The Clerk of the National Assembly has urged the court to transfer to Nairobi a petition seeking to include the Ward Development Fund (WDF) in the Constitution (Amendment) Bill.
In his application, the Clerk, through lawyer Joshua Kiilu, told Justice Jairus Ngaah that the petition by a Mombasa Member of County Assembly (MCA) should be heard and determined alongside similar cases challenging the Bill at the Milimani High Court in Nairobi.
The Bill intends to amend the constitution to establish the National Government Constituencies Fund (NG-CDF), Senate Oversight Fund, and National Government Affirmative Action Fund (Ngaaf).
The Clerk argues that the cases are substantially and factually similar, hence the need to have them heard and adjudicated by one court to avoid conflicting decisions over the same and to save on judicial time.
“The matters should be transferred and heard where the respondents’ principal offices are located and for the determination of whether they ought to be consolidated and heard together,” argued the Clerk.
He says that the transfer of the petition to Nairobi, where the respondents’ offices are located and other similar cases are pending hearing and determination, will reduce the risk of different judicial officers reaching conflicting conclusions and judgements based on the same facts.
According to the Clerk, the transfer of the case for hearing alongside other similar cases filed at the High Court in Nairobi will save judicial time and prevent the respondents from having to address multiple pleadings on the same matter and facts in different courts.
“This approach will allow for a more cost-effective and fair determination of the petitions while also protecting the respondents from expensive litigation by ensuring that all cases are heard by the same court,” part of the application states.
On his part, the Speaker of the National Assembly, through lawyer J Arwa, told the court that hearing the case in Nairobi will be convenient to many advocates involved.
“The ends of justice will be served if the petition is transferred to Nairobi,” Mr Arwa told Justice Ngaah on Monday.
The Attorney General supported the submissions by the Speaker and the Clerk to have the petition transferred to Nairobi.
The petitioner, Mr Jackson Madialo, although not present in court on Monday, opposed the application to have the case transferred to Nairobi, arguing that (application was intended to mislead the court and derail the case.
“This petition is a matter of national interest and the respondents in this petition are all public bodies representing all citizens of our country, their reasons for seeking to have the matters exclusively handled in Nairobi defeat the spirit of the constitution,” says Mr Madialo in his affidavit.
Through his lawyer, Lawrence Obonyo, he said that the Clerk had not provided any sufficient legal or administrative ground to support his application.
Mr Madialo argues that his petition is the initial one filed, thus, he does not understand how other matters filed later would seek to take precedence.
“The applicant’s intention is to delay the administration of justice by seeking to transfer this petition from a court that is competent and clothed with jurisdiction,” says Mr Madialo.
In his petition, he says that the proceedings of the National Assembly did not objectively consider the contents of the Bill, which left out the inclusion of WDF, as such, they (proceedings) were mired in misinformation, undue influence, and concealment of all material and relevant issues.
Mr Madialo argues that the core business of MP’s is to enact laws and not to execute development agendas, as the role is to preserve and ought to be under the purview of MCA’s.
“The exclusion of the WDF and, as such, any such proceedings were mired in misinformation, undue influence and concealment of all material and relevant issues,” argues the petitioner.
The MCA also wants the court to certify that the petition raises substantial questions of law and want it referred to the Chief Justice Martha Koome to empanel a bench of uneven number of judges being not less than three, to hear it.
Apart from the Clerk, Speaker, and the Attorney General, Mr Madialo has sued the Cabinet Secretary of National Treasury and Planning and Chairperson of the Justice and Legal Affairs Committee (JLAC).
Justice Ngaah will deliver his ruling on Friday next week on whether the case will be transferred to Nairobi.
