[2022] KEHC 16690 (KLR)

Kinganga & 3 others v Speaker, County Assembly of Meru & another; Mwito & 2 others (Interested Parties) (Petition 10 of 2020) [2022] KEHC 16690 (KLR) (22 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16690 (KLR)

Republic of Kenya

In the High Court at Meru

Petition 10 of 2020

EM Muriithi, J

December 22, 2022

In The Matter Of The Constitution Of Kenya, 2010 Under Articles 1, 3, 10, 19, 20, 21, 22, 23, 28, 47, 50, 165, 174, 181, 196, 258 And 259 And In The Matter Of Contravention Of The County Governments Act, 2012 Sections 3, 14A, 21, 22, 23, 24, 25, 33, 87 (a) & (b), 91 And In The Matter Of Contravention Of Meru County Assembly Standing Orders Numbers 40, 157 (1), 158(1), (2) & (3) And In The Matter Of Contravention Of The National Values And Principles Of Governance As Provided Under Artice 10 & 196 Of The Constitution Of Kenya And In The Matter Of Abuse Of Administrative Action Contrary To Article 47 Of The Constitution Of Kenya, 2010 And Section 5 Of Fair Administrative Act And In The Matter Of Contravention Of The Objects Of Devolution As Provided Under Article 174 Of The Constitution Of Kenya 2010 And In The Matter Of Contravention Of Leadership And Integrity Principles As Provided Under Article 73 Of The Constitution Of Kenya 2010 And In The Matter Of Contravention Of Public Participation, Rules Of Law And Democracy In The County Assembly Affairs As Provided Under Articles 10 & 196 (1) Of The Constitution Of Kenya 2010

Between

Jacob Mantili Kinganga

1st Petitioner

John Muriki Rukunga

2nd Petitioner

Harun Murangiri Kobia

3rd Petitioner

Patrick Mungathia Mwila

4th Petitioner

and

Speaker, County Assembly Of Meru

1st Respondent

Meru County Assembly

2nd Respondent

and

Romano Mugambi Mwito

Interested Party

Gerald Kimathi Ithibua

Interested Party

Gabriel Chokera Njenjere

Interested Party

Judgment

1. The petitioners filed a petition dated July 8, 2020 seeking specific relief as follows:a.“A declaration do issue that the respondents failed to facilitate public participation and involvement in the process of passage of the 2nd respondent’s motion appointing the interested parties to various sectoral and select committees on June 30, 2020 contrary to the Constitution of Kenya 2010, the County Government Act, the Political Parties Act and the County Assembly of Meru Standing Orders.b.A declaration do issue that the proceedings and passage of the motion appointing the interested parties to various sectoral and select committees on June 30, 2020 are unconstitutional.c.An order of prohibition do issue stopping the operations and/or implementation of the motion appointing the interested parties to various sectoral and select committees on June 30, 2020. d.Costs of the petition be provided for.

The Petitioners’ Case 2. On June 13, 2020, the interested parties with members of the other parties held a meeting at Gitimene Gardens hotel where they castigated their sponsoring Party of National Unity (PNU) and its leadership and further openly promoted the ideologies, interests and policies of the Assembly opposing party. On June 22, 2020, the interested parties were de-whipped by their sponsoring Party of National Unity (PNU) from the Assembly committees under the provisions of Standing Order number 160. On June 29, 2020, a notice paper from the Vice Chairman of the County Assembly Service Board was posted for the Assembly order paper of June 30, 2020 in which it was proposed that the Interested Parties be appointed to five, six and six Sectoral House Committees, respectively. The motion was debated and passed by the 2nd respondent appointing the interested parties to its House Committees. The said motion was hurriedly posted in the Assembly Order of business and passed the following day without any iota of public participation thus denying the Petitioners, their political party and the people of Meru County their right to public participation under article 10 (2) (a) and 196 (1) (b) of theConstitution and sections 3(f), 87 and 91 of the County Governments Act. By hurriedly passing the said motion within one day of initiation, the respondents breached the petitioners’ right to make political choices including the right under article 38 (1) (b) and (c) of theConstitution to participate in the activities of, or recruit members for a political party and to campaign for a political cause. By making the said 17 appointments through a motion of the whole House without consulting the petitioners or their party, the respondents violated Standing Orders 40, 157 (1), 158(1), 158(2) and 158(3) and section 5 of the Fair Administrative Action Act. They aver that the motion as was debated and passed on June 30, 2020 is illegal ab initio, as it originated from the Vice- Chairman of the County Assembly Service Board yet it touched on matters outside the County Assembly Service Board; and its passage contravened theConstitution, the Political Parties Act and the County Assembly of Meru Standing Orders. They feared that unless the decision of the respondents illegally appointing the interested parties to various Assembly committees is quashed, public funds would be expended and wasted during sittings of the said Committees and the various political parties entitlement to proportionate representation in those committees will be defeated.

