[2023] KEELRC 2656 (KLR)

Hussein & another v Governor, County Government of Mandera & 2 others; Somo (Interested Party) (Petition E143 of 2023) [2023] KEELRC 2656 (KLR) (30 October 2023) (Judgment)

Neutral citation: [2023] KEELRC 2656 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E143 of 2023

B Ongaya, J

October 30, 2023

IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 1, 2(1), 3(1), 10(1) (2), 22, 23, 27(1) (2), 73, 232 AND 258 OF THE CONSTITUTION OF KENYA -AND- IN THE MATTER OF SECTIONS 7(8) AND 8 OF PUBLIC APOINTMENTS (COUNTY ASSEMBLIES APPROVAL) ACT NO.5 OF 2017 -AND- IN THE MATTER OF SECTION 5 OF THE OFFICE OF THE COUNTY ATTORNEY ACT, 2020 -AND- IN THE MATTER THE ILLEGAL APPOINTMENT OF HUSSEIN ADAM SOMO AS THE COUNTY ATTORNEY, COUNTY GOVERNMENT OF MANDERA -AND- IN THE MATTER OF EXERCISE OF CONSTITUTIONAL & STATUTORY POWERS BY THE COUNTY- GOVERNOR & COUNTY ASSEMBLY

Between

Sadam Maalim Hussein

1st Petitioner

Ahmed Maalim Adow

2nd Petitioner

and

The Governor, County Government of Mandera

1st Respondent

The County Government of Mandera

2nd Respondent

The County Assembly, County Government of Mandera

3rd Respondent

and

Hussein Adam Somo

Interested Party

Judgment

1. The petitioners filed the petition dated 20. 07. 2023 through Kusow & Company Advocates. They prayed for:a.A declaration be issued under Article 73 and 232 (g) of the Constitution, Section 5(2) (a) of the Office of the County Attorney Act, 2020 and section 7 (8) and 8(c) of the Public Appointments (County Assembly Approvals) Act, 2017 that the respondents were under a duty, and have failed, to have regard to competence and suitability, experience and qualities, merit and ability when making the nomination, approval and appointment of the interested party as the County Attorney.b.A declaration be issued that the interested party was unqualified for nomination as County Attorney and his subsequent approval and appointment by the respondents is thus unconstitutional, illegal and null and void ab initio as he did not attain the mandatory Five Years requirement under section 5(2) (a) of the Office of the County Attorney Act, 2020 as at the time of nomination and appointment.c.An order of judicial review of certiorari be issued quashing the appointment of the interested party as the County Attorney, County Government of Mandera.d.An order to issue directing the respondents to take steps to ensure that regard be given to competence and suitability, experience and qualities, merit and ability when making fresh nomination, approval and appointment of the County Attorney.e.An order of mandamus to issue compelling the interested party to refund all monies received from the 2nd respondent in the form of salaries, benefits and allowances forthwith for the entire duration he was the County Attorney and in any event within 90 days.f.Costs of the petition.

2. The petition was based upon the supporting affidavit of Sadam Maalim Hussein and upon the following pleaded and urged grounds:a.On 14. 10. 2022 by an undated letter the 1st respondent nominated County Executive Committee members and by that letter the 1st respondent nominated the interested party Hussein Adam Somo as the County Attorney of the 2nd respondent pursuant to section 5(1) of the Office of the County Attorney Act, 2020. Section 5(1) of the Act states that the County Attorney shall be appointed by the Governor with the approval of the County Assembly. Section 5 (2) provides that a person qualifies for appointment as County Attorney if such person is an Advocate of the High Court of Kenya of at least five years standing; and, meets the requirements of Chapter Six of the Constitution. Section 5(3) of the Act provides that the County Attorney shall take and subscribe to the oath or affirmation as set out in the First Schedule to the Act before assuming office.b.The interested party was admitted to the bar of advocates and signed the roll of advocates on 27. 03. 2018. He was nominated on 14. 10. 2022 and appointed and sworn in on 07. 11. 2022. Having signed the roll of advocates on 27. 03. 2018, he attained five years contemplated in section 5(2) (a) of the Act on 26. 03. 2023 being more than five months after his nomination and appointment as County Attorney. Further as at his nomination on 14. 10. 2022, the interested party was an advocate of 4-years and 6-months and 2- weeks and 5-days standing and was not therefore qualified for such nomination as he was not of 5-years standing as prescribed in the statute.c.It is true that the petitioner’s practicing certificate for 2018 was dated 01. 01. 2018 despite his signing of the roll of Advocates on 27. 03. 2018 but, the fact is that prior to the said 27. 03. 2018, he was not an Advocate. The computation of the 5 years contemplated in section 5 of the Act cannot therefore be computed in reliance upon the practicing certificate dated 01. 01. 2018 and his qualification must be found incompetent and absurd in the circumstances.d.The petitioner not being qualified, the nomination, approval and appointment as the County Attorney was unlawful, illegal, unconstitutional and void ab initio.

3. The 1st and 2nd respondents and, the interested party appointed Issa & Company Advocates to act in the matter. The 1st and 2nd respondents filed a replying affidavit sworn by Billow Issack Hassan (the County Secretary) on 28. 07. 2023 and a response to the petition sworn by the same Billow Issack Hassan on 18. 10. 2023. The 1st and 2nd respondents urged as follows:a.At the time the interested party was nominated for the office of the County Attorney he had met the qualifications prescribed in section 5(2) (i) of the Office of the County Attorney Act, 2020 because he had taken out the practicing certificates for 2018, 2019, 2020, 2021 and 2022. The interested party met the Chapter Six leadership and integrity standards with experience in private legal practice and as Head of the County Assembly’s Legal Department.b.The 1st respondent nominated the interested party and forwarded his name to the 3rd respondent by the letter dated 13. 10. 2022 for vetting and approval. The 3rd respondent published a notice in the Daily Nation newspaper on 20. 10. 2022 publishing the approval hearing of 29. 10. 2022 at 11. 00am and inviting the public to submit memoranda on suitability of the interested party as candidate for the office of the County Attorney. Section 7(10) of the Public Appointments (County Assemblies Approval) Act, 2017 avails every person with an opportunity to challenge any appointment contesting suitability of a candidate as may be nominated and subject of such approval hearing. The petitioners did not present any memorandum to the County Assembly objecting to the appointment of the interested party as the County Attorney.c.The 3rd respondent approved the appointment of the interested party as nominated per the report dated 31. 10. 2022. The report states that the 1st respondent in submitting the nominee the County Assembly followed the procedure in section 6 of the Public Appointments (County Assemblies Approval) Act, 2017; the 1st respondent has complied with section 35(2) of the County Governments Act, 2012, the nominee had demonstrated knowledge, experience and ability to the docket he was nominated for as well as requisite academic qualifications, the nominee satisfied the requirement of Chapter 6 of the Constitution, and, the nominee had had not been dismissed from office for contravention of provisions of Article 75 of the Constitution. The 3rd respondent therefore approved the interested party for appointment as had been nominated. The 3rd respondent’s report was dated 31. 10. 2022. d.By letter dated 03. 11. 2022 the 3rd respondent conveyed to the 1st respondent the approval of the interested party for appointment as the County Attorney. The 1st respondent proceeded to appoint the interested party as County Attorney as duly approved per section 11(2) of the Public Appointments (County Assemblies Approval) Act, 2017. e.The interested party assumed office as the County Attorney on 07. 11. 2022. The petitioners at the material time served as legal officers as employees of the 2nd respondent and having been appointed sometimes in 2020. In such circumstance, the had to report to the interested party as the County Attorney. However, the petitioners had not been reporting on duty and without permission or leave or reasonable cause. Thus, by letters dated 19. 12. 2022 the interested party required the petitioners to show cause why disciplinary action should not be taken against each of them. The 1st petitioner respondent by a letter dated 21. 12. 2022 duly exhibited and the 2nd petitioner by the letter dated 27. 12. 2022. The petitioners were expected to attend a disciplinary hearing and when they failed to do so, the 2nd respondent deemed them to have resigned from the employment. The petitioners lobbied the interested party to reinstate them but the same was declined. The petitioners filed the instant petition 9 months after the interested party’s appointment as an afterthought and in bad faith without full disclosure of their respective strained employment relationship with the 2nd respondent.

4. The interested party filed his replying affidavits sworn on 28. 07. 2023 and on 18. 10. 2023 both filed through Issa & Company Advocates. The interested party repeated the factual account of the process leading to his appointment as stated for the 1st and 2nd respondents. Further, as at time of his appointment as the County Attorney, he had practiced law for over 5-years. He stated that the petitioners were aware of his appointment at all material times but belatedly filed the petition 9 months after his appointment. He narrated how he initiated the disciplinary process against the petitioners and stated that his appointment be upheld. He exhibited his practicing certificates for 2018, 2019, 2020, 2021 and 2022 all dated 1st of January of each of those years.

5. The 3rd respondent’s response to the petition was by the affidavit sworn on 18. 10. 2023 by Ahmed H. Surow (the Clerk to the County Assembly) sworn on 18. 10. 2023 and filed through Hashim Mohamed Nur Adhan. The affidavit repeats the account given for the 1st and 2nd respondents leading to nomination, vetting for approval, and, approval for appointment of the interested party.

6. The 1st petitioner filed a supplementary affidavit sworn on 31. 07. 2013. The petitioner repeated that the interested party lacked the 5-years standing advocate statutory requirement, the respondents had failed to exercise due diligence in that regard, and, the 3rd respondent had the statutory duty to exercise due care and diligence during the approval and vetting proceedings even where the public generally or the petitioners in particular, had not presented objections. In particular, it was urged that under section 7(8) of the Public Appointments (County Assemblies Approval) Act, 2017 the 3rd respondent was obligated during the approval hearing to focus on, amongst others, a candidate’s academic credentials and professional training. Further, section 8 of the Act obligated the 3rd respondent, in relation to the nomination to consider the procedure used to arrive at the nominee including the criteria for the short listing of the nominees; any constitutional or statutory requirements relating to the office in question; and, the suitability of the nominee for the appointment proposed having regard to whether the nominee’s credentials, abilities, experience and qualities meet the needs of the body to which the nomination is being made.

7. Final submissions were filed for the parties. The Court has considered all the material on record and the parties’ respective positions. The Court returns as follows.

8. The 1st issue is whether the petitioners brought the petition in good faith or that it was in bad faith in view of the manner they had been subjected to disciplinary proceedings and subsequently separated from the 2nd respondent’s public service. The petitioners have not denied that at all material times prior to filing the petition they had previously worked for the 2nd respondent and the employment ended in an aborted disciplinary process when they each avoided to attend the disciplinary hearing. Bad faith would entail a party being dishonest or fraudulent in a transaction or simply unfair dealing. The transaction in issue in the instant petition is the nomination, approval and subsequent appointment of the interested party as a county Attorney. The Court considers that transaction in issue clearly independent and not even remotely related to the disciplinary proceedings and eventual separation of the petitioners from the 2nd respondent’s employment. The petitioners’ case is that the interested party was nominated, approved for appointment and appointed as a County Attorney whereas he did not have the requisite statutory qualification of being an advocate of 5-years standing. In relation to the impugned transaction, the invoked disciplinary proceedings are found insignificantly remote as unrelated transaction. Bad faith has not been established at all and the Court is reluctant to find that in the circumstances, the petitioners have filed the petition purportedly in public interest to further ulterior motives as alleged and submitted for the respondents. It cannot be said that in light of the germane and impugned transaction of nomination, approval, and appointment in issue, the petitioners had filed the petition to satisfy their own personal grudge and enmity as was considered by the Supreme Court of India in Subhash Kumar -Verrsus- State of Bihar & Others (1991) AIR 420 and simply upon the account of ended disciplinary proceedings that had been commenced against the petitioners while the 2nd respondent employed them. However, while making that finding, the Court has reflected upon the failure of the petitioners to make representations to the 3rd respondent during the vetting and approval hearings and by that reason, it may be that they might have been perceived to act not in good faith but in bad faith. That failure is the next issue for consideration.

