Law Society of Kenya & another v Waititu & 3 others (Petition E022 of 2023)  KEHC 629 (KLR) (Constitutional and Human Rights) (10 February 2023) (Ruling)
Neutral citation:  KEHC 629 (KLR)
Republic of Kenya
Petition E022 of 2023
HI Ong'udi, J
February 10, 2023
REPUBLIC OF KENYA__ IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO.E022 OF 2023__IN THE MATTER OF THE CONSITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF ARTICLES 1, 2, 3, 10, 22, 73, 74, 75, 174, 181, 258 AND 259 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 6, 8, 13, 15 AND 40 OF THE LEADERSHIP AND INTEGRITY ACT, NO. 19 OF 2012ANDIN THE MATTER OF THE COUNTY GOVERNMENT ACT, NO. 17 OF 2012, SECTION 33ANDIN THE MATTER OF THE REMOVAL FROM OFFICE BY IMPEACHMENT OF HON. FERDINAND NDUNGU WAITITU BABAYAO, THE GOVERNOR OF KIAMBU COUNTY AND IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT, NO. 8 OF 199ANDIN THE MATTER OF THE CLIMATE CHANGE ACT, NO. 11 OF 2016ANDIN THE MATTER OF GAZETTE NOTICE NO. 14891, VOLUME NO. CXXIV – NO 258 DATED, 2ND DECEMBER 2022ANDIN THE MATTER OF THE LAW SOCIETY OF KENYA ACT, 2014, SECTION 4ANDIN THE MATTER OF THE UNCONSTITUTIONAL APPOINTMENT OF FERDINAND NDUNGU WAITITU BABAYAO TO THE NAIROBI RIVERS COMMISSION
Law Society of Kenya
Transparency International Kenya
Ferdinand Ndungu Waititu Babayao
Ethics and Anti-Corruption Commision
Nairobi Rivers Commision
1.The petition plus supporting and verifying affidavits and Notice of Motion dated 23rd January 2023 were filed on 24th January 2023 under certificate of urgency. Directions were then issued for service of the pleadings and filing of responses, within the specific timelines with a mention on 8th February 2023 for further directions.
2.When the matter was mentioned on 8th February 2023 it was noted that:(i)Only the 1st respondent had filed a response. It is not clear whether the response is to both the Petition and Notice of Motion or only to the latter.(ii)There is Petition No. E549/2022 filed by one Peter Odhiambo Agoro against the 1st, 2nd & 3rd respondents herein. The said petition raises the same issues as this one. It comes for mention for directions on 27th February 2023.
3.Mr. Mogeni for the petitioners urged the Court to issue conservatory orders in terms of prayers No. 2 & 3 of the Notice of Motion dated 23rd January 2023. The same was supported by M/s Imbosa for the interested party.
4.Mr. Nyamu for the 1st respondent while relying on the 1st respondent’s replying affidavit vehemently opposed the application. He submitted that the 1st respondent had filed an appeal against the High Court Judgment and so should be left to exhaust all the appeal processes.
5.I have carefully considered the submissions by counsel for the petitioners, 1st respondent and interested party. It is not disputed that the 1st respondent who is the former Governor of Kiambu County was impeached by Kiambu County Assembly. The impeachment was upheld by the Senate on 29th January 2020. The same was further upheld by a three (3) Judge bench of the High Court on 24th February 2022 vide Petition No. 29 of 2020 consolidated with Petition No. 87 of 2020; Hon. Ferdinard Waititu Babayao & another vs. the County Assembly of Kiambu & 4 others; Kiambu County Executive Committee (interested party).
6.What prompted the filing of these two petitions is the appointment of the 1st respondent as a commissioner in the Nairobi Rivers Commission by H. E. President William Samoei Ruto vide Gazette Notice No. 14891 of 2nd December, 2022.
7.When this matter was placed before me on the 24th January 2023 as the duty Judge, I noted the urgency and the great public interest in it and gave limited timelines for service and filing of responses. I did not give any exparte conservatory orders for very good reasons. But now all the main parties are present, before the Court.
8.The 1st respondent argues that because of the Notice of Appeal filed, this Court should allow him go through the entire Appeal process before any conservatory orders are issued. The main issue here is the interpretation of chapter six (6) of the Constitution, Leadership and Integrity Act and their impact on the appointment of the 1st respondent to a public entity.
9.The purpose for grant of conservatory orders was explained by the Court in the case of Muslims For Human Rights (MUHURI) & 2 Others -vs- Attorney General & 2 Others High Court Petition No. 7 of 2011, as follows:
10.The applicable principles for grant of conservatory orders are now well settled in law. The Supreme Court in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others  eKLR stated thus:-
11.While drawing from the numerous authorities the Court in the case of Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party)  eKLR summarized the threshold for the grant of the conservatory orders as follows:
12.The jurisdiction of this Court to stay proceedings pending appeal flow from Rule 32 of the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013:Stay pending appeal.32. (1) An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed.(2)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling and the court may issue such orders as it deems fit and just.(3)A formal application for stay may be filed within 14 days of the decision appealed from or within such time as the court may direct.
13.What becomes clear from reading the above provision is that an appeal or intended appeal does not operate as an automatic stay of the proceedings. In fact, the Court in the case of Kenya Wildlife Service v James Mutembei  eKLR examines the serious nature of a stay of proceedings as follows:
14.A Notice of Appeal dated 28th February 2022 has been annexed to the 1st respondent’s replying affidavit. Such Notice does not operate as stay of the Judgment of the trial Court. If there was any need for stay of the Judgment delivered on 24th February 2022, there is nothing that stopped the 1st respondent from moving the Court of Appeal for such orders.
15.As stated above, this matter has been filed in public interest. Secondly the chances of the 1st respondent being sworn in following his appointment and the gazettement before this petition is heard and finalized are high. Thirdly it’s in the interest and benefit of the 1st respondent that the status quo prevailing remains pending the hearing and determination of this petition. It now behoves the parties to ensure compliance with the directions given by this Court in order to fast track this matter.
16.Based on the above observations I find that:(i) The interests of justice demand that this petition be fast tracked and be determined within the shortest time, possible. For that reason the Notice of Motion dated 23rd January 2023 shall be subsumed in the petition.(ii) A conservatory order is hereby issued staying the appointment of the 1st respondent as a commissioner of the 4th respondent and / or appointment to any other state or public office pending the hearing and determination of this petition.(iii) The 1st respondent shall not be sworn in as a commissioner of the 4th respondent and / or any other state or public office pending the hearing and determination of this petition.(iv) The respondents and interested party to file their responses to the petition within 10 days.(v) The petitioners are granted leave to file a further affidavit within 5 days upon service of the responses.(vi) This matter to be mentioned on 27th February 2023 alongside Petition No. E 549/2022 before Thande J for purposes of consolidation, and further directions.Orders accordingly.
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 10TH DAY OF FEBRUARY, 2023 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. Ong’udiJudge of the High Court