The Respondents’ Case 3. The 2nd respondent swore a replying affidavit on July 16, 2020 in opposition to the petition. He avers that the County Assembly is mandated in law to establish committees for such general or special purposes as it considers fit and necessary for the efficient execution of its constitutional mandate. The decisions of the County Assembly are made by way of resolutions passed by a vote by the members and are therefore legislative and elective processes to which the provisions of articles 38, 47 and 50 of theConstitution do not apply. Indeed, article 1(4) (b) of theConstitution provides that the sovereignty of the people shall be exercised through by the people through their democratically elected representatives at the county level being the members of the County Assembly and, therefore, the passing of resolutions by the County Assembly is constitutional expression of that sovereign will of the people. He avers that court’s intervention in legislative and other processes of a County Assembly, is statutorily limited to the examination of the constitutionality of the resultant laws or the standing orders under which the proceedings were carried out, which is not the case here. He urges the court to refuse the invitation to interfere with the resolution of the County Assembly of Meru of June 30, 2020 and/or substitute the same with its own views or will, with regard to theConstitution of the specified committees of the County Assembly and the election of the interested parties to those committees. He avers that section 11 of the County Assemblies Powers and Privileges Act expressly ousts the jurisdiction of this court to admit, hear and determine this petition to the extent that it challenges the proceedings and resolution of the County Assembly of June 30, 2020. He avers that notice was given by a member of the County Assembly of the motion to reconstitute the various committees of the County Assembly, and the same was passed by a majority vote of the members, without any opposition from the petitioners. He avers that since the said motion was a question of the internal constitution of the County Assembly as opposed to matters directly affecting the public, the requirement of public participation was satisfied under article 196(1) (a) of theConstitution which requires proceedings of the County Assembly to be carried out in an open manner and hold its business in public. He avers that the petition is speculative, an abuse of the court process, a clear afterthought and incompetent as the issues raised therein are not within the jurisdictional purview of this court and the same should be struck out.

The Interested Parties’ Case 4. The 1st interested party swore a replying affidavit on July 14, 2020, in opposition to the petition. He accuses the petitioners of being malicious and full of bad intent as they never served them with court pleadings pertaining this matter as directed by the court, and they only learnt of the same from dailies. He avers that the impugned motion was passed in full compliance with the law, as vacancies in committees ought to be filled within 14 days. He avers that public participation is not required in moving motions in the House other than during passing of Bills, thus the petitioners’ apprehensions are baseless and unfounded. He refutes the claims that the interested parties openly promoted ideologies, interest and policies of the opposing party in the House, and their de-whipping was unfair and unprocedural because it infringed their right to be informed of all the allegations against them and an opportunity to defend themselves. He avers that the petitioners have no locus standi to file the petition, because PNU is not a party to these proceedings.

The Petitioners’ Submissions 5. The petitioners submitted that the respondents acted unlawfully and unconstitutionally by not adhering to the County Governments Act, the Political Parties Act or their own Standing Orders. They submitted that since PNU and her members would be adversely affected, they ought to have been consulted before the decision to take away their slots in the committee of the 2nd respondent, was made. They had a legitimate expectation that the respondents would abide with the Constitution, the County Governments Act and the 2nd respondent’s Standing Orders, which were however not followed, thus necessitating the filing of this petition. They submitted that section 10 of the County Assemblies Powers and Privileges Act is unconstitutional and cannot be relied on in challenging this petition, and cited Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others [2018] eKLR, Abdi Hassan Guyo v Speaker Nairobi City County Assembly & 3 others [2020] eKLR and Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 others [2014] eKLR. They submitted that the principle of separation of powers did not bar the court from determining the petition, because once there is an allegation of violation ofthe Constitution, the court cannot look the other way, as it has a duty to protect and uphold theConstitution. They urged that by not doing any public participation and involving the PNU Party or its members before appointing the interested parties, the respondents breached the constitutional values of public participation, rule of law, democracy and equity. They implored the court to declare that the impugned motion passed on June 30, 2020 and all acts flowing from it was unconstitutional.

