[2022] KEHC 12431 (KLR)

Abdille v County Government of Wajir & 2 others (Petition 2 of 2021) [2022] KEHC 12431 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12431 (KLR)

Republic of Kenya

In the High Court at Garissa

Petition 2 of 2021

A Ali-Aroni, J

June 9, 2022

Between

Osman Mohamed Abdille

Applicant

and

County Government of Wajir

1st Respondent

Governor Wajir County

2nd Respondent

Geodev Kenya Limited

3rd Respondent

Judgment

1. In an undated Petition filed in court on April 25, 2021, Osman Mohamed Abdile (petitioner) sued the county government of Wajir as the 1st respondent (1strespondent), the governor Wajir county as the 2nd respondent (2nd respondent) & Geodev Kenya Limited as the 3rd respondent (3rd respondent).

2. The petitioner described himself as a resident of Wajir and an elder in the community and has filed this Petition on his behalf and in the public interest.

3. The petitioner moved the court pursuant to articles 1,2,20,22,28,27,35,47,48,73,75,163,174,176,196,201,232,258,259, and 260 of the Constitution 2010 alongside several sections of the County Government Actno 17 of 2012, sections 2,3 and 33 of the Public Procurement and Asset Disposal Act 2015, & sections 3,11,12 and 35 of the Urban Areas and Cities Act of 2011

4. In the Petition he cites lack of public participation in the formulation, planning and awarding of the consultative services to the 3rd respondent for the preparation of integrated strategic urban spatial development plans for Habaswein town in Wajir county Further they have commenced the process of classification, division and land planning of Habaswein, Khorof-Harar and Tarbaj towns.

5. The 1st respondent advertised the services without public participation and awarded the tender in a non-competitive manner and secretly violating the Constitution and the Public Procurement Asset Disposal Act, 2015 as read with Public Finance Management Act. Further the strategic urban spatial development plans will interfere with the current administrative areas of the said towns.

6. The petitioner seeks for the following orders;a.A declaration that within the intendment of article 10 of the Constitution the respondents are bound by the key national values and principles in particular the principle of participation of the people.b.A declaration that failure to conduct effective participation in regard to the consultancy services for preparation of integrated strategic urban spatial development plan for Habaswein, Kharof-Harar and Tarbaj towns is inconsistent with provisions of article 10, 27(4), 28,35 (1),47 of the Constitution and is illegal, null and void.c.An order of judicial review in the form of certiorari to issue from the court to quash the decision by the 1st respondent to advertise and award the subject consultancy services for preparation of integrated strategic urban spatial development plan for Habaswein, Khorof-Harar and Tarbaj towns.d.An order of permanent injunction to be issued to restrain the 1st and 2nd respondents, their agents and persons acting under the authority of the respondents from implementing the report/ outcome of strategic urban spatial development plan for Habaswein, Khorof-Harar and Tarbaj towns.e.An order of prohibition against the 3rd respondent, its agents or persons acting under its authority and command from confirming the strategic urban spatial development plan for Habaswein, Khorof-Harar and Tarbaj towns.f.Costs of the Petition.

7. In the affidavit in support of the Petition, the petitioner reiterated the grounds in his petition notable are his averments that the contract was awarded irregularly and in a secret manner and despite the irregularities the 3rd respondent is undertaking the project of preparing the integrated strategic urban spatial development plans.

8. The Petition was vehemently opposed by the respondents. In a replying affidavit on behalf of the 1st and 2nd respondents sworn by Abdullahi Hassan Maalim, the secretary to 1st respondent and dated October 14, 2021 he stated that the contract awarded to the 3rd respondent, contract reference WCG/T/404/2017/2018 for Bute, Idas, Grifftu and Hadado was awarded above board and they are yet to receive any complaint over the commencement of the process from the applicant or any other member of the public.

9. Further the 1st and 2nd respondents only involved the 3rd respondent in the development of integrated spatial development plan of Habaswein which does not deal with division of administrative units.

10. The 1st and 2nd respondent instructed the 3rd respondent to actively engage with county residents, by way of questionnaires, public baraza, newspaper, interviews and the 3rd respondent supplied the 1st and 2nd respondents with a report of public participation.

11. The averments of the petitioner are not clear on the violations alleged.

12. Though all citizens have right of access to public information, the petitioner sought for information as an afterthought. The letters the Petition allegedly wrote came way after as public participation and award of tender took place in 2018. There was inordinate delay.

