Case ID:173346

Republic v Building Bridges Initiative Taskforce & 4 others; Odinga (Interested Party); Lemeiguran (Exparte Applicant) (Judicial Review Application E1157 of 2020) [2021] KEHC 7952 (KLR) (Judicial Review) (16 February 2021) (Ruling)

Case Metadata

Case Number:

Judicial Review Application E1157 of 2020

Parties:

Republic v Building Bridges Initiative Taskforce & 4 others; Odinga (Interested Party); Lemeiguran (Exparte Applicant)

Date Delivered:

16 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Pauline Nyamweya

Citation:

Republic v Building Bridges Initiative Taskforce & 4 others; Odinga (Interested Party); Lemeiguran (Exparte Applicant) (Judicial Review Application E1157 of 2020) [2021] KEHC 7952 (KLR) (Judicial Review) (16 February 2021) (Ruling)

Court Division:

Judicial Review

County:

Nairobi

Case Outcome:

Applicant’s notice of motion referred to the Chief Justice forthwith, for the assignment of a bench of an uneven number of Judges in terms of Article 165 (4) of the Constitution

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 v Building Bridges Initiative Taskforce & 4 others; Odinga (Interested Party); Lemeiguran (Exparte Applicant) (Judicial Review Application E1157 of 2020) [2021] KEHC 7952 (KLR) (Judicial Review) (16 February 2021) (Ruling)

Republic v Building Bridges Initiative Taskforce & 4 others Ex parte Rangal Lemeiguran; Raila Amolo Odinga (Interested party) [2021] eKLR

Neutral citation:

[2021] KEHC 7952 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E1157 of 2020

P Nyamweya, J

February 16, 2021

Between

Republic

Applicant

and

Building Bridges Initiative Taskforce

1

st

Respondent

Independent Electoral and Boundaries Commission (IEBC)

2

nd

Respondent

Speaker of the National Assembly

3

rd

Respondent

National Assembly

4

th

Respondent

Attorney General

5

th

Respondent

and

Raila Amolo Odinga

Interested Party

and

Rangal Lemeiguran

Exparte Applicant

Ruling

1.

On December 22, 2020, this court granted leave to Rangal Lemeiguran, the

ex parte

applicant herein, to apply for an order of

mandamus

to compel the 1

st

and 2

nd

respondent to implement the order issued by the High Court in Nairobi miscellaneous application

No

305 of 2004, and allocate the Ilchamus Community a Constituency in the ongoing political process of amending the Constitution of Kenya 2010. He also sought to apply for an order of prohibition to prevent the 2

nd

respondent, 3

rd

respondent and 4

th

respondents from in any way considering, debating or otherwise approving the draft Constitution of Kenya (Amendment) Bill 2020 until an amendment is made to section 74 and the 2

nd

schedule of the bill, to add a constituency for the Ilchamus Community in compliance with the order issued by the High Court in Nairobi miscellaneous application

No

305 of 2004.

2.

The

ex parte

applicant subsequently filed a substantive notice of motion dated January 11, 2021 seeking the said judicial review orders.

3.

The Building Bridges to a United Kenya National Secretariat and

Hon

Raila Amolo Odinga, the 1

st

respondent and interested party herein, thereupon filed an application by way of a notice of motion dated January 19, 2021, in which they are seeking orders that the suit herein be transferred to the Constitutional and Human Rights Division of the Nairobi High Court, and consolidated with the following consolidated petitions which are being heard by a 5-judge bench constituted by the Honourable Chief Justice:

(1)

Nairobi High Court petition

No

E282 of 2020 - David Ndii and others v Attorney General and others;

(2)

Nairobi High Court petition

No

E400 of 2020 - Thirdway Alliance and others v The Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce and others;

(3)

Nairobi High Court petition

No

E401 of 2020 – 254 Hope v The National Executive of the Republic of Kenya;

(4)

Nairobi High Court petition

No

E397 of 2020 - The Kenya National Union of Nurses v The Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce and others;

(5)

Nairobi High Court petition E402 of 2020 - Justus Juma and another v The Attorney General;

(6)

Nairobi High Court petition

No

, E416 of 2020 - Morara Omoke v Rt Hon Raila Odinga and others; and

(7)

Nairobi Judicial Review

Misc

application

No

E069 of 2020 - James Gitau v Independent Electoral and Boundaries Commission and others.

4.

