[2022] KEHC 1702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CONSTITUTIONAL PETITION NO.6 OF 2021

IN THE MATTER OF ARTICLES 1, 6, 10, 22, 35, 88, 89 AND ARTICLE 258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF SECTION 14 AND 15 OF THE NATIONAL GOVERNMENT CO-ORDINATION ACT, 2013

AND

IN THE MATTER OF SECTION 48 OF THE COUNTY GOVERNMENT ACT

AND

IN THE MATTER OF THREATENED VIOLATION AND CONTRAVENTION OF ARTICLES 2,3, 6(2), 10, 19, 20(1), 35, 47, 118, 129, 153, 232, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010.

BETWEEN

JOSEPH OMOLLO....................................................................................PETITIONER

VERSUS

THE CABINET SECRETARY, MINISTRY OF

INTERIOR AND CO-ORDINATION OF

NATIONAL GOVERNMENT............................................................1ST RESPONDENT

THE COUNTY COMMISSIONER,

UASIN GISHU COUNTY..................................................................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL............................3RD RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION............................................1ST INTERESTED PARTY

UASIN GISHU COUNTY GOVERNMENT.......................2ND INTERESTED PARTY

UASIN GISHU COUNTY ASSEMBLY................................3RD INTERESTED PARTY

JUDGMENT

Introduction and Background

1. The Petitioner herein vide a petition dated the 13th of May 2021 and a further affidavit sworn on the 14th of June 2021 moved this court on allegations of violation of his fundamental rights and freedoms as guaranteed by the Constitution.

Petitioner’s Case

2. The brief facts leading to the petition is that the National Government through the 1st respondent vide Gazette Notice No. 5853 dated the 21st of June 2017, created and operationalized six new ‘divisions’ as administrative units within Uasin Gishu County.

3. The Petitioner on or about April of 2021 learnt of these developments to his surprise and filed the instant petition. In particular, the Petitioner avers that the exercise was carried out without the involvement of the affected communities, that is, there was no public participation. He averred that no notice was given inviting members to attend the said meetings, that the alleged community leaders that attended the meetings were cherry picked and did not collect views of the residents in the affected areas and finally, that the level of representation at the purported public participation meetings was underwhelming taking into consideration the estimated population of the people in the said sub-counties.

4. Further, the Petitioner averred that no rationalization was given for the distribution of the six new administrative units in the manner in which they were distributed.

5. It is upon the above facts that the Petitioner alleges contravention of his constitutional rights and those of the residents of Uasin Gishu County. To this end, the Petitioner seeks the following orders:

a. A declaration that the establishment of the new administrative units namely Moi’s Bridge, Kapyemit, Sergoit, Kaptagat, Pioneer and Cheptiret vide gazette Notice No. 5853 dated 21st June 2017 was conducted without any or adequate public participation;

b. A declaration that there was no public participation resulting in recommendations for the creation of the impugned administrative units;

c. A declaration that the entities purportedly created and described as ‘divisions’ are not known to law and there is no legal basis for their creation;

d. A declaration that the boundaries for those units have not been identified and demarcated vis-à-vis existing electoral boundaries established by the 1st interested party

e. A declaration that the purported creation of the impugned units amounts to a usurpation of the mandate of the 1st interested party which is the only institution vested with the express mandate for the delimitation and demarcation of boundaries;

f. An order of certiorari bringing into this court and quashing Gazette Notice No.5853 dated 21st June 2017 establishing the impugned administrative units and letter reference OPPA/1/2A dated 2nd June 2020 and addresses to all regional commissioners operationalizing the impugned new administrative units namely Moi’s Bridge, Kapyemit, Sergoit, Kpatagat, Pioneer and Cheptiret;

g. costs of and incidental to this Petition.

Respondent’s Case

6. The Petition was opposed by the respondents who filed a replying affidavit sworn on the 4th of June 2021 by Stephen Kihara, the County Commissioner Uasin Gishu County. In particular, the respondents aver that the National Government Co-ordination Act, Act No. 1 of 2013, gives mandate to the Cabinet Secretary in charge of Interior and Co-ordination of national government, to establish national government service delivery coordination units with the approval of the President and by Notice in the Gazette. The respondents explained that the gist of the creation of these administrative units was to improve service delivery to the citizens; reduce the cost of seeking services; provide convenient services to each sub-county and tackle and respond to security challenges more effectively. Consequently, the respondents argued that Gazette Notice No.5853 dated 21st June 2017 is lawful.