The 1st and 2nd Respondents’ Submissions 6. They submitted that the court did not have jurisdiction to supervise constitutional bodies such as the 2nd respondent when it is carrying out its mandate within the confines of theConstitution, County Governments Act and County Assembly of Meru Standing Orders. They submitted that the proceedings and passage of the said motion were conducted in line with the County Assembly of Meru Standing Orders which forms the basis of the petitioners’ bone of contention, and cited Nathanael Nganga Reuben v Speaker, Machakos County Assembly & another [2016] eKLR and Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR. They urged that the petitioners had failed to demonstrate that the action or inaction of the respondents attacks the very fabric of theConstitution which if left unchecked would destroy the foundation of our sovereignty and nationhood. They urged that the respondents acted within the confines of articles 10 and 178 of theConstitution as read with sections 9 and 14 of the County Governments Act and Standing Order 157 of the County Assembly of Meru Standing Orders. They urged that the 2nd respondent conducts its business openly, holds its sittings in public and the petitioners were not barred from accessing the County Assembly premises on June 30, 2020 to air their views on the said motion and discharge their political right to participate in the activities captured in the said motion. They urged that the procedure of motions which are proposals made for the purpose of eliciting a decision by a legislative body such as the 2nd respondent is an accepted method of debate and consideration by legislative bodies. They urged that the 1st respondent has constitutional competence to consider the legality or otherwise of a motion on any ground before the same is passed, however the petitioners did not raise any challenges at the material time at the County Assembly floor thus the petition is a clear afterthought and an abuse of the court process. They urged that the petitioners have failed to lay out the precise manner that the respondents have allegedly contravened the said articles of theConstitution. They accused the petitioners of acting out of a political motive and oblique considerations, as they are not registered members of PNU, and, therefore, they do not have an interest in the legitimate and lawful exercise of the functions of the County Assembly, because they were acting in their own interest which was actuated by malice and bad faith, and cited the Court of Appeal cases of Mumo v Trusted Society of Human Rights Alliance & 5 others [2012] eKLR and Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others [1995] eKLR. They urged that the petition amounts to a back door and unconstitutional interference with the legislative powers conferred upon the County Assembly of Meru, and that since the respondents were exercising a legislative mandate, then the actions of the petitioners amount to a violation of the doctrine of separation of powers. They have demonstrated that indeed the legislative process met the constitutional standards of public participation and there was no attempt by the petitioners to persuade, mobilize and marshal the support of the members of the County Assembly of Meru to reject the motion of June 30, 2020. They urged the court to strike out the petition and discharge or vary the interim orders made on July 8, 2020 and extended on July 15, 2020.

The Interested Parties’ Submissions 7. On jurisdiction, the interested parties submitted that the court cannot supervise the workings of County Assembly that were approved by members of County Assembly procedurally as the institutional comity between the three arms of government should not be endangered by the unwarranted intrusions into the workings of one arm by another. They urged that the petition is ex facie bad in law, misconceived, fatally defective, incompetent and prejudicial to them as it offends that principle of institutional comity between the three arms of government, which principle was enunciated by the Supreme Court in the advisory opinion In The Matter of Speaker of the Senate & another [2013] eKLR and Republic v National Assembly Committee of Privileges & 2 others ex-parte Ababu Namwamba [2016] eKLR. They urged that the County Assembly had the requisite authority and mandate conferred to it pursuant to section 14 of the County Governments Act, to appoint the interested parties as members of the sectoral committees. They urged that their appointment to the sectoral committees was procedural and lawful.

Analysis and Determination 8. On analysis of the pleadings herein and the submissions together with the authorities relied on, the issues that arise for determination are –a.Whether the court has jurisdiction to determine the petition, andb.Whether the petitioners’ rights were violated by respondents’ failure to facilitate public participation.

Jurisdiction 9. The 1st and 2nd respondents submitted that the provisions of section 10 of the County Assemblies Powers and Privileges Act ousts the jurisdiction of this court to entertain the petition. The petitioners are alleging that the rushed manner in which the respondents appointed the interested parties violated their rights under articles 10 (2) (a), 38 (1) (b) and (c) and 196 (1) (b) of theConstitution, sections 3 (f), 87 and 91 of the County Governments Act, and Meru County Assembly Standing Orders 157 and 158. It is trite law that the High Court draws its jurisdiction from article 165 (3) of theConstitution. Article 165 (3) provides that:-“(3)Subject to clause (5), the High Court shall have —(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under article 144;(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; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.”

10. This court is, therefore, vested with the requisite jurisdiction to determine whether the respondents’ alleged failure to facilitate public participation and involvement of the petitioners in the interested parties’ appointment to various sectoral and select committees infringed the petitioners’ fundamental rights under articles 38 (1) (b) and (c) and 196 (1) (b) of theConstitution.