9. The 2nd issue is whether the petition is justiciable even after the petitioners failed to make objection representation whereby the 3rd respondent had publicly made invitation for such representation. The petitioners have not denied failure to objecting to the approval for appointment of the interested party before the 3rd respondent’s approval hearing. The petitioners have not also offered any reasonable impediment to their making such objection or representations. They then filed the petition 9 months after conclusion of the appointment of the interested party as the County Attorney. The failures and which are without due reasonable explanation appear to the Court to constitute bad faith in relation to the transaction of the nomination, approval for appointment and then appointment of the interested party as a County Attorney. The 3rd respondent was the prescribed statutory platform for the petitioners to urge their objections against approval of the interested party by the 3rd respondent for the appointment as the County Attorney but for unexplained circumstances, they failed to do so. The Court considers that such failure blended with the said bad faith would render the petition unjusticiable.

10. In Lucy Njoki Waithaka v Tribunal appointed to investigate the conduct of Lucy Njoki Waithaka & another; Kenya Magistrates and Judges Association (Interested Party) [2019] eKLR the Court opined thus,“The Court considers that justiciability is the concept in law that concerns itself with whether the Court is the most appropriate organ of the state or government (government in the wider sense including the three arms of government and other public agencies or bodies) to deal with the dispute. The Black’s Law Dictionary 10th Edition at page 996 defines “justiciability” as the quality, state, or condition of being appropriate or suitable for adjudication by a court. The case may not be suitable for adjudication by the court due to a number of reasons such as under mootness doctrine where the real dispute has ceased to exist. The dictionary lists elements of the doctrine of justiciability such as advisory opinions, feigned and collusive cases; standing, ripeness, political questions and administrative questions. The Court considers that the application of the doctrine of justiciability is highly modified by the provisions of the Constitution of Kenya 2010 and which provisions have tended to admit than deny the forum in courts of law more readily and often so than not. The Court considers that a sound development and application of the doctrine of justiciability should lead to rules related to availability of alternative and more convenient remedies. Thus as was held in Secretary, County Public Service Board & Another –Versus- Hulbhai Gedi Abdille [2017]eKLR by the Court of Appeal , 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. The Court considers that a sound application of the doctrine of justiciability should be one of the better mechanisms for keeping courts within what actually is or is perceived to be their proper constitutional sphere of activity.”

11. In finding the petition was not justiciable in the circumstances of the case, the Court considers that indeed the interested party strictly did not have the 5-years standing but the issue appears more moot or stale and not justiciable upon the earlier findings of the Court and further in consideration of the submission for the 1st and 2nd respondents and the interested party thus, “25. In any event and without any prejudice to the above, the period of five calendar years from the date the Interested Party was admitted to the roll of advocates on 27th March 2018, lapsed on 27th March 2023 and therefore the question as to whether the Interested Party meets the requisite qualification to hold the office of County Attorney, we submit is moot.” The Court finds that by that submission, the parties appear to be in mutual agreement, and which the Court finds to be the position, that in computing whether a candidate is an advocate of at least 5-years standing as prescribed in section 5(2) of the Office of the County Attorney Act, 2020, the period is reckoned effective the date the candidate signed the roll of advocates. It is not to be reckoned based on dates of issue of the candidate’s advocate’s practicing certificate and whose validity is prescribed under section 24 (1) of the Advocates Act which provides that, every practicing certificate shall bear the date of the day on which it is issued and shall have effect from the beginning of that day; provided that a practicing certificate which is issued during the first month of any practicing year shall have effect for all purposes from the beginning of that month. The Court considers that the instant case was not about validity of the interested party’s practicing certificate but whether he was an advocate of at least 5-years standing, and which, the Court has found to be reckoned from the date the advocate signed the roll of advocates being the date of the certificate or Chief Justice’s order of admission as an advocate. Per section 15 of the Advocates Act, it is the admission to the roll of advocates that signifies that a person is qualified as an advocate under the provisions of the Act and upon signing the roll of admission, the time of standing as an advocate starts to run. The Court finds accordingly.

