[2022] KEHC 3185 (KLR)

Kariuki v Attorney General; Waititu & another (Interested Parties) (Petition 373 of 2019) [2022] KEHC 3185 (KLR) (Constitutional and Human Rights) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3185 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 373 of 2019

HI Ong'udi, J

May 13, 2022

AS CONSOLIDATED WITH PETITION NOS 490/2019, 513/2019 AND 361 OF 2019 FOR PURPOSES OF THE JUDGMENT ONLY

Between

James Gacheru Kariuki

Petitioner

and

Attorney General

Respondent

and

Ferdinard Ndung’U Waititu

Interested Party

James Karanja Nyoro

Interested Party

A deputy governor acting as county governor in the absence of the governor did not have the power to nominate, appoint or dismiss a person while in acting capacity

A county governor's absence from office via an order barring the governor from office pending determination of a criminal case was not the same as removal or vacating office.

Reported by John Ribia

Statutes– constitutionality of statutory provisions – constitutionality of section 32(4) and (5) of the County Governments Act (No.17 of 2012) – where it was contended that the impugned provision limited the powers of a deputy governor that acted as governor - whether section 32(4) and (5) of the County Governments Act (No.17 of 2012) was inconsistent with article 179(5) of the Constitution as it purported to limit the deputy governor’s powers to nominate, appoint or dismiss a person while acting as governor.Statutes– interpretation of statues – interpretation of article 179(5) of the Constitution – meaning of the word absence - what was the meaning of the word, “absence” as used in article 179(5) of the Constitution - what constituted a county governor’s absence from office so as to invoke the operation of article 179(5) of the Constitution that allowed the deputy governor to act as county governor.Devolution– office of the county governor – powers of a deputy governor that was standing in as the county governor in an acting capacity - absence from office of a county governor due to a court order barring the county governor from office - whether an order of the court that barred a county governor from accessing office during the pendency of a criminal trial rendered the governor unable to undertake his duties - whether absence from office was the same as removal or vacating office - what was the scope of powers of a deputy governor who occupied the seat of county governor in an acting capacity – Constitution of Kenya, 2010, articles 134, 147, 179(5) and (7), 181 and 182; County Governments Act (No.17 of 2012) section 32(4) and (5)Words and Phrases– absence – definition of - not being present; the fact of not being where you are usually expected to be – The Cambridge dictionary

Brief facts The petitions were founded on the criminal charges brought against the governors of Kiambu and Samburu Counties. After pleas were taken and bond given, one of the conditions given by the court was that the governors were barred from accessing their offices during the pendency of the criminal cases. The petitioner argued that article 179(5) of the Constitution provided that where a county governor was absent, the deputy county governor should act as the governor and have all powers as defined under section 48 of the Interpretation and General Provisions Act. The petitioner contended that section 32(4) of the County Government Act No.17 of 2012 contravened article 179(5) of the Constitution as it purported to limit the deputy governor’s powers to nominate, appoint or dismiss a person while acting as governor.

Issues

Whether section 32(4) and (5) of the County Governments Act (No.17 of 2012) was inconsistent with article 179(5) of the Constitution as it purported to limit the deputy governor’s powers to nominate, appoint or dismiss a person while acting as governor.

What was the meaning of absence as used in article 179(5) of the Constitution?

What constituted a county governor’s absence from office so as to invoke the operation of article 179(5) of the Constitution that allowed the deputy governor to act as county governor?

Whether an order of the court that barred a county governor from accessing office during the pendency of a criminal trial rendered the governor unable to undertake his duties.

Whether absence from office was the same as removal or vacating office.

What were the scope of powers of a deputy governor who occupied the seat of county governor in an acting capacity?

Relevant provisions of the Law Constitution of Kenya, 2010Article 179(5)179. County executive committees5. When the county governor is absent, the deputy county governor shall act as the county governor.County Governments ActAct No. 17 of 2012Section 32. 32. Functions of the deputy governor(1) The deputy governor shall take and subscribe to the oath or affirmation as set out in the Schedule to this Act before assuming office. (Deleted by Act No. 4 of 2019, section 22 (b))(2) The deputy governor shall deputize for the governor in the execution of the governor’s functions.(3) The governor may assign the deputy governor any other responsibility or portfolio as a member of the county executive committee.(4) When acting in office as contemplated in article 179(5) of the Constitution, the deputy governor shall not exercise any powers of the governor, to nominate, appoint or dismiss, that are assigned to the governor under the Constitution or other written law.(5) The governor shall not delegate to the deputy governor any of the functions referred to in subsection (4).

Held

Jurisdiction was everything and without it a court could not exercise its power. The instant matter was one that clearly fell within the ambit of the High Court’s jurisdiction as stipulated under article 165 of the Constitution. The High Court had jurisdiction with regard to the interpretation of the Constitution.

Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) provided for the addition, joinder, substitution and striking out of parties. The act of striking out a party fell under the discretionary jurisdiction of the court. Ideally, the court was required to only act in plain and obvious cases while exercising caution. The petitioner had not demonstrated his cause of action against the 1st respondent in light of his case and the prayers sought. The 1st respondent was wrongly enjoined to the petition No. 513/2019 and its name was struck out accordingly.

The spirit of the Constitution must preside and permeate the process of judicial interpretation as spelt out under article 259 of the Constitution. There was a general presumption that Acts of Parliament were enacted in conformity with the Constitution.

An interpretation of the Constitution was not to be formalistic but rather holistic so as to achieve the principles and purposes of the Constitution. The Constitution was to be interpreted in context.

Absence was when a person was not in the usual place they were expected to be. The usual place a governor was supposed or expected to be as he carried out his official duties was his physical office. It did not stop there, since not all forms of absence of a governor from office were deemed to invoke devolution of the governor’s powers to his deputy. Unfortunately, in the instant matter neither the Constitution nor the County Government Act defined the scope of absence to guide the courts. That was an area which the legislature should make clear to offer clarity and certainty.

The repealed Constitution did not provide for the governor’s position. However, due to the historical background of Kenya, one of the elements that was championed and adopted by the people of Kenya in the 2010 Constitution was decentralization of the government’s power through devolution. The nature of the conditions attendant upon such absence could constitute inability of the governor to perform his duty such that it would justify devolution of the powers and duties of the office to the deputy governor.

The devolved government was part and parcel of the Executive. It was the Executive trickled down to the counties. The governor and the deputy governor were elected as the Executive leaders in a county just as the President and the Deputy President were elected as the Executive leaders of the Nation of Kenya.

The powers of the deputy governor while acting as governor were limited. The powers of the governor to nominate, appoint and dismiss become key because they constituted a significant aspect of the governor's control over the county’s administration as its chief executive.

Courts had a duty to interpret the Constitution in a holistic manner and in a manner that promoted the Constitution’s values and principles, rule of law and good governance.

The general and ordinary meaning of the word absent was temporarily being away from one’s usual place of work/abode. It meant being out of public action. It was temporary as opposed to a permanent action. In the instant case the two governors had been barred from accessing the office only. They were not barred from conducting the office business or consulting with the executive committee or deputy governor on office matters. The absence was temporary.

The governors of Kiambu and Samburu Counties were holders of the governor’s office in spite of the court order barring their access to their offices. Their deputy governors could only act as governors and not be deemed to be governors. The latter could only be possible in light of article 179(7), 181 or 182 of the Constitution where a vacancy occurred in the office of the governor, either by removal, death, resignation or conviction of an offence punishable by imprisonment for at least twelve months. The roles and functions of the President and his deputy were clearly set out in the Constitution. Those of the governor and his/her deputy were not hence the lacuna.

Article 200 authorised parliament to enact legislation to give effect to chapter 11 of the Constitution. Sections 31 and 32 of the County Governments Act outlined the powers and functions of the governors and deputy governors which were not provided for in the Constitution. The County Governments Act had to seal the lacuna in the Constitution through the legislation of the provisions in the County Government Act, by specifically providing for the roles and functions of the offices of governor and deputy governor.

Absence from office was not the same as removal or vacating office. The curtailment of the deputy governor’s powers was very reasonable for purposes of maintaining law and order in the counties. That was a replica of the limited roles of the Deputy President during the absence of the President. The County Governments Act came in to fill the lacuna in the Constitution which did not outline the roles and functions of the governor and the deputy governor. The fact that the executive committee members were retained during the governor’s temporary absence confirmed that the limitation of the deputy governor’s functions contributed to good governance. Section 32(4) of the County Governments Act was neither inconsistent nor a derogation from the provisions of the Constitution.

Articles 134, 147, 179 (5) and (7), 181 and 182 of the Constitution and sections 32(4) and (5) of the County Governments Act were to be read together instead of limiting the reading to article 179(5) of the Constitution and section 32(4) of the County Governments Act. A holistic interpretation of the provisions enabled the court to understand the intention of Parliament and the mischief it was addressing by enacting section 32(4) of the County Governments Act.

Petitions and cross petition dismissed.

Orders

The 1st respondent in Petition No. 513 of 2019 was wrongly enjoined and its name was struck out.

Petition No. 490 of 2019 and 361 of 2019 had merit and were allowed.

The cross-petition in petition No. 361 of 2019 lacked merit and was dismissed.

Declaration issued that a deputy governor was empowered by article 179(5) of the Constitution and section 32(2), (3), (4) and (5) of the County Government Act to act as governor in the absence of a governor to exercise the powers assigned to the governors with the exception that the deputy governor could not nominate, appoint or dismiss.

Declaration issued that the decision made by the 1st respondent in Petition No. 361 of 2019 vide Kenya Gazette Notice No. 8401 of September 6, 2019 was unconstitutional, null and void.

Declaration that the decision made by the 1st respondent in Petition No. 361 of 2019 vide Kenya Gazette Notice No.8401 of September 6, 2019 was ultra vires of the authority of a deputy governor by virtue of section 32(4) and (5) of the County Governments Act and the same was quashed.

Declaration issued that a deputy governor acting under article 179(5) did not have mandate to exercise the authority of a governor to nominate, appoint, or dismiss officers of the County Executive Committee or other officers of the County Executive.

A permanent injunction was issued restraining the 1st respondent in Petition No.361 of 2019, his servants, agents and or any person acting under the authority of the 1st respondent from enforcing the decision contained in Kenya Gazette Notice No. 8401 of September 6, 2019.