13. The project began in 2018 and the petitioner has not explained the delay or reason why the suit was filed late. The Petition is vexatious, frivolous and an abuse of court process.

Petitioner’s submissions 14. In the petitioner’s submission 3 issues were raised namely;a.Whether in the awarding of the tender to the 3rd respondent due process was followed?b.Whether the preparation of integrated strategic urban spatial development is lawful and procedural &c.Whether implementation of the project is legal.

15. It was submitted that there was no public participation before the tender was awarded and as well as at the implementation stage. As such the people of Wajir cannot ascertain whether the 3rd respondent was eligible to bid as required by section 55 of the Public Procurement and Asset Disposal Act.

16. Further sections 75 (b) (8) 10, 11 & 126 of the Public Procurement and Asset Disposal Act were not complied with. And request to make available relevant documents made to the 1st and 2nd respondent was not responded to.

17. It was also submitted that it is not clear whether the 1st and 2nd respondents complied with section 91A of the County Government (Amendment) Actwhen initiating the project as no document was tabled to show that a county development plan was placed before the Wajir development board.

18. Further the 1st respondent has compulsory acquired community land for purposes of the project without involving the community in the matter as no public participation was carried out contrary to the Land Act and Urban Areas and Cities Act.

1st & 2nd respondents submissions 19. In the 1st and 2nd respondents submission the issue of the court’s jurisdiction was raised in addition to the 3 raised by the petitioner.

20. It was submitted that the crux of the Petition is in the manner the tender was awarded and that being the case the matter is in the wrong forum.Counsel cited the celebrated case of Owners of the Motor Vessel LilianS V Caltex Oil (Kenya) Ltd (1989) KLR 1 &Samuel Kamau Macharia & another V Kenya Commercial Bank Ltd and others(2012) eKLR

21. Further, it was contended that section 27 of the Public Procurement and Assets Disposal Act established the Public Procurement Administrative Review Board whose mandate in section 28 thereof is to review, hear and determine disputes arising from tendering and asset disposal which the petitioner by passed. Reference was made to the case of Geoffrey Muthinja & 2 Another vs Samuel Muguna Henry & 1756 Others (2015) eKLR and Republic Versus Benjamin Jomo Washiali, Majority Chief Whip, National Assembly and 4 others,ex-parteAlfred Kiptoo keter & 3 others (2018) eKLR.

22. Counsel further submitted that the replying affidavit filed on behalf of the 1st and 2nd respondents gave details of how the public was engaged; by of advertisement, questionnaires and public barazas and details of the project given in conformity with section 91(d) of the County Government Act. Moreover, it is for the petitioner to prove lack of participation.

23. As to whether the preparation of the integrated strategic urban spatial development is lawful and procedural the issue ought to have been referred to the County Physical and Land Use Planning Liaison Committee under section 76 of the Physical and Land Use Act whose mandate includes to hear and determine complains and claims made in respect to applications submitted to the planning authority in the County.

24. Further Constitution has established the Land and Environment Court under article 162 (2) (g) of the Constitution to hear and determine disputes relating to Environment and the use and occupation and title to land to land.

25. The petitioner also failed to support the claim that the implementation of the urban areas spatial project is illegal. He has not made any reference to specific articles of the Constitution and the County Government Act that were violated. The petitioner has made omnibus references to articles and sections of the law.

26. Further the petitioner departed from his prayers in the Petition. Reference was made to the principles emaciated in Anarita Karimi Vs AG(1979) KLR & Mumo Matemu V Trusted Society of Human Rights Alliance & 5 others (2013) eKLR, that a Constitutional Petition should include;i.Facts relied uponii.Constitution provisions violated.iii.The nature of injury caused or to be caused.iv.The relief sought.And that it is a misconception to make claims as the Petitioner has done without compliance with rules of procedure assuming that the same are antithetical to article 159 of the Constitution and the principles set out under section 1A and B.

3rd Respondent’s Submissions 27. In the submissions on behalf of the 3rd respondent the following issues were identified.i.Whether the court has jurisdiction.ii.Whether the petitioner has proved his case;a.here was no public participation.b.The tendering process was not transparent and competitive.c.There was infringement of rights and freedoms of the residents.d.The pleadings were Amended

28. As to jurisdiction it was submitted that this court lacks original jurisdiction to deal with issues of tendering process and to review tender awards. The matter is thus premature as the original jurisdiction is vested in the Public Procurement Review Board. Reference was made to; Samuel Kamau Macharia Vs KCB (2011) eKLR and Kenya Pipeline Company Ltd V Hyosima Ebana Co Ltd & 2 others (2012 eKLR.

