[2022] KEHC 9970 (KLR)

Koluna & 3 others v County Assemly of Vihiga (Being sued through Its Honourable Speaker); Governor of the County of Vihiga (Interested Party) (Constitutional Petition E006, E005 & E007 of 2021 (Consolidated)) [2022] KEHC 9970 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9970 (KLR)

Republic of Kenya

In the High Court at Vihiga

Constitutional Petition E006, E005 & E007 of 2021 (Consolidated)

PJO Otieno, J

July 5, 2022

Between

Amos Kutwa Koluna

1st Petitioner

Pamela Mbagaya Kimwele

2nd Petitioner

Kenneth Elvuna Keseko

3rd Petitioner

Paul Jiseve Mbuni

4th Petitioner

and

County Assemly of Vihiga (Being sued through Its Honourable Speaker)

Respondent

and

Governor of the County of Vihiga

Interested Party

Ruling

1. Three applications were filed before this court seeking stay of proceedings by way of showing cause and a third one was filed before the Court of Appeal. The first two applications are both dated January 24, 2022 while the third was dated February 16, 2022. The application before the Court of Appeal was dismissed on the March 9, 2022 for want of attendance.

2. On the June 16, 2022 when Counsel attended court to argue the three applications, Mr. Osango Advocate sought and was granted leave to withdraw the application dated January 24, 2022. The basis of the withdrawal was given to be that the Applicant, Esther Andisi was an employee who had since left employment of the interested party. After that order marking the two applications withdrawn only the application dated February 16, 2022 was left pending for consideration by the court. That application seeks a raft of orders including orders of interim say of proceedings, repeated thrice; an order that the contempt of proceedings against the governor be terminated and his name expunged from the proceedings with a declaration that the Honourable Speaker of the County Assembly lacks the legal capacity to recall communication of the resolution of the assembly made to the governor in the manner purported by the letter of January 24, 2022; that such communication be declared null and void; and lastly that any proceedings taken after the communication dated January 24, 2022 affront article 250 of the Constitution.

3. The grounds advanced to premise the application on its own face and on the affidavit of James Oyundi Mukabi, Advocate is largely to the effect that the communication by the Speaker dated January 24, 2022 evidences the innocence of the Governor on account of lack of knowledge and therefore renders further contempt proceedings against him untenable. The rest of the grounds were in support of the prayers for recusal by Judge Farah Amin but which prayers were abandoned by the applicant owing to change of circumstances.

4. In the affidavit in support sworn by Counsel from the office of the County Attorney, the deponent says that in effect the termination of the Petitioners, he cited in obedience of Section 40 of the County Government Act and guided on communication from the Speaker and that the Governor executed the mandate while he was not a party to these proceedings and was not aware of the proceedings therein as to be aware of the orders issued pursuant thereto. That the communication by the Speaker was availed to the Governor by one Paul Mbuni who sought to resign from the position the letter had reinstated him so that he seeks an elective position as Deputy Governor.

5. The deponent concludes by stating that in his position as an advisor to the Governor he seeks the interpretation of the communication and underscores the communication to show that the Governor was not aware of the court orders issued by the court and stopping the Assembly deliberations that lead to the impeachment of the Petitioners. The application was further supported by the further Affidavit sworn by the same deponent and filed in court on June 13, 2022 whose purpose was to respond to the issues raised by Julius Masiva and Pamela Mbagaya Kimwele, in their respective application and Affidavit dated May 31, 2022 and sworn on May 23, 2022. In it, the deponent contends that Masiva Julius must demonstrate general interest in the matter to succeed. The court is then called upon to pronounce itself on the locus of Julius Masiva.

6. In response to the Affidavit by Pamela Mbagaya Kimwele, the deponent takes the position that the Speaker’s communication is clear that the Governor was unaware of the court order and that Kimwele had been advancing a position inconsistent with what the Speaker has revealed; that the same Petitioner sued at the Employment and Labour Relations Court and the matter was dismissed and now pends determination of an appeal to the Court of Appeal. He lastly contends that the delay in concluding these petitions, as consolidated, has been attributable to the Petitioners who have prevented the court from hearing petition on the merits.

