' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E548 OF 2025
PUMWANI RIADHA MOSQUE REGISTERED TRUSTEES…1 ST PETITIONER
AHMED SHEIKH OMAR ……………………………………2 ND PETITIONER
YUSF ABDULRAHMAN NZIBO……………………………3 RD PETITIONER
HASSAN ATHMAN HASSAN ………………………………4 TH PETITIONER
ATHMAN KAHELA MUPE………………………………….5 TH PETITIONER
IBRAHIM SAMUEL NJUGUNA ……………………………6 TH PETITIONER
ALI MUHSIN ………………………………………………..7 TH PETITIONER
OMAR AHMED SHEIKH …………………………………..8 TH PETITIONER
ZAKARIYA ABDALLAH BILAL……………………………9 TH PETITIONER
VERSUS
JUSTICE ALFRED MABEYA ……………………………….1 ST RESPONDENT
JUSTICE JOSEPHINE WAYUA
WAMBUA MONGARE ……………………………………2 ND RESPONDENT
ATTORNEY GENERAL…………………………………….3 RD RESPONDENT
GIKOMBA BUSINESS CENTRE LIMITED………………..4 TH RESPONDENT
RULING
I have read the application dated 26/8/2025, the supporting affidavit as well as the responses thereto. The application seeks an order certifying the petition as raising a substantial question of law and therefore is one that should be forwarded to the Honourable the Chief Justice for purposes of appointing a Bench of uneven number of judges to hear the petition.
The application is opposed by the 2 nd respondent and 4 th respondents. The 1 st and 3 rd respondents do not oppose the application. Parties have filed written submissions which the court has read and considered. Mr. Havi learned counsel for the petitioners has highlighted the petitioner’s submissions and urged the court to grant the application for purposes of empanelment.
Mr. Sagano and Mr Mbatai, learned counsel for the 2 nd and 4 th respondents have also highlighted submissions and urged the court to dismiss the application.
I have considered the respective parties’ arguments and the decisions relied on. The petitioners’ argument is that the petition raises substantial questions of law and should therefore be certified for purposes of empaneling a bench to hear it. Counsel has relied on several decisions to support the petitioners’ position.
Learned counsel for the 2 nd and 4 th respondents have also relied on several decisions to argue that the issue is no longer novel and the court should not certify the petition as raising a substantial question of law. The main decision to be relied on is that of Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR)
This court has considered the arguments by counsel for the parties. Article 165(4) of the Constitution provides that any matter certified as raising a substantial question of law under Article 165(3) (b) or (d) shall be hard by an uneven number of judges being not less than three, assigned by the Chief Justice.
The Constitution does not define what amounts to a substantial question of law. This has however been clarified in several decisions which parties relied on. The issue must however be touching on violations of rights and fundamental freedoms or interpretation of the constitution including whether a law is inconsistent with the constitution or whether anything said to have been done under the authority of the Constitution and any law is inconsistent with, or in contravention of, the constitution.
The issue raised by the petitioners relates to alleged violation of their rights and fundamental freedoms which falls within the category of matters that Article 165(4) speaks to.
The issue here is on what a litigant who alleges to have suffered in the hands of a judge exercising his jurisdiction should do. This requires both interpretation of the Constitution as well as determination whether the action amounts to a violation of rights and fundamental freedoms.
Both sides have referred to the Supreme Court decision in the Bellevue case. Whereas the petitioners’ counsel has argued that the facts in that case are distinguishable from those in the petition, the 1 st and 4 th respondents’ counsel argue that the issue has been settled and therefore there is no reason to certify the petition as raising substantial question of law.
I must state at this point that the court is not determining whether the issue was determined in the Bellevue case. That determination can only be made by the trial court. This court is only required to look at the matter and satisfy itself that the issue raised is substantial thus, requiring certification. I must also point out that the value of jurisprudence in a bench of a single judge and one presided over by more judges remains the same.
This court has been made aware of another matter which has already been certified as raising a substantial question of law and forwarded to the Hon. Chief Justice to empanel a bench. Although this court can easily resolve the issues raised in the petition, it is proper to ensure that whatever the outcome, there is no disparity in decisions so that the bench or this court does not arrive at a different decision thereby avoiding contradicting decisions.
In the circumstances, the application is allowed. This court hereby certifies that the petition raises substantial questions of law for purposes of empaneling an uneven bench to hear the petition.
Consequently, this petition is hereby forwarded to the Honourable Chief Justice to consider empaneling an uneven bench of not less than three judges to hear the petition. The Deputy Registrar to transmit this file to the Hon. Chief Justice without delay.
No orders as to costs.
