99. The Complainant alleges a violation of Article 7, he claims in Nairobi HC Misc
Application No.554 o( 2003, the Court "was holding brief for the [Respondent]
State" in deciding on the merits as opposed to on the plausibility for leave to
review, and further that the Court did not consider his submissions in their ruling.
The Commission has determined in its analysis above, that the Court's ruling was
limited to the Leave for Judicial Review and that the mere definition of the word
"prorogue" as obiter may not be considered a substantive finding on the Merits.
The Commission notes that the finding of the Nairobi High Court in Misc
Application No.554 of 2003 that it did not have jurisdiction to issue either Leave
for review against Parliament38 and or the declarations sought by the Complainant,
39 was reaffirmed by the Nairobi Court of appeal in Civil Application No. NAI. 260
of 2007. The Communication is not persuaded by the.Complainant's contention.
100. It is alleged by the Complainant that the allocation of Judge Bosire to the bench
of Nairobi Court of Appeal Civil Application No. NAI260 of 2007 [UR160 of 2007]
when he had disqualified himself from hearing Nairobi . Court of Appeal Civil
Appeal No.266 of 2008 contravened the rules of Natural justice. The Complainant
does not specify what he means by said disqualification, what its. implications are
or what the legal grounds for it are. Nonetheless, the Commi~sion recalls the
contents of its Fair Trial guidelines which provide.that:
d) The impartialihJ,of a'judicialhody would be undermined"when:
(iv) a judicial official sits as member of an appeal tribunal in a case which he or she decided or
participated in a lower judicial body,
101. The Commission considers that the Complainant has not proven how the act of
"disqualifying" himself rendered Judge Bosire not impartial. The Commission is
also not convinced that Judge Bosjre can be said to have participated in the
proceedings in Appeal 266. It is the view of the Commission that the Complainant
has not pleaded a factual pattern that merits a conclusion on the substance of these
allegations. Accordingly, the Commission does not consider itself to have enough
information to decide on this allegation.
102. Similarly, the Complainant also considers that the allocation of Lady Justice
Njoki Ndungu to preside over Supreme Court Petition of Appeal No.2 of 2012
when she was one of the Nominated MPs appointed by the President subject to
S31 of the Kenyan Constitution was contrary to the rules of natural justice. The
Commission recalls its Fair trial guidelines which provide that: