[2022] KEHC 16292 (KLR)

Ameda v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Co-operatives & 2 others (Constitutional Petition E017 of 2021) [2022] KEHC 16292 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16292 (KLR)

Republic of Kenya

In the High Court at Kisumu

Constitutional Petition E017 of 2021

RE Aburili, J

December 13, 2022

IN THE MATTER OF ARTICLES 22(1) AND 165(3) (b) AND (d) (ii) OF THE CONSTITUTION OF KENYA. AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS SECURED AND GUARANTEED UNDER ARTICLE 2, 3,10,22,23,27,38(2),43,47,48,50(1) ,153(4) AND 232 OF THE CONSTITUTION AND SECTION 7(1) OF THE SIXTH SCHEDULE. AND IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT AND IN THE MATTER OF THE VETERINARY SURGEONS AND VETERINARY PARA-PROFESSIONALS REGULATIONS 2011 AND IN THE MATTER OF THE VETERINARY SURGEONS AND VETERINARY PARA-PROFESSIONALS REGULATIONS 2015 AND IN THE MATTER OF THE APPOINTMENT OF MEMBERS TO THE BOARD OF KENYA VETERINARY BOARD AND IN THE MATTER OF THE OPERATIONS OF THE KENYA VETERINARY BOARD

Between

Benson Oduor Ameda

Petitioner

and

Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Co-operatives

1st Respondent

Attorney General

2nd Respondent

Kenya Veterinary Board

3rd Respondent

Judgment

1. The petitioner Benson Oduor Ameda filed this petition dated November 2, 2021 against the respondents wherein the 1st respondent is described as a state officer under the national government appointed pursuant to the provisions of Article 152 of the Constitution. The 2nd respondent is the principal legal advisor to the government and is sued as such while the 3rd respondent is a body established under Sections 3 and 12 of the Veterinary Surgeons and Veterinary Para-Professionals Act, 2011 and falls under the auspices of the 1st respondent.

2. The petitioner seeks the following reliefs as against the respondents:a.A declaration that the 1st Respondent’s failure to appoint those elected as per Section 4(f) and 4(g) of the Act to the 3rd Respondents Board pending the hearing and determination of this application and petition is unlawful and unjustified.b.A further declaration be made by the court that the 7 elected members of the Board of the 3rd Respondent elected under Section 4(f) and 4(g) of the Act be deemed as appointed for their full term of 3 years with effect from the date of this ruling or as the Honorable Court may otherwise direct in interests of justice.c.A Prohibitory Order be issued prohibiting the 1st Respondent from convening the 1st meeting of the 3rd Respondent’s Board and electing a chairperson and vice chair-person in the absence of the members elected as per 4(f) and 4(g) of the Act pending the hearing and determination of this petition.d.A further Prohibitory order be issued, prohibiting the 1st Respondent from interfering with the activities and operations of the 3rd Respondent through its Board of Directors, Chief Executive Officer or other staff or otherwise and/or usurping the statutory role and function of the 3rd Respondents Board.e.A declaration be made that the Chief Executive Officer of the 3rd Respondent convenes the 1st Board meeting fully constituted by those elected under Section 4(1) (f) and (g), nominees under 4(1)(k) and he shall solicit the representatives of the respective institutions listed under Section 4 of the Act within two weeks of this judgement.f.A declaration that the 1st Respondent’s action of disobeying court orders and failure to appoint those elected under Section 4(f) and 4(g) of the Act to the 3rd Respondents Board violates Articles 2,10,27,28,38,43,47,48,50(1), 153 and 233 of the Constitution.g.A declaration that the 1st Respondent is unfit to hold public office due to the violation of a valid court order and Chapter 6 of the Constitution of Kenya and declaration that the operations and functions of the 3rd Respondent’s Board be conducted strictly under the provisions of the Veterinary Surgeons and Veterinary Paraprofessionals Act and Regulations and an order for general damages against the 1st Respondent for constitutional violations.h.Any other or further relief that the Honorable Court may deem appropriate in the circumstances.i.Costsj.Interest at court rates.

3. The relevant facts giving rise to this petition are that the petitioner is a practicing veterinary para-professional having been elected to the position of member, board of directors of the Kenya Veterinary Board pursuant to the provisions of Section 4(1)(g) of the Veterinary Surgeons and Veterinary Para-Professionals Act, 2011 (hereinafter the Act) and the regulations 2013. He states that the elections were held in April, 2021.

