Case ID:173285

Mike Sonko Mbuvi Gidion Kioko & another v Clerk, Nairobi City County Assembly & 9 others [2021] eKLR

Case Metadata

Case Number:

Petition E425 of 2020

Parties:

Mike Sonko Mbuvi Gidion Kioko & Okiya Omtatah Okoiti v Clerk, Nairobi City County Assembly, Speaker, Nairobi City County Assembly, Nairobi City County Assembly, Clerk of the Senate, Speaker of the Senate of Kenya, Senate of Kenya, Attorney General, Independent Electoral and Boundaries Commission, Assumption of the Office of the County,Governor Committee, Nairobi City County & AG Governor, Nairobi City County

Date Delivered:

18 Mar 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Said Juma Chitembwe, Weldon Kipyegon Korir, Wilfrida Adhiambo Okwany

Citation:

Mike Sonko Mbuvi Gidion Kioko & another v Clerk, Nairobi City County Assembly & 9 others [2021] eKLR

Court Division:

Constitutional and Human Rights

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

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E425 OF 2020

HON. MIKE SONKO MBUVI GIDION KIOKO......................................................1

ST

PETITIONER

OKIYA OMTATAH OKOITI ......................................................................................2

ND

PETITIONER

-VERSUS-

THE CLERK, NAIROBI CITY COUNTY ASSEMBLY.........................................1

ST

RESPONDENT

THE SPEAKER, NAIROBI CITY COUNTY ASSEMBLY...................................2

ND

RESPONDENT

THE NAIROBI CITY COUNTY ASSEMBLY........................................................3

RD

RESPONDENT

THE CLERK OF THE SENATE .............................................................................4

TH

RESPONDENT

THE SPEAKER OF THE SENATE OF KENYA...................................................5

TH

RESPONDENT

THE SENATE OF KENYA .....................................................................................6

TH

RESPONDENT

HON. ATTORNEY GENERAL...............................................................................7

TH

RESPONDENT

THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION....8

TH

RESPONDENT

THE ASSUMPTION OF THE OFFICE OF THE COUNTY, GOVERNOR COMMITTEE,

NAIROBI CITY COUNTY.......................................................................................9

TH

RESPONDENT

THE A.G. GOVERNOR, NAIROBI CITY COUNTY.........................................10

TH

RESPONDENT

RULING

1. The 1

st

and 2

nd

petitioners herein filed two separate petitions namely; petition Nos. 425 of 2020 and E014 of 2021 respectively wherein their main challenge is the impeachment of the 1

st

petitioner as the Governor of Nairobi City County following the resolutions passed by the 6

th

Respondent on 17

th

December 2010. The Petitions were subsequently consolidated and through a ruling delivered on 25

th

February 2021, Makau J. certified petition No. 425 of 2020 as raising substantial questions of law and accordingly referred it to the Honourable Chief Justice for the empanelment of a Bench of uneven number of Judges to hear and determine the petition.

2. Through directions issued on 5

th

March 2021, P. Mwilu, Ag. Chief Justice directed this bench to hear and determine the petitions.

3. The matter was thereafter mentioned before this bench on 11

th

March 2021, when counsel for the respondents urged this court to refer it back to the Ag. Chief Justice for the constitution of a separate Article 165(4) bench thus precipitating arguments that have necessitated this ruling.

Parties’ Submission.

4. Mr. Nyamodi

, learned counsel for the 7

th

respondent submitted that a determination of this matter will impact on another matter pending before this bench being High Court Petition No. E005 0f 2021. He argued that a separate and fresh bench is necessary so as not to cloud the other petition.

5. Mr. Nyamu

, learned counsel for the 1

st

petitioner, opposed

Mr. Nyamodi’s

argument and submitted that no prejudice will be occasioned to any party if this bench handled the matter. He observed that returning the matter to the Chief Justice for the empanelment of a separate bench would cause unnecessary delay and added that there are instances where similar petitions have, in the past, been handled by the same bench.