Each party was to bears its own costs.

Citations CasesKenya Abiri, Isaac v Samuel Nyang’au Nyanchama & 2 others Civil Appeal 128 of 2013; [2014] eKLR - (Mentioned)

Council of County Governors v Attorney General & another Constitutional Petition 56 of 2017; [2017] KEHC 6395 (KLR) - (Explained)

In re Speaker, County Assembly of Embu Reference 1 of 2015; [2018] eKLR - (Explained)

In the Matter of Gender Representation in the National Assembly and the Senate [2012] 3 KLR 718 - (Explained)

In the Matter of Kenya National Commission on Human Rights [2014] 2 KLR 356 - (Followed)

In the Matter of the National Land Commission Advisory Opinion Reference No 2 of 2014; [2015] eKLR - (Explained)

In the Matter of the Speaker of the Senate & another Advisory Opinion Reference 2 of 2013; [2013] eKLR - (Explained)

Independent Electoral and Boundaries Commission (IEBC) V National Super Alliance (NASA) Kenya & 6 others Civil Appeal 224 of 2017; [2017] eKLR - (Mentioned)

Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal 219 of 2013; [2014] eKLR - (Explained)

Katiba Institute & 3 others v Attorney General & 2 others Constitutional Petition 548 of 2017; [2018] eKLR - (Mentioned)

Kenya Human Rights Commission v Attorney General & another Constitutional Petition 87 of 2017; [2018] eKLR - (Mentioned)

Kenya Pharmaceutical Association & another v Nairobi City County & 46 other County Governments & another Constitutional Petition 97 of 2016; [2017] eKLR - (Applied)

Lenolkulal, Moses v Director of Public Prosecutions Criminal Revision No 25 of 2019; [2019] eKLR - (Explained)

Matemu, Mumo v Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission Civil Appeal 290 of 2012; [2013] KECA 445 (KLR) - (Applied)

Mohammed, Twaher Abdulkarim v Mwathethe Adamson Kadonge & 2 others Civil Appeal 45 of 2015; [2015] eKLR - (Explained)

Moi, Daniel Toroitich v Mwangi Stephen Muriithi & another Civil Appeal 240 of 2011; [2014] eKLR - (Explained)

Murambi, Isaac Robert v Attorney General & 3 others Constitutional Petition 3 of 2016; [2017] eKLR - (Explained)

Mutua, Josephat Musila & 9 others v Attorney General & 3 others Petition 120 of 2017; [2018] eKLR - (Explained)

Nzioka, Boniface Mutungi & another v Attorney General & 3 others Constitutional Petition 522 of 2017; [2017] eKLR - (Explained)

Owners and Masters of the Motor Vessel “Joey” v Owners and Masters of the Motor Tugs “Barbara” and Steve “B” Civil Appeal 286 of 2000; [2007] eKLR - (Explained)

Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 - (Explained)

Republic v Moses Kasaine Lenolkulal ACEC No 3 of 2019; [2020] eKLR - (Explained)

Republic v Public Procurement Administrative Review Board Ex parte Kenya Power & Lighting Company Limited; Energy Sectors Contractors Association & another (Interested Parties) Miscellaneous Civil Application 36 of 2020; [2020] eKLR - (Explained)

Waititu, Ferdinand Ndung’u Baba Yao v Republic Civil Appeal 416 of 2019; [2019] eKLR - (Followed)

TanzaniaNdyanabo v Attorney General [2001] EA 495 - (Explained)UgandaShah v Attorney General (No 3) [1970] EA 543 - (Explained)United States Barnard v Taggart, 25 LRA 613; 29 A 1027, 66 NH 362 - (Explained)

In re Advisory Opinion to the Governor 112 So 2d 843 (1959) - (Explained)

In Re: The Petition of the Commission on the Governorship of California Edmund G Brown Jr, as Governor, etc, et al, petitioners v Mike CURB, as Lieutenant Governor, etc, et al, SF 24021, SF 24029 [1979] - (Explained)

State ex rel Olson v Langer 65 ND 68 (ND 1934) 256 NW 377 - (Explained)

Texts Garner, BA., (2009), Black’s Law Dictionary St Paul Minnesota: West Group 9th Edn

Garner, BA., (Ed) (1999), Black’s Law Dictionary St Paul Minnesota: West Group 7th Edn

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Procter, P., (Ed) (1995), Cambridge Dictionary Cambridge: Cambridge University Press

Rundell, M., (Ed) (2002), Macmillan English Dictionary London: Macmillan Education Ltd

Simpson, JA., (Ed) (1884), Oxford English Dictionary Oxford: Oxford University Press

StatutesKenya Constitution of Kenya articles 2(4)(5); 3; 19; 20; 21; 22; 23; 24; 32(4); 36; 38; 41; 47; 96, 165(2);165(3)(d)(ii); 179(1)(4)(5); 180(5); 181; 182; 200; 258(2)(c); 259(3)(a)(c); Chapter 9, 11 - (Interpreted)

Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Constitution of Kenya Sub Leg) rule 5 - (Interpreted)

County Governments Act, 2012 (Act No 17 of 2012) sections 6, 30(3)(f); 31; 32(4)(5); 59(1) - (Interpreted)

Fair Administrative Actions Act, 2015 (Act No 4 of 2015) section 9(2) - (Interpreted)

Interpretation and General Provisions Act (cap 2) section 48 - (Interpreted)

United StatesConstitution of the United States, 1788 section 72 - (Interpreted)AdvocatesNone mentioned

Judgment

1. The petition dated September 20, 2019 was filed under the Constitutionfor the alleged contravention of articles 179(5) of the Constitution. It seeks the following orders: -a.A declaration that the section 32(4) of the County Government Act No 17 of 2012 is inconsistent with the provisions of article 179(5) of the Constitution to the extent that it use the phrase ‘shall not’ exercise any powers of the governor to nominate, appoint or dismiss and any act or omission in contravention of article 179(5) of the Constitution is invalid;b.A declaration do issue that section 32(4) of the County Government Act No 17 of 2012 is inconsistent with the principles of construction, application and interpretation of written law;c.A declaration that a condition imposed as terms of bond by a trial court in criminal proceedings forbidding a governor from performing his official duties is one of the absences envisaged by article 179(5) of the Constitution;d.A mandatory injunction do issue compelling the Attorney General to advice the relevant government agencies to repeal section 32(4) of the County Government Act No 17 of 2012 as a consequence of the declaration in prayer(a) hereinabove.

The Petitioner’s Case 2. The foundation of the petition as supported by the petitioner’s affidavit sworn on September 20, 2019, is that article 179(5) of the Constitution provides that where a County Governor is absent, the deputy county governor should act as the governor and have all powers as defined under section 48 of the Interpretation and General provisions Act. He therefore claims that section 32(4) of the County Government Act No 17 of 2012 contravenes article 179(5) of the Constitution as it purports to limit the deputy governor’s powers to nominate, appoint or dismiss a person while acting as governor.

3. The petitioner against this background states that section 30(3)(f) of the County Government Act No 17 of 2012 (the Act) provides that a County Governor shall be accountable for the management and use of the county resources which includes county revenues and county human resources. He however avers that the deputy governor while acting as Governor cannot be held accountable for management of county resources without being vested with all the governor’s powers. He further avers that the wording of section 32(4) of the County Government Act No 17 of 2012 is inconsistent with article 179(5) of the Constitution as it provides “shall not” while the Constitution uses the word “shall.”

The Respondent’s Case 4. The response by the respondent and 1st and 3rd interested parties were not traced in the file. The 2nd interested party in support of the petition filed his replying affidavit dated November 4, 2019 and avers that on July 30, 2019 the 1st interested party following a ruling by the Anti-Corruption Court in Republic v Ferdinand Waititu Baba yao & 12 others Case No 22 of 2019 was barred from his office which occasioned absence leading him to become the acting governor by virtue of article 179(5) of the Constitution.

5. He depones that sections 30, 31 and 32 of the County Government Act, 2012 demarcate the powers of the governor, deputy governor and the County Executive Committee in a manner that negates and compromises article 179(1),(4) and (5) of the Constitution. He raises the same argument as the petitioner on the management of county resources by the deputy Governor.

6. He depones that as a result section 32(4) of the County Government Act is unconstitutional and offends the principle of construction and interpretation under section 48 of the Interpretation and General Provisions Act, cap 2. He adds that by virtue of this section he has not been able to nominate, appoint or dismiss persons in the county public service Board and this has made work to stall.

The Petitioner’s Submissions 7. The petitioner filed his written submissions dated February 12, 2020 in person. He submits that as per article 259(3)(a) of the Constitution the reference of the governor includes a reference to an acting governor which to him translates to having all the powers and functions of the governor. This is not the case when it comes to section 32(4) of the County Government Act, 2012 which limits the powers of the acting governor to the extent of appointing, nomination and dismissing persons and the provision is inconsistent with the dictates of article 179(5) of the Constitution.

The Respondent’s Submissions 8. The respondent in this series of related petitions sought to rely on his pleadings and submissions as filed in Petition No 361 of 2019. The learned state counsel Mr Thande Kuria, in view of that filed written submissions dated February 16, 2020 and submits that the main contention of the petitions and the cross petition revolves around the mandate of the deputy governor in light of article 179(5) of the Constitution and section 32(4) and (5) of the Constitution.

9. Counsel argues that the role and functions of deputy governors has been a key area of contention since the promulgation of the Constitution due to the lack of clear stipulations in the Constitution concerning their role and function. He submits that while article 179(5) of the Constitution states that the deputy governor can act as governor section 32(4) and (5) purports to limit this power with reference to nominations, appointments and dismissals. He therefore submits that the lack of clarity in this area requires a clear definition of the roles of acting governors when governors are absent.

10. Counsel submits that in this circumstance it would be appropriate to draw an analogy with the provisions of the Constitution relating to the office of the deputy president. He notes that in as much as the office of the president and the deputy president seem to mirror each other’s functions, there are sharp differences to bear in mind and the limitations cannot be questioned under article 2(3) of the Constitution. He submits that the clear provisions on the deputy president’s role in the president’s absence in the Constitution is not extended to deputy governors hence creating a lacuna and urges the court to adopt a holistic interpretation while making a determination as guided by the Supreme Court In the Matter of Kenya National Commission on Human Rights [2014] eKLR.

