Opiyo v Scrutineer & 8 others (Constitutional Petition 126 of 2019) [2023] KEHC 2820 (KLR) (Constitutional and Human Rights) (30 March 2023) (Ruling) Neutral citation: [2023] KEHC 2820 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CONSTITUTIONAL AND HUMAN RIGHTS CONSTITUTIONAL PETITION 126 OF 2019 HI ONG'UDI, J MARCH 30, 2023 BETWEEN GAD OMONDI OPIYO ......................................................................... PETITIONER AND PETER KIBINDA, SCRUTINEER ............................................... 1ST RESPONDENT ROBERT KARIUKI, SCRUTINEER…………....……..…….2ND RESPONDENT JULIUS KIBWAGE, SCRUTINEER ............................................ 2ND RESPONDENT JULIUS KIBWAGE SCRUTINEER ............................................. 3RD RESPONDENT EMMA MILOYO , THE PRESIDENT OF THE ARCHITECTURAL ASSOCIATION OF KENYA ......................................................... 4TH RESPONDENT JACOB MWANGI, THE CEO OF THE ARCHITECTURAL ASSOCIATION OF KENYA ............................................................................................ 5TH RESPONDENT INFOTRACK RESEARCH AND CONSULTING LIMITED ... 6TH RESPONDENT CREATIVE DIGITAL LAB LIMITED ......................................... 7TH RESPONDENT MUGURE NJENDU ...................................................................... 8TH RESPONDENT ARCHITECTURAL ASSOCIATION OF KENYA (AAK) ........ 9TH RESPONDENT RULING 1. A perusal of the record reveals that the Petition dated March 28, 2019 was filed on the same date. The respondents by then were eight (8) in number. The 9th respondent filed an application dated April https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/2820/eng@2023-03-30 1
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15, 2019 seeking enjoinment as a respondent. It was enjoined as the 9th respondent vide the ruling by Makau J dated October 24, 2019. 2. The Court was again moved by the 9th respondent vide an application dated October 30, 2019 seeking orders that: i. That the proceedings herein be stayed pending arbitration. ii. That the dispute between the parties be referred to arbitration. 3. In the meantime the contested election proceeded as the Court did not issue any restraining orders against the respondents. 4. Vide its ruling dated November 5, 2020 Makau J stayed all the proceedings herein pending the arbitration that the Court had referred the parties to. 5. It is not disputed that the arbitration did not take place. The Court has also been informed that since the election that was being contested proceeded, the petition has been overtaken by events. 6. Considering all these facts, it would not be just to condemn any party to pay costs. The 9th respondent was never sued by the petitioner. It applied to be enjoined and was allowed. I have noted that the proceedings herein were stayed because of the referral to arbitration which is encouraged by our own Constitution. The referral to arbitration had again been successfully sought for by the 9th respondent. 7. In all fairness I find that an order for costs to be paid to the 9th respondent by the petitioner would not be fair. Following the petitioner’s request to withdraw the petition I make the following orders: i. The Petition dated March 28, 2019 is hereby withdrawn. ii. Each party to bear their own costs. iii. File closed. Orders accordingly. DELIVERED VIRTUALLY, DATED AND SIGNED THIS 30TH DAY OF MARCH, 2023 IN OPEN COURT AT MILIMANI, NAIROBI. H. I. ONG’UDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/2820/eng@2023-03-30 2
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