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"id": 270127,
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"content": "Hon. Members, in respect of the first of these issues which is whether or not a member of the Back Bench can claim that a Question raised by a fellow Member of the Back Bench is sub judice need not detain us, it is clear that the Standing Orders, as adopted by this House, bind and apply in equal measure to all Members of the House. Members are obligated and encouraged to abide by the provisions of the Standing Orders and in so doing, may, where necessary, bring to the attention of the Chair any contravention of the provisions of the Standing Orders. It, therefore, remains open to any Member who takes the view that a matter before the House offends the rule of sub judice to rise and draw the attention of the Chair to the same. It is thus in order for hon. K. Kilonzo to claim sub judice in the matter of Question No.676 and his concern calls for due consideration and response. Hon. Members, the second matter requiring my determination is that of the point at which a claim of sub judice should be made. Concern was raised by several Members that in the present case, the claim of sub judice was made when the substantive Question had previously been answered and when all that remained were clarifications on certain outstanding matters. Hon. Members, while Standing Order 80(2) prevent deliberation by the House of matters that are sub judice, “where the discussion of such matter is likely to prejudice its fair determination”, the Standing Orders do not specify the point at which a Member should rise to claim sub judice. Although it would be expected that the claim of subjudice would be made ahead of any discussion on the matter in issue, there is no bar in the Standing Orders to such a claim being made at any point during the discussion of a matter if the Member takes the view that the ongoing discussion offends the rule of subjudice. Hon. Members, I therefore, find that although the claim made by hon. K. Kilonzo came in the dying stages of the Question when the bulk of the Question had been disposed of, the claim was still within the confines of Standing Order 80 and the concerns of the hon. Member, therefore, require to be addressed before the House proceeds with deliberation on Question No. 676. Hon. Members, the third and final issue is this: whether in the light of the documents laid on the Table of the House by the hon. Member, the matters the subject of Question No. 676 are sub judice. Standing Order 80 which has often been the subject of communications by me, gives guidance on the subject of sub judice. Standing Order 80(1) stipulates that “no Member shall refer to any particular matter which is sub judice or which, by the operation of any written law is secret”. As to which matters are to be considered sub judice, standing order 80(2) provides that “a matter shall be considered sub judice when it refers to active criminal or civil proceedings and the discussion of such matter is likely to prejudice its fair determination”. Hon. Members, Standing Order 80(4) requires a Member who alleges that a matter is sub judice to provide the necessary evidence. On Tuesday, 17th May 2011, the Member for Mutito tabled in this House the following documents- 1. Paper Number 1: An order dated 30th August 2010 issued by the High Court sitting in Nairobi, the parties being Jan Bonde Nielsen versus Herman Philupus Steyn, Hedda Steyn and Ngurumani Limited in which, amongst other orders, an ex-parte interlocutory injunction was issued restraining the defendants their agents, employees and/or nominees from interfering with the plaintiff’s homestead commonly known as Ol Donyo Laro and an inter-parte hearing date set for 13th September 2010; 2. Paper Number 2: A Notice of Motion dated 21st September 2010 filed on behalf of Ngurumani Limited against the Commissioner of Police, the Commandant Administration Police and others, seeking, inter alia, orders of mandamus and prohibition against the respondents; 3. Paper Number 3: A Notice to the Registrar dated 15th September 2010 by Ngurumani Limited that informed the Registrar that Ngurumani Limited intended to file an application for Judicial Review Proceedings for orders of mandamus and prohibition against the Commissioner of Police, the Commandant Administration Police and others. 4. Paper Number 4: Summons to Enter Appearance dated 7th April 2009 issued to Ol Donyo Laro Estate Limited in the matter of Ngurumani Limited versus Ol Donyo Laro Estate Limited; 5. Paper Number 5: An Application dated 14th May 2009 brought under certificate of urgency by Ngurumani Limited against Kenya Civil Aviation Authority and another seeking leave to bring a judicial review application for orders of certiorari and prohibition against the defendants; 6. Paper Number 6: An Amended defence and counter-claim filed on 20th May 2010 by Ngurumani Limited in the matter between Ol Donyo Laro Limited and Ngurumani Limited; and 7. Paper Number 7: An Application dated 16th September 2010 brought under certificate of urgency by Ngurumani Limited for leave to apply for judicial review orders of mandamus and prohibition against the Commissioner of Police, the Commandant Administration Police and others. Thereafter, at my request, the hon. Member for Mutito submitted to my office a compendium of further documentation, including some of the documents that the hon. Member had earlier tabled in the House on 17th May 2011. The bundle of documents includes a charge sheet, not previously tabled by the Member, the complainant being Peter Jan Bonde and the accused being Philip Styne. The subject of the charge is assault causing actual and bodily harm contrary to Section 251 of the Penal Code. According to the charge sheet, the accused was to appear before the Chief Magistrate’s Court in Kibera on 31st August 2010. Hon. Members, I have carefully studied the seven documents tabled by hon. K. Kilonzo and the compendium of documents subsequently presented to me by him. These documents bear witness to the hon. Member’s claim that several court matters relating to the property known as Narok/Ngurumani/Komorora/1 have indeed been filed. In fact, the documents indicate there have been matters in Nairobi and Nakuru. Further, the first document tabled by the Member indicates that at an ex-parte hearing held on 30th August, 2010 in the High Court sitting in Nairobi, an interlocutory injunction was issued and an inter partes hearing set for 13th September, 2010. Although the documents submitted by the hon. Member indicates that there have existed civil proceedings in respect of the property known as Narok/Ngurumani/Koromora/1, Standing Order No.80(2) as read together with Standing Order No.80(4), place the onus on the Member claiming sub judice to provide evidence to show that the proceedings are active. Under Standing Order No.80(3)(a) and (b), criminal proceedings shall be deemed to be active when a charge has been made or summons to appear have been issued and shall be deemed to have ceased to be active when they are concluded by verdict and sentence or discontinuance. Under Standing Order No.80 (3)(c), civil proceedings would be considered active when arrangements have been made for hearing, such as setting down a case for trial until the proceedings are ended by judgement or discontinuance. Honourable Members, in the present matter, with respect to all the civil matters cited, I do not find that the Member has met the requirements of Standing Order No.80(2), (3)(c) and (4). There is no indication from the documents tabled by the hon. Member on the present status of the court matters to which the documents refer. The following pertinent questions remain to me unanswered:- (i) Did the applications referred to ever proceed to full hearing? (ii) Are the applications presently or at all listed for hearing? (iii) Were the interlocutory orders issued by the High Court on 30th August, 2010 extended? (iv) Has judgment been issued in any of the matters? Have the applications been withdrawn? Concerning the criminal matter, there is similarly no indication of the present position on the case from the documents on record. Did the case proceed to Court? Has the matter been concluded? Were the charges withdrawn? What sentence was meted out, if any? I, therefore, find that in respect of the criminal case, the Member has not met the requirements of Standing Order 80(2), (3) (a) and (b) and (4). Honourable Members, in the circumstances, bearing in mind the considerable length of time that has elapsed without the Speaker being furnished with the requisite evidence in terms of our rules, the claim by Mr. K. Kilonzo that the matters, the subject of Question No. 676, are sub judice does not meet the threshold of the Standing Orders. I, therefore, rule that Question No. 676 be fully answered. To this end, I direct that the Question be listed in the Order Paper for disposal at the earliest opportunity that Order No. 6 permits. I thank you."
}