[2022] KEHC 11931 (KLR)

Commission for Human Rights and Justice v Torrut & 5 others (Petition E024 of 2021) [2022] KEHC 11931 (KLR) (19 August 2022) (Judgment)

Neutral citation: [2022] KEHC 11931 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition E024 of 2021

JM Mativo, J

August 19, 2022

Between

Commission for Human Rights and Justice

Petitioner

and

Jacob Kimtai Torrut

1st Respondent

Head of Public Service

2nd Respondent

Public Service Commission

3rd Respondent

Ethics and Anti-Corruption Commission

4th Respondent

The Director of Criminal Investigation

5th Respondent

The Attorney General

6th Respondent

Judgment

1. The Petitioner’s case as I glean it from the pleadings is that the 1st Respondent was appointed as the Chief Executive Officer of Coast Water Works Development Agency on or about May 2, 2027 and his mandate was extended for one year on May 5, 2020. The Petitioner avers that having been so appointed, the 1st Respondent was by law obligated in the performance of his duties to observe, obey and up hold the Constitution particularly Articles 10, 73 and 232 of the Constitution, the Public Officers Act,Leadership and Integrity Act, the Code of Conduct for Public and or State Officers and to observe transparency and accountability in his duties.

2. The Petitioner states that the 1st Respondent turned the said agency into a private enterprise by acting outside the resolutions of the Board of Directors including withdrawing the Agency’s funds without the Board’s approval, committing contempt of court, promoting impunity and exploitation of workers by failing to pay statutory deductions.

3. The Petitioner faults the 2nd, 3rd, 4th,5th and 6th Respondents for failing to take steps to halt the pilferage of public funds by the 1st Respondent despite the matter having been brought to their attention. It faults the 6th Respondent for allowing the acts complained of to continue. The Petitioner avers that the said acts are a threat to Articles 10, 27, 73 and 232 of the Constitution. It avers that it is untenable for the 1st Respondent to continue holding public office because his conduct does not accord with Article 73 of the Constitution. The Petitioner avers that this Petition seeks to safeguard public interest under Articles 10, 73 and 232 of the Constitution by ensuring that public officers adhere to law and to prevent abuse of office and to stop economic sabotage. As a consequence, the Petitioner prays for:a.Declaration that the 1st Respondent has by his conduct and actions violated Articles 10, 73 and 232 of the Constitution.b.A declaration that the 1st Respondent is unfit to hold any public office currently and in the future.c.Any other orders that the court may deem fit to grant.d.Costs of the Petition be borne by the Respondents.

4. The Petitioner filed the further affidavit of Julius Ogogoh its Executive Director dated May 19, 2021. The salient points of the affidavit are that upon being served with suit papers in Petition No 4 of 2021, filed in the Labour & Employment Relations Court, Mombasa, the 1st Respondent denied the authenticity of the annexed documents which suggests that he had forged documents so as to support his Petition.

5. The 1st Respondent did not file any papers nor did he participate in these proceedings. I note that the process server, a one Michalel I. Otieno, in the affidavit of service dated May 20, 2021 avers that service upon the 1st Respondent was effected by way of e-mail and whatsApp message to number 0722849285. I will address the question of service later.

6. The 2nd, 3rd, 5th and 6th Respondents filed the Response dated July 12, 2021 stating:- (a) that the Petition seeks to compel the 4th and 5th Respondents to perform their constitutional and statutory functions; (b) that the orders sought if granted will infringe on the 1st Respondent’s constitutional rights under Article 27th, 43 and 47 of the Constitution; (c) that the Petitioner ought to await the outcome of the investigations by the 4th Respondent and recommendations to the Office of the Director of Public Prosecutions (ODPP) if the 1st Respondent is found culpable; (d) that the orders sought are pre-mature and unmerited.