7. In addition, the respondents noted that there was sufficient public participation prior to the establishment of the said administrative units. In this regard, the respondents submitted that public participation exercises were done in the affected areas including Eldoret West on the 22nd of July 2013 where 48 leaders among others attended including then Turbo M.P Elijah Busienei and then Soy M.P Edwin Barchilei. The respondents also contended that the Kesses Division meeting held on the 5th of January 2015 was attended by 39 people including community leaders. In Kapseret Division meeting held on the 11th of September 2015, 135 people attended including local leaders from Kapseret. The respondents further noted that in Ainabkoi in Eldoret East District, public participation meeting was held on 29th December 2015 and which was attended by 51 people including local leaders and finally Moiben Sub County meeting was held on 23rd March 2020 where the respondents averred that local leaders agitated for more divisions.

8. The respondents also averred that the County Government was involved and that in fact the Governor of the County wrote to the CS Ministry of Interior on the 10th of April 2015 confirming that he had perused the proposal of administrative units and confirmed that it reflected the wishes of county leadership in general.

9. The respondents also averred that the units are operational and officers deployed to the administrative units. Further, it was the respondents view that there is no nexus whatsoever between the creation of the administrative units and the creation of electoral units since the creation of the latter was set to take place in the course of the year whereas the former is already operationalized and were created back in 2017.

10. Finally, the respondents reiterated that the units were established solely to bring government services closer to the people and that there was sufficient public participation before the creation and or operationalization of the units and as such there was no violation of rights or contravention of the Constitution as alleged by the Petitioner.

Interested Parties Case

11. The 1st and 3rd interested parties filed their respective replies to the petition via replying affidavits sworn on the 18th of June 2021.

1st Interested Party Case

12. The 1st interested party, the Independent Electoral and Boundaries Commission, averred that Section 14 of the National Government Coordination Act, 2013 establishes the service delivery coordination units while Section 15 obligates the Public Service Commission, in consultation with the Cabinet Secretary for interior to appoint national government administrative officers at the county level including the county commissioner, deputy county commissioner in every sub-county, assistant county commissioner in respect of every ward, a chief in respect of every location, an assistant chief in respect of every sub-location and any other national government administrative officer in respect of a service delivery unit established under Section 14.

13. In this regard, the 1st interested party averred that it is conclusively evident that the County Commissioner, Deputy County Commissioner and the Assistant County Commissioner serve in units which coincide with the electoral units being the County, Constituency and Ward respectively. The 1st interested party thus noted that while Counties are created by or under the Constitution, the Constituencies and Wards are established by the 1st Interested party pursuant to Article 89(3) of the Constitution and Section 26 of the County Governments Act.

14. Consequently, the 1st interested party averred that there exists a clear nexus between the County, Sub-County and Wards as national government service delivery coordination units and County, Constituency and Wards as electoral units. The 1st interested party thus called upon the respondents and particularly the 1st respondent to adhere strictly to the principles and values of the Constitution including public participation and the provisions of statutes in the establishment of any unit as a service delivery coordination unit under the National Government arguing that its inevitable that such administrative boundaries shall influence electoral boundaries, which it argued is the exclusive mandate of the 1st interested party.

2nd Interested Party Case

15. The 2nd interested party entered appearance on the 25th of May vide Memorandum of Appearance dated same day. It however did not file any papers opposing the petition.

3rd Interested Party Case

16. The 3rd interested party on its part argued that the creation of these units is unconstitutional since the units created are a product of a non-consultative process that completely vitiated set constitutional standards.

17. It was the 3rd Interested Party position that there was no participation of the people but rather a meeting of largely national government officers designed to appear as if it was a public participation exercise. The 3rd interested party thus averred that no notices of invitation, the agenda and or any relevant documentation in respect of the meetings were availed either to the 3rd interested party or to residents of the affected areas to enable them make any meaningful contribution to the exercise.

18. Furthermore, the 3rd interested party argued that it was not engaged in any manner by the respondents in the review, creation and operationalization of the National Government structures within Uasin Gishu County despite being an important stakeholder in the exercise. In addition, it was the 3rd interested party’s view that it had not received any information from the respondents as to the nature of the administrative units established or how they shall inter-relate with the structures of the County Government of Uasin Gishu, as approved by the 3rd interested party.

19. The 3rd interested party therefore viewed the establishment and operationalization of the units as illegal for lack of public participation and urged this court to find likewise.

