Obure v Attorney General (Petition E357 of 2021) [2022] KEHC 11092 (KLR) (Constitutional and Human Rights) (31 May 2022) (Ruling)
Neutral citation:
[2022] KEHC 11092 (KLR)
Republic of Kenya
Petition E357 of 2021
HI Ong'udi, J
May 31, 2022
In the matter of section 84 of constitution
in the matter of articles 28, 29, 30, 31, 39, 43, 47, 48,
49, 50, and 51 of constitution of Kenya 2010.
In the matter of the alleged contravention of
fundamental rights and freedoms under section
70, 72(1) & (2), 74, 76, 77 and 84 of the constitution
of Kenya rule 9 of the constitution of Kenya
(protection of fundamental rights and freedoms
of the individual) high court practice and
procedure rules, 2006
in the matter of the constitution of Kenya
(protection fo rights and fundamental freedoms)
practice and procedure rules, 2013
Between
Henry Onyango Obure
Petitioner
and
Attorney General
Respondent
Ruling
1.The petitioner filed the Petition dated 10th August 2021. The same is supported by his sworn affidavit of even date. The same is premised on Articles 70, 72(1) & (2), 74, 76, 77 & 84 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006.
2.He thus seeks the following orders:-
3.This Ruling is in respect of a preliminary objection dated 31st January 2022 filed alongside the respondent’s replying affidavit. The said preliminary objection is based on the following grounds:-
4.The Petitioner did not file any response to the said preliminary objection.
5.Parties filed and exchanged written submissions. The respondent’s submissions are dated 17th February, 2022 and field by W. W. Kimotho special state counsel for the Attorney General.
6.Counsel for the respondent submits that the petitioner has not explained the delay of over 38 years in filing the petition. He has referred to the saying that “Equity aids the vigilant and not those who slumber on their rights.” In support of this he referred to the case of Abigael Barma v. Mwangi Theuri ELC No. 393 of 2013 [2013] eKLR. Its counsel’s contention that the petitioner’s indolence violates Article 50 of the Constitution on which he relies.
7.Counsel argues that the delay has exposed the respondent to contemplated hardships such as:-
8.He referred to the following cases where the issue of unexplained delays was dealt with:-
9.In Civil Appeal No. 268 of 2016, Wellington Nzioka Kioko v. Attorney General [2018] eKLR arising from the judgment of Mumbi Ngugi J (as she then was) delivered on 18th November 2015 from a constitutional claim filed on 29th October 2013, Alnashir Visram, W. Karanja, & M. K. Koome JJA, stated as follows on the issue of non-explained delay:-
10.The petitioner in his submissions dated 24th February 2022 & filed by Shehi Kipkorir & Yusuf advocates argues that the constitution has not set a time limit within which applications for enforcement of fundamental rights should be brought. Counsel relied on the case of Wellignton Nzioka Kioko v. Attorney General (supra) where it was held:-
Analysis and determination
11.Having considered the preliminary objection, the rival submissions and the law I find the issue for determination to be whether the delay in filing the petition was explained and whether the explanation was reasonable. The incident giving rise to the claims by the petitioner occurred on 1st August 1982. This petition was filed on 12th September 2021 i.e. (39 years after the incident).
12.A preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) E.A. 696 where the court stated:-
13.The Court went further to note that:-Also see oraro vs. Mbaja [2005] 1 KLR
14.It is undisputed that the constitution has not set any time limits for filing of petitions seeking enforcement of constitutional rights. Does this then mean such claims can be filed any time irrespective of the delays? The answer is No, and that is the reason why courts have called on parties to give an explanation for the delay for the court’s consideration. Even in cases where time limits have been set once there is a reasonable explanation the court may allow a party to file late proceedings.
15.In this particular case the petitioner has not given any explanation for the delay of 39 years. He never filed any response to the preliminary objection. Even in his submissions he has given no such explanation. All he says is that there is no time limit for filing of such petitions. There is more to that as can be seen from the authorities cited including the one cited by him, being Wellington Nzioka Kioko vs. Attorney General (supra). Counsel for the respondent has outlined his predicament if the suit were to proceed.
16.It is true Article 50 of the Constitution speaks to fair hearing. Fair hearing does not only refer to the Petitioner. It encompasses the respondent also. The court has to ensure fair hearing to both parties (petitioner and respondent).
17.After consideration of all these I find that the delay by the petitioner in filing his claim was too long and required an explanation which he has not offered, to date. Guided by the Court of Appeal holding in the Wellignton Nzioka case (supra) I find that the unexplained delay herein is sufficient ground for this court to dismiss this case. I strike out the petition and dismiss it with costs.Orders accordingly.
DELIVERED VIRTUALLY, SIGNED AND DATED THIS 31ST DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT