[2017] KEHC 1843 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

JUDICIAL REVIEW 8 OF 2017

IZZUDIN ABDULLAHI ABDI ……………………1ST APPLICANT

MOHAMED ALI OMAR…………………………2ND APPLICANT

SULEKA HARUN HULBALE…………………..3RD APPLICANT

MOHAMUD ADAN MOHAMED………………...4TH APPLICANT

AHMED SHEIKH MOHAMED……………..……5TH APPLICANT

ABDIAZIZ SHEIKH MAAD……………………...6TH APPLICANT

JOHORA MOHAMED ABDI…………………….7TH APPLICANT

ADAN HUSSEIN HASSAN………………………8TH APPLICANT

SHAMSHA MOHAMED HAJI…………………....9TH APPLICANT

IBRAHIM BARROW HASSAN………………....10TH APPLICANT

VERSUS

COUNTY ASSEMBLY OF MANDERA..……….1ST RESPONDENT

SPEAKER COUNTY ASSEMBLY

OF MANDERA…..................................................2ND RESPONDENT

CLERK COUNTY ASSEMBLY

OF MANDERA………..........................................3RD RESPONDENT

COMMITTEE ON APPOINTMENTS, COUNTY

ASSEMBLY OF MANDERA………………….....4TH RESPONDENT

RULING

1. Before me is an application brought by way of Chamber Summons dated 20th November, 2017 and filed on the same day, filed under Order 53 Rule 1,2 and 4 of the Civil Procedure Rules 2010 and Section 8 and 9 of the Law Reform Act (Cap. 26) of the Laws of Kenya.

2. The application was filed under certificate of urgency, with the main prayers being prayer 2 and 3 as follows-

1. …..

2. That leave be granted to the exparte applicants to apply for an order of certiorari to quash the report of the County Assembly of Mandera on the appointment and vetting of County Executive Committee nominees for Mandera County Government dated 9th November 2017.

3. That the leave so granted do operate as stay of the implementation of the report of the County Assembly of Mandera on the appointment and vetting of County Executive Committee nominees for Mandera County government dated 9th November 2017.

3. The application was filed with a verifying affidavits sworn by Ibrahim Barrow Hassan, Ahmed Sheikh Mohamed, Abdulaziz Sheikh and Dr. Mohamed, together with a Statutory Statement dated 20th November 2017.

4. The application was initially filed in Nairobi, and on the same 20th November 2017, the court in Nairobi ordered that the file be transmitted to Garissa High Court for mention for 27th November 2017.

5. When the application came before me on the 27th November, 2017, Ms Kaburu appeared for the exparte applicants holding brief for Mr. Wanyama while Mr. Ochieng Odinga appeared for the respondents holding brief for Mr. Willis Otieno.

6. Though the respondents counsel had not yet filed their responses to the application, and though the matter had come to court for mention, the parties advocates present in court agreed that they would argue the application orally. The court thus allowed them to do so, and the application was then heard.

7. Ms. Kaburu in support of the application submitted that the County Assembly made a report on the vetting of nominees for Executive Committee Members which was unconstitutional, and which led to her clients coming to court seeking leave to commence Judicial Review proceedings and also interim stay of execution of the report of the County Assembly.

8. Counsel relied on the affidavits of Ibrahim Barrow, Ahmed Sheikh Mohamed, Abdi Aziz Sheikh and Dr. Mohamed Adan to support her position. According to counsel, though the names of people nominated for the position of Executive Committee Member of the County Government were forwarded to the Assembly by the Governor three days before the sitting, the Committee conducted the vetting and gave scores to only some of the candidates but did not give scores to others including Mrs. Sulha Harun and Adan Hussein Hassan contrary to the 1st and 2nd Schedule of the Public Assemblies Approval Act.

9. Counsel submitted also that the Committee rejected all the nominees on irrelevant grounds, because majority of the members of the County Assembly and Speaker belonged to the EFP party of the loser of the Governorship election.

