[2017] KEHC 9414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 10 OF 2017 (FORMERLY MILIMANI

PETITION NO. 154 OF 2017)

BETWEEN

KIMATHI MUNJURI...................................................................1ST PETITIONER

JACOB MIRITI..........................................................................2ND PETITIONER

NAFTALY KATHURIMA............................................................3RD PETITIONER

NYAMBENI MIRAA TRADE ASSOCIATION...........................4TH PETITIONER

(Suing as members and on behalf of members of Nyambeni Miraa Traders Association and the citizens of Meru County)

AND

THE HEAD OF PUBLIC SERVICE AND

CHIEF OF STAFF HON. JOSEPH KINYUA.........................1ST RESPONDENT

CABINET SECRETARY, MINISTRY OF FINANCE.............2ND RESPONDENT

CABINET SECRETARY, MINISTRY OF

AGRICULTURE, LIVESTOCK AND FISHERIES...............3RD RESPONDENT

THE HONOURABLE ATTORNEY GENERAL....................4TH RESPONDENT

R U L I N G

1. On 12th April, 2017, the petitioners lodged in court a constitutional petition claiming the infringement and threatened infringement of the Constitution of Kenya. They alleged that in or about June, 2016, the President of the Republic of Kenya appointed a 14-member Task Force (hereinafter “the Task Force) to research, investigate and give recommendations on the development of the Miraa industry.

2. They further alleged that; on 4th April, 2017, the Task Force presented its report to the President; that on receipt of the said report, the President directed that the said Task Force be transformed into the Implementation Committee and a sum of Kshs. 1. 2 billion be released to that Committee. That the whole exercise of the conduct of the mandate of the Task Force and the expected implementation of its report was in serious breach of various provisions of the Constitution. The petitioners therefore prayed for various orders to prevent or ameliorate the alleged breaches.

3. Simultaneous with the Petition, which was subsequently amended on 25th May, 2017 the petitioners filed a Motion on Notice dated 11th April, 2017 and amended on 25th May, 2017 under Articles 19, 20, 21, 22, 23 and 27 of the Constitution and Rules 13, 23 and 24 of the Constitution of Kenya (protection of rights and fundamental freedoms of the individual) Practice and Procedure Rules. The Motion sought five prayers two of which were granted on 29th June, 2017 pending delivery of this ruling. The prayers which were argued before me on 29th June, 2017 were for orders to restrain the transformation of the Task Force into the Implementation Committee and the release of the sum of Kshs. 1. 2 billion until further orders of the court.

4. The grounds upon which the Motion was based were set out in the body of the Motion and in the Supporting Affidavit by Kimathi Munjuri sworn on 11th April, 2017. These were that; the Task Force had on 4th April, 2017presented to the President of Kenya, a report on the development of the Miraa industry; that the directive to transform the Task Force into the Implementation Committee was without consultation; that the sum of Kshs. 1. 2 billion was about to be released to anonymous Saccos to the detriment of the Miraa traders and Stakeholders contrary to mandatory constitutional provisions; that the acts of the Respondents was in contravention of the Constitution and that unless the orders sought were granted, the petitioners and other stakeholders would be disenfranchised leading to loss of livelihood.

5. Mr. Laichena learned Counsel for the petitioners submitted that; the Respondents had failed to publish the report that the Task Force had handed over to the President on 4th April, 2017 with the intention to disenfranchise and sabotage Miraa growing industry for the benefit of a few connected individuals; that vide Gazette Notice No. 5736 Vol. CXIX-No.77, the Implementation Committee on the Development of the Miraa Industry was published establishing a Committee to be known as the Miraa Sub-sector Reforms Implementation Committee; that the Respondents had breached the constitutional principal of public participation in the entire exercise. That the National Government cannot work without involving the County Government and the public.

6. It was further submitted that one of the significant tenets of the 2010 Constitution of Kenya was the devolved functions of governance; that under section 1 part 2 of the Fourth Schedule to the Constitution, agriculture and trade development and regulation are devolved; that section 14 part of the Fourth Scheduleenjoins the County Government to co-ordinate participation of local communities at the local level in matters governance; that the right to public participation under Article 201had been violated. The case of Robert N. Gakuru & Others v. Governor Kiambu County & 3 Others [2014] eKLR was cited in support of that submission.

