[2025] KEHC 9714 (KLR)

Awino v National Assembly & another; Kemei (Interested Party) (Constitutional Petition E460 of 2024) [2025] KEHC 9714 (KLR) (Constitutional and Human Rights) (23 January 2025) (Ruling)

Neutral citation: [2025] KEHC 9714 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E460 of 2024

AB Mwamuye, J

January 23, 2025

IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 27, 41, 73, 75, 258 & 259 OF

THE CONSTITUTION OF KENYA

IN THE MATTER OF: LEADERSHIP & INTEGRITY ACT NO. 19 OF 2012

-AND-

IN THE MATTER OF: ANTI-CORRUPTION & ECONOMIC CRIMES ACT

Between

Francis Awino

Petitioner

and

The National Assembly

1st Respondent

The Senate of Kenya

2nd Respondent

and

David Kibet Kemei

Interested Party

(On the 1st and 2nd Respondents’ Notice of Preliminary Objections dated 13th September 2024 and 23rd September 2024 respectively.)

Ruling

1. The Petitioner approached this Honourable Court with a petition and a Notice of Motion Application both dated 6th November, 2024. The Notice of Motion application was seeking the following orders which I will quote verbatim;a.The application be certified urgent an service thereof be dispensed with and it be heard ex-parte at the first instance;b.Pending hearing and determination of this Application, the Honourable court be pleased to issue an order restricting and/or barring the Respondents, their agents, employees, assignees assignors or anyone whomsoever from conducting the Interested Party’s approval hearing for the appointment to the office of the Director General of the Competition Authority scheduled for 17th September, 2024;c.Pending hearing and determination of this suit, the Honourable Court be pleased to issue an order restricting and/or barring the Respondents, their agents, employees, assignees assignors or anyone whomsoever from conducting the Interested Party’s approval hearing for the appointment to the office of the Director General of the Competition Authority scheduled for the 17th September 2024;d.The costs be provided for.

2. The application was based on the grounds that the Petitioner noted overwhelming illegalities, irregularities and circumvention of the law that was done by the Respondents that is against the Constitution and the Public Service Act.

3. The Petitioner states that the Interested Party was nominated to be the Director General of the Competition Authority by the Cabinet Secretary for National Treasury and Economic Planning and was invited for an approval hearing by the Departmental Committee on finance and National Planning for the 1st Respondent and the Senate Standing Committee on Finance and Budget by the 2nd Respondent.

4. The Petitioner further states that the Interested Party’s was improper and void ab initio as he had attained the mandatory retirement age of 60 years and shouldn’t be allowed to hold any public office.

5. The 1st Respondent in response to the application filed a Notice of Preliminary Objection dated 13th September 2024.

6. The Preliminary Objection was premised on the following grounds:i.This Honourable Court lacks Jurisdiction to entertain this petition and the Petitioner’s Motion for conservatory orders under Section 12 of the Competition Act as read with Article 117 of the Constitution and the Public Appointments (Parliamentary Approval) Act, 2011;ii.This Honourable Court lacks Jurisdiction to entertain this petition and the Petitioner’s Motionunder the doctrines of separation of powers, parliamentary privileges and immunities, ripeness and deference & the principles enunciated by the Supreme Court of Kenya in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR ;iii.The Petitioner seeks to curtail the exclusive mandate of the National Assembly on the approval of the 1st Interested Party for appointments as Director General of the Competition Authority under section 12 of the Competition Act and the Public Appointments (Parliamentary Approval) Act, 2011;iv.Active Parliamentary proceedings on the approval 1st Interested Party for appointment as Director General are currently underway before the National Assembly.

7. The 1st Respondent prayed that the Petition and Motion be dismissed with costs.

8. The Interested Party filed a Replying Affidavit in response to the Petitioner’s Application sworn on 13th September, 2024 where he denied the allegations made by the Petitioner and stated that the entire appointment exercise for the position of Director General for Competition Authority was being carried out in strict compliance with the law. He prayed that the Petitioner’s application be dismissed with costs.

