[2017] KEHC 1833 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

PETITION NO. 13 OF 2014

CLEOPHAS WAKHUNGU MALALA………………...……….PETITIONER

VERSUS

SPEAKER KAKAMEGA COUNTY ASSEMBLY………1ST RESPONDENT

CLERK KAKAMEGA COUNTY ASSEMBLY……….…2ND RESPONDENT

KAKAMEGA COUNTY ASSEMBLY……………….…..3RD RESPONDENT

AND

HON. ABDIHAKIM MOGAMED KAHIYA……........….INTERESTED PARTY

J U D G M E N T

Introduction

1. The petitioner herein filed his petition on the 1. 07. 2014. By then the petitioner was Acting Speaker of the Kakamega County Assembly, having been elected thereto pursuant to Article 178 of the Constitution 2010. He filed the Petition against the respondents for allegedly infringing and contravening this fundamental rights as secured and guaranteed under the constitution 2010, the County Assemblies Standing orders and the relevant County Governments Act.

The petition

2. The petitioner avers that on the 25. 06. 2014, he attended House Business Committee, meeting at which the Speaker introduced a motion seeking among other issues, impeachment of the petitioner. The motion was slotted into the day’s order paper for discussion the same day in the afternoon. The petitioner further avers that his efforts to point out that the wrong procedures were not being followed were resisted and at 2. 30pm on that day, the motion was introduced on the floor of the County Assembly for discussion and disposal. The anticipated conclusion of the discussion however came to naught because of the chaos that erupted on the floor of the assembly, forcing premature adjournment of the assembly.

3. According to the petition the motion of impeachment contained the following allegations against the Petitioner:-

i. That the Petitioner has conducted himself contrary to Chapter 6 of the Constitution.

ii. That the Petitioner has conducted himself in a manner which has caused great disharmony in the County government and further make the public lose faith in the development agenda of the County Government

iii. That the Petitioner has organized rallies in different wards in the county without informing the house members of the County Assembly.

iv. That the Petitioner has compromised public or official interests in favour of his personal interests

v. That the petitioner was suspended by the assembly on two different occasions regarding an allegation of a false trip to Mombasa and in the house for gross misconduct.

4. The petitioner contends that during the ensuing debate on the motion he was denied an opportunity to defend himself against the allegations. This being contrary to standing order 64(3) of the Interim County Assemblies standing orders Standing Order 64(3) referred to by the Petitioner roads as follows;-

“64 (1)……………………..

(2) ……………………………………..

(3) when the Speaker is satisfied that the motion has been adequately debated, the speaker shall call upon the officer to answer issues removed from officer to answer issues raised in the debate, and thereafter call upon the mover of the motion to reply.”

5. The Petitioner also contends that the fact that the motion was introduced for debate pursuant to standing order Number 68 was erroneous because the said Standing Order makes provision for Roll call Division claimed.

6. He contends further that the purported impeachment was unfair, unreasonable and unconstitutional and clearly offended the provisions of the constitution. For the above reasons, the petitioner seeks the following relief;-

a. A Declaration be issued to declare the motion dated 24th day of June, 2014 aimed at removing the Petitioner from office as unprodecural, malicious, an illegality and an abuse of the due process of the law.

b. A Conservatory Order do issue retaining the Petitioner in office as Acting Speaker Kakamega County Assembly

c. AN Order restraining the 3rd Respondent from re-introducing and/or debating a motion for removal of the petitioner as Acting Speaker Kakamega County Assembly as the same was dispensed with in the sitting of 25th day of June, 2014

d. Costs of the suit

e. Any other Order that the Honourable Court may deem fit to grant

Answer to Petition

7. The Respondents filed their joint Answer to the petition on the 7th of July, 2014 in which they denied the allegations made by the petitioner. They explained that on the 26. 6.2014 the House Business Committee of the 3rd Respondent, of which the petitioner was a member, met and voted to have the motion to relieve the petitioner of his responsibility as acting speaker included in the order paper for debate the same day. They claimed that the petitioner fully participated in the debate.

8. The Respondents also averred that the notice of the order paper was circulated to the members including the petitioner and the motion was subsequently duly moved and seconded by Hon. Khamasi and seconded by Hon. Opuka and was duly debated. They further averred that the petitioner fully participated in the debate as evidenced in the Hansard for the 26. 06. 2014. It is the respondents’ case that none of the petitioner’s rights and freedoms under the Constitution 2010 were ever violated and all the law, procedures, standing orders in regard to the motion in question were duly complied with.

9. The Respondents also allege that the petitioner filed Kakamega HCCC 335 of 2013 which touches on the issue of the petitioner’s removal as acting speaker, and that the said suit is still pending determination. They maintain that the petitioner has not come to this court with clean hands and has distorted the facts to this suit and therefore the petition should be dismissed with costs.

Other parties

10. The Court notes that Hon. Abdihakim Mohamed Kahiya the then Speaker of the Kakamega County Assembly was enjoined as an interested party. For purposes of this petition, the Interested Party was on the same side as the Respondents.

The Submissions

11. The parties filed and exchanged their respective written submissions. The petitioner’s two sets of submissions are dated 24. 03. 2016 and 21. 7.2015 while the Respondents’ and Interested Party’s joint submissions are dated 07. 07. 2015.