Dated and delivered at Nairobi this 13 th day of October, 2025
E.C MWITA
JUDGE
'
IN THE HIGH COURT OF KENYA AT MILIMANI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E548 OF 2025
PUMWANI RIADHA MOSQUE REGISTERED TRUSTEES…1 ST PETITIONER
AHMED SHEIKH OMAR ……………………………………2 ND PETITIONER
YUSF ABDULRAHMAN NZIBO……………………………3 RD PETITIONER
HASSAN ATHMAN HASSAN ………………………………4 TH PETITIONER
ATHMAN KAHELA MUPE………………………………….5 TH PETITIONER
IBRAHIM SAMUEL NJUGUNA ……………………………6 TH PETITIONER
ALI MUHSIN ………………………………………………..7 TH PETITIONER
OMAR AHMED SHEIKH …………………………………..8 TH PETITIONER
ZAKARIYA ABDALLAH BILAL……………………………9 TH PETITIONER
VERSUS
JUSTICE ALFRED MABEYA ……………………………….1 ST RESPONDENT
JUSTICE JOSEPHINE WAYUA
WAMBUA MONGARE ……………………………………2 ND RESPONDENT
ATTORNEY GENERAL…………………………………….3 RD RESPONDENT
GIKOMBA BUSINESS CENTRE LIMITED………………..4 TH RESPONDENT
RULING
I have read the application dated 26/8/2025, the supporting affidavit as well as the responses thereto. The application seeks an order certifying the petition as raising a substantial question of law and therefore is one that should be forwarded to the Honourable the Chief Justice for purposes of appointing a Bench of uneven number of judges to hear the petition.
The application is opposed by the 2 nd respondent and 4 th respondents. The 1 st and 3 rd respondents do not oppose the application. Parties have filed written submissions which the court has read and considered. Mr. Havi learned counsel for the petitioners has highlighted the petitioner’s submissions and urged the court to grant the application for purposes of empanelment.
Mr. Sagano and Mr Mbatai, learned counsel for the 2 nd and 4 th respondents have also highlighted submissions and urged the court to dismiss the application.
I have considered the respective parties’ arguments and the decisions relied on. The petitioners’ argument is that the petition raises substantial questions of law and should therefore be certified for purposes of empaneling a bench to hear it. Counsel has relied on several decisions to support the petitioners’ position.
Learned counsel for the 2 nd and 4 th respondents have also relied on several decisions to argue that the issue is no longer novel and the court should not certify the petition as raising a substantial question of law. The main decision to be relied on is that of Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR)
This court has considered the arguments by counsel for the parties. Article 165(4) of the Constitution provides that any matter certified as raising a substantial question of law under Article 165(3) (b) or (d) shall be hard by an uneven number of judges being not less than three, assigned by the Chief Justice.
The Constitution does not define what amounts to a substantial question of law. This has however been clarified in several decisions which parties relied on. The issue must however be touching on violations of rights and fundamental freedoms or interpretation of the constitution including whether a law is inconsistent with the constitution or whether anything said to have been done under the authority of the Constitution and any law is inconsistent with, or in contravention of, the constitution.
The issue raised by the petitioners relates to alleged violation of their rights and fundamental freedoms which falls within the category of matters that Article 165(4) speaks to.
The issue here is on what a litigant who alleges to have suffered in the hands of a judge exercising his jurisdiction should do. This requires both interpretation of the Constitution as well as determination whether the action amounts to a violation of rights and fundamental freedoms.
Both sides have referred to the Supreme Court decision in the Bellevue case. Whereas the petitioners’ counsel has argued that the facts in that case are distinguishable from those in the petition, the 1 st and 4 th respondents’ counsel argue that the issue has been settled and therefore there is no reason to certify the petition as raising substantial question of law.
I must state at this point that the court is not determining whether the issue was determined in the Bellevue case. That determination can only be made by the trial court. This court is only required to look at the matter and satisfy itself that the issue raised is substantial thus, requiring certification. I must also point out that the value of jurisprudence in a bench of a single judge and one presided over by more judges remains the same.
This court has been made aware of another matter which has already been certified as raising a substantial question of law and forwarded to the Hon. Chief Justice to empanel a bench. Although this court can easily resolve the issues raised in the petition, it is proper to ensure that whatever the outcome, there is no disparity in decisions so that the bench or this court does not arrive at a different decision thereby avoiding contradicting decisions.
In the circumstances, the application is allowed. This court hereby certifies that the petition raises substantial questions of law for purposes of empaneling an uneven bench to hear the petition.
Consequently, this petition is hereby forwarded to the Honourable Chief Justice to consider empaneling an uneven bench of not less than three judges to hear the petition. The Deputy Registrar to transmit this file to the Hon. Chief Justice without delay.
No orders as to costs.
Dated and delivered at Nairobi this 13 th day of October, 2025
E.C MWITA
JUDGE
'