was accordingly entered.

8. The 1st and 2nd Respondents eventually filed their submissions on 29/08/2016, while the Petitioner filed hers on 26/09/2016. The 3rd Respondent never filed any submissions.

9. It has come to pass, eventually, that the County Assembly of Murang’a of which the Petitioner was a member was dissolved, along with all such other entities in the Republic of Kenya, and a General Election held on 08/08/2017. There is now a new County Assembly of Murang’a in place.

10. When I sat down to write the judgment I realized that there was no agreement as between the Petitioner and the 1st and 2nd Respondents regarding the facts that gave rise to the petition in the first place. Tested oral evidence will therefore be necessary.

11. It also appears that a substantial part of the petition has been overtaken by the recent political events, including the General Elections held on 08/08/2017. The parties therefore need to consider upon what parts of the petition, if any, this court can properly render judgment upon, to avoid a moot judgment.

12. In the circumstances, the order of 04/12/2014, by which the court directed that the amended petition be disposed of by way of submissions upon the affidavits on record, is hereby set aside. Parties may seek fresh directions. It is so ordered. Costs shall be in the cause.

DATED, SIGNED AT MURANG’A THIS 30TH DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 1ST DAY OF DECEMBER 2017