10. Counsel submitted further that the same members had earlier boycotted the ceremony for swearing in the Governor though they were invited, and instead, called a separate press conference to announce that they would reject the Governor's nominees, before the Governor forwarded such names to the Committee.

11. According to counsel, the exparte applicants herein were harassed during the hearing sessions of the vetting and were subjected to fictitious allegations which were allegedly from members of the public.

12. Counsel said that if stay orders were not granted, her clients would suffer irreparable loss or damage, and emphasized that though her clients had already been cleared by the EACC and CID, the Committee wrongly found that they had contravened Chapter 6 of the Constitution of Kenya, while no competent court had found them guilty of any offence, and some of them were actually in-serving County Executive Members.

13. Counsel further stated that after rejecting the nominees, the members of the County Assembly celebrated, which was a sign of bad faith and unreasonableness and a sign of lack of fair hearing.

14. Counsel concluded by stating that though she was aware of some other pending cases in Nairobi, those cases had been filed before the decision of the County Assembly was taken, and were thus not directly connected to the present case.

15. In response, Mr. Ochieng Odinga for the respondents opposed both the request grant for leave to commence Judicial review Proceedings, and the request for leave to operate as stay of execution. Counsel submitted that there were pending in Nairobi High Court Petition No 517 of 2017 Shillow –vs- the County Assembly of Mandera, and Petition No. 502 of 2017 Hussein Osman Hassan vs County Assembly of Mandera, both challenging the appointment of County Executive Committee members of Mandera County, though filed before the vetting herein.

16. Counsel further submitted that Ibrahim Barrow Hassan had no authorization to swear an affidavit on behalf of others, therefore according to counsel, other than the 4th , 6th and 10th applicants, the other applicants should be expunged from the proceedings as there was no written authorization for someone to swear an affidavit on their behalf.

17. With regard to leave to file Judicial Review proceedings, counsel submitted that the reasons given in the application were baseless and as such request for leave should be rejected.

18. Counsel submitted also that most of the nominees did not meet the merit requirements under Section 35 of the County Government Act, and as such the applicants did not establish a prima facie case for leave to file Judicial Review proceedings.

19. Counsel denied that the vetting Committee relied on two petitions from members of the public as according to counsel, the said petitions were dismissed by the County Assembly, on grounds which were given in the report.

20. Counsel submitted further that under Section 17 of the County Government Act, the proceedings of the County Assembly were privileged and legal action was barred unless internal disciplinary measures were first taken and exhausted. In counsel’s view this court should therefore not encroach on the functions of the Governor or the County Assembly through allowing the filing of Judicial Review proceedings herein.

21. With regard to the request stay, counsel argued that this court should balance the interests of the individual and those of the County Assembly. According to counsel, the applicants had not demonstrated that they would suffer loss which could not be compensated in damages, while the County Government would be adversely affected by stay orders as granting the stay would mean that the County Government would not be able to comply with the requirements of Section 42 of the County Government Act.

22. Counsel lastly emphasized that according to the Act, the term of service of Executive Committee Members came to an end when new Members of the County Assembly were sworn in, thus it was not true that some of the nominees were in-serving Executive Committee Members.

23. In response to the above submissions, Ms Kaburu emphasized that because the County Assembly directed the Governor to submit new names contrary to section 17 of the Act, there was need to grant the stay orders sought in order otherwise the Judicial Review proceedings would be rendered nugatory. Counsel maintained that Ibrahim Barrow was authorized to swear the affidavit on behalf of the 9 others, and added that the two pending cases in Nairobi did not challenge the report of the County Assembly herein, as they were filed before the report was made. She maintained that her clients had established a prima facie case.

24. This is an application for leave to file Judicial Review proceedings for certiorari. In such an application, an applicant has to demonstrate a prima facie case. A prima facie case is a case that has the likelihood to success.

25. The applicants have shown that they were applicants and interested in the vetting of Executive Committee Members in the Mandera County Government. They have demonstrated that they were all rejected because of reasons which they want to challenge through Judicial Review proceedings. They have now come to this court through the Chamber Summons requesting that they be allowed to file a formal application seeking certiorari orders against the orders or decisions of the vetting panel of the members of the County Assembly of Mandera.