11. Learned counsel further submits that the role of the governor and deputy governor is intricately linked in that the latter is dependent on the former’s election to be in office. As such the Constitution does not contemplate filling the deputy governor’s seat through a direct election and so in considering this matter the constitutionality of section 32(4) of the Act should be had in mind. Fundamentally, counsel submits that in view of article 259 of the Constitution unless clearly stipulated the law provides that persons in acting capacity have full powers of the offices they hold. It is his submission therefore that the deputy governor should have all the powers of the office until such a time that the actual governor resumes office.

12. He contends that the temporary incumbency in the governor’s office by virtue of the said court orders created the applicability of article 259(3)(c) of the Constitution to empower the deputy governor to assume all the powers to enable execution of his functions without limitation to prevent a deficiency in service delivery. To this end, he submits that if the drafters of Constitution intended to limit the powers of the deputy governor in acting capacity the same would have expressly been provided for in the Constitution.

Interested party’s Submissions 13. There were no submissions by the interested parties found in the file.Petition No 490 of 2019BetweenHon. Ledama Olekina..................petitionerVersusAttorney General ..................respondentAndCounty Government Of Kiambu ......... 1St Interested PartyCounty Government Of Samburu.................. 2nd Interested PartyHon.julius Lawrence Leseeto.................. 3rd Interested Party

14. The petition dated December 6, 2019 was filed under articles 22, 23, 24, 96, 165(2), 180(5),179(5) of the Constitution and seeks the following orders: -a.A declaration be made that a deputy governor of a county government is empowered by article 179(2)(a) and (5) of the Constitution and section 32(2)(3) and (4)of the County Government Act to act as governor in the absence of a governor with the only expectation that he cannot nominate, appoint or dismiss, that are assigned to the governor under the Constitution or other written law;b.Or such other orders as this honourable court shall deem just.

The Petitioner’s Case 15. The premise of this petition as supported by the petitioner’s sworn affidavit of December 6, 2019 is that following the absence of the governors of Samburu and Kiambu from office, he on November 12, 2019 raised the issue as a motion in the Senate. In response the deputy speaker noted that the rulings had not addressed the issue of the governors’ physical absence from office and how this gap would be filled.

16. He avers that as a consequence the governors have been absent from their offices and not executed their constitutional obligations which in turn has led to impeded service delivery in the two counties. He deponed that the Kiambu County Government Finance Bill and Samburu County Finance Bill were yet to be operationalized into law. He depones that according to section 30 of the County Government Act the performance of a governor’s obligation is linked to the governor’s ability to attend to the office in person.

17. He further avers that section 32(4) of the County Governments Act, 2012 provides that a deputy governor while acting under article 179(5) of the Constitution is not allowed to exercise any powers of the governor to nominate, appoint or dismiss. In light of this, he avers that article 3 and 96 of the Constitution obligates the Senate to protect the interests of the counties and their governments. It is his prayer thus, that this court declare that a deputy governor can act as a governor in the absence of a governor with exception to the governor’s role to nominate, appoint or dismiss.

The Respondent’s Case 18. The responses by the respondent and 1st Interested parties were not traceable in the file. The 2nd interested party in opposition to the petition filed its sworn replying affidavit dated March 11, 2020 through Bosco Ole Sambu who avers that the court orders did not include a declaration that the governor’s seat was vacant or that absence had been effected making the deputy governor the interim governor. He added that the governor’s case is yet to be concluded.

19. He avers that the governor of Samburu County and the Samburu County Executive Committee have since continued to run the affairs of the county albeit the governor, being physically barred from the office. He further avers that the petitioner’s argument is false and legally incorrect as the governor does not have to be physically present in the office to conduct the affairs of the County such as signing the Samburu County Government Finance Bill. Owing to this he avers that the petition is misconceived, an abuse of judicial proceedings and so should be dismissed.

The 3rd Interested Party’s Case 20. The 3rd interested party in support of the petition filed his sworn replying affidavit dated October 16, 2020 and avers that following the court’s order barring the governor of Samburu from accessing office, he became the acting governor of Samburu County by dint of article 179(5) of the Constitution. That he had well discharged the duties and functions of the Governor.

21. He avers that it is erroneous to assume that the law vests the executive authority of the County in the person of the governor when the Constitution vests this authority in the county executive committee under article 179(1). He depones that whereas the Constitution envisages the governor and his deputy as chief executive and deputy chief executive of the County, sections 30, 31 and 32 of the County Government Act, 2012 purports to strip the deputy governor of his constitutional mandate.

22. He depones that section 32(4) of the Act is unconstitutional for the reason that it overlooks the deputy governor’s role as the deputy chief executive whenever the governor is absent. Further, that this section presumes that the powers of a governor vest in the person of the governor as opposed to the holder of the office of the governor. What is more is that the County Executive Committee is a body corporate and absence of any of its members does not negate its capacity to discharge its functions. Lastly, he avers that the 2nd interested party’s averments seek to re-litigate matters already determined by the court in the Samburu governor’s appeal case and raises issues not presented in the petition.

The Petitioner’s Submissions 23. On behalf of the petitioner, the firm of Nchogu, Omwanza & Nyasimi Co Advocates filed written submissions dated March 6, 2020. Learned counsel appreciates that the Constitution marked a paradigm shift in governance as esteemed by the Supreme Court In the Matter of the Speaker of the Senate & another [2013] eKLR. He submits that following the court orders barring the governor of Samburu County from the office, the Samburu County Government Finance Bill that was passed by the County Assembly on December 4, 2019 has not been assented to.

24. Counsel submits that by virtue of article 179(5) of the Constitution the above is a function that ought to be executed by the deputy governor in the absence of the governor since the law abhors a vacuum. He in essence submits that the 3rd interested party has full power to approve and assent to the bills passed by the County Assemblies. In a nutshell, counsel submits that it would be against public interest and the principles of good governance and article 10 of Constitution if a County legislation fails to be passed, due to the Governor’s absence.

The Respondent’s Submissions 25. The respondent in this series of related petitions sought to rely on his pleadings and submissions as filed in Petition No 361 of 2019. The learned state counsel in view of that filed written submission dated February 16, 2020 in which he submits that the main contention of the petitions and the cross petition revolves around the mandate of the deputy governor in light of article 179(5) of the Constitution and section 32(4) and (5) of the Constitution. The rest of the submissions are similar to those in Petition No 373/2019 which I will not rehash here. There were no submissions filed by the 1st and 2nd interested parties.

26. Kinoti & Kibe & Co Advocates on behalf of the 3rd interested party filed written submissions dated October 16, 2020. The following are the issues learned counsel identified for determination:i.What constitutes the absence of a governor;ii.In the circumstances of the absence of a governor does the deputy governor assume all power, responsibilities and functions of a governor in their capacity as the acting governor; andiii.Whether the pleadings and submissions of the 2nd interested party seeks to re-litigate matters already determined by a court of concurrent jurisdiction.

27. Counsel submits that a plain reading of article 179(5) of the Constitution reveals that the deputy governor is to act during the absence of the governor. To understand what the word absence means counsel relied on the case of R v Public Procurement Administrative Review Board ex parte Kenya Power & Lighting Company Judicial Review No 36 of 2020 where it was noted that consultation of dictionaries is necessary to ascertain meanings of words that have attained currency in the language at large. He submits that according to the Oxford Dictionaryabsent means ‘not present in a place, at an occasion or a part of something.’ He further submitted that by its very nature the court order rendered the governor absent from being able to carry out all his powers and functions in the usual manner.

28. On the second issue counsel submits that ‘acting’ is defined in the Black’s Law Dictionary, 7th Edition as holding an interim position or serving temporarily. He noted that any interpretation of the law that prejudices public interest is legally untenable and violates article 259 of the Constitution. It is his submission that section 6 of the County Government Act makes it clear that a county government is a separate legal entity from its officers. To this end counsel submits that article 179(5) of the Constitution permits the deputy governor to perform the functions and powers of the governor temporarily with exemption of the power to nominate, appoint and dismiss as spelt out under section 32(4) of the Act.

29. According to counsel, the 2nd interested party in its pleadings and submissions refers to matters not pertinent to the petition in an attempt to re-litigate the issues in the case of Moses Lenolkulal v DPP Criminal Revision No 25 of 2019. He mentions that the 2nd interested party speaks to disciplinary action pertaining to an elected public officer while this petition seeks a declaration that a deputy governor should act as governor in his absence save for the explicit powers spelt out in section 32(4) of the Act.Petition No 513 of 2019BetweenHarrison Kariira Thuku....................petitionerVersusCentral Bank Of Kenya .............1st RespondentSolicitor General Office Of The Attorney General And Department Of Justice............2nd RespondentThe Director General Accounting Services And Quality Assuarance Nationaltreasury.........3rd RespondentThe Controllerof Budget.............4th RespondentKiambu County Executive Committee ....5th RespondentThe Kiambu County Assembly......... 6th RespondentCouncil Of Governors .................7th RespondentAttorney General.....................8th RespondentAndDr. James Karanja Nyoro, Kiambu County Acting Governor.........interested Party

30. The petition dated December 19, 2019 was filed under articles 2(4),165(3)(d)(ii),179(5) & (6) and 258(2)(c) of the Constitution for the alleged contravention of articles 179(5) of theConstitution by section 32(4) of the County Government Act No 17 of 2012. It seeks the following orders: -g.A declaration that section 32(4) of the County Government Act is inconsistent with the provisions of article 179(5) of Constitution to the extent that it uses the phrase “shall not” exercise any powers of the governor to nominate, appoint or dismiss and any act or omission in contravention of article 179(5) of Constitution is invalid;h.A declaration that section 32(4) of the County Government Act No 17 of 2012 is inconsistent with the principles of construction, application and interpretation of written law;i.A declaration that a condition imposed as terms of a bond by a trial court in criminal proceedings forbidding a governor from performing his official duties is one of the absences envisaged under article 179(5) of Constitution of Kenya; andj.A mandatory injunction compelling the Attorney General to advice the relevant government agencies to repeal section 32(4) of the County Government Act No 17 of 2012.

The Petitioner’s Case 31. The heart of the petition as supported by the petitioner’s sworn affidavit of December 19, 2019 is that section 32(4) of the County Government Act holds back the powers conferred to the deputy governor while acting as governor as provided under article 179(5) of the Constitution. He avers that the impugned section offends the general principles of construction, application and interpretation of written law specifically section 48 of the Interpretation and General Provisions Act and is thus inconsistent with article 179(5) of the Constitution.

