[2022] KEHC 14145 (KLR)

Manana & 4 others v Director of Surveys & another; County Government of Bungoma & 4 others (Interested Parties) (Constitutional Petition 9 of 2019) [2022] KEHC 14145 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14145 (KLR)

Republic of Kenya

In the High Court at Bungoma

Constitutional Petition 9 of 2019

SN Riechi, J

October 7, 2022

IN THE MATTER OF ARTICLE 22(1) & (2) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION FUNDAMENTAL FREEDOMS UNDER ARTICLES 1,2, 3, 6, 10, 19, 21, 23, 27, 28, 35, 38, 40, 47, 50, 73, 159, 175, 174, 188, 232, 258 AND 259 OF THE CONSTITUTION AND IN THE MATTER OF COUNTY GOVERNMENTS ACT, 2012 AND IN THE MATTER OF INTERGOVERNMENTAL RELATIONS ACT, 2012 AND IN THE MATTER OF DISTRICTS AND PROVINCES ACT 1992

Between

Josephat Okuri Manana

1st Petitioner

Rashid Waswa Chuma

2nd Petitioner

Beatrice Catherine Opanangala

3rd Petitioner

William Mueno Ndiema

4th Petitioner

Rajab Wakukha Makokha

5th Petitioner

and

Director of Surveys

1st Respondent

Attorney General

2nd Respondent

and

County Government of Bungoma

Interested Party

County Government of Busia

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

Cabinet Secretary, Ministry of Interior & Coordination of National Government

Interested Party

Director General, Kenya National Bureau of Statistics

Interested Party

Judgment

1. The petitioners describe themselves as residents of Numbila and Changara locations within Bungoma County. The 1st respondent is in charge of survey and recording of geographical maps of land and other geographical features within Kenya while the 2nd respondent is the principal legal advisor to the government and has been sued as such.

2. The 1st and 2nd interested parties are devolved units of government created under article 176 of theConstitution. The 3rd interested party is created under article 88 of theConstitution and is responsible for conducting elections and delimitation of counties and wards. The 4th interested party is the cabinet secretary in charge of interior and coordination of national government while the 5th interested party is the head of Kenya National Bureau of Statistics, a body responsible for conducting national census.

3. The petitioners gravamen is that up to 1997, Changara location was a sub location within Malakisi North in the then Bungoma District. That under the Districts and Provinces Act, 1992, the said location is placed in Bungoma District however in 1997 or thereabouts, the 1st respondent while drawing up the map for the then newly created Teso District placed Changara location in Teso District effectively removing it from Bungoma District.

4. That at the onset of devolution, the 1st respondent without legal basis merged Busia and Teso Districts making Changara location part of Busia County and threw the residents of the location into confusion. That the confusion is seen for instance the fact that residents pay land rates to Bungoma County but administered from Busia County both politically and administratively.

5. That further as a result of the confusion, the location is excluded from development projects by both Busia and Bungoma counties and deprived of essential services.

6. The petitioners now pray this court for orders;a.A declaration that the boundaries of the 47 counties established under article 6 of theConstitution strictly followed the boundaries of the districts established under the Districts and Provinces Act No 5 of 1992. b.A declaration that Changara location is part of Bungoma County.c.A declaration that the alienation and transfer of Changara location from Bungoma County to Busia County by the 1st respondent without first seeking the views of the people of Changara location and parliamentary approval through an amendment of the Districts and Provinces Act, 1992 violated articles 1, 2, 3, 6, 10, 21, 27, 35, 47, 50, 73, 174, 188 and 232 of theConstitution and therefore null and void.d.An order compelling the 1st respondent to implement the Districts and Provinces Act, 1992 by amending the maps for Bungoma and Busia Counties placing Changara location within Bungoma County and report back to the honourable court may deem fit.e.An order compiling the 3rd interested party to align electoral boundaries within Busia and Bungoma Counties with the Districts and Provinces Act, 1992 and report to the honourable court as the court may deem fit.f.An order compelling the 4th interested party to align administrative boundaries within Busia and Bungoma Counties with the Districts and Provinces Act, 1992 and report back to the honourable court as the court may deem fit.g.An order compelling the 5th interested party to align 2019 population and housing census report for Busia and Bungoma Counties with the Districts and Province Act, 1992 and report to the honourable court as the court may deem fit.h.Any other relief as the court may deem just and expedient to grant.i.Costs of the petition.

