Thread by @lawyershubkenya

Back in Court for the #hudumanamba and #NIIMS petition. The court will be hearing further submissions following the enactment of the Data Protection Act.
@OmidyarNetwork @NubianRights @Haki_na_Sheria

The hearing has began. The advocates are now entering apperance.
The court will be hearing submissions for two petitions.

Pet56,58&59 of 2019 ( #huduma case)
Pet 163 Okiya Omtatah v AG

The case was set for judgement today but there had been two developments:
1. The passing of the Data protection Act which dealt with matters in the petition

The judges had 2 options as per s60 of the evidence Act:
Take judicial notice of the passing of the Act or
Give parties an opportunity to make any comments or submissions on the Act.

The court has decides to give parties an opportunity to make submissions.
SC @MarthaKarua However seeks to know if this is a decision by the Court on its own motion or following a letter written by the 5th Respondent.

SC @MarthaKarua Seeks to know if it is proper for a party to write to the court unilaterally without informing (cc) other parties.

The party says he forgot to cc the parties.

Mr. Mwendwa however says the letter to the court was in offering assistance to the court but he wpuld be happy to let the court take judicial notice of the passing of the Act.

Mr. Mwendwa further draws the court's attention to petition 454 of 2019 by Okiya Omtatah which challenges the constitutionality of the Data Protection Act

Counsel for the respondent says Mr. Mwendwa was right in writing to the court as he exercised his duties to inform the court of matters materially affecting the petition.

Counsel further says the only misgiving by Mr. Mwendwa was in not informing other parties.
However the court has taken judicial notice of the passing of the Act.

Counsel may wish that the court takes judicial notice of the Act.

This is because they are already bound by the #DPA
Further petition 454 which challenges the constitutionality of the Data Protection Act is ongoing.
Any submissions on the DPA should be limites to that petition

Other counsels for the respondents agree that they do not wish to make submissions on the Data Protectiom Act
They urge the court to take judicial notice of the passing of the Act and proceed with judgement.

SC @MarthaKarua Reitarates that they have no problem with the court proceeding on S60 of the evidence Act and taking judicial notice of the passing of the Act.
She however questions the conduct of Mr.mwendwa in communicating with the court unilaterally.

She states that this was behaviour of yesterday of entitlement and which suggests they are more equal others.

SC says the petitioners had said to the court that they were no adequate data protection laws as there was a #Dataprotectionbill pending.

However the respondents always said they had an adequate data protection regime.

This is why the petitioners don't understand why Mr.Mwendwa had to unilaterally right to the court.

Counsel @waikwawanyoike Says the DPA can't apply retrospectively.

He echo's SC sentiments that the conduct by MR. Mwendwa reitarates the treatment of the petitioners

Counsel Bashir agrees with @waikwawanyoike And @MarthaKarua. He raises the issue of historic discrimination to the first petitioner, Nubian Rights.

Counsel Bashir says the respondents have collected wide range of data and have not informed the court what they have done with it or how the Act applies to that data.

Counsel Bashir says: How the Data protection Act cures the infirmities of the process of amendment of the Registration of Persons Act has not been addressed

Counsel Bashir urges the court to take judicial notice of the Act save his submissions on its applicability.

@mbenekam Agrees with SC @MarthaKarua @waikwawanyoike And @yussufugas.
She says this petition is one of public interest.
It requires the court to avail all parties an opportunity to be heard which the court did and thereafter render its decision.

@mbenekam Says the honourable court should at the end of proceeding issue a date for judgement.

@mbenekam Says the Data Protection Act doesn't apply retrospectively.
She takes not of petition 454 challenging the Data Protection Act

She asks what Mr. Mwendwa seeks in asking the court to take notice of the DPA and still limit itself in line with petition 454

Ms. Soweto agrees with submissions from @mbenekam And counsel for petitioners.
Court can only take judicial notice of the enactment of the Act and nothing more.
It can't be applied to the proceedings as at the time the Act was not operational.

Ms Soweto says Decision of the Court can only be based on the law appicable at the time the matter was heard.

Ms Soweto says the petitioners aren't fighting with the court and should not be seen as such. However the question of perception is important.
The complaint of a party being left out impact on the perception of administration of justice.

When one party's action perpetuate this problem we are justified to complain and raise a red flag.
We ask the court to consider what is now termed as an 'inadvertent' mistake.

Ms. Soweto says it was not until they received an invitiation of the court to make submissions that they knew of the communication by Mr. Mwendwa.

Counsel Rugeru for the respondent says the Bill was annexed to previous submissions made to the court and Mr. Mwendwa counsel for the 6th respondent was merely just bringing this to the attention of the court.

Counsel Rugeru says Ms. Soweto submissions, asking the court to only take judicial notice of the Passing of the DPA and not apply it is flawed.
He says the Act is already enforced and the court should in writing the judgement consider it.

Counsel Rugeru says MR. Mwendwa didn't apply for additional hearing in his letter to the court but just asked for the court's direction with the passing of the Act.

The court is now hearing submissions from pet 163 so as to give its directive.

Petition 163 has 3 issues:
1. Use of statute miscellaneous Act
2. Exclusion of the senate
3. Public participation
Pegs on the procedure.

Counsel says they have a duty to inform the court of any significant authorities esp from the supreme court as this forms part of the law.

@OkiyaOmtatah Says the petitioner in 163 received the letter yesterday and communication of today's hearing from the registrar.
He says the proceeding have been re-opened.
The court says it can on its own motion re-open the hearing.

@OkiyaOmtatah Says he has filed petition 454 and in that petition he has raised the issue od exclusionnof the senate in enactment of the Data Protection Act.

@OkiyaOmtatah Says if the court has to take into account the Data Protection Act then parties should be allowed to make submissions on the Act.

@OkiyaOmtatah Says he was served yesterday by the respondent.

The court asks him whether he should be given more time to make his submission.

He agrees to leave the matter to the decision of the court.

Counsel Rugeru says the petitioner have failed to avail the full authority and only submit part if it. Parts which could be favourable to them.

Counsel for the petitioner says the question of public participation in enacting the ammendments to the Registration of Persons Act is live in petition 163.
The petitioners are acting as if thet only have the right to tell the court of New law.

Counsel says the petition should not ignore a judgement issued by the Supreme Court.

The court has adjourned to consider the submissions and will resume at 2.30

Court has resumed. The court is confirming the apperances (counsel present) were as before.

@OkiyaOmtatah Requests to address the court.
Court agrees.
He says that he has agreed with his co-petitioners in petition 163 to not give submissions on the Data protection Act.
He will address the DPA in pet 454

The court agrees. The court further says the matter of constitutionality of the DPA shall be dealt witj in pet 454

The court further says the authority submitted by the petitioner in 163 was incomplete and thus can't be relied on. The court is however bound by decision of higher courts including the supreme court.

The court will now deal with pet 56,58 & 59 the court concludes for 3 reasons that there was no misconduct by MR. Mwendwa. And thus not persuaded by the arguments made by the petitioners

Judgement is set for Jan 30 2020 at 3.00 pm