12. The Court further considers that the petition was as well not justiciable for want of exhaustion by the petitioners of the procedure provided in the Public Appointments (County Assemblies Approval) Act, 2017 for making the objections as is now purportedly urged in the instant case. The Court follows its ruling delivered on 27. 04. 2023 in Dr. Magare Gakenyi Benjamin -Versus- Honourable Attorney General and 2 Others; Teresia Mbaika Malokwe and 53 other Interested Parties, ELRC Petition No. E207 of 2022 at Nairobi thus, “10. The Court therefore returns that the preliminary objection would succeed on account of want of exhaustion of the prescribed statutory procedure under the Public Appointments (Parliamentary Approval) Act No. 33 of 2011. By that finding alone, the petition would collapse as augmented with the cited doctrine of justiciability. While making that finding the Court has considered the mixed constitutional, statutory, and legitimate political, social, or economic considerations surrounding the challenged appointment of the Principal Secretaries, the interested parties herein together with the guiding values and principles in Articles 10, 232, and Chapter 6 of the Constitution. The Court considers that the failure to invoke and follow the procedure prescribed in the Act was such a serious bar precluding the petitioner from challenging the appointments as made and already implemented. The Court considers that the provisions in the Act are such that a challenge to the appointments must be prompt and flow as anticipated in the Act. The Court further holds that it enjoys jurisdiction for judicial review on merits of the decisions made by the respondents in that regard such as on account of the doctrine of unreasonableness such as is envisaged in Article 47 of the Constitution, on account of the principle of illegality, on account of constitutionality and, on account of established manifest injustice. However, looking at the grievances urged by the petitioner, they all squarely fall within the purposes for which the dispute and challenge procedure under the Public Appointments (Parliamentary Approval) Act No. 33 of 2011 was enacted. Failure to promptly invoke that procedure amounts to a bar especially that the interested parties have moved to take up the appointments in circumstances that their recruitment procedure and subsequent appointment appear not to have been challenged at all (looking at the facts and material before the Court) and as per the prescribed statutory provisions.” It appears to the Court that the findings in that decided case squarely apply to the instant petition.

13. The 3rd issue is on remedies. Both parties have invoked the Court’s decision in Commission for Human Rights and Justice -Versus- Michelle Bibi Fondo & 2 Others [2021]eKLR where the Court stated as follows,“To answer the 3rd issue for determination the Court returns that under the design of section 5(1), the 3rd respondent is not involved in the recruitment, approval and appointment of the County Attorney. The Court further considers that by section 5(1) providing that the County Attorney shall be appointed by the Governor with approval of the county assembly, the constitutional ethos of transparency, accountability, competitiveness, suitability and merit are not thereby defeated. It is the Court’s considered view that in undertaking the nomination of the County Attorney for appointment with approval of the county assembly, the Governor must exercise the discretion in accordance with the constitutional values and principles of public and state appointments. The Court further considers that towards achieving such constitutional values and principles, the Governor may invoke his or her own procedures or delegate to appropriate authority such as the 3rd respondent or act in accordance with such applicable legislation (by the National or County Government) or such lawful policies and practices, for the time being in place. Thus the Court finds that it was misconceived for the petitioner to urge that for an appointment under section 5(1) of the Office of the County Attorney Act, 2020, the 3rd respondent had to be necessarily involved within the mandate as vested in the 3rd respondent under the County Governments Act, 2012 to create offices; declare and publicly advertise vacancies; and, to undertake competitive recruitment (interviews) and selection of the successful candidate. In any event the Court hold that the County Attorney’s office is already expressly established by the Act and nothing more was needed to create the office or position.The Court further considers that the county assembly, in undertaking the approval under section 5(1) of the Office of the County Attorney Act, 2020, is as well, bound within its internal procedures of vetting the Governor’s nominee for appointment, to invoke the relevant Constitutional values and principles such as participation.As submitted for the petitioner Article 10 provides for values and principles such as patriotism, national unity, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, human rights, non-discrimination and protection of the marginalised; and good governance, integrity, transparency and accountability. Further Article 73(2) provides for principles of leadership and integrity to include, inter alia, selection on the basis of personal integrity, competence and suitability or election in free and fair elections; and objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, other improper motives or corruption practices. Further Article 232 on values and principles of public service provides for, inter alia, high standards of professional ethics; efficient, effective and economic use of resources; accountability for administrative acts; transparency and provision to the public of timely, accurate information; fair competition and merit as the basis of appointments and promotions; representation of Kenya’s diverse communities; and, affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service of men and women, the members of all ethnic groups, and persons with disabilities. The Court holds that such are the constitutional values and principles that apply to making of decisions for appointment to hold or act in a public or state office.The Court further holds that the Governor in exercising an appointment of the County Attorney and the county assembly in exercising the approval of appointment under section 5(1) of the Act, the Governor and the assembly must take care and document procedures invoked towards compliance with the cited constitutional values and principles of recruitment, selection and appointment to public or state office. Thus, in event of a dispute in an appointment of a County Attorney under the section and it is alleged that the constitutional values and principles have not been complied with, it will be for the Governor and the county assembly to demonstrate such compliance as may be appropriate and failing which, the appointment and approval under the section may be brought to question one way or the other. In other words, the Court holds that in exercising the appointment and approval under the section, the exercise of the discretion by the Governor and the county assembly is accordingly chained by the constitutional values and principles governing making of decisions of appointment to a public or state office. In an appropriate case, the Court considers that failure to demonstrate compliance with the constitutional values and principles in making an approval for appointment and appointment under the section may render the appointment to be impugned.”