7. The 4th Respondent filed the Replying affidavit of Lameck Okun, an investigator dated May 20, 2021. The substance of the affidavit is that:- (a) the 4th Respondent is an independent body empowered by law to investigate the conduct of any person and or body which in its opinion constitutes corruption or economic crime or unethical conduct pursuant to Chapter 6 of the Constitution, the Ethics and Anti-corruption Commission Act,(EACC Act); the Anti-Corruption and Economic Crimes Act (ACECA) and the Leadership and Integrity Act;(b) pursuant to Article 252 of the Constitution, the 4th Respondent has powers to conduct investigations either on its own initiative or on a complaint by a member of the public; (c) on September 9, 2019 the 4th Respondent received an anonymous complaint against the 1st Respondent alleging that he had irregularly authorized and processed payments to M/S Sourcing & Construction Industries; (d) investigations have since commenced and upon conclusion, the 4th Respondent pursuant to section 11(1) (d) of the EACC Act will make necessary recommendations to the ODPP for prosecution if criminal culpability is established.

8. In his submissions, the Petitioner’s counsel urged the court to be guided by Article 259 of the Constitution and the principles of constitutional interpretation laid down by Mohamed A J cited in the Matter of the Interim Independent Electoral and Boundaries Commission. He cited the definition of a Public Officer in Articles 232(2) of the Constitution and Fredrick Otino Outa v Jared Odoyo Okello & 4 others and Rodgers Mogaka Mogusu v George Onyango Onyango Oloo & 2 Others both of which echoed the said definition and argued that the 1st Respondent is a public officer.

9. The 1st Respondent’s counsel cited Articles 10, 73 and 232 of the Constitution and Administrative Law in support of the proposition that everything must be done according to law. He argued that the 1st Respondent’s actions fall short of the standards of a public officer. He argued that he has tendered evidence proving misconduct against the 1st Respondent and submitted that its open for a person to either lodge a complaint with the Ethics and Anti-corruption Commission under Article 252(2) of the Constitution or invoke this court’s jurisdiction. To further buttress his argument, he cited Charles Omanga & 8 others v Attorney General & another which held that the Leadership and Integrity Act was enacted to effectively operationalize Chapter Six of the Constitution. He cited section 23 of the ACECA which defines corruption and argued that the 1st Respondent has defied summons and court orders issued against him.

10. Counsel for the 2nd,3rd, 5th and 6th Respondents submitted that the Petition seeks to direct and compel the 4th and 5thRespondents on how to perform their constitutional and statutory functions. He argued that the orders sought if granted will infringe the 1st Respondent’s constitutional rights under Articles 27, 43 and 47 of the Constitution. He also argued that the orders sought are pre-mature. Counsel cited Articles 243-247 of the Constitution and the National Police Service Act which prescribe the constitutional and Statutory mandate of the National Police Service which include investigating crime. He also cited Development Bank of Kenya v Director of Public Prosecutions & another, Giriama Ranching Company Limited (Interested Party) in support of the proposition that Inspector General of Police is an independent office.

11. Counsel for the 4thRespondent submitted that EACC it is an independent body empowered by law to investigate the conduct of any person in corruption/economic crimes as provided by Article 79 of the Constitution and section 11 of the EACCA. He also cited section 28 of the EACC Actwhich provides that in the performance of its functions, EACC shall not be subject to the direction or control of any person or authority. To further fortify its argument, counsel cited Michael Sistu Mwaura Kamau & 12 others v Ethics and Anti-corruption Commission & 4 others which held that the Commission is required to be free from any control by any person in the performance of its functions.