32. He further depones that section 30(3)(f) of the County Government Act provides that a governor is accountable for the management and use of the county resources including its revenues and human resources. That on the contrary section 32(4) of the Act provides that the acting governor cannot exercise the governor’s power to nominate, appoint or dismiss. Owing to this he avers that it is untenable for the deputy governor acting as governor to be accountable for the management of county resources without having all the necessary powers.

33. He further avers that as a consequence of all these the impugned section is inconsistent with Constitution for its use of the phrase “shall not exercise any powers of the governor….” while article 179(5) of Constitution uses the phrase “shall act as the county governor.” As such he avers that the section is inconsistent with article 2(4) of the Constitution.

The Respondent’s Case 34. The 1st respondent in response filed its sworn replying affidavit dated 5th February 2020 by one of its directors, Kennedy Abuga. He avers that the 1st respondent has been wrongly enjoined in this matter as none of the petitioners’ reliefs are against it and so seeks to be struck out of the petition. He avers that the petitioner has failed to adduce any material on how the alleged unconstitutionality arose. He further avers that the alleged violation of article 179(5) of the Constitution is misconceived as Parliament pursuant to article 200 of the Constitution enacted the impugned Act to give effect to the intended purpose in article 179(5) of the Constitution. Thus the provisions of section 32(4) are normative derivatives of article 179(5) and so are constitutional.

35. Furthermore, he avers that the word “absent” in article 179(5) of the Constitution is not synonymous with removal from office as set out in articles 181 and 182 of the Constitution and thus the governor retains all his powers and functions. It is for this reason that he says the court order barring the Kiambu County Governor from office did not divest him of his position as governor. He avers that the petition lacks merit and ought to be dismissed.

36. There were no responses filed by the 2nd - 4th respondents and 6th – 8th respondents.

37. The 5th respondent filed its grounds of opposition dated October 21, 2020 on the summarized grounds that:a.The petitioner has not established a prima facie case with any probability of success.b.The petition offends the tenets of law with reference to hierarchy of laws as set out under article 2(5) of the Constitution.c.The petitioner has abused the principle of jurisdiction by filing this petition before this honourable court.d.The petitioner has failed to disclose any cause of action triable before this court and thus the petition must fail for ambiguity.e.The petition has failed to disclose the constitutional right infringed or likely to be infringed by the 5th respondent herein.f.The reliefs sought in the petition can be attained through the provided alternative mechanism.g.The petition is premature and offends section 9(2) of the Fair Administrative Actions Act that provides that a party should exhaust all remedies provided under written law.h.The reliefs sought cannot be granted by this honourable court.i.The petition is premature, misconceived ,incompetent, bad in law and an abuse of due process.j.The petition shall not meet the ends of justice.

The Petitioner’s Submissions 38. The petitioner filed his written submissions dated February 12, 2020. He submits that the only issue for determination is whether section 32(4) of the County Government Act is inconsistent with the provisions of article 179(5) of Constitution. He submits that the court’s orders barring the governor of Kiambu County created a lacuna with reference to section 32(4) of the County Government Act. The reason being that the section limits the powers of the deputy governor while acting as the governor whereas section 30 of the Act demands that the governor should be accountable for the management and use of county resources including human resources.

39. He further submits that the impugned section is inconsistent with article 179(5) of the Constitution and section 48 of the Interpretation and General Provisions Act which provides that where a written law confers powers upon a person, all powers shall be deemed to be also conferred as are necessary to enable the person perform his/her mandate. He therefore contends that the acting governor ought to have all the powers of the governor so as to be able to discharge the governor’s obligation.

40. It is his submission that the governor and deputy governor are the chief executive and deputy chief executive of the county executive committee which is a body corporate. That by its very nature the executive authority of the county government through this body includes the powers to nominate, appoint or dismiss a person.

41. In conclusion, the petitioner submits principally that section 32(4) of the Act wrongly presumes that the powers to nominate, appoint or dismiss vest in the person of the governor as opposed to the holder of the office which offends the principle of corporate governance.

The _1st___ Respondent’s Submissions 42. The firm of Iseme, Kamau & Maema Co Advocates on behalf of the 1st respondent filed written submissions dated February 12, 2020. The single issue identified for determination is whether section 32(4) of the County Government Act is inconsistent with article 179(5) of the Constitution. Counsel submitted that the Constitution under articles 179(5) and 182 treats the process of absence from office and vacancy in office of the governor as separate and distinct.

43. In light of this, counsel submits that the Constitution does not define the term absent from office and states that a purposive and contextual interpretation of the same simply refers to a period of being away from a place that one is usually expected to be. On the flipside the term vacancy as stated in articles 179(7) and 182 of the Constitution means that there is no substantive holder in the office of the governor.

44. To add on to this argument, counsel submits that the difference of the two situations becomes apparent by reading section 32(4) as opposed to section 33 of the Act. This he explains is because while section 32(4) of the Act limits the powers of the deputy governor while acting as governor, section 33 does not restrict the power of the deputy governor in light of the vacancy. On this premise counsel submits that during the period of absence, the governor is still in office. In support reliance was placed on the Court of Appeal’s emphasis in the case of Ferdinand Ndung’u Waititu Baba yao v Republic (2019) eKLR where it noted that “the appellant has not been suspended from his office, he is still the governor of Kiambu County.”

45. Turning over to the validity of the County Government Act, counsel submits that the principle in such matters is that the statute’s provisions derive their legality from the Constitution and therefore are deemed to be constitutional as appreciated by the Court of Appeal in the cases of Isaac Abiri v Samuel Nyang’au Nyanchama & 2 others [2014] eKLR and Independent Electoral and Boundaries Commission (IEBC)vNational Super Alliance (NASA) Kenya & 6 others [2017] eKLR. Moreover they are presumed to be constitutional as seen in the cases of Kenya Human Rights Commission v Attorney General & another [2018] eKLR and Katiba Intsitute & 3 others v Attorney General & 2 others[2018] eKLR.

46. Likewise counsel notes that the Constitution lays down the broad guiding framework structure upon which the law is given life as held in the case of Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadonge & 2 others [2015] eKLR. As such he submits that the enactment of section 32(4) of the Act provided the specific functions and mandate of the deputy governor in light of the broad framework provided by article 179(5) of the Constitution.

47. In conclusion he submits that the limitation set out in section 32(4) of the Act ought to be deemed as reasonable and justifiable. He contends that this limitation was necessary to prevent the mischief which would occur if the acting governor would either by nomination, appointment or dismiss or dismantle the County Executive Committee. He further submits that the governor’s mandate to deliver on his manifesto still remains and for that reason the limitation is justified. In support he relied on the case of Josephat Musila Mutual & 9 others v Attorney General & 3 others [2018] eKLR where it was noted that not every violation should be declared unconstitutional. This is because article 24 of the Constitution allows limitation of rights as long as the limitation is by law reasonable and justifiable in an open and democratic society.

The 5th Respondent’s Submissions 48. The firm of Kithi & Co Advocates on behalf of the 5th respondent, filed written submissions dated October 21, 2020 and identified the issues for determination to be:i.Whether this court has jurisdiction to entertain this matter;ii.Whether the petitioner has a triable cause of action; andiii.Whether the orders sought can be granted by this court.

49. Counsel while relying on the Black’s Law Dictionary 9th Edition’s definition of territorial jurisdiction submits that it is “jurisdiction over cases arising in or involving persons residing within the defined territory”, He therefore submits that the petitioner has violated the principle of territorial jurisdiction as he has instituted this matter in the wrong forum. To support this point reliance was placed on the cases of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance and other [2013] eKLR.

50. On the second issue counsel notes that the petition does not raise or identify any triable cause of action yet it is known that pleadings are expected to state all material facts to establish a reasonable cause of action as held in the case of Kenya Pharmaceutical Association & another Nairobi City County & 46 other County Governments & another [2017] eKLR. Additional reliance was placed on the cases of Mumo Matemu (supra); IEBC & another v Stephen Mutinda Mule & 3 others [2014] eKLR and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR.

51. Lastly counsel submits that since the petition fails to define any fundamental right or freedom violated or at risk of violation the orders and reliefs sought must fail. Further with reference to prayer (d) in the petition that seeks an order of mandamus, counsel submits that the petitioner has failed to show any breach of public duty by the 5th respondent to warrant grant of this relief. He cites the case of Shah v Attorney General (No 3) Kampala HCMC No 31 of 1969 [1970] EA 543 and notes that this order can only be issued in certain cases to compel the performance of a duty. He urges the court to dismiss the petition.

52. There are no submissions filed by the 2nd, 3rd, 4th, 6th and 7th respondents.

The 8th Respondent’s Submissions 53. The 8th respondent in this series of related petitions sought to rely on his pleadings and submissions as filed in Petition No 361 of 2019. Learned state counsel in view of that filed written submission dated February 16, 2020 and submits that the main contention of the petitions and the cross petition revolves around the mandate of the deputy governor in light of article 179(5) of the Constitution and section 32(4) and (5) of the Constitution. The rest of the pleadings and submissions are similar to those in Petition No 361/2019 and shall not be rehashed here.Petition No 361 of 2019BetweenBenard Chege Mburu.......................petitionerVersusJames Karanja Nyoro (deputy Governor,kiambu County).....1st RespondentCounty Attorney, Kiambu County........2nd RespondentAndFrancis Kigo Njenga ..............1st Interested PartyWilson Mburu Kangethe...........2nd Interested PartyFerdinard Waititu Babayao(governor, Kiambu County)............3rd Interested PartyCouncil Of County Governors...........4th Interested Party

54. The petition dated September 9, 2019 was filed under articles 2, 3, 19, 20, 21, 22, 23, 36, 38, 41, 47, 179, 180, 181 and 182 of Constitution. It seeks the following orders: -a.declaration that the decision made by the 1st respondent vide Kenya Gazette Notice No 8401 of September 6, 2019 is unconstitutional, null and void;b.A declaration that the decision made by the 1st respondent vide Kenya Gazette Notice No 8401 of September 6, 2019 is ultra vires of the authority of a Deputy Governor by virtue of section 32(4) & (5) of the County Governments Act and the same to be quashed;c.A declaration that a deputy governor acting under article 179(5) does not have mandate to exercise the authority of a governor to nominate, appoint, re-assign or dismiss officers of the County Executive Committee members or other officers of the County executive;d.An order of permanent injunction restraining the 1st respondent, his servants, agents and or any person acting under the authority of the 1st respondent from enforcing the decision contained in Kenya Gazette Notice No 8401 of September 6, 2019;e.Any other or further order and or reliefs as the honourable court may deem fit and just; andf.Costs of this petition.

