[2023] KEHC 25200 (KLR)

Agoro & 2 others v Orengo & another; Oduol & another (Interested Parties) (Constitutional Petition 2 of 2023) [2023] KEHC 25200 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25200 (KLR)

Republic of Kenya

In the High Court at Siaya

Constitutional Petition 2 of 2023

DO Ogembo, J

November 9, 2023

Between

Peter Odhiambo Agoro

1st Petitioner

Erick Onyang Omeny

2nd Petitioner

Elizabeth Akinyi Omollo

3rd Petitioner

and

James Agrrey Orengo - Governor Siaya

1st Respondent

The County Government of Siaya

2nd Respondent

and

William Oduol

Interested Party

Ethics & Anti-Corruption Commission

Interested Party

Judgment

1. The 3 Petitioners, Peter Odhiambo Agoro, Erick Oyango Omeny and Elizabeth Akinyi Omollo have filed a petition against the 2 respondents, James Aggrey Orengo, Governor, Siaya and the County Government of Siaya. The petitioners have named William Oduol and Ethics and Anti-corruption Commission as interested parties. The petition dated May 9, 2023 was originally filed at the High Court of Kenya, Nairobi. The same has however been transferred to this court for determination.

2. In its relief section, this petition of the petitioners seek several prayers that;a.That a declaration be and is hereby issued that the actions being meted by the 1st respondent against the 1st Interested party whereby he is subjected to ridicule and humiliation are illegal and unlawful actions and hence a breach of the law and Constitution of Kenya.b.That an order be and is hereby issued that the 1st interested party be granted the treatment and dignity going in tandem with the office he holds and thereby access to the benefits enjoyed by such as office holder.c.That an order be and is hereby issued that the 1st Interested party be provided with an official residence or be given house allowance to cater for his accommodation.d.That an order be and is hereby issued to the County Government of Siaya to be ordered to pay general damages for unlawful actions.e.That a declaration be and is hereby issued against the respondents jointly and severally that the unethical practices amount to gross violation of the Constitution have rendered the 1st interested party incapable of discharging his mandate as required by the Constitution and various statutes.f.That this honourable court be pleased to issue a conservatory order to restrain the respondents by themselves, officers, servants, agents, or anyone acting on their behalf from further subjecting and sidelining the 1st Interested party to ridicule and humiliation.g.That a declaration be and is hereby issued that the respondents violated, infringed and threatened the Constitution, the Public Officer Ethics Act, Mwongozo (Code of Government for State Corporations), the National Values and Principles of Governance, the Principles of Public Service and all other applicable provisions of the law therefore merit to hold public office.h.That an order be and is hereby issued compelling the 2nd interested party (the EACC) to commence investigations into the activities of the 1st respondent and officers serving under him and institute criminal and civil proceedings against him.i.That an order be and hereby issued compelling the Respondents to reinstate all privileged and responsibilities to enable the 1st interested party to serve well the great people of Siaya County.

3. The petition of the petitioners is supported by an Affidavit of all the 3 petitioners sworn on May 9, 2023 in which the petitioners have deponed amongst others that the conduct of the 1st respondent does not meet the requirements of chapter 6 of the Constitution. That 1st respondent has unfairly blocked the 1st interested party from receiving his dues and his dignity reduced. That 1st interested party has been sidelined, and placed in darkness with regard to affairs of the County. That actions of 1st respondent kills both the County Government of Siaya and Devolution generally. That the official vehicle of 1st interested party is not being serviced and he has been denied his privileges and benefits. That he is denied chance to attend cabinet meetings. He does not receive house allowance and his staff are discriminated against.

4. Upon service of this petition, only the respondents entered appearance. The respondents have accordingly filed a Replying Affidavit, sworn by Joseph Ogutu on July 18, 2023. It is a long Affidavit of 15 paragraphs in which it is deponed amongst others that this petition is baseless and premature, and should be dismissed for disclosing no reasonable cause of action, speculative, unsupported by any evidence and informed by street rumours and innuendos. That if the 1st respondent is unfit to hold public office, the Petitioners ought to invoke article 181 of the Constitution and section 33 of the County Governments Act. That the benefits and allowance due to 1st interested party have been paid at all times as prescribed by the Salaries and Remuneration Commission and the 1st Interested party has not complained of any late payment. That the 1st interested party has not been sidelined in the affairs of the County and the claim is superfluous. That no particulars of violation or infringement of the constitution has been laid out. That the court should not interfere with the statutory mandates of constitutional bodies i.e. EACC, to which the petitioners have not even lodged a complainant.

