[2022] KEHC 2496 (KLR)
The High Court lacks jurisdiction to entertain a suit that seeks to challenge the constitutionality of a constitutional provision or to direct Parliament to amend the Constitution. The Constitution of Kenya provides specific procedures for its amendment, and the court cannot usurp this role or grant orders that...
Source-derived case information.
- Citation
- [2022] KEHC 2496 (KLR)
- Parties
- Plaintiff: Willis Ogola Okendo - Rarieda; Defendant: The Clerk, National Assembly; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case E010 of 2021
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection/jurisdiction
- Outcome
- Suit dismissed for want of jurisdiction; no orders as to costs.
- Judges
- RE Aburili
- Legal Topics
- Constitutional Amendment Process, Jurisdiction of High Court, Constitutional Rights Enforcement, Political Parties Fund
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willis Ogola Okendo - Rarieda
Plaintiff
The Clerk, National Assembly
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection/jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to question the constitutionality of a constitutional provision.
- 2 Whether the plaintiff can seek amendment of the Constitution through a plaint and court order.
- 3 Whether Article 85 of the Constitution discriminates against Independent Candidates in relation to the Political Parties Fund.
Ratio Decidendi
The High Court lacks jurisdiction to entertain a suit that seeks to challenge the constitutionality of a constitutional provision or to direct Parliament to amend the Constitution. The Constitution of Kenya provides specific procedures for its amendment, and the court cannot usurp this role or grant orders that would amount to amending the Constitution. The plaintiff's suit, which seeks to have Article 85 amended to benefit Independent Candidates and to direct the National Assembly accordingly, is therefore incompetent and must be dismissed for want of jurisdiction.
Court Disposition
Suit dismissed for want of jurisdiction; no orders as to costs.
Orders
- The suit is dismissed for want of jurisdiction.
- No orders as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL CASE NO. E010 OF 2021
CORAM: R.E. ABURILI, J
WILLIS OGOLA OKENDO - RARIEDA...............................PLAINTIFF
VERSUS
THE CLERK, NATIONAL ASSEMBLY........................1ST DEFENDANT
ATTORNEY GENERAL................................................2ND DEFENDANT
RULING
1. I have considered the Plaint and documents attached to the Plaint and prayers sought in this suit filed on 11/11/2021. I observe that the Plaint seeks for orders which this court is incapable of granting as this court has no power to question the constitutionality of a constitutional provision (see Article 2 of the Constitution). In addition, this court has no power or authority to amend the Constitution or direct an amendment to the Constitution or any part thereof by directing Parliament to do so, as sought by the plaintiff herein. The manner in which the Constitution can be amended is stipulated in Articles 255 and 256 of the Constitution.
2. This Court has taken time and explained to Plaintiff and guided him to seek probono legal advice on the matter before he can consider approaching this Court on the same. This is so because the plaintiff claims that his rights are violated under Article 22 of the Constitution by the presence of Article 85 of the Constitutionwhich discriminates Independent Candidates who are not entitled to payment from the Political Parties Fund. What I also understand from the plaintiff’s pleadings is that Independent Candidates should also have an account where they can deposit money so that Independent Candidates Founders can also be paid a fee just like the Political Parties get funding deposited into their accounts from their members and candidates and eventually they benefit from the Political Parties Fund. He also claims that as the person who‘authored’the Independent Candidates Chapter in the Constitution, which efforts were recognized by the Kenya National Commission on Human Rights among others, he deserves to be paid for such a commendable job. I can’t agree more that the plaintiff, a senior Citizen of this country could have played a very important role in the constitution making process. However, to challenge a constitutional provision in Article 85 of the Constitution by way of a plaint urging the Court to direct The National Assembly to amend the same is a tall order.
3. For all the above reasons and for reasons that a constitutional provision cannot be challenged before any Court of law on account of violation of a constitutional right or for being unconstitutional, I hereby find and hold that this Court is devoid of and is deprived of any power, authority or jurisdiction to make determinations that challenge the constitutionality of constitutional provisions as impugned. The suit herein is found to be a non-starter and fatally incompetent on arrival. It must not only be struck out, but it must and is hereby dismissed with no orders as to costs.
4. These proceedings and Ruling to be typed and supplied to the Plaintiff free of charge. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF FEBRUARY, 2022
R.E. ABURILI
JUDGE