Determination

20. Having carefully perused and considered the parties pleadings, annextures and submissions, it is my finding that the petition raises germane issues for determination which can be condensed broadly into two issues for determination. These are;

a. Whether there was sufficient Public Participation as contemplated by the law in the creation of the impugned administrative units within Uasin Gishu County and

b. Whether the purported creation of the impugned units amounts to a usurpation of the mandate of the 1st Interested Party.

a. Whether there was sufficient Public Participation

21. The thrust of the Petition is that there was no public participation as contemplated under Article 10 of the Constitution. In this regard, it was the Petitioner’s submission that Article 10 is so sacrosanct that no state agency or organ can escape from it. It is in this light that the Petitioner noted that Section 14(1) and (3) of the National Government Coordination Act 2013, requires the National Government to execute its mandate in accordance with the national values and principles set forth under Article 10 of the Constitution.

22. The Petitioner relied on Abdi Ahmed Abdi vs Cabinet Secretary for Interior and Co-ordination of National Government & 7 Others [2017] eKLR submitting that public participation is a key component of promoting transparency, accountability and efficiency in public bodies. The petitioner further cited the Court of Appeal in Kiambu County Government & 3 Others vs Robert N Gakuru & Others [2017] eKLR, where the court noted that public participation must include and be seen to include the dissemination of information, invitation to participate in the process and consultation and that to meet the constitutional threshold, public participation cannot be a matter of presumption or conjecture but must be real and effective.

23. It is on this premise that the petitioner submitted, firstly, an analysis of the purported public participation exposes, according to him, the cavalier attitude the respondents have adopted in matters public participation. He submitted further that the fact that no notice was given is sufficient to suggest that the purported attendees were handpicked by the respondents.

24. Secondly, the petitioner contended that compared to the estimated populations in the said sub-counties from the Kenya Bureau of Statistics, the level of presentation at the meetings was underwhelming which, according to the petitioner, indicates that the said meetings did not meet the test of a proper public participation forum. Lastly, the Petitioner submitted that the alleged meeting held on 23rd March 2020 which was attended by 9 people to review the boundaries for the new units in Moiben Sub-County, was held long after the said units had been gazetted on 21st June 2017 and the same was therefore null ab initio.

25. The above view was shared by the interested parties, who argued that they were never consulted despite being major stakeholders in the county and or on issues to do with boundary delimitation.

26. The respondents on their part submitted that there was sufficient public participation and relied on the cases of Hussein Abdi Omar & 3 others vs Attorney General & 4 Others [2012] eKLR, Nairobi Metropolitan PSV Saccos Union Ltd & 25 others vs County Government of Nairobi & 3 Others [2014] eKLR among other cases. It was their view that public participation can involve citizens directly or indirectly through their elected representatives. Consequently, the respondents made reference to the fact that local leaders including the Governor of the County had been involved in the process and submitted that there was sufficient public participation.

27. Public participation remains a crucial pillar of the 2010 Constitution. It is the process of engagement in governance, in which ‘people participate together for deliberation and collective action within an array of interests, institutions and networks, developing civic identity, and involving people in governance processes.’ It promotes democracy by providing the public with the opportunity to take part in decision-making processes in government and is a reflection of the idea anchored under Article 1 (2) of the Constitution to the effect that all sovereign power belongs to the people of Kenya and the same may be exercised by the people of Kenya directly or through their elected representatives.

28. The main goals of public participation are to inform, engage, consult, collaborate and empower the citizenry through different ways such as, elections, or civil society activities where public input is sought at all stages of policy making. Its importance cannot therefore be overstated. Its contribution in anchoring democracy is significant because it ensures inclusivity and transparency in the governance process, with citizens and government agencies sharing power among themselves. It also ensures government responsiveness to citizen needs and increases the legitimacy of the government’s decisions and institutions. Further, at the individual level, public participation increases patriotism and trust in public institutions which in turn increases social inclusiveness and social capital making public participation a process and not a single stand-alone event.

29. It is for these reasons that the Court in Kenya Human Rights Commission vs Attorney General & Another [2018] eKLRobserved that Public Participation is an essential national value and principle that must be observed by all persons; state organs and public officers in the exercise of their responsibilities. In this regard, the Court noted that:

“Article 10 (1) of the constitution states that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution; (b) enacts, applies or interprets any law; or makes or implements public policy decisions. .And according to Article 10 (2), the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and “participation of the people”.