5. That benefits and privileges of the 2nd Interested party have remained intact including official vehicle, security, driver and personal aide. That it is not true that staff of 1st Interested party have been stripped of any allowance and that in any case, the petitioners have not declared any particulars of any such staff members. The respondents attached a bundle of documents, being a Kenya Gazette of July 27, 2022, letter dated August 17, 2017 from the Principal Secretary, Ministry of Devolution and Planning and letter dated August 28, 2022 of Chair, Siaya County Public Service Board, showing the allocation of staff to offices of Governor and Deputy Governor among other details.

6. This petition was canvassed by way of Written Submission. Both the petitioners and respondent’s sides duly complied and filed their set of submissions.

7. The petitioner’s submissions dated August 29, 2023 were that the petitioners have the locus standi to bring this action as responsible and responsive citizens. In respect of 2nd interested party, it was submitted that its mandate is to investigate issues of corruption, economic crime and integrity and that the court has jurisdiction to direct the EACC to commence investigation to anyone believed to have committed any such crimes. And that this would not amount to interference with the mandate of 2nd interested party.

8. That if investigated, the respondents would not pass the test of integrity. That the national values and principles of governance enshrined in article 10 of the Constitution binds all persons and all state organs. The Supreme Court case of Sonko vs Clerk, County Assembly of Nairobi City & 11others (2022)KESC 26 (KLR) was relied on.

9. The respondents, on the other hand, submitted that the allegations that the 1st respondent is unfit to hold office as governor is not a matter that can be canvassed before this court by way of this petition. That removal of Governor is under article 181 of the Constitution and section 33 of the County Government Act. The Respondents referred the court to the case of Martin Nyaga Wambora & 3othersvsSpeaker of the Senate & 6others [2014]eKLR, giving a clarification of the extent of the supervisory role of the High court.

10. On the process of removal of the Governor, which supervisory role cannot be invoked where petitioners have failed to invoke the constitutional and procedural threshold or prove any violation of the constitution, citing Speaker of the National AssemblyvsJames Njenga Karume [1992]eKLR, CA that,“In our view there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the constitution or on Act of Parliament that Procedure should be strictly followed.......”

11. That this application seeks to undermine the constitutional and statutory mandates and authority of institution and should not be allowed to succeed (Paul Nganga NyagavsAG and 3others [2013]eKLR), especially since the petitioners have not made any reports to the 2nd Interested party.

12. The case of Geoffrey Muthinja andanothervsSamuel Muguna Henry & 1756others [2015]eKLR, was cited, that;“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the court is invoked. Courts ought to be fore of last resort and not the first port of the call the moment a storm brews.”

13. In the said case, the court approved the exhaustion doctrine. A similar case was cited of Wanjiru Gikonyo & 2othersvsNational Assembly of Kenya and 4others [2016]eKLR.

14. It was further submitted that the Petitioners have not provided any particulars of the infringement, violation or threatened violations of the constitution, the Public Officers Ethics Act or the ACECA, and therefore does not meet the threshold for constitutional petitions as held in Anarita Karimi Njeruvs R [1979]eKLR, that;“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that, Justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

15. Another case of David Mathu Kimingivs SMEC International PTY Ltd [2021]eKLR, was also cited on the need of Petitioner to give the specifics of the alleged violations if a petition was to meet the threshold. The said decision adopted the Anarita Karim case (above) as well as the case of Mumo Matemu vs Trustee Society of Human Rights [2013]eKLR.

16. That in this case, the petitioners have not disclosed which part of the constitution has been violated and the manner of the violations, only setting out general provisions.

17. On alleged violations on the state of 1st interested party, it was noted that the particulars of the staff members and the alleged allowances were not specifically particularized, similarly that the particulars of any benefits or allowances not availed to 1st Respondent have not been disclosed.

18. Section 107, 108 and 109 of the Evidence Act was relied on that he alleges the existence of any fact must prove it and that a snit would fail if no evidence is shown to prove the facts (Leonard OtienovsAirtel Kenya Ltd [2018]eKLR).