12. First, I will address the question of service upon the 1stRespondent, an issue the Petitioners counsel failed to address despite seeking orders against the 1st Respondent. As mentioned earlier, the affidavit of service sworn by Michael I Otieno dated and filed on May 20, 2021 avers that service was effected via e-mail and WhatsApp. A copy of the WhatsApp message showing green ticks which is a sign of delivery was not annexed. Two copies of printed e-mail communications allegedly e-mailed to the 1stRespondent addressed to e-mail address number torrutt166 have been attached to the affidavit. Strikingly, the said address is incomplete. It does not show the exact account details such as @yahoo.com or @gmail.com, etc. Astonishingly, the said address manifestly varies from the address provided at paragraph 10 of the process server’s affidavit which is torrutt166yahoo.com. Shockingly, even the address torrut166yahoo.com alleged to be the 1st Respondent’s address is glaringly incomplete. It does not have the usual @. For example, @gmail.com or @yahoo.com. Evidently, there is something outrageous with the address alleged to have been used if at all the e-mail was forwarded as alleged. With such glaring inconsistencies, it is highly unlikely that service was effected as alleged and if it was, then, the e-mail was sent to an incomplete address.

13. The above is not the only glaring gap in the Petitioner’s case. On May 25, 2021, Chepkwony J delivered a ruling declining to transfer this case to the Employment and Labour Relations Court. Relevant to the issue of service is paragraph 14 of the Ruling in which the learned Judge directed the Petitioner to properly serve the 1st Respondent and file a proper affidavit of service before fixing this case for hearing. The Petitioner never complied with the said order. This alone disentitles the Petitioner the reliefs sought for want of compliance with the court order and want of service.

14. The foregoing is not the only lapse on the part of the Petitioner. On December 17, 2021, about 6 months after the orders by Chepkwony J, no action had been taken in this file. On my own motion, I directed that this matter be mentioned on Febraury 17, 2022, but on the said date the matter was not brought to court. I mentioned it on Febraury 24, 2022 in the presence of counsel for the 2nd, 3rd, 5th and 6th Respondents, counsel for the Petitioner and in the absence of counsel for the 1st and 4th Respondents. I directed parties to file submissions and directed service to be effected. The matter was mentioned again on April 4, 2022, but parties had not complied. On April 22, 2022 the Petitioners and counsel for the 2, 3rd, 4th, 5th and 6th Respondent stated that they had filed submissions and requested for a judgment date.

15. Evidently, the orders sought in this Petition, if granted, will affect the 1st Respondent, yet, the Petitioner failed to serve him as directed by the court. This will amount to granting orders affecting a person without giving him the benefit of a hearing. The law in cases of this nature was settled by the Supreme Court of India in Prabodh Verma v State of U P and Tridip Kumar Dingal v State of W B both of which underscored the danger of issuing orders without hearing a person likely to be affected by the order.

16. Decided cases are in agreement that a person or a body becomes a necessary party if he is entitled in law to defend the orders sought. The term “entitled to defend” confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for there would be violation of natural justice. The principle of audi alteram partem has its own sanctity. That apart, a person or an authority must have a legal right or right in law to defend or assail.

17. Natural justice is not an unruly horse. Its applicability has to be adjudged regard being had to the effect and impact of the order and the person who claims to be affected; and that is where the concept of necessary party and the need for proper service becomes significant. I may profitably cite the Supreme Court of India inCanara Bank vs Debasis Das thus:-“Natural justice has been variously defined. It is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.”And again:-“Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance....”

18. The concept and doctrine of Principles of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. It has by now assumed the importance of being, so to say, "an essential inbuilt component" of the mechanism, through which decision-making process passes, in the matters touching the rights and liberty of the people. It is no doubt, a procedural requirement but it ensures a strong safeguard against any Judicial or administrative; order or action, adversely affecting the substantive rights of the individuals.

19. Apart from the need for independence and impartiality, the right to a fair hearing under Article 50(1) of the the Constitution encompasses several aspects. These include, the individual being informed of the case against her/him; the individual being given an opportunity to present her/his side of the story or challenge the case against her/him; and the individual having the benefit of a public hearing before a court or other independent and impartial body.