7. Mr. Laichena observed that the crux of the Task Force report was the problem facing Miraa markets, trade and industry; that the Task Force was formed without the participation of the two levels of government and the sidelining of the stakeholders. This amounted to a violation of Articles 1(1), 2(1) and (2) and 3(1) of the Constitution. That the directive for the release of Kshs. 1. 2 billion to an unidentified Sacco without involving the local County Government violated the national principle of sharing and devolution of power. That the acts of the Respondents violated the provisions of law that relate to the function and powers of County Government. Mr. Laichena relied on the cases of Council of County Governors v. Attorney General & 4 others [2015] eKLRand Republic v. Ministry of Finance & Another Ex-parte Nyong’o [200] KLR 299 to support those contentions. Counsel urged that the application be allowed.

8. Although the Respondents appeared through the Attorney General, they did not file any Replying Affidavit or submissions. On its part, the Interested Party appeared and filed both a Replying Affidavit and submissions. In the Replying Affidavit sworn on 29th June, 2017 by Simeon Thuranira Atheru, the Interested Party contended that Miraa is an agricultural product which is within the functions of the devolved government and that Miraa was the main cash crop of Meru County. That the County Government of Meru was never consulted in the preparation of the Task Force report; that there should be public participation in the implementation of the report and that there is no criteria how the concerned SACCOs will be identified. The Interested Party therefore supported the application.

9. Mr. Gesicho learned Counsel for the Interested Party submitted that in considering whether to grant conservatory orders sought in the application, the court had to consider if the suit was arguable; whether the suit would be rendered nugatory; and whether it is in public interest to grant the orders. Counsel submitted that the suit was arguable and not frivolous in view of the provisions of the Constitution and law that had been violated; the cases of CFC Stanbic Bank Limited v. Echuka Farm Limited & Another [2016] eKLR, Michael Osundwa Sakwa v. Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR and Agricultural, Horticultural and Forest Industry Training Board v. Aylesbury Mushrooms Ltd [1972] 1 ALL ER 280were cited in support of those submissions.

10. It was further submitted by Mr. Gesicho that if the orders are not granted, the sum of KShs. 1. 2 billion may be channeled through unidentified SACCOs that may not be accountable under the Constitution and the law. Finally, Counsel submitted that it was in public interest that the orders sought be granted.

11. I have considered the Affidavits on record and the submissions of Counsel. This is an application for conservatory orders pending the hearing of the main Petition. Conservatory orders are remedies that are available under the Constitution for purposes of preserving the status quo pending the determination of the constitutional issues that are submitted for determination. In the case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court of Kenya held that:-

“Conservatory orders bear a more decided public-law connotation: for these are orders to facilitate declared functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as ‘the prospects of irreparable harm occurring during the pendency of a case; or ‘high probability of success’ in the supplicant’s case for orders of stay. Conservatory orders, consequently should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitude, and priority levels attributable to the relevant causes”.

12. In this regard, in considering whether to grant conservatory orders, the court has to consider if the case is arguable, whether the matter before the court will be rendered nugatory if the orders are not granted whereby the adjudicatory authority of the court might be exercised in vain and finally, whether it is in the public interest that the orders be granted. At this stage, the court is not required to delve into making conclusive determination on the matters in dispute. That is the preserve of the trial court. Therefore, what the court would consider is whether an arguable case, put differently, a prima facie case has been established.

Is the Petitioners case arguable?

13. It was the Petitioners averments that the Task Force had presented a report to the President of Kenya on 4th April, 2017 whereby the President directed that the said Task Force be converted into the Implementation Committee; that the issue in question is the development and/or fate of the Miraa trade and industry; that the farming of the Miraa crop is exclusively undertaken in the Meru County; that the farming and development of Miraa industry falls under agriculture which is an exclusive function of the County Government under the Constitution and that the decision to convert the Task Force into the Implementation Committee was made without public participation.