19. On the orders sought against the 2nd interested party, the Respondents relied on the case of; In the matter of Interim Independent Electoral Commission [2011]eKLR, that;“The real purpose of the “independence clause” with regard to commissions and Independent officers established under the constitution was to provide a safeguard against undue influence with such commissions and offices.....”

20. That article 79 of the Constitution guarantees the independence of the 2nd interested party. And that in Pravin BowryvsEAC Commission [2015]eKLR, it was held;“.....the commission (EACC) in the carrying out its mandate shall not be subject to the control, direction, supervision, command and or superintendence of any other person.”

21. While urging the court to dismiss this petition, the court was urged not to usurp the powers of the County Assembly in determining whether or not 1st respondent is fit to hold office.

22. I have considered this petition as filed by the 3 petitioners. I have also considered the Affidavit filed by the petitioners in support of the petition and also the Affidavit filed by the respondents in opposing the petition. And lastly, I have considered the submissions filed by the 2 sides regarding this petition.

23. Section 107 of the Evidence Act, cap 80, gives directions on who bears the burden of proof. It states:1. Whoever desires any court to give judgment as to any legal right to liability dependent on its existence of facts which he asserts must prove that those facts exist.

2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

24. And section 108 of the Evidence Act states:“The burden of proof in a suit on proceeding lies on that person who would fail if no evidence at all were given on either side.”

25. As already seen above, this petition is based on a number of facts that would require of the petitioners to prove the same by way of evidence. The petitioners have alleged that the 1st respondent has deliberately frustrated the 1st interested party and also withhold his benefits and allowance payable to the 1st interested party as Deputy Governor.

26. Absolutely no attempt has been shown to prove the manner of frustrations that the 1st respondent has subjected the 1st interested party to. Similarly, not a scintilla of evidence has been shown of any benefits or allowance that the 1st respondent has denied the 1st interested party.

27. Being a State office, salaries and benefits of 1st Interested party are gazetted and particularized. The interested parties have not shown any such gazetted entitlements of the 1st interested party that the 1st respondent has denied him. The gazette Notice Number 163 dated July 14, 2023 (annexed by the respondents), is a public document. Same confirms all the entitlements available to the 1st interested party. With just a little effort, the petitioners would have considered the same and given particulars of the benefits and allowances that the 1st interested party has been deprived of by the 1st respondent.

28. The petitioners enjoined the 1st interested party in these proceedings. The 1st interested party is at the centre of those proceedings, and if there is a party who would have accorded verification of the claims of the petitioners with regard to denial of the allowances, benefits and priviledges, then it is the 1st interested party. As it were, the 1st interested party has not entered appearance in this matter, neither has he filed any Affidavit in response to the petitioners claims. As for the respondents, the petitioners claims have been denied. The respondents have gone ahead to exhibit what salaries and benefits the 1st interested party is legally entitled to with a firm statement on oath that the 1st interested party has been accorded all such due entitlements.

29. In the absence of any specific proof and in the absence of any evidence by the 1st interested party, this court is convinced that this element of the claim has not been proved and that the same remain just allegations.

30. And I arrive at the same findings on the claims that the 1st interested party has been denied his basic needs, official vehicle or house allowance. Also that office of 1st interested party has no water or electricity.

31. Another claim that the petitioners base their petition is that staff affiliated to the 1st interested party have been discriminated against and denied allowances which their counterparts receive. Again, the petitioners have not bothered in this petition to disclose even the identities of the staff members in question nor the allowances due to them but denied. This claim is denied by the respondents and it is encumbent upon the petitioners to prove the same beyond merely making this claim. The resultant of the failure of the petitioners to give any evidence to prove this claim, not even by way of an Affidavit by any of the relevant staff members, can only mean that this claim remains unsubstantiated and unproved and must fail.

32. The petitioners have invited this court to find that the 1st respondent is unfit to hold office. The 1st respondent is the Governor, Siaya County. The issue that comes up is whether this court has the jurisdiction or mandate to make such order as urged by the Petitioners. article 181 of the Constitution sets out the grounds upon (if proved), a Governor of a County may be declared unfit to hold office and be removed from such office. At sub-article 3 of Constitution provides:“Parliament shall enact legislation providing for the procedure of removal of a County Governor on any of the grounds specified in Clause (1).”