20. Our Constitution recognizes a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations. It is a fundamental rule of the common law doctrine of natural justice. Generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. The Supreme Court of India put it succinctly in J S Yadav v State of U P & Anr in Paragraph 31 held thus: -“No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice…”

21. In conclusion, the first defect in this Petition is the inconsistencies highlighted earlier in the affidavit of service. The second is the failure to serve the 1st Respondent as ordered by the court on May 25, 2021. A court ought not to decide a case without the persons who would be vitally affected by its judgment being before it as respondents unless there is clear evidence of service and failure to attend court in which event, the case can proceed ex parte.

22. The other ground upon which the entire Petition collapses is that the Petitioner deployed a lot of energy accusing the 2nd to 6th Respondents of failing to take action to stop what it described as the Petitioner’s malpractices. But that is how far it goes. Save for the prayer for costs, no prayer has been sought against the 2nd to the 6th Respondents despite the allegations made against them. How does the Petitioner expect the court to arrive at a finding against the said Respondents yet there is no prayer sought against them? The only inevitable conclusion is that the case against the 1st Respondent having collapsed as herein above stated, then the entire Petition collapses since the Petitioner sought no reliefs against the other Respondents.

23. The other ground upon which the Petition collapses is that the Petitioner faults the 2nd to 6th Respondents for failing to investigate the alleged misconduct on the part of the 1st Respondent. This argument ignores the fact that EACC, the National Police Service and the ODPP are creatures of the Constitution. The Constitution and the enabling statutes clearly define the mandate of the said entities. These constitutional bodies are constitutionally ordained to perform their functions without any interference or direction by any person. Their only allegiance is to the Constitution. This is the language of Articles 79, 249 (2) (a) & (b), 245 (4), 157 (10) of the Constitution. As was held in International Trade Administration Commission v SCAW South Africa (Pty) Ltdas follows: -“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference. That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”

24. This court respects the above Constitutional imperative and will hesitate to interfere with the functions of the EACC, the Police and the ODPP unless there is a clear and proven case of breach of the Constitution. Interestingly, the Petitioner has not claimed he reported any crime to any of the investigative bodies. He claims that it is free to report to the said bodies or approach the court. The above excerpt answers this line of argument. This court can only intervene where it is shown that a public body has acted outside the law or failed to act. In any event, as stated earlier, no specific reliefs have been sought against the 2nd to the 6th Respondents. One wonders why they were sued since the Petitioner never sought any orders against them.

25. The EACC has stated that they received an anonymous complaint against the 1st Respondent and upon conclusion of their investigations, if culpability is established against any one, they will recommend to the ODPP. The Petitioner wants this court to usurp the functions of constitutional bodies. I decline the invitation to do so.

26. The alleged misconduct against the 1st Respondent is of such a nature that it requires investigations to establish criminal culpability or breach of Public Code of Conduct as alleged. Such a finding requires a serious inquiry and investigations not mere untested averments in an affidavit. The general principle governing the determination of cases is that the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus on the Petitioner to establish violation of Articles 10, 73 and 232 of the Constitution is not a mere formality; it is important. Section 107 (1) of theEvidence Actprovides that "whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." Sub-section (2) provides that "when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person."

27. The recitation of Articles of the Constitution of statutory language (as has happened in this case) is not sufficient nor are mere ipse dixit affidavits as proffered in this case. The Petitioner must not only provide sufficient evidence, but must prove the allegations. In the minimum, it is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of the Constitution should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of the Constitution is essential to a proper consideration of constitutional issues. Decisions on violation of constitution cannot be based upon the unsupported hypotheses. In view of my analysis of the issues discussed herein above, the conclusion becomes irresistible that this Petition fails. I dismiss the Petitioner’s Petition dated May 11, 2021 with costs to the 2nd to 6th Respondents.Orders accordingly

SIGNED AND DATED AT MOMBASA THIS 18TH DAY OF AUGUST 2022JOHN M MATIVOJUDGESIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 19TH DAY OF AUGUST 2022J N ONYIEGOJUDGE