30. Public participation cannot therefore be a mere formality but must be real, efficient, sufficient and effective so as to truly reflect the status and power it holds under our constitutional dispensation. This is so because the active and meaningful participation of citizens in public affairs is the distinguishing feature of democratic societies, which are judged by the extent to which governments open up to citizen involvement in public affairs and the space they give for citizens to hold the government accountable. As rightly noted by the Court of Appeal in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR;

“…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution in Article 10 which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation,..”

31. Public participation therefore requires that people be at the centre of decision-making processes. This is an important element of democracy because ‘rule by the people’ is the underlying and founding principle of democracy. Thus, involving people in making decisions that concern their lives is a distinguishing feature of democratic societies. Participatory democracy, therefore, requires active and meaningful engagement of citizens in public affairs. It is a principle universally accepted as requisite for a just society and is reflected in various international instruments.

32. For example, Article 21 of The Universal Declaration of Human Rights (UDHR), 1948, provides that ‘everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives’. This provision is further replicated under Article 25 of The International Covenant on Civil and Political Rights (ICCPR) as follows:

“Every citizen shall have the right and opportunity…

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his [or her] country”

33. In addition, it is in this respect that the African Union’s African Charter on Human and Peoples’ Rights recognises the importance of participation in public affairs as an essential element of democracy with The African Charter on Democracy, Elections and Governance requiring the African Union member states to recognise people’s participation as an inalienable right of the people of the continent.

34. It is therefore correct to say that it is for the above reasons that Kenya’s constitution imposed a radical change to the structure of government and governance by inter-alia identifying values and principles of governance by which all state institutions and citizens must abide. Among others, democracy and participation of the people are identified as key principles to guide the conduct of public officials. The constitution also underlines that public office is entrusted to the nominated officials and they must therefore, bring dignity to the office they hold. The importance of these provisions is that public participation in decision-making is now a constitutional obligation. Key decisions must therefore have public support and must be developed through public participation.

35. In the instant Petition, the petitioner has questioned the manner in which the public participation meetings were conducted. It was his case that the respondents failed to disseminate information relating to the meetings and that the number of persons who attended vis a vis the population of the affected areas leaves a lot to be desired. On the other hand, the respondents were of the view that there was sufficient public participation.

36. I have gone through the bundle of annextures and in particular the replying affidavit and annextures of Mr. Stephen Kihara, the County Commissioner of Uasin Gishu County, and I find that there was sufficient public participation. For example, it is clear from annexture marked SK 1 that there was indeed a meeting held on the 22nd of July 2013 at the County Headquarters that was attended by 48 people in total including the Members of Parliament for Turbo and Soy and Members of County Assembly drawn from 7 wards within the county and in the affected area. The list also includes religious leaders, opinion leaders and security chiefs. In my view, the above attendees drawn from the larger public represented the views of the public. I say so because elected representatives reflect the will of the people and are representatives of the views of the people.

37. I further take refuge in the case of Hussein Abdi Omar & 3 others vs Attorney General & 4 Others [2012] eKLR as cited by the respondents, wherein the court stated:

“The question that arises is whether it was in contravention of the Constitution for the 5th respondent to consult with and invite participation from local leaders and the Member of Parliament of the area in the process of creating the new sub-locations, and whether consultation and participation require that every citizen must be consulted before a decision is made on an issue such as the creation of divisions and locations. The constitution talks about direct participation or through elected representatives. It does not require consultation of every single citizen in every single case where a decision has to be made. If those who were consulted in the creation of the locations include the democratically elected leaders, as in this case, there can be no basis for complaint. I therefore find and hold that the creation of the administrative units in this case was in conformity with the law and the Constitution.”

38. There are also various other minutes of meetings held in the affected areas prior to, and one after the gazettement and operationalization of the said units marked SK2 held on the 5th of January 2015, SK3 held on the 11th of September 2015, SK 4 held on the 29th of December 2015 and SK 5 held on the 23rd of March 2020. All the above minutes indicate clearly that the local leaders were involved and were consulted and presented their views.

39. Furthermore, there is a letter dated the 10th of April 2015 from the Governor of the County addressed to the then Cabinet Secretary for Interior, the late Joseph Nkaiserry wherein the Governor of Uasin Gishu county affirms that he had perused the proposal for creation of the new administrative units and supported the same noting that it reflected the wishes of the County Leadership in general.

40. The petitioner further tacitly conceded that consultation took place. It was his view that consultations took place but argued that it was not sufficient since the attendees were fewer taking into account the population of the affected areas. In any case, I am of the considered view that not every single citizen can be consulted in every single case. The same would be practically impossible. It is for this reason that the framers of the Constitution deemed it fit to indicate that participation can be done directly or through elected representatives.

