[2024] KEHC 398 (KLR)

Kariuki v Board of the Tourism Regulatory Authority & 2 others; Talam (Interested Party) (Petition E340 of 2022) [2024] KEHC 398 (KLR) (Constitutional and Human Rights) (16 January 2024) (Ruling)

Neutral citation: [2024] KEHC 398 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E340 of 2022

EC Mwita, J

January 16, 2024

Between

Agnes Kariuki

Petitioner

and

The Board of the Tourism Regulatory Authority

1st Respondent

Cabinet Secretary Ministry of Tourism and Wildlife

2nd Respondent

The Hon. Attorney General

3rd Respondent

and

Norbert Talam

Interested Party

Ruling

1. On 12th June 2023, Norbert Talam (Mr. Talam) took out a motion on notice seeking two prayers: to be joined in these proceedings as an interested party and to set aside the judgment delivered by this court (Ong’udi J) on 31st May 2023.

2. The reason for Mr. Talam seeking to be joined in the proceedings and set aside that judgment is that Mr. Talam was not given an opportunity to be heard, even though he had been appointed as the Director General of the 1st respondent on 18th July 2022 and the judgment affected him.

3. According to Mr. Talam, the court made express and adverse orders against him despite not being a party to the petition. The judgment, in particular, nullified and set aside his appointment as the Director General of the 1st respondent without being heard.

4. Mr. Talam asserts that he was not aware of the petition during the recruitment process and not having been given an opportunity to be heard, he was condemned unheard despite the impugned judgment adversely affecting him.

5. Mr. Talam argues that his appointment has not been challenged in court, no pleadings were served on him to that effect and no prayer had been sought in the petition seeking to set aside his appointment. That notwithstanding, the court issued a judgment directly affecting him without giving him an opportunity to be heard.

6. Mr. Talam takes the view, that if the judgment is not set aside, he will have been condemned unheard against the rules of natural justice and in violation of his right to a fair hearing.

7. Mr. Talam relies on the strength of article 21 (1) of theconstitution on the fundamental duty of the state and state organs to observe, respect protect, promote and fulfil rights and fundamental freedoms in the Bill of Rights. He again cites article 27(1) of the constitution on the equality before the law and article 50(1) on the right to a fair hearing.

8. Mr. Talam further relies on the decision in Republic v the Chief Justice of Kenya and 3 others Exparte Justice Moijo Mataiya Ole Keiwua [2010] eKLR that persons who are likely to be affected by the proposed or likely action must be afforded an opportunity of being heard as to why the action should not be taken.

9. Reliance is again placed on the decision in Nyamu v Mugambi (Civil Case No. E005 of 2021) [2022] KEHC 405(KLR) 21 April 2022(Ruling), that under article 50 of the constitution, no person should be condemned unheard.

10. Mr. Talam places further reliance on Republic v National Land Commission & 2 others Exparte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West [2018] eKLR citing Chief Constable Pietermaritzburg v Shim 1908 29 NLR 338 341, that it is a principle of law that no man should be condemned unheard and it would require clear words in a statute to deprive a man of this right

11. According to Mr. Talam, the court decided suo moto (at paragraph 46(v)) and proceeded to set aside his appointment contrary to the well-known principle that a court should not raise and determine an issue suo moto without giving the affected party an opportunity to be heard.

12. Mr. Talam again put faith in the decision in Onyango Oloo v Attorney General [1987] eKLR that the principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly, and they cannot act fairly and be seen to have acted fairly, without giving one an opportunity to be heard.

Response 13. The application is opposed though grounds of opposition and written submissions. The petitioner, Agnes K - ariuki (Ms. Kariuki), argues that an application for review should be made only where there is no appeal. In this application, Ms. Kariuki argues, the respondents filed an appeal/application No. E404 of 2023, in the Court of Appeal thus blocking the option for review.

14. According to Ms. Kariuki, this application creates judicial confusion given that the matter is pending before the Court of Appeal. Should this court allow the application and proceed to hear the petition de novo, the two superior courts may end up giving conflicting decisions thereby jeopardizing the credibility of the judicial system.

15. The short answer to this argument is that Mr. Talam is not a party to the application or appeal before court of Appeal as he was not a party before this court. The application/appeal is by persons other than Mr. Talam.

16. It is Ms. Kariuki’s further case, that Mr. Talam has not demonstrated discovery of new and important matter or evidence that was not considered by the court at the time judgment was delivered. She asserts that Mr. Talam has not also shown that there is an error apparent on the face of the record to warrant a review of the judgment.