The Petitioner’s Case 55. The crux of the petition as supported by the petitioner’s sworn affidavit of September 9, 2019 is that the 1st respondent vide Gazette Notice No 8401 dated September 6, 2019 sought to re-assign the members of the County Executive Committee in line with article 179(5) of the Constitution and section 30(2)(1) of the County Governments Act. He avers that he did this inspite of the dictates of section 32(4) and (5) of the Act prohibiting the acting governor from interfering with the structure of the county government. He further avers that prior to the Gazette Notice, the 1st respondent had issued the 1st and 2nd interested parties letters to effect the purported re-assignment. This action was opposed by the Kiambu County Attorney’s advisory dated August 20, 2019 that noted that the 1st respondent did not have powers to re-assign the County Executive members.

56. He depones that opposition was also registered by the governor of Kiambu, (the 3rd interested party) in his correspondence to the government printers dated September 6, 2019. Further that the decision offends the principles of public participation and fair administrative action under article 47 of the Constitution. He avers that the 1st respondent’s acts are illegal and would in turn create a standstill that will affect service delivery in the county. Further, he is apprehensive that this will set a dangerous precedent where the governor’s powers of nomination, appointment or dismissal will be usurped each time the governor is temporarily out of office.

The 1st Respondent and 2nd Interested Party’s Case 57. The 1st respondent and the 2nd interested party in response filed their replying affidavit dated September 17, 2019 sworn by the 1st respondent. He avers that following the court order, issued by the Chief Magistrates Court in Anti-corruption Case No 22 of 2019 Republic v Ferdinard Ndung’u Waititu Baba yao & 12 others, he became the acting governor pending the conclusion of the criminal case by dint of article 179(5) of the Constitution.He avers that there being nothing in the Constitution or County Governments Act 2012 stopping him as acting governor from re-assigning the County Executive Members, he proceeded to do that in departments vide Gazzette Notice No 8401. He depones that the re-assignment is not one of the prohibitions as provided for under section 32(4) and (5) of the County Government Act.

58. He further avers that the 1st and 2nd interested parties were validly nominated, vetted and appointed to their positions as evidenced by the Committee’s first report dated October 31, 2017 and sixth report dated October 1, 2018. He adds that there was public participation during the appointment of the members, though public participation and the dictates of article 47 of the Constitution are not required in re-assignment of the members of the Committee.

59. In conclusion, he depones that section 32(4) and (5) of the County Governments Act is null and void for being inconsistent with the Constitution. He avers that because of this provision there has been operational dilemma in the county government’s workings as it is impossible to recruit and appoint members of the County Public Service Board and health workers. This he swears affects service delivery for the residents of Kiambu County.

The 4th Interested Party’s Response 60. The 4th interested party in support of the petition filed the following grounds dated January 23, 2020: 1. On September 6, 2019 the 1st respondent published in the Kenya Gazette a notice purporting to effect a re-assignment of the County Executive Committee members in charge of Finance and Economic Planning and Trade, Tourism, Cooperatives and Enterprise Development.

2. Article 179(5) of the Constitution expressly provides that when a county governor is absent the deputy governor shall act as the county governor.

3. The County Government Act under section 32(4) and (5) expressly provide that the deputy governor while acting in office as contemplated in article 179(5) is not authorized to exercise the governors power to nominate, appoint or dismiss and the governor is likewise not to delegate this functions.

4. In essence therefore the 1st respondent acted ultra vires in re-assigning the County Executive Committee members to different positions since section 2 of the Act clearly defines appointment to include re-designation and as such the 1st respondent action was contrary to the powers bestowed upon him in acting capacity.

The Cross-Petition 61. The 1st respondent in opposition to the petition filed his cross- petition dated October 14, 2019 pursuant to the interpretation of article 179(5) of the Constitution and supported by his supporting affidavit. Later the cross petitioner filed an amended cross petition dated February 17, 2020 enjoining the acting governor of Samburu County as the 2nd cross petitioner.The 1st cross petitioner while reiterating the contents of his affidavit dated September 17, 2019 deposes that by dint of section 6(1) of the County Governments Act, (the Act) a county is a body corporate and so a separate legal entity from its various organs and officers including the governor, deputy governor and members of the County Executive Committee.

62. He depones that article 179(4) provides that the governor and deputy governor are the chief executive and deputy chief executive of the County Executive Committee. He therefore avers that sections 30 and 32 of the Act in demarcating the powers of the governor and the deputy governor negates and compromises the dictates of article 179(1), (4) and (5).

63. He further depones that sections 30, 31 and 32 of the Act are founded on the misconceived notion that the governor is the central pillar as opposed to a county government being a body corporate comprising of a county assembly and county executive. He adds that the governor’s authority vests in the person of the governor instead of the county executive committee as provided in article 179(1), which states that the deputy governor is the deputy chief executive officer of the county. That on the other hand, sections 30, 31 and 32 of the Act strip the deputy governor of this constitutional mandate. In essence the cross-petitioner contends that because of this, sections 32(4) and (5) of the County Governments Acts are unconstitutional.

64. The cross-petitioner depones that owing to this dilemma the County public service board of Kiambu is not fully constituted as it lacks quorum to discharge its mandate under section 59(1) of the Act, and so prejudices public interest. That it has hampered service delivery in the County and is further untenable in light of article 259(1) of the Constitution.

65. From the foregoing he seeks the following orders:a)A declaration be issued that section 32(4) and (5) of the County Governments Act,2012 is unconstitutional;b)A declaration be issued that the cross petitioner is the acting governor of Kiambu within the meaning of article 179(5) of the Constitution;c)A declaration be issued to declare that the acting governor of Kiambu, by dint of article 259(3) of the Constitution, the cross-petitioner is empowered to exercise all the powers and perform all the functions of the office of Governor of Kiambu County;c1)A declaration be issued to declare that as acting governor of Samburu by dint of article 259(3) of the Constitution the second cross-petitioner is empowered to exercise all the powers and perform all the functions of the office of Governor of Samburu County;d)A declaration be issued to declare that the Constitution and other laws do not vest power and assign functions of the office of the governor to a specific individual and therefore those powers maybe exercised and functions performed by any person for the time being holding or acting in the office of governor; ande)The costs of the cross-petition be provided for.

The 2nd Cross Petitioner’s Case 66. The second cross petitioner filed his sworn supporting affidavit dated January 31, 2020 and avers just like the Kiambu Governor, that the Samburu County governor was charged before the Anti-corruption Court in ACEC No 3 of 2019; Republic v Moses Kasaine Lenolkulal, in which the orders given by the Chief Magistrate hampered the governor’s ability to carry out his mandate under article 179(5) of the Constitution.

67. He further avers that the rationality of article 179(5) of the Constitution flows from the fact that the governor and deputy governor are elected jointly, and the deputy governor is accordingly required to act as governor when the governor is absent. He further avers that an interpretation of the Constitution in this situation as provided in article 259(1) of the Constitution enjoins him to exercise all the powers and functions vested in the office of the governor in order to ensure there is an accountable and effective government and proper administration of public resources while effecting service delivery to the County.

68. There is no response by the 1st respondent to the cross-petition in the file. The Council of County governors who were enjoined as the 2nd respondents in the cross petition filed a sworn affidavit in response dated January 23, 2020 by Jacqueline Mogeni. She avers that as rightly observed by the cross petitioner, article 179(5) of the Constitution provides that the deputy governor is to act as governor in the governor’s absence from office. Nonetheless she notes that the circumstances that gave rise to the governor’s absence (3rd respondent in the cross petition) are peculiar in that the absence was occasioned by a court order and not by design and thus he still remains in office.

69. She further averred that the purported re-assignment of the County Executive Members by the 1st cross petitioner vide Gazette Notice No 8401 was in violation of section 32(4) and (5) of the Act as section 2 of the said Act defines appointment to include re-designation. In addition she avers that article 179(6) of the Constitution provides that the members of this Committee are accountable to the County Governor and they cease to hold office once the governor’s office becomes vacant and hence the governor is the only one with power to appoint, nominate and dismiss. Further that section 32(4) and (5) of the Act are normative derivatives of articles 179(6) and (7) of the Constitution.

70. She finally depones that the cross petition is purposely aimed at bypassing the law in declaring this section unconstitutional and arbitrarily granting the deputy governor excessive powers whenever the governor is absent. That the 1st cross petitioner has not demonstrated how the impugned sections of the Act undermine the constitutional underpinnings. In conclusion she avers that the cross-petition is misconceived and ought to be dismissed.

Parties submissions 71. Upon perusal of the file I note that the petitioners, 2nd respondent and 1st – 3rd interested parties did not file any submissions. On behalf of the 4th interested party, counsel for the Council of Governors filed written submissions dated March 5, 2021. The following are the issues identified for determination:iv.Whether a deputy governor can nominate, appoint or dismiss County Executive Committee members while acting in office under the provisions of article 179(5) of the Constitution.v.Whether section 32(4) of the County Government is inconsistent with the provisions of article 179(5) of the Constitution.

72. On the first issue, counsel submits that the 1st respondent acted ultra vires in re-assigning the County Executive Committee members to different positions as his powers are limited under section 32(4) and 32(5) of the Act. Moreover that the power to undertake such a re-organization is a preserve of the governor as the County Executive Committee members are accountable to the governor for the performance of their functions and exercise of their powers. Additionally, the Constitution requires them to cease holding office when a vacancy occurs in the office of the Governor. As such, the law grants the governor the sole power to appoint, reappoint, promote and re-designate a member of a County Executive Committee.

