DR. MAGARE GIKENYI J.BENJAMIN AND PAULINE NDUTA KINYANJUI AND 3 Others VS THE CABINET SECRETARY LANDS, PUBLIC WORKS, HOUSING AND URBAN DEVELOPMENT AND THE CABINET SECRETARY,THE NATIONAL TREASURY AND ECONOMIC PLANNING AND 20 Others

1. This Ruling is in respect of the application for adjournment made on behalf of the Attorney General by Prof. Githu Muigai, SC. The application is predicated on a letter dated 1^st August, 2024 under the hand of the Solicitor General by which an indication was given of the intention to apply for adjournment and the reasons therefor. Senior Counsel submitted that there are three grounds or intervening circumstances that necessitate the application for adjournment as follows:
2. Firstly, that the constitution of the Office of the Attorney General of the Republic of Kenya has since been changed through the Gazette Notice dated 12^th July 2024 that rescinded the appointment of the Mr. Justin Muturi, and the subsequent nomination of Ms. Dorcas Oduor, SC for appointment as the new Attorney General. Prof. Muigai submitted that, in view of these changes, it would be prudent that time be given for the new Attorney General to settle in office and to be given an opportunity to review the matter and provide fresh instructions to counsels handling the matter. In his view, it is important that the suit be handled in a manner that aligns with prevailing government policy.
3. Secondly, Prof. Muigai submitted that following the decision of the Court of Appeal dated 31^st July 2024 in Civil Appeal E003 of 2024: The National Assembly and Another v Okiya Omtatah & 56 Others that declared the entirety of the Finance Act 2023/2024 unconstitutional, it is the wish of the respondents to consider the implications of that judgment on the consolidated petitions. He added that they need time as counsel for the respondents to take instructions and advise the various respondents accordingly.
4. Thirdly, Senior Counsel submitted that that some of the petitioners failed to comply with the directions of the Court as to the timelines for filing submissions, which failure hampered the Attorney General. Counsel stated that, as at 31^st July 2024, the 1^st, 2^nd and 3^rd respondents had only been served with three sets of submissions by the petitioners. He therefore submitted that the 1^st, 2^nd and 3^rd respondents ought to be given more time to prepare their responses.
5. It was for those reasons that adjournment was sought on behalf of the Attorney General. The application for adjournment is supported by National Housing Corporation, (the 7^th respondent), Kenya Revenue Authority (the 9^th respondent), the Consumer Federation of Kenya (COFEK), the National Assembly and the Senate (the 1^st and 2^nd respondents, respectively).
6. The application was vehemently opposed by the petitioners, notably the Kenya Human Rights Commission (KHRC, the 40^th petitioner), Katiba Institute (the 41^st petitioner) the Trade Unions Congress of Kenya, Mr. Moses Nthurima, Dr. Magare Gikenyi (the 1^st petitioner), Mr. Peter Okiro (the 42^nd petitioner), Senator Okiya Omtatah and Eliud Matindi (the 30^th petitioner).
7. The Petitioners argued that the office of the Attorney General exists in perpetual succession and therefore the change of the office holder does not create a vacuum. Secondly, it was the firm posturing of the petitioners that the Court of Appeal decision has no impact on this matter since court did not make any finding on the issue of affordable housing levy, which is the issue before this court. Lastly the petitioners submitted that that an adjournment of this matter will occasion great prejudice, not only to the petitioners but also to Kenyans at large who continue to contribute to the impugned housing levy fund.
8. Having considered the rival submissions by the parties, the court is persuaded that the respondents have made out a case to warrant the grant of the adjournment for the following reasons:
9. Late service: the court notes that some of the petitioners served their submissions to the Attorney General late, which has curtained hampered the Attorney General in its preparation of its pleadings and submissions. It is important to note that this court gave strict timelines for compliance on the 11^th July 2024 that every party ought to have filed their pleadings by 2^nd August 2024.  The court notes with great concern that as at today morning some of the parties had not complied; such that service of the submissions was being done while the court was in session.
10. The importance of compliance with the directions of the Court cannot be overemphasized. The Supreme Court was explicit on this in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) and held:

“…With regard to filing and service of documents within the requisite time, the court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the rules or by the court, and affirmed the general constitutional principle that justice shall not be delayed… It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.”

1. There is no gainsaying that submissions are necessary for the expeditious disposal of cases and therefore cannot be trivialized or equated to mere flowers. We say so because Rule 3(6) of the Mutunga Rules obligates parties to assist the court to further the overriding objectives of these rules which in turn facilitate the just and expeditious disposal of cases. Moreover, Rule 20(1) (b) of the Mutunga Rules stipulates that the hearing of petitions shall unless the court otherwise directs be by way of written submissions, among other options.
2. We are equally convinced that, following the decision of the Court of Appeal in Civil Appeal E003 of 2024, there is need to accord parties time to interrogate the import of the said decision and its impact, if any, on the consolidated petitions.
3. As to the absence of a substantive office holder in the office of the Attorney General, the court is in agreement with the petitioners that the Office of the Attorney General is an office with perpetual succession and therefore the absence of a substantive office holder has no bearing on the proceedings before this court or the instructions already given to counsel on record.
4. For the foregoing reasons the court is persuaded that the oral application for adjournment has merit. The same is hereby allowed. Nevertheless, the court takes cognizance of the fact of that this is an urgent public interest matter. For that reason, hearing is hereby set for the 25^th and 26^th of September 2024.

It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5^TH DAY OF AUGUST 2024

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OLGA SEWE

JUDGE

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JOSEPHINE MONG’ARE

JUDGE

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JOHN CHIGITI

JUDGE