9. The 2nd Respondent similarly filed a Preliminary Objection dated 23rd September, 2024 on the grounds that;a.The Honurable Court lacks jurisdiction to determine this matter because the Petition and Notice of Motion are overtaken by events and therefore moot;b.The Honurable Court lacks Jurisdiction to determine this matter as at the time of filing the Petition, the Notice of Motion were unripe for determination and premature considering that the Senate Committee was yet to conduct the approval hearingc.The Honurable Court lacks Jurisdiction to determine this matter as the Petitioner did not exhaust all other avenues for redress before approaching the court.

10. The 2nd Respondent prayed that the Petition and Application be struck out with costs.

11. The 2nd Respondent further filed Grounds of Opposition dated 23rd September 2024, on the grounds similar to those outlined in its Preliminary objection and prayed that both the Petition and Notice of Motion Application dated 23rd September 2024 be stayed and/or dismissed with costs.

12. On 24th September 2024, the Petitioner made an oral application before court withdrawing the Notice of Motion Application dated 6th September 2024 as it had been overtaken by events.

13. The 1st Respondent also made an oral Application to have its Application dated 13th September, 2024 withdrawn with no orders as to costs.

14. The court directed that the two Applications would be heard and determined together as they related to the same subject matter parties shall canvass the 1st and 2nd Respondent’s Preliminary Objections by way of written submissions.

15. All parties except the Petitioner filed their written submissions.

16. The Interested party filed his submissions dated 31st October 2024 where the Interested Party analyzed three (3) issues for determination namely; Whether this court has Jurisdiction to entertain the suit, whether the petition meets the threshold required of a Constitutional Petition and finally who should bear the costs of this suit. The interested Party relied on the several authorities which include Owners of Motor Vessel Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR , Speaker of National Assembly v James Njenga Karume [1992] eKLR , Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2011] eKLR , William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR Anarita Karimi Njeru v Attorney General (1979) KLR 154, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR

17. The 1st Respondent filed submissions in support of the Preliminary Objection which was dated 5th November 2024 where it relied on two (2) issues of determination namely; whether this court lacked Jurisdiction to deal with an issue currently under consideration by the National Assembly and whether the Notice of Motion Application and the Petition were filed prematurely and have they since been rendered moot by the completion of the parliamentary approval proceedings. The 1st Respondent relied on holdings of several cases namely; Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2017] eKLR , Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others [2016] eKLR , Saggaf & 3 Others v Departmental Committee on Lands & 2 others; Mwashetani (Interested Party) (Constitutional Petition E065 of 2021)[2021] KEHC 10728 (KLR) (31 May 2022) (Ruling) , Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR

18. The 2nd Respondent equally filed its written submissions dated 25th November 2024 where they outlined four (4) issues of determination which are; when can a Preliminary objection be raised, the matter is overtaken by events, the Doctrine of Ripeness and the Doctrine of Exhaustion. The 2nd Respondent relied on most of the cases outlined above in addition to Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 others [2018] eKLR

Issues for determination 19. The Parties are in agreement on the issues for determination in this Ruling, they have largely cited the same authorities articulating the same or similar points of law in support of their relevant positions and in support of the Preliminary Objections Applications.

20. From the Applications, the Affidavits and the Written Submissions it emerges that the issue for determination are as follows:i.Whether this Court has Jurisdiction to entertain this suit

ANALYSIS AND DETERMINATION Whether this court has Jurisdiction to entertain this suit 21. The jurisdiction of court or tribunal is derived from the Constitution, statute or by principle laid out in judicial precedent. The Supreme Court in the case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2012] eKLR held “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise 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…”

22. Whenever the issue of jurisdiction is raised due to the existence of a dispute resolution process that is provided under statute, the Court should examine the nature of the case and the reliefs sought to determine whether or not the aggrieved party would get redress elsewhere.

23. Section 6(9) of the Public Appointments (Parliamentary Approval) Act No. 33 of 2011 states: “Any person may prior to the approval hearing, and by written statement on oath, provide the Clerk with evidence contesting the suitability of a candidate to hold the office to which the candidate has been nominated.”