73. Moving on to the second issue counsel submits that there is a general presumption of constitutionality where an Act is enacted by parliament, as seen in the case of Boniface Mutungi Nzioka & another v Attorney General & 3 others Constitutional Petition 522 of 2017. He therefore submits that the cross-petition is aimed at circumventing the law by seeking to have the impugned sections declared unconstitutional with the sole purpose of arbitrarily granting the deputy governor excessive powers whenever the governor is absent. As such counsel urges the court to allow the petition but disallow the cross-petition.

The Cross-Petition 74. The firm of Kinoti & Kibe Co Advocates on behalf of the 1st cross-petitioner filed written submissions dated October 16, 2020 citing the issues for determination to be as follows:i.What constitutes the absence of a governor;ii.Whether in the absence of a governor the deputy governor assumes all power, responsibilities and functions of a governor in their capacity as the acting governor; andiii.The constitutionality of section 32(4) and (5) of the County Governor’s Act.

75. Counsel submits that a plain reading of article 179(5) of the Constitution reveals that the deputy governor is to act during the absence of the governor. To understand what the word absence means counsel relied on the case of R v Public Procurement Administrative Review Board ex parte Kenya Power & Lighting CompanyJudicial Review 36 of 2020. In this case it was noted that consultation of dictionaries was inevitable in such instances by the courts to determine what meanings have attained currency in the language at large and are thus linguistically permissible in a given context. As such he submits that according to the Oxford Dictionary absent means ‘not present in a place, at an occasion or a part of something.’ He proceeds to submit that by its very nature the court order created the governor’s absence and so he was not able to carry out all his powers and functions in the usual manner.

76. On the second issue counsel submits that ‘acting’ is defined in the Black’s Law Dictionary, 7th Edition as holding an interim position or serving temporarily. It is noted that any interpretation of the law that prejudices public interest is legally untenable and violates article 259 of the Constitution. That section 6 of the Act makes it clear that a county government is a separate legal entity from its various organs and officers. To this end he submits that article 179(5) of the Constitution permits the deputy governor to perform the functions and powers of the governor as the chief executive of a body corporate temporarily.

77. Counsel on the final issue reiterating the plain reading of article 179(5) of the Constitution submits that it is imperative to reflect on the drafters’ intent. This is because article 259 of Constitution requires that interpretation of its provisions should enhance the advancement of the rule of law, development of the law and contribution to good governance. In consideration of this counsel submits that the drafters’ intent did not seek to limit the powers of the acting governor. This position is contrasted to that of the deputy president acting as the president during a temporary incumbency. In this case the powers of the deputy president are expressly limited in the Constitution. Counsel argues therefore that if the same was to apply to deputy governors, this would have been expressly provided for.

78. He further submits that the provisions of section 32(4) and (5) of the Act render the provision of article 179(5) ineffective in so far as it bars a deputy governor from nominating, appointing and dismissing a person. In comparison to this situation Counsel relied on the United States Supreme Court case of: In Re: The Petition of the Commission on the Governorship of CaliforniaEdmund G Brown Jr, asGovernor, etc,et al, petitioners v Mike CURB, as Lieutenant Governor,etc,et al, respondents SF 24021, SF 24029 [1979] where the court had to adjudicate upon article V, section 10 of the California Constitution. In the matter the court held that:“the command that the lieutenant governor ‘act as governor’ during the governor’s absence (art v, section 10) places upon the lieutenant governor complete, albeit temporary, responsibility for ‘the supreme executive power of this state’ and for ‘seeing that the law is faithfully executed’ (art v, s 1). As acting governor, the lieutenant governor is free to act on whatever matters he determines need attention during the governor’s absence…”

79. In conclusion, counsel submits that parliament acted in contravention of article 179(5) of the Constitution by seeking to establish county governments around the person of the governor rather than the office of the governor. Consequently it is his submission therefore that section 32(4) and (5) of the Constitution are unconstitutional.

1st Respondents Submissions 80. The Attorney General who was enjoined as the 1st respondent in the cross petition filed written submissions dated February 16, 2020 through Learned counsel Mr Thande Kuria. Counsel submits at the onset that the main contention of the petition and the cross petition revolves around the mandate of the deputy governor in light of article 179(5) of the Constitution and section 32(4) and (5) of the Constitution. He argues that the role and functions of the deputy governor has been a key area of contention since the promulgation of the Constitution. He contends that this is due to the lack of clear stipulations in the Constitution concerning their role and functions.

81. In this regard he submits that while article 179(5) of the Constitution states that the deputy governor can act as governor, section 32(4) and (5) purports to limit this power with reference to nomination, appointment and dismissal of a person by the governor. He submits that the lack of clarity in this area requires a clear definition of the roles and functions of acting governors when the governor is absent.

82. Counsel submits that in this circumstance it would be appropriate to draw an analogy with the provisions of the Constitution relating to the office of the deputy president. He notes that in as much as the office of the president and the deputy president seem to mirror each other’s functions, there remain sharp differences to bear in mind and the limitations cannot be questioned under article 2(3) of the Constitution. That said he notes that the clear provisions on the deputy president’s role in the president’s absence is not extended to the deputy governors hence creating a lacuna. Counsel while relying on the case: In the Matter of Kenya National Commission on Human Rights [2014] eKLR submits that the court should adopt a holistic interpretation of the Constitution in determining this matter.

83. He further submitted that the role of the governor and deputy governor is intricately linked in that the latter is dependent on the former’s election to be in office. According to him the Constitution does not contemplate filling the deputy governor’s seat through a direct election. As such counsel submits that in considering the constitutionality of section 32(4) of the Act this link should be had in mind.

84. Fundamentally counsel submits that in view of article 259 of the Constitution persons in acting capacity should have full powers of the offices they hold. It is his contention that the deputy governor should have all the powers of the office until such a time that the governor resumes office.

85. In the same way, it is submitted that the temporary incumbency in the governor’s office by virtue of the said court orders created the applicability of article 259(3)(c) of the Constitution. This was to empower the deputy governor to assume all the powers to enable execution of his functions without limitation to prevent a deficiency in service delivery. To this end, counsel submits that if the drafters of the Constitution intended to limit the powers of the deputy governor to acting capacity the same would have expressly been provided for in the Constitution.

Analysis and Determination 86. Despite these four Petitions Nos 373/2019, 490/2019 513/2019 and 361/2019 raising similar issues, they were never consolidated. I however elected to write a consolidated Judgment but after setting out the case in each petition. Besides the main issue running across all the petitions, Petition No 513/2019 raised other issues which I will address first. They are basically preliminary issues set out as follows:

a. Jurisdiction 87. The jurisdiction of this court was challenged by the 5th respondent on the ground that the petitioner violated the principle of territorial jurisdiction by instituting this matter in the wrong forum. It is settled in law that jurisdiction is everything and without it a court cannot exercise its power as noted in the case of Owners of the Motor Vessel “Lillian S” (supra). Once the jurisdiction of the court is challenged in a suit the Court of Appeal in the case of Owners and Masters of Motor vessel “Joey” v Owners and Masters of Motor Tugs “Barbara” and Steve “B” [2007] eKLR offers guidance on the steps to be taken thereafter as follows:“..the underlying principle is contained in the two previous decisions of this court in the cases of The Owners of the Motor Vessel “lilian S” v Clatex Oil (kenya) Ltd [1989] KLR 1, and Roy Shipping Sa & All other Persons interested in the Ship “mama Otan” v Dodoma Fishing Company Ltd, Civil Appeal No 238 of 1997 (unreported). In the Lilian “S”, the court, consisting of the late Mr Justice Nyarangi, the late Mr Justice Masime, and Mr Justice Kwach, relying on previous decisions of the courts of the United Kingdom, decisions such as The River Rima [1987] 3 All ER 1, The I Congreso del Partido [1983] 1 AC 244 and such like cases, held that the question of jurisdiction, raised in the circumstances such as those existing in the present appeal, is a thresh-hold issue and must be determined by a judge at the thresh-hold stage, using such evidence as may be placed before him by the parties.”

88. A reading of the facts in this case shows that this matter is one that clearly falls within the ambit of this court’s jurisdiction as spelt out under article 165(3)(d) of the Constitution which provides as follows:(3)Subject to clause (5), the High court shall have -(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of--(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under article 191;

89. This court has jurisdiction because the preceding provision bestows specific authority to the High Court with regard to the interpretation of the Constitution. This matter and the related petitions seek an interpretation of the constitutionality of sections 32(4) and (5) of the County Governments Act in light of article 179(5) of the Constitution. I am satisfied that the nature of the petition before this court raises a question within the jurisdiction of this court.

b. Wrong Joinder of Parties 90. The 1st respondent opposed its being joined in this suit as the petitioner had not disclosed any reasonable cause of action against it. Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides for the addition, joinder, substitution and striking out of parties and provides as follows:5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—(a)Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.(b)A petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every proceeding deal with the matter in dispute.(c)Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.(d)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—(i)order that the name of any party improperly joined, be struck out; and (ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.(e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.

91. An interpretation of this rule as has always been, discloses that the act of striking out a party falls under the discretionary jurisdiction of the court. Ideally, the court is required to only act in plain and obvious cases while exercising caution. In this matter, (Petition 513 of 2019), it is evident from a reading of the petition that the petitioner has not demonstrated his cause of action against the 1st respondent in light of his case and the prayers sought. I therefore find that the 1st respondent was wrongly enjoined to the Petition No 513/2019 and its name is struck out accordingly.

92. From the pleadings, submissions, authorities cited and the laws, I find one issue to fall for determination in the series of petitions and cross-petitions. The issue is whether section 32(4) and (5) of the County Governments Act (No 17 of 2012) is inconsistent with article 179(5) of the Constitution, hence it is unconstitutionality. Answering this question requires this court to bear in mind the relevant guiding principles in the interpretation of the Constitution and an Act of Parliament. Fundamentally the spirit of the Constitution must preside and permeate the process of Judicial interpretation as spelt out under article 259 of the Constitution.