4. The 1st respondent vide gazette notice number 2609 of March 20, 2018 appointed Dr Christopher Wanga and Dr Jafred MA Kitaa among others, under Section 4(1)(f) and Paul Kariuki Ndungu, Benson Oduor Ameda and Queerrenuse Pacho Oluoch under Section 4(1)(g) having been duly elected. Consequently, their term was to end in March 2021 upon conclusion of the elections in April, 2021.

5. It is averred that in the elections, the petitioner alongside 6 others were duly elected yet the 1st respondent is yet to gazette them thereby hindering the 3rd respondent’s operations and the subsequent convening of the meeting of the board of directors.

6. It is further averred that by gazette notice number 11498 of October 29, 2021, the 1st respondent appointed only 2 members to the board under Section 4(1)(k) of the Act making up the requisite quorum of 5 members and he is apprehensive that the 1st respondent may proceed to call the first meeting of the board before appointing the 7 elected members comprising the petitioner.

7. The petitioner avers that the 1st respondent’s actions are deliberate and aimed at interfering with the functions of the board thus the instant petition challenging the 1st respondent’s actions as contravening Articles 2, 10,27, 43, 47, 50(1), 153(4) and 232 of the constitution.

8. The respondents filed a replying affidavit sworn by Dr Indraph Ragwa on 7/12/2021 where he deposes inter alia that the 3rd respondent’s operations are governed by 17 members elected pursuant to Section 4(1)(f) of the Act whereas the board members are 7 elected under Section 4 (1)(f) and 4(1)(g) of the Act and Regulations 4,5,6 and 7 of the 2013 Regulations. He contends that the petitioner is one of the elected officials in the elections conducted and concluded sometimes in March 2021 which results were published in MyGov and the standard newspaper and the names of the successful members forwarded to the 1st respondent for gazettement. He avers that as such, the board is rendered functus officio at that stage.

9. By directions of the court, the petition was canvassed of by way of written submissions.

10. The petitioner submitted that the 1st respondent has to act in accordance with the provisions of Article 153(4) of the Constitution and that the act of refusing to appoint the 3rd respondent’s elected members has no justification. He submitted that the 1st respondent’s actions are ultra vires and the decision is therefore laced with illegality. For this proposition, the case of Republic v Secretary of the Firearms Licensing Board exparte: Senator Johnson Muthama (2018)eKLR and the Ugandan authority in Pastoli Vs Kabale District Local Government Council & others(2008)2 EA 300 were relied on.

11. CitingPaul Imison v Attorney General & 3 others HCMCA 1604 of 2003-Nrb, the petitioner submitted that the 1st respondent abused his office by failing to gazette the elected officials and in cases where the cabinet secretary abuses his power to act, the court has to act by way of constitutional petition or quashing such decisions.

12. It was further submitted that the 1st respondent breached Article 10 of the Constitution which prescribes national values and principles of governance. In support thereof, counsel for the petitioner cited the case of Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others (2017)eKLR.

13. The respondents on their part submitted on the following issues; Whether the respondents violated the rights and fundamental freedoms of the petitioner? and; Whether the court should grant orders sought by the Petitioner?

14. On the first issue, it was submitted that the Petitioner has failed to demonstrate how the Respondents violated his constitutional rights under the cited Articles with the required precision as was stated in David Gathu Thuo v Attorney General & another[2021] eKLR and Gregory Magara Magare v University of Nairobi & another[2017] eKLR. That the petitioner is acting on mere apprehensions without evidence of actual violation of rights.

15. It was submitted that the burden of proving such violation of rights is on the petitioner as was held in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR.

16. On the second issue, the respondent submitted that it was confirmed by the 3rd respondent that once the elections were concluded, the Board published the results thereof in MyGov and names of the elected members were then forwarded to the 1st Respondent for gazettement and appointment as provided for by the Act and the Regulations. That it is not the 3rd respondent’s duty to gazette individuals and therefore no cause of action has been disclosed against it.

17. It is further submitted that the 1st Respondent has not breached any law by assessing the elected member’s performance before gazetting and appointing them and is only exercising his powers as provided for under Section 4 of the Act. That it is within the 1st respondent’s prerogative to assess the suitability of members to be appointed to public bodies. On the issue, the authority in Republic v Cabinet Secretary for Education, Science and Technology & 3 others, (2014) eKLR was cited in support of the contention.

18. The respondent also contested the prayer that the 1st respondent be declared unfit to hold public office for violation of a court, that in any event, the 3rd respondent is run in accordance with the law.

19. On the prayer for general damages, the respondents submitted that the grant of such a prayer falls within the court’s discretion and in the circumstances of the matter herein, the same is not merited for want of evidence. Counsel relied on the case of Abdiwahab Ibrahim Ali & another v Inspector General of the National Police Service & 3 others (2017) eKLR.