14. In the present petition, the finding that the petition was not justiciable for the various stated reasons renders the remedies untenable. The only objection to the appointment of the interested party as a County Attorney was that he did not possess at least 5 years standing as an advocate. He has since qualified as such. The doctrines of justiciability, proportionality and reasonableness as well as consideration of prudent application of public resources all operate as bars to granting the remedies as prayed for. It will not serve public interest for the declarations and the order of certiorari to issue in circumstances that the respondents would anyway be entitled to recommence the nomination, approval, and appointment proceedings only to reappoint the interested party and all at the expense of public resources and the petitioners having failed to avail themselves the prompt intervention opportunity accorded under the Public Appointments (County Assemblies Approvals) Act, 2020. It is in that sense that the Court upholds the submission made for the respondents that the petitioner having qualified beyond doubt per the statutory provision by effluxion of time yielding him at least 5-years standing as an advocate, the dispute is thereby rendered moot, academic or stale thereby crystallizing as not justiciable. The Court has considered the prayer for the judicial review order of mandamus. It is that mandamus shall not issue unless the applicant establishes that the respondent was vested a public duty to perform and despite demand, the respondent had failed, refused or neglected to so perform the statutory or public duty. The petitioners have failed to pass that test with respect to the prayer for mandamus as drawn. The Court follows Republic -Versus- Director General of East African Railways Corporation Ex-Parte George Nume Kaggwa [1977]eKLR where Z.R. Chesoni J held, “ Adequate supervision of enforcement is inter-related with the possibility of effective enforcement which must exist for the order of mandamus to go. Thus, the person or authority against whom it is prayed must have the power to obey. If the results of granting the order would be futile the Court will, usually, refuse the order…If the circumstances have rendered the performance of something impossible, a mandamus will not go.” In the instant case, the statutory or public duty for the interested party to refund has not been established at all especially in circumstances that for the challenges raised in the instant case, he otherwise has worked as appointed and the remuneration and other benefits enjoyed are, the due consideration, for the public service already or duly rendered.

15. The Court has considered the circumstances of the case and the findings. The Court also considers that the petition is within the growth of jurisprudence in view of the Constitution of Kenya 2010 including the nascent devolved system of government. Thus, each party will bear own costs.

16. In conclusion judgment is hereby entered for the respondents against the petitioners for:a.dismissal of the petition; and,b.each party to bear own costs of the proceedings.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS MONDAY 30TH OCTOBER, 2023. BYRAM ONGAYAPRINCIPAL JUDGE