93. The Supreme Court while espousing the principles that guide the interpretation of Constitution In Re Speaker, County Assembly of Embu[2018] eKLR opined as follows:“(49)This court has rendered several advisory opinions in the past, in which it addressed itself to certain vital questions bearing upon the task of interpreting the Constitution. In Re the Matter of the Interim Independent Electoral Commission, Sup Ct Const Appl No 2 of 2011; [2012] eKLR, the court, while interpreting the Constitution, thus held [paragraph 86]:“The rules of constitutional interpretation do not favour formalistic or positivistic approaches (articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction… The values and principles articulated in the preamble, in article 10, in chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the courts.”(50)In the National Land Commission, Supreme Court Advisory Opinion Reference No 2 of 2014, the court reaffirmed its earlier position in, In the matter of Gender Representation in the National Assembly and the Senate, Supreme Court Advisory Opinion No 2 of 2012, which had been thus stated [paragraph 83]:“We would state that the Supreme Court, as a custodian of the integrity of Constitution as the country’s charter of governance, is inclined to interpret the same holistically, taking into account its declared principles, and to ensure that other organs bearing the primary responsibility for effecting operations that crystallize enforceable rights, are enabled to discharge their obligations, as a basis for sustaining the design and purpose of Constitution.”(51)In, In the Matter of Kenya National Commission on Human Rights, Sup Ct Reference No 1 of 2012, [2014] eKLR, the Supreme Court considered the meaning of the phrase, “a holistic interpretation of the Constitution,” as follows (paragraph 26):“But what is meant by a ‘holistic interpretation of the Constitution’" It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

94. On the other hand the court is also guided by a number of set principles in the interpretation of the constitutionality of a statute. To begin with there is a general presumption that Acts of Parliament are enacted in conformity with the Constitution as was affirmed by the Court of Appeal of Tanzania in the case of Ndyanabo v Attorney General [2001] EA 495:“Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative”

95. Likewise, the court in the case of Isaac Robert Murambi v Attorney General & 3 others [2017] eKLR highlighted a number of these principles as follows:“a)The onus of proving that a law is unconstitutional lies with the person saying so as held in US v Butler297 US 1 [1936]. In the said case the court stated that:“When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.”b)A statute should be construed according to the intention expressed in the statute itself as confirmed the Court of Appeal case County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR when it stated that:“The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context…”c)The Constitution should be given a purposive and liberal interpretation as provided in on article 259(1) of the Constitution.”

96. In the same way, the court in the case of Council of County Governors v Attorney General & another [2017] eKLR disclosed yet another key principle as follows:“A law which violates the Constitution is void. In such cases, the court has to examine as to what factors the court should weigh while determining the constitutionality of a statute. The court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law is challenged on grounds that it infringes the Constitution, what the court has to consider is the “direct and inevitable effect” of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration is the object and reasons as well as legislative history of the statute. This would help the court in arriving at a more objective and justifiable approach.Thus, the history behind the enactment in question should be borne in mind. Thus any interpretation of these provisions should bear in mind the history, the desires and aspirations of the Kenyans on whom the Constitution vests the sovereign power, bearing in mind that sovereign power is only delegated to the institutions which exercise it and that the said institutions which include Parliament, the national executive and executive structures in the county governments, and the judiciary must exercise this power only in accordance with the Constitution.”

97. The impugned Act of Parliament in these petitions is the County Governments Act No 17 of 2012, which under Part V provides for the functions of the County Executive Committee and those of the governor and deputy governor. Of importance in this matter are the functions of a deputy governor which are espoused below:Section 32. Functions of the deputy governor(1)The deputy governor shall take and subscribe to the oath or affirmation as set out in the Schedule to this Act before assuming office.(2)The deputy governor shall deputize for the governor in the execution of the governor’s functions.(3)The governor may assign the deputy governor any other responsibility or portfolio as a member of the county executive committee.(4)When acting in office as contemplated in article 179(5) of the Constitution, the deputy governor shall not exercise any powers of the governor, to nominate, appoint or dismiss, that are assigned to the governor under the Constitution or other written law.(5)The governor shall not delegate to the deputy governor any of the functions referred to in subsection (4).

98. A simple reading of the impugned provisions shows that the purpose of these provisions as intended by Parliament was to limit the exercise of the governor’s executive authority to nominate, appoint or suspend and dismiss a person by the acting governor with reference to article 179(5) of Constitution. As it were this limitation has been the genesis of the disputes in the series of petitions and cross-petition. The petitioner in this matter have challenged the exercise of the governor’s powers under these sections through learned counsel who contends that the purported act of re-assigning the select members was illegal. This was strongly opposed by the 1st respondent in Petition No 361/2019 who in turn filed a cross petition seeking to have these sections declared unconstitutional.

99. Evidently, the two opposite points of view among the parties in the petitions and cross petition present two varying plausible legal interpretations that need to be interrogated. On one end the parties are apprehensive of a situation where the deputy governors will capriciously be granted excessive powers whenever the governor is absent. The other end protests the prioritization of the governor’s executive power in an individual in essence negating the dictates of article 179(5) of the Constitution in light of the nature of a County Government.

100. Article 179 of the Constitution with sharp focus on the contested sub-article, reads as follows:County executive committees(1)The executive authority of the county is vested in, and exercised by, a county executive committee.(2)The county executive committee consists of--(a)the county governor and the deputy county governor; and(b)members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.(3)The number of members appointed under clause (2)(b) shall not exceed--(a)one-third of the number of members of the county assembly, if the assembly has less than thirty members; or(b)ten, if the assembly has thirty or more members.(4)The county governor and the deputy county governor are the chief executive and deputy chief executive of the county, respectively.(5)When the county governor is absent, the deputy county governor shall act as the county governor.(6)Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.(7)If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2) (b) cease to hold office.

101. Counsel in support of the impugned sections urged the court to be guided by the principle that all statutes enjoy the presumption of constitutionality. In rebuttal, the cross petitioners’ counsel questioned the meaning of the word absence beseeching the court to be guided by its ordinary meaning and the drafters’ intent. Mr Thande Kuria admitted that this question had been an area of contention due to the lack of clear definitions of the roles of the deputy governors in the governor’s absence. As such he argued that this matter had invoked the operations of article 259(3)(c) of the Constitution.

102. The key issue in making this determination is an interpretation of article 179(5) of the Constitution. Guided by the cited authorities it is appreciated that this interpretation must not be formalistic but rather holistic so as to achieve the principles and purposes of the Constitution. The Constitution must therefore be interpreted in context. This was esteemed by the court in the persuasive United States case of Barnard v Taggart, 25 LRA 613 which noted as follows:“Words used in the Constitution should be construed in the sense in which they were employed. They must be taken in the ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it.”

103. Considering this, it has been held that for a court to ascertain the meaning of words consultation of dictionaries is essential. A case in point as quoted by counsel for the 1st cross petitioner is the case of Republic v Public Procurement Administrative Review Board ex parte Kenya Power & Lighting Company Limited (supra) where it was observed that:“60. In searching for the meaning of the said words, it is inevitable that I will consult dictionaries. The practice of appealing to dictionaries simply as memory aids was deemed a function of judicial notice. [13] Words must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court. [14]61. Dictionaries may also serve an instantiating function, that is, they may be used by the court to confirm that a contested meaning has been employed in either speech or literature, and has thus been recognized as a valid meaning by lexicographers. Of this instantiating function, Professors Hart and Sacks said, “Unabridged dictionaries are historical records (as reliable as the judgment and industry of the editors) of the meanings with which words have in fact been used by writers of good repute. They are often useful in answering hard questions of whether, in an appropriate context, a particular meaning is linguistically permissible. “[15]”

104. From the foregoing a consultation of these texts is necessary. The term ‘absence’ is defined as follows in various dictionaries:The Cambridge Dictionary describes “absence” as a noun (not being present) and defines it as ‘the fact of not being where you are usually expected to be.’The Macmillan Dictionary defines it as ‘a period of time when someone is not where they should be or where they usually are.’The Black’s Law 11th Edition Dictionary defines it as ‘the quality, state or condition of being away from one’s usual place of residence.’

105. The next question that arises is what therefore constitutes this “absence” to invoke the operation of article 179(5) of the Constitution. This question albeit novel in our jurisdiction has been the subject of judicial interpretation in various jurisdictions which I believe will offer useful acumen in these petitions.A case in point is that before the North Dakota Supreme Court in the case of State ex rel Olson v Langer, 65 N D 68 North Dakota Supreme Court where section 72 of their Constitution which includes absence from the State as one of the factors that devolves the powers and duties of the governor’s office upon the lieutenant governor was in question. The court noted as follows:“. . . . We must presume, of course, that the words used by the framers of the constitution were used in their ordinarily accepted sense unless the contrary clearly appears. Indeed, unless given the ordinary and accepted meaning, disability would have no place in this constitutional provision. Applying that meaning to the term it must be said that the framers of the Constitution contemplated that any cause, whether mental, physical, or legal, which operated to disqualify the governor would devolve the duties of the governor upon the lieutenant governor."

106. Likewise an astute advisory opinion was rendered by the Supreme Court of Florida,In re Advisory Opinion to the Governor 112 So 2d 843 (1959). In this matter the court considered the then Governor, LeRoy Collins’s request for their direction on the effect of his absence from the state on his official duties as governor and whether the same necessitated devolution of his powers. In rendering their opinion the court stated that:“The answer to your question is to be found in determining whether absence of the Governor from the state constitutes "inability to discharge his official duties" as provided in sec 19, art IV…Having no prior expression of this court on the specific question to guide us we have examined the provisions of each of the four constitutions adopted by the people of this state prior to the Constitution of 1885 in search of clues to the answer of your question.”

107. The court went further to observe and concluded that:“We are of the view that the word "inability" which in its ordinary sense means the state of being unable, lack of ability, lack of capacity or power does not include within its meaning the word "absence."While we recognize that mere absence from the state does not of itself necessarily produce inability of a governor to discharge his official duties, we simultaneously realize that the nature of the conditions attendant upon such absence could possibly constitute inability such as would justify a devolution of the powers and duties of the office.The Constitutions of several states specifically provide, as ours once did, that "absence from the State" of the governor is cause for devolution of the powers and duties of the office to an acting governor. However, even under those provisions it is not universally held that every absence brings on such devolution. See Note, 35 American & English Annotated Cases (Ann Cas 1915A), p 577; In re An Act Concerning Alcoholic Beverages, 1943, 130 NJL 123, 31 A 2d 837. In the latter case the court, at 31 A 2d at page 841 said:"Under the first view, notwithstanding modern facilities of communication and transportation, the governor would be absent from the state if he were but to leave it long enough to go to New York or Philadelphia for part of a day or evening to attend a public or private function."It is not reasonable to adopt so narrow and strict construction or interpretation of the word `absence.' We think that the other view which is made to depend upon the particular facts and circumstances of each `absence' from the state by the governor comprehends the common sense idea of the word `absence' as used in the Constitution. We adopt it."