7. The application was opposed by the Petitioners by an Affidavit sworn by the 2nd Petitioner with the authority of all the Petitioners. In that affidavit the deponent takes the position that the Petitions were filed before impeachment, orders issued before the process and served but the Respondents nevertheless proceeded and purported to impeach and dismiss them the orders notwithstanding. To the Petitioners, it was thus obvious a fact that led the Speaker, after being cross examined, to seek the purging of the contempt by recalling the process of impeachment and the communication to the Governor and that, as things stands today, the impeachment remains stayed and the communication by the Speaker remains standing and effective and to entertain the application is to join the Interested Party in his disobedience to court orders.

8. The other position taken is that the application is not about the legality or otherwise of the Speaker’s letter but whether or not the Governor, like the rest, need to show cause why they cannot be punished for contempt and that prior to showing cause the Interested Party ought not to be denied audience. To the Petitioners the several applications then filed to stay contempt proceedings, when at the tail end, were designed to abuse the court process and waste time in that while the application were pending here, the Interested Parties equally filed an application to Court of Appeal which has since been dismissed. The Petitioners add that there being a ruling on contempt and the only outstanding issue being the chance to show cause, the Interested Party is engaging in delay so that his term, runs out with those of the Petitioners, hence the cause will be defeated by effluxion of time yet the Speaker of the County Assembly has renounced the Impeachment proceedings it being stressed that the Governor being a public officer must be reminded to be subject to the law so that people of Vihiga do not get the impression that the court is helpless even where court orders are disobeyed.

9. The application was directed by the court to be canvassed by way of written submissions but the same were not filed nor served on due dates in that only the Applicant filed his submissions last minute hence the Respondents opted to offer oral submissions.

10. The submissions filed by the Applicant, which it sought relied upon, without more, isolates three issues as the locus standi of Mr. Julius Masiva; whether the Governor should be excluded from the contempt proceedings and lastly; whether the Speaker of Vihiga County Assembly had the legal capacity to recall the communication to the Governor over the resolution of the County Assembly.

11. For the Respondents, the short position taken in the oral submissions was that the application was a design for delay and that only prayers 7, 8 and 9 were due for consideration hence the questions of locus standi of Mr. Julius Masiva and whether or not the Governor is in contempt must wait the cross examination of the said Governor and the hearing of the petition. It was contended that the question whether or not the Speaker’s communication to the Governor and court is well founded or not must be addressed substantively in a distinct petition and not as a collateral issue herein.

12. I have eagerly considered the application, the contentions taken in the Affidavit in support and those in opposition as well as the submissions offered by the parties. I discern the application to ask the court to determine whether or not evidence has arisen as to entitle the court to determine that the Governor of Vihiga County, the Interested Party, ought not be maintained in these proceedings as an Interested Party.

13. My perusal of the record reveal that three people were cited for contempt and the court directed that the three show cause why they should not be held in and punished for contempt of the court Order. From those orders by the court, two of those persons so cited, have shown cause and it is the Governor that remains to do so. That must be done so that the Governor gets equal treatment before the law like all else.

14. That there have been development to suggest that he could be innocent is not the reason to let him go before he complies with the order of the court that he shows cause. The application to terminate the proceedings against the Governor must be seen not otherwise but as a request to review or otherwise tinker with the court orders of December 10, 2021. In the ruling the court said:-“In the circumstances, the Court has no option but to list this matter for an oral hearing where alleged contemnors shall attend in person to show cause why they should not be committed for contempt of court. There will be oral evidence, on oath and there will be cross-examination.”I find no valid reason to tamper with those express orders by the court by terminating the proceedings against the applicant and denying the Governor the opportunity to demonstrate his innocence.

15. Needless to add that the orders sought are final and determinate in nature and should only flow from full production and evaluation of the evidence. It would be a miss to issue such final and determinate orders at this interlocutory stage.

16. The upshot is that the application dated February 16, 2022 is dismissed with costs for it has done more harm than good in having the matter pushed towards conclusion.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 5TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Musiega with Mukabi for the Applicant/GovernorMr. Malenya for the Respondent/Petitioner in E006/2021Mr. Sore for the Respondent/Petitioner in E005/2021Mr. Julius Masiva Petitioner in E007/2021Court Assistant: Kulubi