1.By a Notice of Motion under certificate of urgency dated 8/5/2023 pursuant to Sections 1A, 1B, 3, 3A, 6 of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and all other enabling provisions of the law, the 1st Respondent seeks that:1.Spent2.This Honorable Court be pleased to issue an order of stay staying the proceedings and or any other hearing of the instant petition/application being Meru Constitutional Petition No. E009 OF 2023 pending the hearing and determination of PPDT E001 OF 2023 in Meru; JR E001 OF 2023 in Meru; and Appeal No. E067 OF 2023 in Meru.3.This Honorable Court be pleased to issue orders dismissing the Petition dated 3rd May 2023 with costs as it amounts to an abuse and misuse of the court process.4.Costs of this application be on the course.
2.The application is premised on the grounds on the face of it and supporting affidavit of Salad Guracha, the clerk of the 1st Respondent sworn on even date. He accuses the Applicants of filing multiple suits in various courts and tribunals seeking the same or substantially the same orders, on accounts of similar facts and involving the same facts which violates the intent of Section 6 of the Civil Procedure Act. It is in the interest of justice that the hearing in this petition being Meru Constitutional Petition No. E009 OF 2023 be stayed pending the hearing and determination of PPDT E001 OF 2023 in Meru; JR E001 OF 2023 in Meru; and Appeal No. E067 OF 2023 in Meru to avoid the court rendering conflicting decisions and or compromising the jurisdiction of the courts and or tribunals ranking below it.
3.The Applicants opposed the application vide the replying affidavit sworn by the 3rd Applicant on 18/5/2023. He urges the court to consider their petition in accordance with the provisions of Articles 25(3) and 159(2) of the Constitution, which will not in any prejudice the 2nd Respondent. There is no other available forum to address the constitutional breaches occasioned to the Petitioners and as such, this court is the last resort, and in the event the court downs its tools, the Petitioners will remain outside the functions of the county assembly for 3 months, thereby missing out on formulation of public policy documents and representation as mandated by the Constitution. The stay of the proceedings application by the Respondents is bad in law as it seeks to mislead the court of the existence of other active matters similar to the petition herein. He urges the court to allow the petition on its own merit as the same is neither res judicata, sub judice, frivolous, malicious or vexatious, and cites Kenya Wildlife Service v James Mutembei (2019) eKLR and Watu Credit v Geoffrey Mokaya Aboki & Karen Chepkurui (2022) eKLR.
4.The 1st and 2nd Respondents raised a Preliminary Objection dated 8/5/2023 on the grounds that:
5.The Petitioners urge that the internal memo is not a creation of the law or statute and is not a proceeding on the face of Order 48 of the County Assembly Standing Orders, and cite Peter Mungai v Joseph Ngaba Kuria and another v Leah Ngari Ndichu (Interested Party) (2022) eKLR and Speaker of National Assembly v Njenga Karume (1992) eKLR. They urge that the jurisdiction of the Political Parties Tribunal is limited and it cannot wear the hat of the High Court, and issue the orders sought herein. They urge that the petition and the complaint before the Tribunal are distinct in context, substance and component and the parties are not similar. It is trite law that the sub judice rule cannot be used to deny interim orders at the preliminary stage but that it should concern itself with trial of the main suit. They invite the court to lean in favor of the public policy and public interest in the current petition, and cite Miguna Miguna v Fred Okengo Matiangi; minister of Interior and KNCHR (2018) eKLR. They urge that they have met the threshold befitting grant of interlocutory orders pending determination of the petition as set out in Giella v Cassman Brown & Co. Ltd (1973) E.A 358, Gatirau Peter Munya v Dickson Kithinji (2014) eKLR and Mrao v First American Bank Ltd (2003) eKLR. They urge that the Respondents are in violation of Standing Orders 108 to 112 of the County Assembly Standing Orders by acting suo moto and failing to invoke the clear and express provisions of the Constitution. Article 165 (3) of the Constitution donates jurisdiction of this court with the duty and obligation to intervene in actions of other arms of Government and State Organs where it is alleged or demonstrated that the Constitution has either been violated or threatened with violation.