17. Ms. Kariuki goes on to argue, that the application is defective since a copy of the decree has not been annexed. Ms. Kariuki takes the view, that Mr. Talam having been appointed the Director General of the 1st respondent, became a core member of the 1st respondent and ought to have known of the existence of the petition. He should have sought to be joined in the proceedings at the appropriate time before judgment.

18. Ms. Kariuki relies on section 80 of the Civil Procedure Act and Order 45 rules 1 and 2 of the Rules made thereunder regarding the conditions to be satisfied before an application for review can be granted. Further reliance is placed on the decision in Otieno Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR on the same point.

19. Ms. Kariuki again argues that Mr. Talam’s non-participation in the proceedings brings no difference that would necessitate a review of the judgment. According to Ms. Kariuki, the petition was not against Mr. Talam and did not question Mr. Talam’s qualifications since it was commenced before his appointment.

20. Ms. Kariuki takes the position that it is not necessary to review the judgment given that the court issued an appropriate relief relying on the decision in Hoffman v South African Airways (CC17/00 [200] ZA 17 regarding when an appropriate relief should be granted.

21. On the parameters on which an interested party may participate in proceedings, Ms. Kariuki cites the Supreme Court decision in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR (para 43).

22. Ms. Kariuki maintains that Mr. Talam will not suffer any prejudice if the judgment is not set aside since he may still reapply for the same position.

Determination 23. I have considered the application, response and arguments by parties. On 7th November 2023 the court granted the prayer for joining Mr. Talam in these proceedings, leaving the prayer for setting aside as the only issue in the application.

24. The facts leading to this application are not in dispute. The petition was filed to challenge the Director General’s recruitment process. Interim conservatory orders were sought but were not granted, leaving the recruitment process to go on to conclusion, with the result that Mr. Talam was recruited as the Director General.

25. In the meantime, the petition proceeded and in the judgment delivered on 31st May 2023, the Court allowed the petition and declared the recruitment of the Director General pursuant to the vacancy Notice Ref. TRA/1/10 offended the constitution.

26. The court made a specific order at Paragraph 46(v), setting aside the appointment of Mr. Talam as the Director General vide the letter dated 18th July. This was despite the fact that Mr. Talam had not been made a party to the proceedings and did not participate in those proceedings even though the ultimate result was that his appointment was nullified, which he now challenges.

27. The position in law is that no decision that would affect a party should be made without giving that person (party) an opportunity to be heard.

28. In Attorney General v Ryan [1980] 2 All ER 608, Lord Diplock had this to say:It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by procedure which offends against the principles of natural justice is outside the jurisdiction of the decision -making authority.

29. In Dickson Ngigi Ngugi, v Commissioner of lands (Civil Appeal No 297 of 1997(UR), the Court of Appeal observed that the right to a hearing before any decision is taken, is a basic right and it cannot be taken away by the hopelessness of one’s case.

30. The Supreme Court of India also weighed in on the issue and stated in Sangrem Sing v Election Tribunal, Kotech AIR 1955 SC 664; 1955 AIR 425, 1955 SCR (2) 1:[T]here must be ever present in the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.

31. Further still, Nyarangi JA stated in Onyango Oloo v Attorney General [supra] that:A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at. Denial of the right to be heard renders any decision null and void ab initio.

32. In James Kanyita Nderitu v Maries Philotas Ghika & another [2016] eKLR, the Court of Appeal again stated that “the right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”

33. The jurisprudence in the above decision makes the point that the right to a hearing is a fundamental right that should not be derogated from whenever the decision to be made would affect a person’s rights.

34. In this petition, although the challenge was on the recruitment process, that process concluded before the petition was determined and Mr. Talam was duly appointed the Director General. That appointment entitled him a legitimate right to be heard before an adverse decision was made against him.

35. It is clear from the judgment that one of the orders the court made was to nullify Mr. Talam’s appointment as the letter dated 18th July 2022 was set aside. This was an adverse decision made against Mr. Talam as a person without giving him an opportunity to be heard, thus violated the principle of natural justice and his right to a fair hearing.

36. Ms. Kariuki has argued that the petition was not against Mr. Talam and it did not question his qualifications given that it was commenced before his appointment. There is the further argument that Mr. Talam would still have an opportunity to reapply for the same position.

37. The fact that the result of the petition was to nullify Mr. Talam’s appointment and the decision having been taken despite his being in office and without giving him a hearing, violated his right to be heard. There can be no more serious violation than where a party has been condemned unheard.

38. In the circumstances, I am satisfied that the application has merit. Consequently, the application dated 12th June 2023 is allowed with the result that the judgment dated 31st May 2023 is set aside together with all consequential orders arising from that judgment. I make no order on costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JANUARY 2024E C MWITAJUDGE