24. This implies that the Petitioner has the right to question the suitability or otherwise of the candidate nominated even before Parliament proceeds with the approval process.

25. The suitability of the Interested Party to be appointed in the present petition is contested. However, the Petitioner has not shown that he made presentations to Parliament as per Section 6(9) of the Public Appointments (Parliamentary Approval) Act, 2011. Nowhere does the Petitioner allege that he moved the Parliament and was denied the opportunity.

26. Section 7 of the Public Appointments (Parliamentary Approval) Act No. 33 of 2011 outlines issues considered by the House of Parliament in relation to nomination to include the procedure used to arrive at the nominee, any constitutional or statutory requirements relating to the office in question and the suitability of the nominee for the appointment.

27. In this case it is true that the Petitioner has an opportunity to still question the mode of appointment of the Director General of Competition Authority before Parliament and raise issues being raised in the current Petition. The Petitioner had therefore not exhausted the process before coming to court.

28. The Court of Appeal in the rationale for the doctrine of exhaustion explained in the case of Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 others [2015] eKLR where it opined: “The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”

29. Issues raised in the Petition could be raised before the relevant committee of the National Assembly for its consideration before it made its decision.

30. The Petitioner herein jumped the gun by coming to court yet there are procedures outlined in settling the matter by making complaints to the Nominating Committee before proceeding to court. Indeed the petitioner should have explored that avenue first before approaching court.

31. The Court of Appeal in the case of Secretary, County Public Service Board & Another vs Hulbhai Gedi Abdille [2017] eKLR held that an alternative and more convenient remedy in some other tribunal or forum should, in the Court’s opinion be a good ground for the court to decline to act.

32. On the issue of separation of powers, the Supreme Court has pronounced itself in the case of Justus Kariuki Mate & Another vs Martin Nyaga Wambora & Another (2017) eKLR where the court held; “ From the course of reasoning emerging from such cases, it is possible to formulate certain principles as follows:-a.Each arm of Government has an obligation to recognize the independence of other arms of Government;b.Each arm of Government is under duty to refrain from directing another organ on how to exercise its mandate;c.The Courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgment;d.For the due functioning of constitutional governance, the Courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;e.In the performance of the respective functions, every arm of Government is subject to the law.”

33. As outlined above, each arm of Government has a duty to refrain from directing another organ on how to exercise its mandate and this court is guided that when to comes to duties of the 1st Respondent it should carry itself with restraint and objectivity so long as the same is carried out in accordance to the law.

34. This court finds that the Committee was the proper forum to institute this Petition having been moved accordingly. The Respondents have therefore established a bar to this Court’s Jurisdiction to intervene. Had the petitioner exhausted the forum, then he would have established the Court’s Jurisdiction as the proper forum to review the Committee’s decision on merits as appropriate.

35. Having considered the arguments above, it is my finding that the Preliminary Objection succeed on account of want of exhaustion of the statutory procedure under the Public Appointments (Parliamentary Approval) Act. No. 33 of 2011.

36. As well outlined in the case of Owners of the Motor Vessel Lilian S v Caltex Oil (Kenya) Ltd [1989] KLR 1 “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 continuation of proceedings pending other evidence. A court downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

37. Having found that this court lacks Jurisdiction, it is necessary that this court downs its tools. By that finding alone, the Petition would collapse.

38. The court finds that the Parliamentary forum was designed to deal with the kind of disputes raised in the instant petition and therefore the Petition is amenable to being struck out.

39. This being a public interest suit, the court finds that each party shall bear its own costs.

40. Consequently, and for the foregoing reasons, this Court issues the following orders:A.The 1st and 2nd Respondents’ Notice of Preliminary Objections dated 13th September 2024 and 23rd September 2024 respectively succeed to the extent that this court lacks Jurisdiction to entertain this Petition.B.The Petitioner’s Petition dated 6th September, 2024 is hereby struck out.C.Each party to bear their own costs of proceedings.

41. Orders accordingly, file closed accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JANUARY 2025. BAHATI MWAMUYEJUDGE