6.The 1st Respondent submits that section 10 of the County Assembly Powers and Privileges Act absolutely bars court’s intervention in proceedings such as those before the court, and cites Meru HC JR No. E001 of 2023 Hon. Abubakar & 2 Others v Speaker of Isiolo County Government and others and Ndyanabo v A.G of Tanzania (2001) E.A 495. It urges that section 6 (2) of the County Assembly Powers and Privileges Act ousts the jurisdiction of the court from entertaining the matters raised in the Petition, and cites Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Limited (1989) KLR 1, Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others (2012) eKLR and Diana Kethi Kilonzo & Another v Independent Electoral Boundaries Commission & 10 Others (2013) eKLR. It invites the court to find guidance in the judicial lineage established in the above cases and find it prudent to decline jurisdiction in the matter. It urges the court to allow the application of 8/5/2023 by staying the petition pending the hearing and determination of the complaint in Meru PPDT No. E001 of 2023 and Meru H.C Civil Appeal No. E067 of 2023, and cites Kinatwa Cooperatives Savings & Credit Limited v Kinatwa Prestige Limited (2021) eKLR.
7.The 2nd Respondent urges that the County Assembly enjoys the Constitutional doctrine of separation of powers not to have its matters intruded upon by the judicial arm of government with the exception of entertaining unconstitutionality. It is urged that the 2nd Respondent enjoys immunity from civil proceedings so long as they have not conducted unconstitutional actions and acted ultra vires, and cites Hon. Abubakar Abdi Godana & 2 Others v The Speaker, County Assembly of Isiolo & Another and United Democratic Movement & 2 Others – JR Application No. E001 of 2023 Meru. It is urged that the instant application and petition are sub judice as the issues they raise are before the Political Parties Dispute Tribunal for determination, and cites the Supreme Court of Kenya case of Kenya National Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) (2020) eKLR. It is urged that the application and the petition are res judicata and the court ought not to usurp the jurisdiction of the Tribunal, and cites Invesco Assurance Company Limited & 2 Others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company Advocates & another (Interested Parties) (2020) eKLR.
Analysis and Determination
8.Having considered the pleadings herein and the submissions on record, the court finds the issues for determination to be whether the Preliminary objection is merited and whether theproceedings herein ought to be stayed on the principles of se paration of powers, statutory ouster of jurisdiction, sub judice and res judicata, and constitutional avoidance.
Jurisdiction of the Court
9.In the locus classicus of Owner of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited (1989) KLR 1, Nyarangi JA sitting in the Court of Appeal held as follows: -
10.The 1st Respondent’s Counsel Mr. Lesaigor urged that the jurisdiction of the Court to determine this matter is ousted by the provisions of sections 10 and 11 of the County Assemblies Powers and Privileges Act. Those sections provide that,
11.It is trite law that the High Court draws its jurisdiction from Article 165 (3) of the Constitution, which provides as follows:
12.This Court has jurisdictional competence to consider in addition to questions of violation of the Bill of Rights, any “question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.” The Court is asked to interrogate the constitutionally of the acts and/or omissions of the Respondents, and it will not shy away from doing so.
Application for stay of proceedings, Res judicata and Sub-judice
13.The 1st Respondent seeks to stay the proceedings herein pending the hearing and determination of PPDT E001/2023; JR E001/2023; and Appeal No. E067/2023, on the reasoning that there may be conflicting decisions from those suits. As shown below, this court already heard, determined and issued orders in JR No. E001/2023 and an application for stay of execution in Civil Appeal No. E067/2023, and besides those proceedings are distinct from the issue in the proceedings herein.
14.It is said that there is pending proceedings before the Political Parties Dispute Tribunal rendering this matter as sub judice. That is not the case because while the dispute herein relates to an internal memo suspending the Applicants from house sittings for 21 days, the dispute before the Tribunal relates to the removal from house committees.
15.The Court agrees with the Petitioners that the suit in this petition relates to the events of 28th March 2023 rather than 27/3/2023 as evidenced by the reliefs sought in the Petition as follows:
16.By a Notice of Motion dated 3/5/2023, the Petitioners sought in similar terms interlocutory relief principally as follows:
17.The challenge in this case is clearly on the Memo dated 28th March 2023 made by the 2nd respondent in purported exercise of powers set out in the Memo. The determination of the question whether the provisions of law relied on by the Speaker 2nd Respondent contravene the Constitution as urged by the Petitioners is a matter squarely falling within the constitutional jurisdiction of the High Court under Article 165 (3) (d) (ii) of the Constitution.