11. At the core, the court has jurisdictional competence to consider in addition to questions of violation of the bill of rights any“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.”Those are questions before the court in this petition and the court clearly has jurisdiction.

Violation of the Petitioners’ rights 12. Article 38 of theConstitution provides as follows: -“(1)Every citizen is free to make political choices, which includes the right—(a)to form, or participate in forming, a political party;(b)to participate in the activities of, or recruit members for, a political party; or(c)to campaign for a political party or cause.(2)Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—(a)any elective public body or office established under this Constitution; or(b)any office of any political party of which the citizen is a member.(3)Every adult citizen has the right, without unreasonable restrictions—(a)to be registered as a voter;(b)to vote by secret ballot in any election or referendum; and(c)to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.”

13. Article 196 of theConstitution provides that:“(1)A County Assembly shall—(a)conduct its business in an open manner, and hold its sittings and those of its committees, in public; and(b)facilitate public participation and involvement in the legislative and other business of the assembly and its committees.(2)A County Assembly may not exclude the public, or any media, from any sitting unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so.”

14. Standing Order 157 of the County Assembly of Meru Standing Orders provides that:“(1)Unless otherwise provided by any written law or these Standing Orders, the Committee on Selection shall, in consultation with Assembly parties, nominate members who shall serve on a committee.(2)The Committee on Selection shall give consideration to the need for gender balance and shall, so far as may be practicable, ensure that no more than two- thirds of members of a committee of the Assembly, including a committee established through a resolution of the House, shall be of the same gender.(3)A vacancy occasioned by resignation or removal of a Member from a committee shall be filled within fourteen days of the vacancy.(4)A Member against whom an adverse recommendation has been made in a report of a Committee that has been adopted by the Assembly shall be ineligible for nomination as member of that committee.”

15. Standing Order 158 provides that:“(1)In nominating Members to serve on a committee, the Selection Committee shall ensure that the membership of each committee reflects the relative majorities of the seats held by each of the Assembly parties in the Assembly.(2)Despite paragraph (1), a member belonging to a party other than an Assembly party or independent Member may be nominated to serve in any committee and the allocation of membership of the committees shall be as nearly as practicable proportional to the number of members belonging to such parties and independent members.(3)Except as the Assembly may otherwise resolve, on the recommendation of the Committee on Selection for reasons to be stated, no member shall be appointed to serve in more than three Sectoral committees.”

16. Section 87 of the County Governments Act provides for public participation as follows:“Citizen participation in county governments shall be based upon the following principles—(a)timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;(b)reasonable access to the process of formulating and implementing policies, laws, and regulations, including the approval of development proposals, projects and budgets, the granting of permits and the establishment of specific performance standards;(c)protection and promotion of the interest and rights of minorities, marginalized groups and communities and their access to relevant information;(d)legal standing to interested or affected persons, organizations, and where pertinent, communities, to appeal from or, review decisions, or redress grievances, with particular emphasis on persons and traditionally marginalized communities, including women, the youth, and disadvantaged communities;(e)reasonable balance in the roles and obligations of county governments and non-state actors in decision-making processes to promote shared responsibility and partnership, and to provide complementary authority and oversight;(f)promotion of public-private partnerships, such as joint committees, technical teams, and citizen commissions, to encourage direct dialogue and concerted action on sustainable development; and(g)recognition and promotion of the reciprocal roles of non-state actors’ participation and governmental facilitation and oversight.”

17. Section 91 of the County Governments Act provides for establishment of modalities and platforms for citizen participation as follows:“The county government shall facilitate the establishment of structures for citizen participation including—(a)information communication technology based platforms; (b) town hall meetings;(c)budget preparation and validation fora;(d)notice boards: announcing jobs, appointments, procurement, awards and other important announcements of public interest;(e)development project sites;(f)avenues for the participation of peoples’ representatives including but not limited to members of the National Assembly and Senate; or(g)establishment of citizen fora at county and decentralized units.”

Verdict 18. The principle of separation of powers relies for its effectiveness on the conduct of each organ of government of its respective roles in accordance with theConstitution and the applicable law. In accordance with article 1(3) of theConstitution, the sovereign judicial power is vested in the Judiciary. While the court may not interfere with the exercise of the mandate of selection of committee members in a County Assembly or indeed the national Parliament organs, the court would be failing in its duty if it did not step in pursuant to its judicial mandate to determine whether as in article 165(3) (d) (ii) what is purported to be done by the Committee of the County Assembly or Parliament is in accordance with theConstitution.

