REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS PETITION JR NO. 166 OF 2010 IN THE MATTER OF SECTION 84(1) AND 84(2) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTION 3 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 79(1), 79(2) AND SECTION 78(1) OF THE CONSTITUTIONAL REVIEW ACT 2008 AND IN THE MATTER OF SECTION 37(3) OF THE CONSTITUTIONAL REVIEW ACT 2008 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF RIGHTS AND FREEDOMS OF INDIVIDUALS) HIGH COURT PRACTICE AND PROCEDURE RULES 2006 RULES 11, 12, 13, 14 AND 32
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AND IN THE MATTER OF THE PETITIONERS KAMAU CHEGE DANIEL AND COSMUS KIPKEMOI NG’ENO KOECH BETWEEN KAMAU CHEGE DANIEL........................................................................................................1ST PETITIONER COSMUS KIPKEMOI NGENO KOECH................................................................................2ND PETITIONER AND THE HON. ATTORNEY GENERAL.....................................................................................1ST RESPONDENT THE INTERIM INDEPENDENT ELECTORAL COMMISSION........................................2ND RESPONDENT THE COMMITTEE OF EXPERTS.....................................................................................3RD RESPONDENT RULING 1. The Petition filed herein seeks the following prayers, inter-alia, i. THAT Section 37(3) of the Constitution Review Act, 2008 be declared null and void to the extent that it limits the options and or alternatives available to a voter to vote yes or no hence constitutes an infringement on the freedom of expression and or opinion or thought. 2. The Constitution Review Act, 2008 provided a framework for the review of the former Constitution leading up to the adoption, by referendum and promulgation of the Constitution of Kenya, 2010. 3. Article 2(3) of the Constitution of Kenya, 2010 provides that, “the validity or legality of this Constitution is not subject to challenge by or before any court or other state organ”. In my view, to proceed with this matter is to mount a collateral challenge on the validity of the Constitution, a matter which is prohibited by Article 2(3). 4. Further, the Constitution Review Act, 2008, is now exhausted and nothing further can be gained from proceeding with this matter. I, of course, sympathise with the Petitioners who could not be heard urgently on their matter despite having the matter certified as urgent in April 2010. I must dismiss this matter and it is hereby dismissed with no order as to costs. DATED at NAIROBI this 21st day of October, 2011. D.S. MAJANJA JUDGE
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21.10.2011 Coram: Majanja J Nazi Court clerk Mr. K. Muhoro for the Respondent Order:- Ruling read n open court. D.S. MAJANJA JUDGE
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