Analysis and Determination. 20. From the parties’ rival positions on the matter, I am also alive to the fact that on September 22, 2022, the petitioner abandoned some of the prayers sought on account of having been overtaken by events so that the only prayers to be determined are prayers (a), (e), (f) and (g) as presented in the petition which I now proceed to determine.

21. The first prayer seeks to declare the 1st respondent’s failure to appoint the 7 members to the 3rd respondent’s board as appointment to the board for their full term.

22. The Kenya veterinary board headed by the 3rd respondent is a creature of Section 3 of the Act and is mandated to regulate the training, business, practice and employment of veterinary surgeons and para-professionals as well as advise the government on matters related to the profession.

23. It is not in dispute that the board held its elections and concluded on March 2, 2021 and 7 individuals were elected to serve in the board for a period of 3 years which results were published in the standard newspaper and MyGov respectively by the board pursuant to the provisions of Sections 4(1)(f) and 4(1)(g) of the Act. It was the 3rd respondent’s argument that once he had caused the publication of the notice afore stated, he forwarded the names to the 1st respondent for gazettement as it was not within his powers to have them gazetted.

24. Section 4 of the Act provides for the composition of the board. The relevant provision stipulates at section 4(1)(f) that:“…four registered veterinary surgeons elected by registered veterinary surgeons and appointed by the Cabinet Secretary;

25. This is the Section under which the petitioner was elected and therefore eligible for appointment to the board. The other members were to be appointed under Section 4(1)(g) bringing the total number of the members to the board to 7 to serve for a 3-year term renewable once. The first meeting of the board as provided under Regulations 3, 4, 5, 6 and 7 is to elect the chairperson of the board once the quorum of 5 members has been attained. The petitioner is apprehensive that the failure by the 1st respondent to gazette the board members may lead to the election of the chairperson in their absence.

26. The Act and the Regulations aptly provide for election of the board members and the 1st respondent’s role is to gazette the elected officials once the communication from the 3rd respondent is received. The officials are elected by the members of the profession where the cabinet secretary has no role and or control over the elections whatsoever. The 1st respondent only directly appoints members to the board as provided for in Section 4(1)(i) and (k) of the Act. This has been done.

27. The proceedings of the board are governed by the 1st schedule and provides for the quorum as 5 members and that the board’s decision shall be by simple majority. This informs the petitioner’s apprehension that the first meeting of the board shall take place in the absence of elected members and the board shall be fit to transact its business.

28. The 3rd respondent distanced itself from blame by asserting that once the chief executive officer has forwarded the names of the officials to the Cabinet Secretary, his role is spent and the ball is in the 1st respondent’s court. Indeed, the chief executive officer has no role in the gazettement process.

29. From the evidence tendered before this court, the 1st respondent offered no reasons for failure to gazette the petitioner and other elected officials despite being in receipt of the election results. I find this to be a dereliction of the oath of office to serve. Failure to appoint the members puts the board at risk of not being fully functional to the detriment of the members of the profession as well as the country at large. There is also the risk that the constituents who elected the petitioner may not be represented at the board at the moment if the appointment is not effected.

30. In my final analysis on the issue therefore, I do find that the 1st respondent’s failure to appoint by way of gazettement of the petitioner and other elected members of board is unlawful and contravenes the statute.

31. Regarding the prayer that the 3rd respondent’s CEO convenes the first meeting of the board within 2 weeks of the court rendering itself, I have already stated earlier in this judgement that the board is governed by the provisions of the Act as well as the Regulations thereunder, such an order would be construed to mean that the court is actively engaging in the management and the running of the 3rd respondent contrary to statute.

32. Once the elected officials are appointed, the other internal processes would automatically fall into place and there is no need for an order for convening of the any meeting. That prayer is therefore declined.

33. The petitioner also beseeched this court to find and declare that the 1st Respondent’s action of disobeying court orders and failure to appoint those elected under Section 4(f) and 4(g) of the Act to the 3rd Respondents Board violates Articles 2,10,27,28,38,43,47,48,50(1), 153 and 233 of the Constitution

34. It is trite that he who alleges the violation of a constitutional right bears the burden of establishing how the specific right has been violated.

35. The decision in Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272 settled the principle that violation of constitutional rights must be pleaded with as much precision as possible, the specific right allegedly infringed and the manner in which the said right has been infringed.

36. The position in that case was affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where it was held that:“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (Supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent…”

37. The instant petition is brought under the provisions of Articles 2,10,27,28,38,43,47,48,50(1), 153 and 233. By refusing to appoint the petitioner and other elected officials, the assertion is also based on the alleged disobedience of a court order issued in Nairobi JR No E008 of 2021.