12. The petitioner submits that the procedure for the removal of the speaker/acting speaker from office as provided for in section 11 of the county Government Act No. 17 of 2012 were not followed. That there is no record of how the members of the assembly voted for or against the motion. He further submits that sub Section 4 of the said provisions was also not followed because the petitioner was not given an opportunity to respond to the allegations on the floor of the assembly. He submits that he was not able to respond to the allegations of misconduct levelled against him as he had not been served with the notice on time and that he also had questioned the procedure by which the Motion was presented for debate.

13. In his further submissions, the petitioner cites Standing Order number 63(1) (a) of the County Assembly Standing Orders which provides the procedure for removal from office of any person. He adds that the Motion for his impeachment was not properly crafted as it did not meet the requisite standards for debate. He further submits that no evidence was tabled to substantiate the allegations made against him, and that the Interested Party was a beneficiary of an illegal process.

14. On their part the respondents in opposing the petition maintained that the motion for impeachment of the petitioner dated 24. 06. 2014 was procedural, legal and was passed within the due process of the law. It is their submission that the petitioner cannot ask this court to perpetuate an illegality by asking the court to order the County Assembly to restrain from performing its Constitutional mandate under the constitution. Counsel for the respondents referred to the court to the provisions of Articles 176, 177 and 178 of the Constitution which deal with the establishment of County Governments and its membership. Reliance was also placed on the County Governments Act No. 17 of 2012 Section 11 thereof on the removal of the County Speaker from the County Assembly. The respondents have given a detailed overview of the impeachment process and maintain that the laid down procedures were followed in the instant case.

Determination

15. Because of the time lapse, the determination of this petition is only an academic exercise given that elections were held on August 8th 2017 and new leaders put in place. Now straight to the point. The issue for determination in this petition is whether the laid down procedures were followed in the process of impeachment of the petitioner from the position of deputy speaker of the Kakamega County Assembly. A glimpse at the provisions of Section 11 of the County Governments Act No. 17 of 2012 shows that the motion for impeachment of a speaker must be supported by at least 75% of the members of the county assembly. As properly stated by the respondents in their submissions the legal requirement is that the total number of votes must be more that 75% of the total number of the house present. It is clear from the Hansard dated 2. 07. 2015 that a total of 76 out of 89 members voted but this voting was to elect a speaker and was not about the motion to impeach the petitioner. There is no evidence to show that 75% of the members in the house on 26. 6.2014 voted for or against the Motion of impeachment of the petitioner. It is my considered opinion, therefore, that the respondents have failed to demonstrate the number of people who voted for or against the motion to impeach the petitioner

16. Secondly, the said Section 11 of the County Governments Act provides for a notice for removal. It provides that such notice for removal has to be signed by at least 1/3 of the members of the assembly and contain the grounds for the removal. At submitted by the respondents, the order of business dated Thursday June 26, 2014 listed the grounds of violations that had been occasioned by the petitioner when he was deputy Speaker. But the same order of business was not signed by 1/3 of the assembly. The requirements for the issuance of a notice were therefore not satisfied as required by law. Section 11 of the County Government Act No 17 of 2012 at Sub-Section (2) makes it clear that a motion for removal of the speaker shall be made in writing to the clerk of the assembly and to be signed by at least one third of all members. As correctly stated by the petitioner in his submissions the motion as presented before the house business committee had no signatures to back it up.

17. Lastly the statutory notice period of seven (7) days was not attained. From the record I see that the motion was crafted on the same day and debated the same day in the afternoon. Standing Order number 63(1) of the County Assemblies standing orders which provides that for a person to be removed from office of the speaker or Deputy Speaker, he has to appear before a relevant committee of the county assembly and also have legal representation was not followed. The respondents have not adduced whether the petitioner appeared before the relevant committee as required. Thus the respondent chose not to follow the laid down procedure because there was no committee formed as required in the first place.

Conclusion

18. This petition though over taken by events has merit. The petitioner has shown that indeed the procedure for his impeachment was unlawful, illegal and unprocedural. As he states in his submissions it was an ambush on him when the motion of impeachment was tabled within the same day without following the laid down procedures. In effect therefore, the petitioner was not allowed to arrange for and have legal representation nor was he given a chance to defend himself against the allegations levelled against him. The petition is thus allowed in the following terms;-

a . A declaration be and is hereby made to the effect that the motion dated 24th day of June, 2014 aimed at removing the petitioner from office was unprocedural, malicious, an illegality and an abuse of the due process of the law.

b. Since prayers (b) and (c) of the petition have been overtaken by events, I issue no orders in respect of the same.

c. The petitioner shall have the costs of this petition, either to be agreed or taxed.

It is so ordered

Judgment delivered, dated and signed in open court at Kakamega this 30th day of November, 2017

RUTH N. SITATI

JUDGE

In the presence of;-

Miss Atieno holding brief for Mr. Masake…………for Petitioner

Mr. Fwanya (absent)……………………………….for Respondents

Mr. Ojienda……………………………………..for Interested Party

Polycap……………………………………………Court Assistants