6. Mr. Kinyanjui

, learned counsel for the 1

st

petitioner joined issues with

Mr. Nyamu

and added that it is not unusual to have the same bench hearing different petitions over the same subject matter.

7. The 2

nd

petitioner,

Mr. Okiya Omtatah

, submitted that the issue raised by the 7

th

respondent is largely an issue of etiquette and not a jurisdictional issue.

8. Mr. Osundwa, Mr. Kokebe, Mr. Ashioya

and

Mr. Okatch

for the 1

st

, 2

nd

3

rd

and 10

th

respondents respectively supported

Mr. Nyamodi’s

position and argued that the issue of delay does not arise in this matter as parties had agreed to freeze time. It was submitted that this petition should be heard by a different bench so that parties can have opinions from other judges. Counsel observed that etiquette demands that this court deals with the earlier petition and another bench addresses this petition so as not to cloud the issues or muddy the terrain.

9. It was submitted that the issues in this petition will have a direct bearing on Petition No. E005 of 2021 in which case, this court may be prejudiced or take the same position on both petitions.

10. It was further submitted that if this court handles both this matter and E005 of 2021, the bundles of documents filed by the parties may be so huge that fast-tracking both cases may be impossible thus causing an inevitable delay.

11. It was further submitted that both this matter and E005 of 2021 have germain issues that are intertwined such that it will only be fair and hygienic to separate the matters for proper administration of justice so that justice is not only done, but is also seen to have been done.

Analysis and Determination

12. We have carefully considered the rival and compelling arguments over the issue of whether or not this matter should be referred back to the Chief Justice for the empanelment of a separate and ‘fresh’ Article 165(4) bench for hearing and determination.

13. Our understanding of the respondents’ argument for the reference of file back to the Chief Justice is that they are apprehensive that justice may not be seen to have been done if this bench hears this matter in view of the fact that it is also seized with another matter over the appointment of the Deputy Governor of Nairobi City County.

14. Our position is that this is not the first time that the same court is finding itself in the position where it has to hear and determine two or more petitions over what may be appear to be the same or a related subject matter. Indeed, there are countless instances where the same court has had to determine several cases over the same subject matter without necessarily doing injustice in one case in favour of the other. Our position is that in such instances, each case must be determined on its own merit based on the facts and the applicable law.

15. We note that the respondents have not indicated that this court lacks the jurisdiction to hear and determine this matter or that it will be biased against any party in handling the dispute so as to justify the request for reference of the matter to the Chief Justice for the empanelment of a fresh bench. Needless to say, our interpretation of the respondents’ oral application is that it is an indirect invitation to the members of this bench to recuse themselves from hearing this petition,

albeit

, without stating the grounds for such recusal.

16. We are of the humble view that in the circumstances of this case and considering that this court is yet to hear the substantive arguments on both petitions and has not issued any substantive orders in either of the petitions, which we observe, are still at the preliminary stages of directions, allowing the request to return the file to the Chief Justice will create an undesirable precedent where parties reject an empaneled bench based on mere apprehension. This is a practice that could breed or be interpreted to amount to forum-shopping.

17. We reiterate that that this court will hear and determine this petition as a separate, and distinct petition from Petition No. E005 of 2021.

18. For the above reasons, we do not find any merit in the application for the return of the file to the Chief Justice for the empanelment of a separate bench. We dismiss the application with no orders as to costs.

DATED, SIGNED

AND

DELIVERED VIA MICROSOFT TEAMS

AT

NAIROBI THIS 18

TH

DAY OF MARCH 2021

IN VIEW OF THE DECLARATION OF MEASURES RESTRICTING COURT OPERATIONS DUE TO COVID -19 PANDEMIC AND IN LIGHT OF THE DIRECTIONS ISSUED BY HIS LORDSHIP, THE CHIEF JUSTICE ON THE 17

TH

APRIL 2020.

S. CHITEMBWE

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

JUDGE

W. KORIR

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

JUDGE

W. A. OKWANY

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

JUDGE

In the presence of-

Mr. Adan, Mr. Mohammed and Ms. Sylvia Court Clerks.