38. I have examined the various Articles of the Constitution and their import and relevance to the instant petition and find that the same have not been properly invoked and or the nexus between the alleged infringement and the Articles cited established. The petitioner has not demonstrated how his rights under the cited Articles have been violated by the failure to gazette him and the other officials elected with him. I therefore find no sound basis upon which I can declare that the petitioner’s rights were violated. The prayer is accordingly declined.

39. As regards the 3rd respondent’s role in the entire process, the petitioner has similarly not shown how the 3rd respondent abdicated his responsibilities as the Chief Executive Officer of the board. His role according to his affidavit and this was not controverted is to merely forward the names of the elected officials to the Cabinet Secretary who then gazettes them. Accordingly, the assertion of the 3rd respondent’s alleged abdication of his responsibilities is found to be devoid of any merit and the prayer is declined.

40. The other ground raised on the issue is the alleged disobedience of court orders by the 1st respondent. It is trite that court orders have to be obeyed by whoever has been served with the order. There are mechanisms for addressing violations of orders by parties to a dispute. The petitioner herein alleges that the 1st respondent disobeyed orders directing him to appoint the petitioner to the board. I have perused the petition and the annextures herein and find that the orders were issued by a different court in a different matter and or proceeding.

41. The law on contempt of court orders is that there are mechanisms to bring the contemnor to purge the contempt through a judicial process within the matter. The action to enforce compliance cannot be brought out in a different suit such as a petition as is in the instant case. My quick finding on this issue therefore is that this prayer is not open to the petitioner. The same is declined.

42. The other prayer sought is a declaration that the 1st respondent is unfit to hold public office on account of violation of a valid court order and the provisions of Chapter Six of the Constitution. Chapter 6 of the Constitution provides for leadership and integrity of public and state officers and the principles of leadership.

43. The importance of Chapter 6 of the Constitution were articulated in Republic v Ethics and Anti-Corruption Commission Ex Parte Nairobi City County Assembly & 13 Others[2019] eKLR where it was stated that:“The Constitution provides under Chapter Six, for Leadership and Integrity of all public officers. The Chapter is predicated upon the assumption that State officers are the nerve centre of the Republic and carry the highest level of responsibility in the management of State affairs and, therefore, their conduct should be beyond reproach. This means that under the Constitution Kenyans decreed that those whose conduct does not bring honor, public confidence and integrity have no place in the management of public affairs. This is to ensure that those entrusted with the management of public affairs and resources are persons of good character, probity and uprightness.”

44. In the circumstances of the petition, it is clear that there are already adjudicated and concluded court cases between the petitioner and the 1st respondent over the issue. I am of the view that this line of argument would best be approached by pursuing the remedies of contempt of court orders within the specific suit or proceedings where the disobedience is alleged to have taken place. Accordingly, I find this prayer devoid of any merit. It is declined.

45. Ancillary to the above issue and prayer is the prayer that the respondents do pay the petitioner general damages for violation of his constitutionally protected rights. In deciding whether to award damages under this head, the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General(2016) eKLR stated as follows:“...it seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”

46. In arriving at the above conclusion, the court quoted from the Trinidad and Tobago case of Siewchand Ramanoop v The AG of T&T, PC Appeal No 13 of 2004 where it was held in part that:When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation.The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminus with the cause of action at law.”

47. Having considered the pleadings in this petition, the annextures thereto as well as the submissions, I cannot find the particulars of loss or damages suffered by the petitioner to warrant being awarded damages. In the words of the Lord justices of the Privy Council in the above cited case, a mere declaration would suffice in the circumstances.

48. In summing up the issue, I find and hold that no harm has been established by the petitioner to warrant the award of damages. The prayer for damages is accordingly declined and dismissed.

49. Having taken all the above into account, and having found that the 1st respondent’s failure to appoint by way of gazettement of the petitioner and other elected members of board is in contravention of the statute, I now find and hold that the appropriate order that commends itself to issue is to direct and I hereby direct the 1st respondent Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Co-operativeS or its successor in title to appoint and gazette the petitioner Benson Oduor Ameda and the other officials of the Kenya Veterinary Board elected in March, 2021 into the Kenya Veterinary Board within 14 days of service of this judgement upon the 1st Respondent.

50. Each party to bear their own costs of this petition.

51. This file is closed. I so order

DATED, SIGNED AND DELIVERED AT KISUMU THIS 13TH DAY OF DECEMBER, 2022. R.E. ABURILIJUDGE