33. Pursuant to this provision, Parliament duly passed the County Governments Act, No. 2 of 2020 which at section 33 gives an elaborate process of removal of a County Governor. It is in no way in the nature of the petition of the Petitioners. Both the County Assembly and the Senate must be involved in the process.

34. The Court of Appeal case cited by James Njenga Karume[1992]eKLR captures this in the holding that;“In our view there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.....”

35. And the court in the Martin Nyaga Wambora & 3othersvs Speaker of Senate andothers [2014]eKLR, has emphasized the supervisory role that the court can exercise on the issue of removal of Governor from office.

36. In our instant case, Parliament has enacted the relevant laws. The Petitioners, however, have ignored the said procedure and chosen to file this petition in court. The petitioners have therefore not exhausted the statutory requirements for removal of a Governor of a County from office.

37. The respondents have referred this court to several authorities regarding the exhaustion doctrine i.e.Paul Ng’ang’a NyagavsAG & 3others [2013]eKLR and Geoffrey Muthinja & Anothervs Samwel Muguna Henry [2015]eKLR. Especially the holding in the latter case, that;“It is imperative that where a dispute resolution mechanism exists outside the courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be for a last resort and not the first port of call the moment a storm brews......”

38. Parliament has clearly legislated on the procedure of removal of a County Governor. Without following this procedure, the Petitioners have gone ahead to petition this court for the orders. The action and petition of the petitioners is therefore clearly contrary to both article 181 of the Constitution and section 33 of the County Governments Act. And this makes this claim made by way of the petition fail.

39. A claim has also been made by the Petitioners with regard to constitutional breaches made by the 1st Respondent. For this claim to succeed, it is encumbent upon the Petitioners to prove that they have met the threshold for obtaining the constitutional reliefs claim. The celebrated case of Anarita Karimu Njeru Vs R [1979]eKLR, gives the threshold to be met in the circumstances. In the case, it was held in part;“If a person is seeking redress from the High Court on a matter which involves a reference to the constitution, it is important (if only to ensure that justice is done to his case), that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed, and the manner in which they are alleged to be infringed.”

40. So, did the petitioners meet this threshold? At paragraphs 27 and 28 of the petition filed herein, the petitioners have referred to numerous constitutional provisions. The articles cited include 3(1), 50(1), 258, 1(c), 4(2), 10, 22, 23, 159, 165, 258, 259, 1(1), 2(1), 2(2) 2(4), 3(1), 4(2), 10(2), 19(3)(c), 20(3)(4), 22(1)(2)(c), 24, 73 and 75. The Petitioners, other than giving specifics and details of how the rights of the 1st interested party guaranteed under those constitutional provisions have been infringed or violated, the petitioners have placed no meat on their claims. Absolutely no evidence has been shown to point at, leave alone prove, any breaches of the constitutional rights of the 1st Interested party.

41. I accordingly find, and guided by the decision in the Anarita Njeru case, that the petitioners have failed to meet the threshold on any claims based on constitutional breaches of the rights of 1st interested party.

42. Lastly, on the claim of the petitioners that this court do order or compel the 2nd interested party to commence investigations into the activities of 1st respondent and officer serving under him and institute criminal and civil proceedings against him, it must be noted that the 2nd interested party is an independent commission created by the constitution. Their independence is guaranteed and protected under article 247(2) of the Constitution, thus;“The commissions and holders of independent offices –(b)are independent and not subject to direction or control by any person or authority.

43. The Petitioners have not lodged any complaint or request for investigations against the 1st respondent with the 2nd Interested party. They have instead chosen to move this court by way of this Petition to order the 2nd interested party to act in the manner they propose. This court declines this invitation on the basis that the 2nd Interested party is constitutional commission whose independence is constitutionally guaranteed. And the independence of 2nd interested party is from all persons or authority.

44. The sum total is that I do not find any merit in the petition of the Petitioners dated May 9, 2023. I dismiss the same wholly. I also award costs of this petition to the respondent. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023D. O. OGEMBOJUDGE11. 2023Court:Judgment read out in Open court in the presence of Ooro F. Advocate for Willis Otieno for Respondents. Mr. Nyakeriga for Petitioners is absent.D.O. OGEMBOJUDGE11. 2023