Case ID:165344

Republic v Speaker of the Nairobi County Assembly & 4 others Ex parte Maurice Otieno Gari [2020] eKLR

Case Metadata

Case Number:

Judicial Review Miscellaneous Application E033 of 2020

Parties:

Republic v Speaker of the Nairobi County Assembly, Clerk of the Nairobi County Assembly, Nairobi County Assembly, Nairobi County Assembly Service Board & Catherine Akoth & 4 others Ex parte Maurice Otieno Gari

Date Delivered:

04 Sep 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Pauline Nyamweya

Citation:

Republic v Speaker of the Nairobi County Assembly & 4 others Ex parte Maurice Otieno Gari [2020] eKLR

Court Division:

Judicial Review

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. MISC. E033 OF 2020

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS, AND PROHIBITION

BETWEEN

REPUBLIC........................................................................................APPLICANT

VERSUS

THE SPEAKER OF THE NAIROBI

COUNTY ASSEMBLY..............................................................1

st

RESPONDENT

THE CLERK OF THE NAIROBI

COUNTY ASSEMBLY

..

..........................................................2

nd

RESPONDENT

THE NAIROBI COUNTY ASSEMBLY

..................................

3

rd

RESPONDENT

THE NAIROBI COUNTY

ASSEMBLY SERVICE BOARD

..

...........................................4

th

RESPONDENT

HON. CATHERINE AKOTH..................................................5

th

RESPONDENT

EX PARTE APPLICANT:

HON. MA

MAURICE OTIENO GARI

RULING

1. The

ex parte

Applicant herein has filed an application by way of a Chamber Summons dated 4

th

September 2020, seeking leave to apply for orders of certiorari, mandamus and prohibition with respect to the 1

st

Respondent’s decision and action of publishing Gazette Notice number 6390 dated 26

th

August, 2020 on the 28

th

August 2020, notifying of the appointment of the 5

th

Respondent as a member of the Nairobi City County Assembly Service Board, and the removal of the

ex parte

Applicant as a member of the said Board.

2. The said application is supported by a statutory statement dated 4

th

September 2020, and a verifying affidavit sworn on the same date by the ex parte Applicant. Upon perusal of the application and supporting documents, I note that the Applicant is relying on the provisions of section 12 of the County Government Act on the establishment of the county assembly service boards which provides as follows:

“(1)

There shall be a county assembly service board for each county assembly.

(2) The county assembly service board shall be a body corporate with perpetual succession and a common seal.

(3) The Board consists of—

(a) the Speaker of the county assembly, as the chairperson;

(b) a vice-chairperson elected by the Board from the members appointed under paragraph (c);

(c) two members of the county assembly nominated by the political parties represented in the county assembly according to their proportion of members in the county assembly; and

(d) one man and one woman appointed by the county assembly from amongst persons who are experienced in public affairs, but are not members of the county assembly.

(3A) The members of the Board appointed under section 12(3)(d) shall serve on a part-time basis.

(4) The county assembly clerk shall be the secretary to the county assembly service board.

(5) A member of the county assembly service board shall vacate office—

(a) if the person is a member of the county assembly—

(i) at the end of the term of the county assembly; or

(ii) if the person ceases to be a member of the county assembly; or

(b) if the person is an appointed member, on revocation of the person’s appointment by the county assembly; or

(c) if the person is the Speaker, when the person ceases to be such Speaker

.”

3. Some of the grounds for the application stated in the statutory statement are as follows:

“(a) It is not in dispute that the 1

st

Respondent, on the 26

th

August, 2020, swore in and

gazetted the 5

th

Respondent as an appointed member to the Nairobi County Assembly Service Board as representative for the Orange Democratic Party.

(b) It is undisputed, too, that at the time of this impugned decision the ex parte Applicant served, as representative of the Orange Democratic Party, in the County Assembly

Board pursuant to his appointment on the 18

th

October, 2019, and gazette notice number 9978 issued on the 22

nd

October, 2019.

(c) The 1

st

Respondent purported to rely on a letter from the Orange Democratic Party dated the 18

th

August, 2020, alleging to make changes to minority leadership within the County Assembly; contrary to the provisions of Section 12 (5) of the County Government Act.”

4. In light of the provisions of the Political Parties Act as regards the resolution of disputes between members of political parties, and the provisions of Articles 162(2) (a) and 165(5) of the Constitution, and section 12 of the Employment and Labour Relations Act on the exclusive jurisdiction of the Employment and Labour Relations Court, it is my view that the question of leave to commence judicial review proceedings against the Respondents require to be heard

inter partes

before any orders can be granted by this Court.

5. In the circumstances, I hereby direct and order as follows:

I.

The

ex parte

Applicant shall serve the Respondents with the

Chamber Summons dated 4

th

September 2020, (ii) skeletal submissions on the said Chamber Summons (iii) a copy of these directions and (iv) a hearing notice with twenty-one (21) days of today’s date.

II.

The Respondents are granted leave to file and serve their responses to the

Chamber Summons dated 4

th

September 2020 and skeletal submissions thereon within twenty-one (21) days of service by the Applicant.

III. The

Chamber Summons dated 4

th

September 2020 shall be heard on

12

th

October 2020

.

IV. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the Applicant’s Chamber Summons dated 4

th

September 2020 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

V.

All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division at

judicialreview48@gmail.com

and

asunachristine51@gmail.com

.

VI. The electronic copies of pleadings and documents sent by the parties shall be clearly and correctly titled to indicate the J.R Case Number, the description of the Party sending it (that is whether the

Ex Parte

Applicant, Respondent or Interested Party), and the nature of the pleading or document.

VII.

The service of pleadings and documents directed by the Court shall be by way of personal service

and

electronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division at

judicialreview48@gmail.com

with copies to

asunachristine51@gmail.com

.

VIII.

The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail to

judicialreview48@gmail.com

with copies to

asunachristine51@gmail.com

.

IX.

T

he Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on

12

th

October

2020

X.

The Deputy Registrar of

the Judicial Review Division shall send a copy of these directions to the

ex parte

Applicant by electronic mail by close of business on

Monday, 7

th

September 2020

.

XI. Parties shall be at liberty to apply.

6. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 4

TH

DAY OF SEPTEMBER 2020

P. NYAMWEYA

JUDGE