18.The scope of the dispute resolution under section 40 of the Political Parties Act is political disputes involving members of political parties or political parties or coalitions; between members or independent candidates with political parties; and appeals from the Registrar as follows:
19.The Tribunal will not determine the question of suspension of a member of the House by the Speaker. The proceedings before the Political Parties Dispute Tribunal (PPDT) relate to the removal of the petitioners from their House roles, and that is a matter different from the question of the authority of the 2nd Respondent Speaker raised in this Petition. The Proceedings in this suit are not therefore sub judice by virtue of the proceedings before the PPDT, which is interrogating a different, if connected, matter. A decision by the Tribunal that the petitioners were or were not properly removed from their specific roles of House leadership does not determine the question whether the 2nd Respondent Speaker has authority to suspend the petitioners from the House. Sub judice rule does not arise in the circumstances.
20.The Applicants in their application dated 3/5/2023 principally seek the quashing of the internal memo dated 28/3/2023 for being in breach of standing orders 42, 108, 109, 110, 111, 112, 158 and 160 of the County Assembly of Isiolo Standing Orders and Articles 47, 48 and 50 of the Constitution. The Internal Memo in question was in the following terms:
21.The relevant part of the Standing Orders of Isiolo County Assembly provides as follows:
22.It is clear that section 40 of the Political Parties Act deals with a different subject of relation between a members and political parties/coalitions and the challenge before the court here is a question of the suspension from the House not by a political party but by Speaker and County Assembly.
24.Whereas the proceedings before Meru H.C JR No. E001 of 2023 Hon. Abubakar Abdi Godana & 2 Others v The Speaker County Assembly of Isiolo & Ano questioned the legality of the acts of the 2nd Respondent herein, Speaker of the County Assembly of Isiolo, the judicial review nature of proceedings meant that, unlike in constitutional litigation such as the present, the court does not delve into the merits of the case. See Commissioner of Lands v Kunste Hotel Limited  eKLR that “judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision-making process [and its] purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected”, citing R v. Secretary of State for Education and Science ex parte Avon County Council  1 ALL ER.282, at p. 285 and Chief Constable of the North Wales Police v. Evans  1 WLR 1155.
25.Res judicata would only arise if the Judicial Review application Meru HC JR No. E001 of 2023 had dealt with any merits of the case. Apart from the limited scope of judicial; review proceedings by which the court does not delve into the merit of a decision, the particular proceedings herein were terminated by the refusal of leave to commence judicial review proceedings, and the court had no occasion to consider the merit of the decision by the 2nd respondent being under challenge here.
26.As observed by this court in KBT Petition No. 3 Of 2019, Hon. Benjamin Koech V. Baringo County Government & 2 ORS., it has long been held that the principle of Res Judicata is applicable in constitutional litigation but only in the clearest of cases:
27.I do not agree that circumstances exist for the application of res judicata in this case, and the plea is rejected. In any event, the judicial review application was not heard on the merit as leave was declined and was, therefore, not “heard and finally decided” by the judicial review court, and the issue of res judicata does not arise.
Separation of Powers, judicial restraint and Constitutional avoidance
28.Counsel for the 1st respondent Mr. Aluku cited Aswander v Tennesse Valley Authority, 297 U.S. 288 and invited this Court to exercise judicial restraint urging that the said US Supreme Court decision as authority for the proposition that where there are alternative means of resolution the court should exercise judicial avoidance in constitutional cases. The Supreme Court of Kenya in Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others, Petition No. 14, 14 A, B & C of 2014, (2014) eKLR relied on the Aswander case in upholding the principle of constitutional avoidance as observed by this court in MERU HC Const. Pet. No. 15 of 2020 Gacheri David Mukindia V. Harles Murugu Mukindia & 11 ORS., as follows:
29.The Petitioners did not attach the full text of the second Edition of the County Assembly of Isiolo Standing Orders but only page 44 thereof setting out Standing Orders Nos.111 and 112. The Court has, however, no reasons to expect that there is an internal mechanism for redress under the 2nd edition above the position set out in the Standing Orders under 2015 edition which is available on the Isiolo County Assembly Website.