14. The Petitioners averred that the foregoing actions were in breach of both constitutional and statutory provisions. They set out the said provisions as Articles 1(1), 2(1) and (2), 6(2), 10, 174, 186, 187, 201 of the Constitution, Sections 1 and 14 of Part 2 of the Fourth Schedule to the Constitution and Sections 87 and 115 of the County Government Act, 2012.

15. I have scrutinized the referred to provisions. Article 10 enjoins every state organ and state officer, whenever making or implementing public policy decisions to be guided by national values and principles. No doubt, all sovereign power belongs to the people of Kenya and is only to be exercised in accordance with the Constitution (Art. 1(1));all persons and state organs are bound by the Constitution(Art. 2(1))and that both the National and County Government are inter-dependent (Art. 6(2)).

16. Devolution was, inter alia, meant to give powers of self-governance to the people and enhance their participation in decisions affecting them and recognize their right to manage their own affairs and further their development (Art.176). Finally, the principle of public participation is so central in our Constitution, that to ignore it will be tantamount to obliterating the very foundation of our Constitutional framework of openness and accountability in public finance.

17. Sections 1 and 14 of Part 2 of the Fourth Schedule to the Constitutionprovide that the powers and functions of a County government shall include Agriculture, ensuring and coordinating the participation of communities and locations in governance at the local level. There is no dispute that all the averments by the Petitioners were neither challenged nor controverted. I therefore hold that on a prima facie basis, the Petitioners have established that; Miraa is an important cash crop in the Meru County; that a report had been handed over to the President of Kenya regarding development of that crop; that the Task Force had been converted into the Implementation Committee of the subject report. All these were undertaken without any reference to the Interested Party or even the involvement of the petitioners or other stakeholders in the Miraa industry.

18. In this regard, the Respondents were purporting to exercise sovereign power without reference to or in total disregard of the Constitution. The National government was undertaking an exercise which was an exclusive function of the County government. The very people who are to be affected by the decision of the Task Force and the Implementation Committee had been by-passed thereby making the principle of public participation a pipe dream for the stakeholders in the Miraa industry.

19. In the Matter of the National Land Commission (2015) Eklr,the Supreme Court held:-

“Public participation is, therefore, a major pillar, and bedrock of our democracy and good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under the Constitution, the participation of people in governance will make the State, its organs and institutions accountable, thus making the country more progressive and stable …”.

20. In this regard, I am satisfied that on a prima facie basis, the petitioners have established that the actions of the respondents have not only breached but have seriously threatened the breach of various provisions of the Constitution.

21. As regards the second principle, it was contended without challenge or denial that, a sum of KShs.1. 2 billion was about to be released to the Implementation Committee; that the report of the Task Force had recommended, inter alia, that the said sum be released through SACCOs whose criteria for identification or appointment had not been set. To my mind, there can be no worse kind of exercise of power than this.

22. The Task Force was appointed without involving the stakeholders; it carried out its research or investigations in an opaque manner; it handed over the report without publishing its contents to Kenyans; yet it had used public money; it made recommendations therein which are unknown to the public and now the very same people are about to be given KShs. 1. 2 billion to disburse. That won’t do.

23. The opaqueness of the whole transaction smacks on a severe obliteration of Article 201 of the Constitution. To who will the members of the Implementation Committee be answerable in the use and disbursement of the said sum? Surely, public finances should and MUST be used in a transparent and accountable manner as set out in the Constitution. I am satisfied that, if the sum of KShs. 1. 2 billion is released to the ‘Implementing Committee’,the same may be spent through the aforesaid unknown SACCOs whereby there will be nothing to rule on once the petition is fully heard and determined.

24. As regards the final principle, there is no doubt in my mind that it is in public interest that the sum of KShs. 1. 2 billion be preserved pending the hearing and determination of the petition. For the reasons already alluded to, such preservation will be for the public good.

25. Accordingly, I allow the Motion in terms of prayer numbers 3 and 4. The costs of the Motion shall abide the final outcome of the petition.

It is so ordered.

DATED and DELIVEREDat Meru this 5th day of October, 2017.

A. MABEYA

JUDGE