The grounds for the application are that the orders sought herein are greatly prejudicial to the 1

st

respondent and the interested party and are directly related to orders sought in other suits pending before the Constitutional Division of the High Court. Further, that the

ex parte

applicant has ignored to informed the court of the existence of several other petitions challenging the intended constitutional amendment process initiative by the 1

st

respondent and the interested party. Lastly, that there is a high likelihood that the courts shall reach conflicting conclusions and/or issue conflicting orders on the same subject matter.

5.

These grounds were reiterated by Mr Ochieng Oginga, the counsel for the 1

st

respondent and the interested party, at a virtual hearing held on January 28, 2021, wherein parties made oral submissions. Mr Mutembei, the counsel for the

ex parte

applicant, opposed the application for transfer of the instant suit to the Constitutional and Human Rights Division of the Nairobi High Court, on the ground that the issues in the instant suit are different from those in the consolidated petitions before the 5-judge bench in the said division, as this suit is seeking to enforce existing orders, and therefore goes beyond the proposed amendments to the

Constitution

and should be heard separately.

6.

Both counsel were however agreed that the power to constitute a 5-judge bench reposes in the Chief Justice, and Mr Oginga in this respect urged the court to place this matter before the Chief Justice for the constitution of a 5-judge bench to hear and determine it. Mr Mwongela and Mr Munene, the counsel for the 3

rd

and 5

th

respondents respectively, left it to the court to decide, and did not make any submissions on the application for transfer.

7.

It is evident that the parties concede that this court cannot transfer this matter to the 5-judge bench hearing similar consolidated cases in the Constitutional and Human Rights Division in the Nairobi High Court. This is for the reason that article 165 (4) of the Constitution expressly provides that it is the Chief Justice who can assign a matter for determination by a bench of an uneven number of judges.

8.

The secondary and only issue for determination in the instant application therefore, is whether this suit is one that requires to be referred to the Chief Justice for the constitution of a bench of more than one High Court judge to hear it. Under article 165 (3) and (4) of the

Constitution

, for a matter to be referred to the Chief Justice for assignment of such a bench, the High Court must certify that the matter raises a substantial question of law in the following instances:

a)

It involves a question as to whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened; or

b)

It involves a question respecting the interpretation of the

Constitution

including (i) the question whether any law is inconsistent with or in contravention of the Constitution; (ii) the question whether anything said to be done under the authority of the

Constitution

or of any law is inconsistent with, or in contravention of, the

Constitution

; (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under article 191.

9.

As regards the threshold to be met for a question to be categorized as a substantial question of law, it was held in

Chunilal v Mehta v Century Spinning and Manufacturing Co

AIR 1962 SC 1314, as follows:

“

a substantial question of law is one which is of general public importance or which directly and substantially affects the rights of the parties and which have not been finally settled by the Supreme Court, the Privy Council or the federal court or which is not free from difficulty or which calls for discussion of alternative views. If the question is settled by the Highest Court or the general principles to be applied in determining the questions are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial.”

10.

Similarly, in

Martin Nyaga and

ot

hers v Speaker County Assembly of Embu and

4 othe

rs and a

n am

icus

[2014] eKLR, the court held that the principles applicable when making a declaration under article 165(4) include whether the matter is complex; whether the matter raises a novel point; whether the matter by itself requires a substantial amount of time to be disposed of; the effect of the prayers sought in the matter and the level of public interest generated by the suit.

11.

In the present suit, the ex parte applicant seeks judicial review orders to enforce orders granted to him by the High Court in Nairobi miscellaneous application

No

305 of 2004, on which the applicable principles are settled. The

ex parte

applicant has however, in seeking to enforce the said orders, also sought judicial review orders against actors and actions being undertaken in an ongoing constitutional amendment process in which there are weighty constitutional issues raised, and which are of considerable public interest. In particular, there are orders sought by the

ex parte

applicant in this regard on the constitutional rights of the Ilchamus Community in relation to the constitutional amendment process, and on the draft Constitution of Kenya (Amendment) Bill 2020. The draft Constitution of Kenya (Amendment) Bill 2020 is also the subject of various other pending cases, including the consolidated petitions listed herein before the 5-judge bench in the Constitutional and Human Rights Division of the High Court.

12.

It is thus my finding that the questions raised by the

ex parte

applicant’s notice of motion dated January 11, 2021 meet the threshold set out in article 165 (4) of the

Constitution

for the foregoing reasons.

13.

I accordingly certify that the

ex parte

applicant’s notice of motion dated January 11, 2021 raises a substantial question of law, and hereby refer the said notice of motion to the Chief Justice forthwith, for the assignment of a bench of an uneven number of judges in terms of article 165 (4) of the

Constitution

.

14.

Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 16

TH

DAY OF FEBRUARY 2021

P. NYAMWEYA

JUDGE