108. In my understanding as guided by the cited definitions, the simple meaning of the word “absence” which I adopt is that a person is not in the usual place they are expected to be. In this case the usual place a governor is supposed or expected to be as he carries out his official duties is his physical office. As discussed above it does not stop there, since not all forms of absence of a governor from office are deemed to invoke devolution of the governor’s powers to his deputy. Unfortunately in the present scenario neither Constitution nor the County Government Act defines the scope of this absence to guide this court. This is an area which I believe the legislature should make clear to offer clarity and certainty going forward.

109. In spite of that, the cited jurisprudence on the term absence offers a suggestion worth exploring. First, is an interrogation of the former Constitution. The repealed Constitution did not offer the governor’s position. However, due to the historical background of our nation one of the elements that was championed and adopted by the people of Kenya in the current constitution was decentralization of the government’s power through devolution. This desire is expressed as one of the national values and principles in article 10 of the Constitution which states in brief ‘…sharing and devolution of power’.The second suggestion is that the nature of the conditions attendant upon such absence could possibly constitute inability of the governor’s performance of his duty such as would justify devolution of the powers and duties of the office to the deputy governor.

110. These petitions are founded on the criminal charges brought against the governors of Kiambu and Samburu Counties. After pleas were taken and bond given, one of the conditions given by the court was that the governors were barred from accessing their offices during the pendency of the criminal cases. This in effect rendered them physically absent from the offices. Did this absence render them unable to undertake their official tasks? This court has been urged to so find.

111. The circumstances of the governors’ absence brings into sharp focus one of the historical fights this country has had to grapple with, being the nature of leadership which the Constitution has to tackle. One of the elements of this is Devolution (Devolved Government). These petitions strictly touch on leadership in devolved governments. The devolved government is part and parcel of the Executive. It is the Executive trickled down to the counties, to the common mwananchi.

112. Article 174 of the Constitution sets out the objects of devolution to be as follows:(a)to promote democratic and accountable exercise of power;(b)to foster national unity by recognising diversity;(c)to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them;(d)to recognise the right of communities to manage their own affairs and to further their development;(e)to protect and promote the interests and rights of minorities and marginalised communities;(f)to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;(g)to ensure equitable sharing of national and local resources throughout Kenya;(h)to facilitate the decentralisation of state organs, their functions and services, from the capital of Kenya; and(i)to enhance checks and balances and the separation of powers.

113. The governor and the deputy governor are elected as the Executive leaders in a county just as the President and the deputy President are elected as the Executive leaders of the Nation of Kenya.

114. Articles 129 – 151 under chapter nine of the Constitution enumerate the roles and functions of the President and the Deputy President. This is referred to as the principles of Executive authority. The functions of the deputy President under article 147(3) are subject to article 134 when he/she is acting as the President ie when the President is absent or incapacitated. This is what article 134(1) provides:134. (1)A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President—(a)during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office; or(b)while the President is absent or incapacitated, or at other times contemplated in article 147(3), may not exercise the powers of the President specified in clause (2).(2)The powers referred to in clause (1) are—(a)the nomination or appointment of the judges of the superior courts;(b)the nomination or appointment of any other public officer whom this Constitution or legislation requires the President to appoint;(c)the nomination or appointment or dismissal of Cabinet Secretaries and other State or Public officers;(d)the nomination or appointment or dismissal of a high commissioner, ambassador, or diplomatic or consular representative;(e)the power of mercy; and(f)the authority to confer honours in the name of the people and the Republic.

115. In relation to the office of the governor this is what article 179 of the Constitution provides:Article 179 (5) When the county governor is absent, the deputy county governor shall act as the county governor.(6)Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.(7)If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2)(b) cease to hold office.Article 181(1) A county governor may be removed from office on any of the following grounds—(a)gross violation of this Constitution or any other law;(b)where there are serious reasons for believing that the county governor has committed a crime under national or international law;(c)abuse of office or gross misconduct; or(d)physical or mental incapacity to perform the functions of office of county governor.Article 182(1) The office of the county governor shall become vacant if the holder of the office—(a)dies;(b)resigns, in writing, addressed to the speaker of the county assembly;(c)ceases to be eligible to be elected county governor under article 180(2);(d)is convicted of an offence punishable by imprisonment for at least twelve months; or(e)is removed from office under this Constitution.

116. Article 200 of the Constitution mandated parliament to enact legislation to give effect to chapter 11 under which articles 179, 181 and 182 fall. This is what gave birth to the County Government Act that contains the impugned section 32(4) and (5).

117. A plain reading of the impugned sections shows that the powers of the deputy governor while acting as governor are limited. It is reasonable to infer that the powers of the governor to nominate, appoint and dismiss become key because they constitute a significant aspect of the governors control over the county’s administration as its chief executive.

118. This court is called upon to interpret the meaning and import of article 179(5) and the constitutionality of section 32(4) and (5) of the County Government Act.Article 259 of the Constitution requires this court to interpret the Constitution in a manner that:(a)promotes its purposes, values and principles;(b)advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;(c)permits the development of the law; and(d)contributes to good governance.This court has a duty to interpret hConstitution in a holistic manner in order to determine whether the limitation imposed on acting governors by the provisions of section 32(4) of the County Governments Act is constitutionally sound.

119. In my view the general and ordinary meaning of the word “absent” is temporarily being away from one’s usual place of work/abode etc. It means being out of public action. It is therefore a “temporary” as opposed to a permanent action. In the present scenario the two governors had been barred from accessing the office only. They were not barred from conducting the office business or consulting with the Executive committee or deputy governor on office matters. The absence was purely temporary.

120. To buttress this finding I rely on the case of Ferdinard Ndung’u Waititut Baba yao v Republic [2019] eKLR where the Court of Appeal stated:“44. In our view, to the extent that neither the trial magistrate, nor Learned Judges holding purported to remove or suspend the appellant from office of Governor, Kiambu County, section 62(6) of ACECA had no application in the matter that was before her. The appellant has not been suspended from his office, he is still the Governor of Kiambu County, he is still entitled to his full pay not half.”

121. My finding is that the governors of Kiambu and Samburu Counties were still holders of the governors office inspite of the court order barring their access to their offices. Hence their deputy governors and could only act as governors and not be deemed to be governors. The latter could only be possible in light of article 179(7), 181 or 182, where a vacancy occurs in the office of the governor, either by removal, death resignation, or conviction of an offence punishable by imprisonment for at least twelve months.

122. Having considered the provisions under articles 134, 147, 179 (5) & (7), 181 and 182 on the offices of the President and Deputy President, Governor and deputy Governor it is clear that the roles and functions of the President and his deputy are clearly set out in the Constitution. Those of the Governor and his/her Deputy are not hence the lacuna.

123. Article 200 authorised parliament to enact legislation to give effect to chapter 11 of the Constitution. In its preamble the County Government Act provides:“….to give effect to chapter eleven of the Constitution; to provide for county governments powers; functions and responsibilities to deliver services and for connected purposes”.

124. Sections 31 and 32 of the Country Government Act outlines the powers and functions of the Governors and Deputy Governors which are not provided for in the Constitution. As stated earlier above, the office of the President and Governor are both Executive offices. There must be a flow from the high office to the Governor’s offices, seamlessly. The County Government Act had to therefore seal the lacuna in Constitution through the legislation of the provisions in the County Government Act, by specifically providing for the roles and functions of the two offices ie Governor and Deputy Governor. This is based on the fact that absence from office is not the same as removal or vacating office. What would happen if a Governor is absent from office temporarily and during that short period the deputy governor in his/her acting capacity comes and overhauls everything including dismissing staff and appointing and nominating new ones?

125. The curtailment of the deputy Governor’s powers is very reasonable for purposes of maintaining law and order in the Counties. This is a replica of the limited roles of the deputy President during the absence of the President. The County Government Act came in to fill the lacuna in Constitution which does not outline the roles and functions of the Governor and the deputy. The fact that the Executive committee members are retained during the Governor’s temporary absence confirms that the limitation of the deputy Governor’s functions contributes to good governance.

126. My finding therefore is that section 32(4) of the County Government Act is neither inconsistent nor a derogation from the provisions of the Constitution.

127. All these provisions ie article 134, 147, 179(5) and (7), 181, 182 and sections 32(4) and (5) of the County Government Act must be read together instead of limiting ourselves to article 179(5) and section 32(4) of the County Government Act. A holistic interpretation of these provisions enables us to understand the intention of Parliament and the mischief it was addressing by enacting section 32(4) of the County Government Act.

128. In view of the above, I find that:i.Petition No 373/2019 and petition No 513/2019 have no merit and are dismissed.ii.The 1st respondent in Petition No 513/19 was wrongly enjoined and its name is struck out.iii.Petition No 490/2019 and 361/2019 have merit and are allowed.iv.The cross-petition in Petition No 361/2019 lacks merit and is dismissed.

The following orders are made:a.A declaration that a deputy governor is empowered by article 179(5) of the Constitution and section 32(2)(3)(4) and (5) of the County Government Act to act as governor in the absence of a governor to exercise the powers assigned to the Governors with the exception that he cannot nominate, appoint or dismiss.b.A declaration that the decision made by the 1st respondent in Pet No 361/2019 vide Kenya Gazette Notice No 8401 of September 6, 2019 is unconstitutional, null and void.c.A declaration that the decision made by the 1st respondent in Petition No 361/2019 vide Kenya Gazette Notice No 8401 of September 6, 2019 is ultra vires of the Authority of a Deputy Governor by virtue of section 32(4) and (5) of the County Governments Act and the same is quashed.d.A declaration that a deputy governor acting under article 179(5) does not have mandate to exercise the authority of a governor to nominate, appoint, or dismiss officers of the County Executive Committee or other officers of the County Executive.e.A permanent injunction hereby issues – restraining the 1st respondent in Petition No 361/2019, his servants, agents and or any person acting under the authority of the 1st respondent from enforcing the decision contained in Kenya Gazette Notice No 8401 of September 6, 2019.

Costs 129. I have considered the issue of costs. Cost generally follow the event and are at the discretion of the court. However, in the circumstances of this case, I find the order commending itself to be that each party bears its own costs.

Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 13THDAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT