[2017] KEHC 1690 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CONSTITUTION PETITION NO. 12 OF 2017

IN THE MATTER OR ARTICLES 10, 19, 20, 22, [1] 38, 47, 165, 174, 175, 176,179, 183, 196 & 259 OF THE CONSTITUTION OF KENYA 2010

IN THE MATTER OF THE COUNTY GOVERNMENTS ACT 2012

IN THE MATTER OF THE PUBLIC APPOINTMENTS [COUNTY ASSEMBLIES APPROVAL] ACT

BETWEEN

HON. FAITH SYOKAU WATHOME KITHU (MBS) .............................................................PETTITIONER

VERSUS

MACHAKOS COUNTY ASSEMBLY .......................................................................................RESPONDENT

THE SPEAKER, COUNTY ASSEMBLY OF MACHAKOS....................................................RESPONDENT

THE CLERK, COUNTY ASSEMBLY OF MACHAKOS.........................................................RESPONDENT

AND

THE GOVERNOR, MACHAKOS COUNTY GOVERNMENT.....................................INTERESTED PARTY

RULING OF THE COURT

1. Learned Counsels for the Petitioner, Respondent and the Interested Party agreed by consent to have this Petition Number 12 of 2017 to act as the lead file for four (4) matters namely number 13 of 2017, 14 of 2017, 15 of 2017and16 of 2017 since the subject matters in issue are similar. It was further agreed that orders made in this file shall apply to all the other four matters mutatis mutandis.

2. Mr. Nyamu, learned counsel for the Petitioners stated that the Petitioners filed notices of Motion dated 17/11/2017 seeking for several prayers. That the said Applications had been filed contemporaneously with the Petitions. It was submitted there is need for conservatory orders in terms of prayer two of the Application pending the hearing of the Application and the Petition. Learned counsel submitted the granting of conservatory orders is necessary in order to protect the subject of the petition herein namely that the fundamental rights of the Applicants under Article 22 of the Constitution have been threatened, violated and likely to be whitewashed by the actions of the Respondents and the interested party. The rights being interfered with are pursuant to Article 47, 38 and 50 of the Constitution. Counsel submitted that the orders are necessary to avert a situation whereby the court’s jurisdiction under Article 165 of the Constitution is likely to be swept under the carpet. It was further submitted that the petition questions the exercise of oversight authority by the County Assembly that had set up a Committee to vet the Applicants who had been nominated by the interested party and that even though the County Assembly was applying the provisions of Section 35 of the County Government Act, it should have borne in mind the rights of the Petitioners under Article 50 of the Constitution. Counsel submitted that the committee that carried out the vetting of the Petitioner was quasi judicial and administrative in nature and not legislative and hence amenable to the supervisory jurisdiction of this court. It was submitted that unless the interim orders are granted the interested party will proceed to nominate new persons to the detriment of the Petitioners and further the grant of the orders will enable this court exercise its supervisory jurisdiction.

3. Mr. Mungata learned counsel for the interested party submitted that the position of the interested party is that his office should be functional as per Article 179 of the Constitution as he needs to deliver services to the people of the County. It was therefore submitted that it was for the greater good that the subject matter of the Petition be preserved. It was submitted that the Public Appointments (County Assemblies Approval) Act 2017 is being employed by the County Assemblies for the first time and it set the criteria for vetting of nominees such as awarding of marks to each candidate and that it seems the Respondents appear to misunderstand the application of the new law. He finally submitted that the Interested Party would not expect any legitimate outcome form the County Assembly even if he presents fresh nominees and as such the interests of the residents of the County are being affected. The Counsel therefore submitted that the interested party is not opposed to the Application.

4. Miss Kamende for the Respondents opposed the grant of conservatory order at this stage since there in no danger to be suffered as no evidence that the interested party has gone ahead to nominate fresh nominees. Counsel submitted that the claim by the Petitioner is speculative as there is no danger of rights being violated. It was submitted that the County Assembly rightly followed the provisions of Section 35 of the County Govenrment Act in setting in motions to vet the Petitioners for the positions of County Executive Committees in accordance with the provisions of Sections 7, 8 and 9 of the Public Appointments (County Assemblies Approval) Act 2017 and that this court has not been told what wrong had been done. It was submitted that this court has no jurisdiction to interfere with the role of the County Assembly in the performance of its functions and that the Petitioners had been accorded fair hearing during the vetting. It was finally submitted that this court should not interfere with the activities of the County Assembly as it would be tantamount to imposing nominees upon it and directing it on how to perform its duties and further that since the interested party is yet to commence the process of nominating fresh nominees, there is no urgency at all to warrant the grant of conservatory order.

5. I have considered the oral submissions of the learned counsels for the parties herein. This matter is yet to be heard before High Court No. 1 which is the trial court. The Applicants are seeking for conservatory orders in terms of prayer 2 of the Notice of Motion dated 17/11/2017 pending the hearing and determination of the Application. The order being sought is to restrain the Respondents and the interested party from engaging in the recruitment and/or appointment of County Executive Committee Members and or in whichever manner filling the position in respect of which the Petitioners have been appointed. Indeed it is not in dispute that the five Petitioners had been nominated by the Interested party to the respective positions and that the County Assembly did proceed in accordance with the provisions of Section 35 of the County Government Act and set up a committee which eventually carried out a vetting exercise of the Petitioners in accordance with the provisions of the Public Appointment (County Assemblies Approval) Act 2017. The Committee in its report dated 8/11/2017 rejected the Petitioners and directed that the interested party do proceed and nominate fresh nominees who will of course be subjected to the same process of vetting. It is after the rejection that the Petitioners filed these Petitions and Applications now before court for reliefs. The Petitioners in the Petitions have challenged the Constitutionality of the Provisions of the Public Appointments (County Assemblies Approval) Act 2017. The Petitioners are also apprehensive that the interested party may proceed to nominate fresh nominees to their detriment and hence the need for a conservatory order at this stage. It is noted that the interested party is yet to act as directed by the County Assembly and is also yet to file his pleadings in these matters. Hence at this stage nobody knows the mind of the interested party. It is possible he might present the names of the Petitioners a second time or introduce new persons. It is only then that the issue of whether the Petitioners legitimate expectation or rights violation would be said to crystallize. It was submitted by the counsel for the interested party that the Public Appointments (County Assemblies Approval) Act 2017 is a new statute yet to take root and applied by various County Assemblies and that the same seem to bring in new set criteria for appointment of persons to the County Executive Committee. A perusal of the report dated 8/11/2017 reveals that all the Petitioners failed to make a cut as they did not meet the high threshold set by the new law. The trial court upon hearing the parties herein would be best placed to consider whether or not to grant the orders sought in the Application in terms of prayers 3, 4 and 5. Again the issue of the Constitutionality of the Public Appointments (County Assemblies Approval) Act 2017 as well as whether the High Court has jurisdiction to interfere with the functions of the County Assemblies will be dealt with by the trial court. In the premises, I am reluctant to usurp the powers of the trial court in granting the conservatory orders. It is proper to leave the issue with the trial court.

6. In the result I decline to grant conservatory orders at this stage and direct the parties to appear before the Deputy Registrar on 4/12/2017 for allocation of suitable hearing dates on priority basis so that the matter is fast tracked. I make no order as to costs.

Dated and delivered at Machakos this 1st day of December, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Nyamu for the Petitioner

Kamende for the Respondents

Nthiwa for the Interested Party

Kituva - Court Assistant