The subject matter of this ruling is the Motion dated 28th May, 2025 where of the Petitioner/Applicant sought for the following Orders:-
SPENT
This Honourable Court be pleased to certify that the application herein raises substantial questions of law and refer the petition to her Ladyship Chief Justice for appointment of an uneven number of Judges being not less than three (3) pursuant to Article 165 (4) of the Constitution.
That this Honourable Court be pleased to suspend hearing of application dated 22nd May, 2025 slated for 30th day of May, 2025 pending the empanelment of the bench of Judges by the Honourable Lady Chief Justice.
Costs of this Application be provided.
The Applicant filed an Affidavit he swore in support of the Motion. The Respondent did not oppose the application.
The Applicant raised and argued the following grounds in support of the application:-
First, it’s the submission of the Petitioner that the Petition raises weighty and complex constitutional questions concerning the extent or limit to which the Respondents can utilize public funds at the expense of the residents’ right to sustainable health services.
Secondly, it is also argued that the Petition raises complex issues of law on whether the constitutional rights of the residents of Kericho County are superior to the rights of County Staff being provided with a private medical cover.
Thirdly, the applicant further argued that the Petition raises serious questions of law on the extent in which social health insurance policy provide cover to all citizens and whether the County Staff/employees deserve any private medical covers other than the Social Health Insurance Policy (SHA).
Fourthly, the Petitioner also argued that his Petition raises novel issues which have not been decided by any Superior Court as to constitute grave violation of Kericho County Residents’ Constitutional Rights under Article 43 of the Constitution.
Fiftly, it is also argued that the Petition raises complex and substantial issues of law that requires the employment of a bench of more than 3 Judges to hear the Petition and render Judgment thereon.
I have considered the grounds stated on the face of the motion plus the facts deponed in the Supporting Affidavit. I have also taken into account the oral arguments put forward by Learned Counsels appearing in this Petition. Article 165 (4) of the Constitution of Kenya expressly states that any matter certified by the Court as raising a substantial question of law under clause 3 (b) or (d) shall be heard by an even number of Judges being not less than three assigned by the Chief Justice.
I have carefully and keenly considered the grounds put forward by the Petitioner together with the Oral arguments and it is clear in my mind that the constitutional issues and questions raised in the Petition are not being raised for the first time before this court. Those questions have previously been raised and argued before this Court sitting as a single bench as well as before
uneven bench of Judges.
The Judges have expressed themselves in their decisions over such issues and questions which by then appeared weighty substantial and complex. A quick search at Kenya Law website will reveal that there are a plethora of decisions made on the issues raised which are similar to those raised in the instant petition.
In the end, I find that the instant petition can be heard and determined by a single Judge of this Court.
I find no merit in the application for the empanelment of uneven number of Judges. I decline the request to send the instant file to the Honourable Chief Justice to empanel a bench of Judges.
Delivered, signed and dated at Kericho this 30th day of May, 2025
J.K. SERGON
JUDGE
In the presence of:-
C/Assistant – Rutoh
Miss Gichana holding brief for Wachira for the Applicant
Langat & Chepkorir for the Respondent/Petitioner
SPENT
This Honourable Court be pleased to certify that the application herein raises substantial questions of law and refer the petition to her Ladyship Chief Justice for appointment of an uneven number of Judges being not less than three (3) pursuant to Article 165 (4) of the Constitution.
That this Honourable Court be pleased to suspend hearing of application dated 22nd May, 2025 slated for 30th day of May, 2025 pending the empanelment of the bench of Judges by the Honourable Lady Chief Justice.
Costs of this Application be provided.
The Applicant filed an Affidavit he swore in support of the Motion. The Respondent did not oppose the application.
The Applicant raised and argued the following grounds in support of the application:-
First, it’s the submission of the Petitioner that the Petition raises weighty and complex constitutional questions concerning the extent or limit to which the Respondents can utilize public funds at the expense of the residents’ right to sustainable health services.
Secondly, it is also argued that the Petition raises complex issues of law on whether the constitutional rights of the residents of Kericho County are superior to the rights of County Staff being provided with a private medical cover.
Thirdly, the applicant further argued that the Petition raises serious questions of law on the extent in which social health insurance policy provide cover to all citizens and whether the County Staff/employees deserve any private medical covers other than the Social Health Insurance Policy (SHA).
Fourthly, the Petitioner also argued that his Petition raises novel issues which have not been decided by any Superior Court as to constitute grave violation of Kericho County Residents’ Constitutional Rights under Article 43 of the Constitution.
Fiftly, it is also argued that the Petition raises complex and substantial issues of law that requires the employment of a bench of more than 3 Judges to hear the Petition and render Judgment thereon.
I have considered the grounds stated on the face of the motion plus the facts deponed in the Supporting Affidavit. I have also taken into account the oral arguments put forward by Learned Counsels appearing in this Petition. Article 165 (4) of the Constitution of Kenya expressly states that any matter certified by the Court as raising a substantial question of law under clause 3 (b) or (d) shall be heard by an even number of Judges being not less than three assigned by the Chief Justice.
I have carefully and keenly considered the grounds put forward by the Petitioner together with the Oral arguments and it is clear in my mind that the constitutional issues and questions raised in the Petition are not being raised for the first time before this court. Those questions have previously been raised and argued before this Court sitting as a single bench as well as before
uneven bench of Judges.
The Judges have expressed themselves in their decisions over such issues and questions which by then appeared weighty substantial and complex. A quick search at Kenya Law website will reveal that there are a plethora of decisions made on the issues raised which are similar to those raised in the instant petition.
In the end, I find that the instant petition can be heard and determined by a single Judge of this Court.
I find no merit in the application for the empanelment of uneven number of Judges. I decline the request to send the instant file to the Honourable Chief Justice to empanel a bench of Judges.
Delivered, signed and dated at Kericho this 30th day of May, 2025
J.K. SERGON
JUDGE
In the presence of:-
C/Assistant – Rutoh
Miss Gichana holding brief for Wachira for the Applicant
Langat & Chepkorir for the Respondent/Petitioner