- Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 states as follows:" (27(1)(a) - The Petitioner may on notice to the Court and to the Respondent, apply to withdraw the Petition."
- It is clear from Rule 27(1)(a) that this is an application to the Court, and not an automatic action that is self-executing.
- This is buttressed at sub-rule (2), which reads " The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision."
- Sub-rule (3) settles the question of judicial control of withdrawal or discontinuation of constitutional litigation proceedings by stating, " (27(3)) - Despite sub rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a case petition [sic] in spite of the wish of the petitioner to withdraw or discontinue the proceedings."
- It is clear to my mind today, as it was on 06/03/2025, that this Petition raises issues that are heavily contested and which affect numerous interests. The record of the court in terms of filings shows a contestation as to representation of the Petitioner and instructions. I find that in the circumstances it is not judicially safe to proceed to accept a withdrawal which, firstly, has been disavowed by the Petitioner, and which also secondly raises eyebrows as to whether it was freely given and whether the law firm that filed it did so under the instructions of the Petitioner.
- A Petition belongs to the Petitioner in one sense, and to the wider Public in another. This is the reasoning behind Rule 27(3) and its empowerment of the Court to reject a withdrawal or discontinuation application by a Petitioner. Once a constitutional question has been raised, it should not be so easily left unanswered particularly in a fog contestations and accusations on the conduct of parties and/or counsel. I conclude this point by asserting clearly that a withdrawal of a petition by a law firm against the instructions of a Petitioner or without the Petitioner's knowledge and consent cannot be and is not proper.
- In the circumstances, and for the reasons recorded above, I decline the withdrawal of this Petition pursuant to the Notice of Withdrawal filed, which in any case has been disavowed by the Petitioner.
- Directions on joinder to follow separately.
Delivered in Court on 26/03/2025 in the Presence of:
- Prof. Tom Ojienda SC & Ms. Awuor - for the 4th Respondent
- Mr. Kipkorir h/b Mr. Kiplangat - for the Petitioner
- Mr. Kaumba - for the 1st and 5th Respondents
- Ms. Mwaura - for the 2nd Respondent
- Ms. Omuom - for the 3rd Respondent
- Mr. Kimiti - for the Intended 2nd Petitioner
- Ms. Neema - Court Assistant