41. In the circumstances, I find and hold that there was sufficient public participation in the creation of the new administrative units.

b. Whether the purported creation of the impugned units amounts to a usurpation of the mandate of the 1st Interested Party

42. The petitioner argued that the creation of the new units may interfere with the work of the 1st Interested Party that is the IEBC. In particular, the Petitioner and supported by the 1st Interested Party submitted that whereas the National Government Coordination Act empowers the 1st respondent to establish the administrative units, it does not grant them the power to delineate or delimit the boundaries. That power is reserved for the 1st interested party.

43. Furthermore, the petitioner and the 1st interested party submitted that the 1st respondent was mandated under Section 39 of the Surveys Act to exhibit or make reference to a plan of such land or area authenticated, identified and deposited in the Survey Office.

44. Finally, the 1st interested party submitted that there is a clear nexus between the County, Sub-county and wards as national governments service delivery coordination units and county, constituency and wards as electoral units.

45. Section 14 of the National Government Coordination Act No.1 of 2013 places the mandate of establishing administrative units in the National Government and in particular, the Cabinet Secretary responsible for matters relating to the co-ordination of national government functions. In particular, Section 14 (1) provides as follows:

“Service delivery co-ordination units.

14. (1) The Cabinet Secretary may, with the approval of the President and by a notice in the Gazette, establish national government service delivery co-ordination units”

46. It follows therefore that the establishment of the administrative units is a preserve of the national government and the same is done by the Cabinet Secretary defined under Section 2 of the Act, with the approval of the President. The same is then gazetted.

47. In my view, Section 14 is clear on the requirements of creation of service delivery units. There is no requirement of compliance with Section 39 of the Survey Act as alleged by the Petitioner. Furthermore, the purpose of the units as indicated by the County Commissioner in his reply was to: -

· Improve service delivery to the citizens

· Reduce the cost of seeking services

· Provide convenient services to each sub-county and lastly,

· Tackle and respond to security challenges more effectively

48. This in my view is reflective of the matters to be taken into account in the creation of districts, locations and sub-locations as was considered in the case of R v District Commissioner Marakwet West District and 6 Others Eldoret High Court Misc. Civil Application NO. 23 of 2009where the court enumerated the factors to include the demographic pattern of the area, the geographical and physical features, the internal harmony of the population, infrastructure, security demands and land for expansion.

49. I disagree with the Petitioner that the creation of the new administrative units in any way affects the mandate of the 1st interested party in the creation and or delimitation of boundaries. In view, this issue was conclusively dealt with in the Hussein Abdi Omar case (supra), when Lady Justice Mumbi Ngugi (as she was then) pronounced herself as follows:

“70. It is clear that the petitioners perceive the failure by the 5th respondent to recommend the elevation of Madhalibah to the level of a location as discriminatory against the settlement. This concern, however, is motivated, in my view, from political considerations rather than any actual disadvantage or detriment that any of the petitioners individually or collectively as residents of Habaswein District is likely to suffer, for no such detriment or disadvantage has been shown.

71. This view is buttressed by the argument by the petitioners that the new administrative units will influence the creation of constituencies. However, the Constitution is clear about the considerations that the Independent Electoral and Boundaries Commission will take into account when fixing constituency Boundaries, and administrative units are not one of the factors to be taken into account. Article 89(1) provides that

‘There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97 (1) (a).’

72. At Article 89(5), the Constitution provides that

‘The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of—

(a) geographical features and urban centres;

(b) community of interest, historical, economic and cultural ties; and

(c) means of communication.

73. The apprehensions expressed by the petitioners that the creation of administrative units will influence the constituency boundaries is thus, in the light of these clear constitutional provisions, clearly unfounded.” Emphasis added

50. Accordingly, therefore, I therefore do not see how the creation of the new administrative units in any way usurps the powers of the 1st Interested Party. The Constitution and the National Government Coordination Act are clear on the powers donated to the 1st Interested Party and the 1st respondent respectively. There is therefore no overlap of duty nor a threat that the creation of the new units affects the boundaries as set out or contemplated by the 1st Interested Party.

51. In the end, it is my finding that the creation of the new units in no way affects and or usurps the power and or mandate of the 1st Interested Party.

52. In light of the above, I find no merit in this petition and the same is hereby dismissed.

53. Each party shall bear own costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 8TH OF MARCH 2022.

E. K. OGOLA

JUDGE