No appeal provision from suspension in Standing Orders
30.This court would in deference to the constitutional doctrine of separation of powers gladly restrain itself had there been procedure equivalent to situation in the National Assembly for the appeal from a decision on suspension because in that case the avoidance principle would be grounded on there existing an alternative procedure for redressing the alleged grievance. See the Speaker of the National Assembly v Karume (Civil Application 92 of 1992)  KECA 42 (KLR) (29 May 1992) (Ruling), where the Court of Appeal (Kwach, Cockar (as he then was) and Muli JJA) held:
31.Under Standing Orders 110A and 110B of the National Assembly Standing Orders, the effect of suspension and a right of appeal is set out as follows:
32.I have not seen similar provisions for appeal from suspension of a member of the Isiolo County Assembly in it’s Standing Orders and the County Assembly having already promulgated own Standing Orders, it cannot rely on the saving provisions of section 14(7) of the County Governments Act to fall back on the Standing Orders of the National Assembly in terms that –“14.(7)Until a county assembly makes its standing orders under subsection (1), the standing orders of the National Assembly shall, with the necessary modifications, apply to that county assembly.”
33.The court is, consequently, unable to agree with Counsel for the 2nd Respondent Ms. Kiunga’s submission that “the petitioners/applicants seek to quash communication by the Speaker [and as] the Internal Memo is an internal administrative communication on the decision of the House and it should not be discussed in court. Section 40 of the Political Parties Act, the dispute before the court is subject to section 40. It is the Political Party that took away the election of the applicants.”
34.The respondents have not demonstrated that there exists alternative internal mechanism for redressing the petitioners’ grievance. In the absence of a provision in the Standing Orders of the County Assembly of Isiolo on a right of appeal such as that under the National Assembly Standing Orders, the Constitutional Court must step up and take up its jurisdiction under Article 165(3) (b) (d) (ii) of the Constitution to enquire into the question whether the Standing Orders are consistent with the Constitution, and hear the dispute on its merit as to whether the exercise of the powers therein have infringed on the petitioners’ rights.
35.The principles of sub judice and res judicata raised by the 1st Respondent’s application for stay of proceedings dated 8/5/2023 do not apply in the circumstances of this case because the jurisdiction of, and the matter before, the Political Parties Tribunal is different from the issue of suspension of the Petitioners from the County Assembly raised in this suit; and the prior judicial review proceedings filed by the Petitioners in Meru HC JR E001 of 2023 could not, and did not, deal with the merits of any decision, and at any rate did not finally hear and determine, any issue raised in the present suit.
36.The statutory provisions of section 10 and 11 of the County Assembly Powers & Privileges Act, urged in the Preliminary Objection raised by the 2nd respondent herein, cannot trump the Court constitutional jurisdiction under Article 165(3) (b) (d) (ii) of the Constitution, as relevant. The High Court as Constitutional Court is empowered to deal with the matters of unconstitutionality of the 2nd respondent’s actions raised in this petition. The principle of constitutional avoidance is, in the circumstances of this case, exempt by the reason of want of alternative statutory relief procedure, and the High Court must take up its constitutional mandate.
37.Accordingly for the reasons set out above, the Court makes the following Orders:1.The Preliminary Objection on jurisdiction taken by the Respondents and dated 8/5/2023 is declined.2.The 1st Respondent’s Application for stay of the suit dated 8/5/23 is declined.3.The Court directs that the Petition and the Notice of Motion thereunder shall proceed to hearing and determination by this Court sitting as the Constitutional Court under Article 165 (3) (b) and (d) (ii) of the Constitution.4.Pursuant to Rule 20 of the The Constitution of Kenya (protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Legal Notice No. 117 of 28th June, 2013, (Mutunga Rules), the Court directs that the Petitioners’ application dated 3/5/2023 shall heard, on the basis of the urgency shown and certified, and the court being away on official duty this week, by way of written submissions to be filed by the Petitioners on the one hand, and the Respondents and Interested Party on the other hand, starting with the Petitioners, each taking three (3) days, time being of essence.5.The Court shall deliver its ruling on the Petitioner’s application dated 3/5/2023 on the Wednesday, 14th June 2023.
38.Costs in the Cause.Order accordingly.