[2022] KEHC 1522 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

CONSTITUTION PETITION NO. E001 OF 2020

KENYA NATIONAL CHAMBER OF COMMERCE AND

INDUSTRY - MAKUENI BRANCH..........................................PETITIONER/APPLICANT

VERSUS

THE MAKUENI COUNTY GOVERNMENT..................................................RESPONDENT

MAKUENI COUNTY ASSEMBLY......................................................INTERESTED PARTY

RULING

1. Before me is an application dated 16th October 2020 filed by the petitioner Kenya National Chamber of Commerce and Industry – Makueni Branch.

2. The application was brought by way of Notice of Motion and in an interlocutory application filed consequent to the filing of a petition.

3. The prayers in the application are as follows-

1) (Spent)

2) (Spent)

3) A conservatory order be issued prohibiting/restraining the members of the interested party from debating and or enacting as an Assembly of Ward representatives or members of the County Assembly of Makueni, the Makueni Trade and Public Markets Bill gazetted on 1st September 2020 in the Kenya Gazette Supplement No. 9 until the hearing and determination of the petition herein.

4) That costs of this application be provided for.

4. The application is supported by an affidavit sworn by Festus Muindi Maii the Chairman of the petitioner on 11th October 2020. In the affidavit, it was deponed that the draft Bill was gazetted and was due for debate, but that there was no public participation conducted in its drafting and that its contents were discriminatory against some categories of traders.

5. The application is opposed through an affidavit sworn by Jonah Kiathe Chief Officer Trade, Industry, Marketing, Tourism and Cooperative Development, of the County Government of Makueni, the respondent.

6. It is deponed in the said affidavit that in July 2020 the department originated and formulated legislative proposals and that the respondent held stakeholder meetings before and during the formulation of the legislative proposals, as required by the Constitution of Kenya 2010, and the County Government Act.

7. It is deponed also that instead of the petitioner submitting their memorandum in the public hearings on the Bill, they opted to prematurely file the petition and Notice of Motion herein.

8. The interested party also opposed the application through an affidavit sworn by its Clerk Kevin Mutua Mutuku, in which it was deponed that they received legislative proposals in July 2020, and that public participation functions were held but the petitioner instead of participating in the public forums in the Wards or submitting its memoranda, decided to prematurely file the petition and the application herein.

9. In a further affidavit sworn by Festus Muindi Maii on 11th June 2021 in response to the two replying affidavits, it was deponed that the replying affidavit sworn by Jonah Kiathe did not demonstrate details of the public participation forums; and that the affidavit of Kevin Mutua Mutuku, though it refers to the advertisement in the Standard newspaper of 25/09/2020, such notice in a newspaper was not adequate for mobilization of the public over the Bill, as there were more than 50,000 members of the petitioner spread all over the County.

10. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Joseph Mwongela & company advocates for the petitioner and the submissions filed by Mutheu Muthiani & company for the respondent and interested party. I note that all sides relied on decided court cases.

11. The first issue in contest herein is whether there was adequate public participation conducted in formulating the draft Bill. It cannot be denied that the need for public participation in matters that affect the public is a constitutional imperative under the Constitution of Kenya 2010.

12. Several court cases have dealt with the subject of public participation. Parties counsel herein have cited especially cases from South Africa and Kenya both of which countries constitutions, have similar provisions regarding public participation. I will only cite the case of Robert Gakuru & Others –vs- The Governor Kiambu County & 3 Others – Petition No. 532 of 2013, wherein the court stated that public participation ought to be real and not illusory and ought not to be treated as a mere formality.

13. In the present case, I am being called upon by the petitioner to determine at preliminary stage whether there was adequate public participation. The petitioner says that there was no adequate public participation. Both sides seem to agree that there was indeed public participation. I will however, not go into determining the adequacy of the public participation, as that would in effect determine the main petition herein which has not yet been heard.

14. I now have to go to the real issue herein, as to whether the petitioner has made out a case for grant of conservatory orders, pending the hearing of the petition.

15. With regard to the requirements for grant of conservatory orders, in the case of Board of Management of Uhuru Secondary School –vs- City County Director of Education & 2 Others (2015) e KLR the court stated as follows:-

“In summary, the principles are that the applicant ought to demonstrate an arguable prima facie case with likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further the court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory”

16. In the present case, with the facts placed before me, I find that the applicant has established a prima facie case with likelihood of success. A prima facie case is a case that may or may not succeed, or put in short, it is an arguable case.

17. On the second limb of whether the petition will be rendered nugatory if the conservatory orders sought are not granted, in my view, if the conservatory orders sought herein are not granted, the pending petition will be rendered nugatory, as the result of the impugned process continuing to completion, will mean that the petition herein will have been overtaken by events.

18. I thus grant the conservatory orders sought in prayer (3) herein, provided that the petition herein is heard by 31st October 2022 and if not, the conservatory orders granted herein will automatically lapse and have no effect.

19. The costs will follow the determination of the petition.

DELIVERED, SIGNED & DATED THIS 17TH DAY OF MARCH 2022, IN OPEN COURT AT MAKUENI.

...........................

GEORGE DULU

JUDGE