19. On locus standi, it is clear that the petitioners averred with proof of their membership cards in affidavit in support of the petition that they were members of the Party of National Unity (PNU) which supported the interested parties and which had de-whipped them from their Committee positions. As such the petitioners had locus standing to approach the court both in public interest and as a member of the party group in terms of article 22 (2) (b) and 258 (2) (b) of the Constitution. Moreover, the County Governments Act provides as a forum of public participation under section 87(d) for standing to seek review of decisions and redress grievances.

20. On the facts, the Vice Chairman of the County Assembly Service Board presented a motion on June 29, 2020 for the appointment of the interested parties into various sectoral and select Committees. The same was hurriedly debated and passed by the 2nd respondent the following day on June 30, 2020, where the interested parties’ appointment to the various sectoral and select committees was approved.

21. No consultation as stipulated in Standing orders No 157 (1) of the Meru County Assembly Standing Orders is shown to have been conducted. Neither did the County Assembly comply with the constitutional obligation to provide for public participation under article 196 (1) (b) of theConstitution nor provide, in terms of the provisions of section 91 (f) of the County Governments Act“avenues for participation of people’s representatives including but not limited to members of the National Assembly and Senate;” in this case the PNU party which sponsored the interested parties.

22. The significance of public participation, as a national value under article 10 (2) of the Constitution, cannot be gainsaid. It must be remembered that state organs and officers draw their sovereign power from the people, and it is imperative that their approval and/ or participation be sought, promoted and/or facilitated. Specifically, article 196 of theConstitution requires public participation and involvement of the people not only in legislative business but also other business of the house, including constitution of committees of the County Assembly.

23. Clearly, the petitioners who deponed to be registered members of the PNU party whose member of County Assembly were involved and the people at large, in public interest, had an interest in the appointment of interested parties into the various public sectoral and select committees, and thus their participation was constitutionally required.

24. The court never desires to interfere with the affairs of the County Assembly or Parliament. Mutual respect is counselled by world traditions on constitutional democracy and separation of powers principles. See for example, the Commonwealth (Latimer House) Principles on the Relationship between the Three Organs of Government. However, in conduct of their affairs, these organs of government are required to observe theConstitution, the law and their standing orders. There is no room for rogue operations, hiding behind the defence of separation of powers. Unconstitutional and illegal conduct in the exercise of the respective mandate by sharp practice, fraudulent scheming and sometimes outright violence as witnessed in the past in National Assembly and some Assemblies must be appropriately checked. The court is the organ of government charged with the judicial authority and it must exercise it to reign in unconstitutional conduct. That is its express mandate.

25. This court finds that, in hurriedly debating and approving the motion for the appointment into the various sectoral and select committees, the interested parties who had been de-whipped by their PNU party without consulting the said party or otherwise affording public participation on the matter, the 2nd respondent infringed the mandatory requirement for public participation as provided in article 196 of the Constitution, sections 87 and 91 of the County Governments Act and the Meru County Assembly Standing Orders, set out above.

26. The court further finds that the lack of public participation of the petitioners and the members of the public in the appointment of the interested parties denied them the opportunity to scrutinize the interested parties’ competence and suitability to hold those positions.

27. The court finds, therefore, that the actions of the respondents violated the Petitioners’ rights under article 38 and 196 of theConstitution, section 87 and 91 of the County Governments Act and the Meru County Assembly Standing Orders.

28. Accordingly, the court finds merit in the petition dated July 8, 2020 is merited and it is allowed.

Orders 29. Consequently, the court makes the following orders:1. A declaration that the respondents failed to facilitate public participation and involvement in the process of passage of the 2nd respondent’s motion appointing the interested parties to various sectoral and select committees on June 30, 2020 contrary to the Constitution of Kenya 2010, the County Governments Act, the Political Parties Act and the County Assembly of Meru Standing Orders.2. A declaration that the proceedings and passage of the motion appointing the interested parties to various sectoral and select committees on June 30, 2020 were unconstitutional.

30. Since another County Government has since taken office following the conclusion of the general elections conducted on August 9, 2022, prayer (c) of the petition has been overtaken by events.

31. There shall be no order as to costs.Order accordingly.

DATED AND DELIVERED ON THIS 22ND DAY OF DECEMBER, 2022. EDWARD M MURIITHIJUDGEAppearances:Mr Atheru, Advocate for the petitioner.Ms Swaka for M/S Muchoki Kangata Njenga & Co Advocates for the respondents.Mr Maranya Advocate for the 1-3 interested parties.M/S Wambugu & Muriuki Advocates for the 4-5 interested parties.