REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CONSTITUTIONAL PETITION NO. 30 OF 2019 IN THE MATTER OF: THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF: THE EMPLOYMENT ACT, 2007 AND IN THE MATTER OF: FAIR ADMINISTRATIVE ACTION ACT AND IN THE MATTER OF: THE PETITIONERS’ ACADEMIC PAPERS ISSUED BY THE KENYA NATIONAL EXAMINATION COUNCIL; KENYA METHODIST UNIVERSITY AND KENYA INSTITUTE OF STUDIES IN CRIMINAL JUSTICE AND IN THE MATTER OF: ALLEGED VIOLATION AND INFRINGEMENT OF THE RIGHTS AND FREEDOMS IN ARTICLES 2(4), 3, 10, 19(1) & (2), 20(1) & (2), 21, 22, 23, 27, 28, 29(f), 25, 47, 48, & 50(1) & (2), 159, 258(1) & 259(1) OF THE CONSTITUTION OF KENYA -BETWEENABDI MOHAMED DAIB......................................................................................................PETITIONER -VERSUSKENYA PORTS AUTHORITY..........................................................................................RESPONDENT KENYA NATIONAL EXAMINATION COUNCIL.....................................1 ST INTERESTED PARTY KENYA INSTITUTE OF STUDIES IN CRIMINAL JUSTICE.................2ND INTERESTED PARTY KENYA METHODIST UNIVERSITY..........................................................3 RD INTERESTED PARTY ETHICS AND ANTI-CORRUPTION COMMISSION...............................4TH INTERESTED PARTY RULING 1. Granted that this litigation is by way of a constitutional petition, it should never be deemed to negate on the norms of what would pass as
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fair court process. 2. By rules, the evidence to be used in a petition is availed by Affidavits and Rule 20 only gives room to court to call a witness it forms the opinion could assist it. That leeway is to the court not to the parties to call at any time any witness from anywhere and without the courtesy to swear an Affidavit and serve the other parties. 3. On that basis, I do consider the position and complaint by Mr. Omondi to be a valid one that to avoid ambush, what Mr. Oscah Otieno is intended to tell the court need be availed to the opposing side in advance. 4. I also consider it a desirable practice that even in constitutional petitions a case conference needs to be undertaken so that directions anticipated under Rule 20(i) may be given on how to handle the petition. It appears that was not done here hence by the time the file landed on my desk it was not obvious how the matter would proceed. 5. On those two grounds and the additional fact that I am due to proceed on transfer not later than the 01/11/2020, I do adjourn the matter and stand it over to the 11/11/2020 for directions by the trial court in terms of Rule 20. 6. Between now and then, let every counsel who would wish to call a witness who has not filed any affidavit file Affidavits by such a witness and serve the other side. 7. Costs in the cause. Dated, signed and delivered at Mombasa this 22nd day of September 2020 P.J.O. OTIENO JUDGE
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