29. Further it was urged that the suit is ill-advised, speculative, misconceived and a waste of the court’s time. The petitioner failed to prove his case as he did not produce any evidence to support his case.

30. Further the 3rd respondent facilitated adequate public participation by using different methods including but not limited to newspaper advertisements, use of local and indigenous persons in administering house to house questionnaires to the residence, public barazas and compiling a report entailing public participation.The petitioner has failed to counter the evidence placed before court.

31. As regards the tendering process, it was submitted that the same was transparent and nothing was left for speculation or conjecture as the 1st respondent placed an advert in the papers and on its website and on its part the 3rd respondent placed notices of intended planning in the newspapers informing the public of the intended exercise. The advertisement put the public on notice and anyone with an issue was to visit the County offices. The complete set of tender documents were provided on the 1st respondent’s website and the 3rd respondent submitted its bid and emerged the winner.

32. This suit does not meet the threshold set in the Anarita case (supra) as the petitioner did not specify with precision the manner in which the fundamental right and freedoms of the Wajir residents have been infringed, threatened or violated.

33. Without amending his pleadings and at submission level the petitioner made a claim that the 1st and 2nd Respondents are converting the indigenous ethnic Wajir Community land into public land.In support of its case the 3rd respondent relied on the following cases; Libran Arab Uganda Bank for Foreign Trade and Development & another Vs Adam Vassiliadis (1986) UG CA 6,Jones Vs National Coal Board(1975) 24B and Adetoun Olude (NIG) Ltd V Nigeria Breweries PLC S.C 91/2002.

Analysis & determination 34. Having considered the Petition, the responses, submissions and authorities filed by the parties, the court is of the view that the issues for determination are;a.Whether or not this court has original jurisdiction to determine the subject matter of the Petition.b.Whether the procurement process was unlawful and un procedural?c.Whether the implementation of the Urban Area Implementation Project is legal?d.Costs

35. Whether this court has jurisdiction to handle the issues raised before it must of necessity be discussed first. The key issue before the court which informs the other prayers is the tendering/or procuring of the contract awarded to the 3rd respondent by the 1st respondent and it has been urged that this court does not have original jurisdiction to deal with this particular issue. In this court’s view the determination of the court’s jurisdiction will determine the rest of the issues.

36. The law on this subject is settled. In the notable case of Owners of the Motor Vessel “LilianS” V Caltex Oil (Kenya) Ltd (supra) the court stated;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Where a court takes it upon itself to exercise jurisdiction when it does not possess it amounts to nothing. Jurisdiction is acquired before judgement is given.”In yet another case Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & Another (supra) the court held“A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus a court of law can only excise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

37. It has been argued by the respondents that the original jurisdiction on the subject of this Petition lies elsewhere. Indeed, section 27 (1) of the Public Procurement and Asset Disposal Act 2015 proves that;“There shall be a general independent procurement appeals review board to be known as the Public Procurement Administrative Review Board as an Incorporated Board.In the same Act the section 28 the functions of the Review Board would include reviewing, hearing and determining the tendering and asset disposal disputes.”

38. Severally courts have held and correctly so as, which this court reiterates, which is indeed the law that where tribunals, boards or other bodies have been bestowed by the Constitution or statute to undertake a duty be it judicial or otherwise, it is imperative that such a process be exhausted first such that the involvement of the court remains as the last resort.This was ably explained in R V Benjamin Jomo Macharia & National Assembly & 4 Others ex-parte Alfred Kiptoo Keter (supra) and Council of Governors vs AG(supra).

39. This court agrees with the respondents that referring the dispute on the tendering and awarding of the same at this stage to this court is pre-mature as this court does not yet have jurisdiction.

40. The second issue relating to the award of the tender and the way the 3rd respondent is implementing the same will be dealt with prematurely if the court were to delve in to the same for now as issue one above will have a bearing on the two other issues.

41. As to whether there has been encroachment and illegal acquisition of community land, this matter was not raised in the Petition, additionally this court certainly lacks jurisdiction to deal with matters touching on environment and land. The matter ought to be referred to the Environment and Land Court which, constitutionally has the mandate to deal with such matters.

42. Having found that this court lacks jurisdiction the court must down its tools, and with that the Petition must fail with costs to the respondents.

DELIVERED AND SIGNED AT GARISSA THIS 9TH JUNE, 2022. ............................ALI-ARONIJUDGE