26. In my view they have demonstrated a case that might succeed. They thus in my view, have a prima facie case in the matter. I will grant them leave to file Judicial review proceedings for certiorari.

27. Though it has been argued by the counsel for the respondents that the affidavit of Ibrahim Barrow was defective as he was not authorized to swear the same on behalf of other exparte applicants, no law or specific regulation has been relied upon by counsel in support of the contention that he had to be formally authorized. In addition, none of the other exparte applicants has filed any document in court to show that he or she did not give consent to the said Ibrahim Barrow to swear the affidavit on his behalf. I thus find that objection is without merit and I dismiss the same.

28. It has also been argued by counsel for the respondents that the County Assembly was privileged in its operations and thus could not be challenged in court.

29. In my view, the above contention is a very narrow interpretation of our Constitution and the written law. Under Article 47 (1) of the Constitution, every person has the right to fair expeditious, efficient, lawful, reasonable and procedurally fair action. In addition, Article 165 (6) provides that the High Court has supervisory jurisdiction over subordinate courts and over any person or authority exercising judicial or quasi-judicial or quasi-judicial function. County Assemblies are not excluded.

30. In my view, once there is an allegation of violation of the Constitution and the law, this court has jurisdiction to entertain such action, the merits of which will be determined in the final decision of the court. I thus find that this court has jurisdiction to deal with and enquire into the determination adopted in vetting for Executive Committee Members done by the County Assembly of Mandera.

31. On the two cases pending in Nairobi, the pleadings therein have not been placed before me. In addition it is clear and agreed by counsel on both sides, that those cases were filed before the Committee herein made its report. I therefore find that the pendency of those cases does not invalidate this application.

32. With regard to the request that leave operates as stay of execution of a decision already made, the applicants had to show that they will suffer loss that will not be adequately compensated in the form of damages. This principle was amply demonstrated in the case of Giella –vs- Cassman Brown Ltd (1973) EA 358.

33. In the present case the vetting Committee of the County Assembly of Mandera had powers to either accept or reject the exparte applicants. I note that the County Government of Mandera which will be affected if this court stays the decision of the County Assembly of Mandera, is not a party herein. I also note that the Governor to whom the order of the County Assembly was made is not a party. No reason has been given for not joining them as parties.

34. It has merely been stated orally by the counsel for the exparte applicants that the County Assembly ordered the Governor to nominate new names thus leaving out the applicants.

35. I have perused the minutes and note that in the minutes of the Committee on Appointment of Mandera County held on 8th November, 2017 the concluding remarks of the Committee were in the following terms:

“In summary, the Committee recommends that the appointing authority submits the names of other persons for consideration in accordance with the provisions of Section 10 (1) of the Public Appointments (County Assemblies Approval) Act No. 5 of 2017 within 30 days. Whereas the nominees who were nominated for the first time as CECs and were faced with carrier (career?) mismatch the Committee had no objection if the nominee re-nominated in accordance with Section 35 (3) (g) of the CG Act No. 17 of 2012. ”

36. In case the above recommendation is interpreted to mean that the appointing authority cannot re-nominate any of the previous nominated and rejected applicants, I will grant interlocutory stay, as it will be unfair on those affected, and will amount to them suffering loss that cannot be adequately compensated in damages. The interim stay will however be limited and specific in nature.

37. I thus order as follows:-

1. Leave be and is hereby granted for the exparte applicants to file an application for the Judicial Review order for certiorari as requested.

2. The leave hereby granted will operate as a stay of the Mandera County Assembly order barring the appointing authority, the Governor from re-nominating any of the exparte applicants herein, pending hearing and determination of the Judicial Review application to be filed. The discretion to re-nominate for vetting rests entirely with the Governor.

3. Costs will follow the final decision in the Judicial review matter herein.

Dated and delivered at Garissa on 30th November, 2017.

George Dulu

JUDGE