7. Save for the response by the 2nd respondent on behalf of the 1st respondent and the 4th and 5th interested parties, the other respondents preferred no response. The 1st and 2nd respondents, 4th and 5th through the honourable Attorney General respondents filed their response to petition stating inert alia that the alleged transfer of the location to Busia County are events which happened before the promulgation of the 2010 Constitution which is not applicable retrospectively and that the petitioners can only claim under the repealed Constitution. They further state that the petitioners have not met the threshold for a constitutional petition established in Anarita Karimi Njeru vs AG (1979) eKLR.

8. The petition was disposed of by way of written submissions. Only the petitioners, the 1st and 2nd respondents, 4th and 5th interested parties complied. The petitioners raised the following issues for determination;1. Jurisdiction of the court.2. Whether the petition meets the threshold in Anarita karimi Njeru case?3. Whether the respondents committed constitutional infractions4. Whether the constitutional infractions happened during the tenure of the repealed constitution.5. What order should be issued, if at all?

9. On the first issue, it is submitted that article 165(3)(d)(i) confers upon the court the requisite jurisdiction to inquire into the constitutionality of acts said to be done under theConstitution. Citing john Kipng’eno Koech & 2 others vs Nakuru County Assembly & 5 others (2013)eKLR, counsel submits that the court is possessed of the requisite jurisdiction to hear and determine the matter.

10. On the second issue, it is submitted that the petitioners have set out in clear terms the 1st respondent’s actions that offend specific provisions of theConstitution. Reliance has been placed in the cases of Anarita Karimi Njeru vs The Republic (supra) and Mumo Matemu vs Trusted Society of Human Rights Alliance (2013)eKLR

11. On the third issue, the petitioners submit that the respondents acted ultra vires in the creation of the boundaries of Busia and Bungoma Counties. That the Districts and Provinces Act, 1992 details the boundary features of the 47 counties which were turned into counties upon promulgation of the new Constitution.

12. The petitioners further submit that when the people of Changara location appeared before the senate on March 28, 2017, the latter recommended that the 1st respondent does visit Changara location with a view of implementing the Act. That to date, this is yet to be done. That by this inaction, the 1st respondent has run afoul article 10 of theConstitution.

13. On the 4th issue, counsel submits that the acts complained of are failure by the respondents to implement the boundaries as per the Districts and Provinces Act, 992 when drawing up county boundaries under the 2010 Constitution.

14. On the 5th issue it is submitted that a grant of the prayers sought will provide a long-lasting solution to the problem.

15. The attorney general on his part submitted on the following issues;a.Whether the petition meets theConstitution threshold of filing Constitutional petition.b.Whether theConstitution of Kenya, 2010 can be applied retrospectively.c.Whether the rights and fundamental freedoms of the petitioners were violated.d.Whether the petitioners are entitled to the reliefs sought.

16. On the first issue, it is submitted that the events complained of allegedly happened in the year 1997 when the repealed constitution was still in force and the rights now complained of did not exist at the time. That under articles 263 and 264 of theConstitution, theConstitution took effect on the date of promulgation subject to the 6th schedule and therefore theConstitution does not apply retrospectively. The case of Duncan Otieno Waga vs The Attorney General (2012)eKLR has been cited for the argument that the 2010 Constitution cannot be applied retrospectively.

17. On the second issue, counsel submits that the petitioners does not meet the threshold set out in Anarita Karimi Njeru (supra) for failure to particularize in precise terms the manner and the extend of the violation of their rights by the respondents and the interested parties.

18. On the third issue, it is submitted that since the map was drawn in the year 1997, the 2010 Constitution had not yet come into force. Finally on the 4th issue, they submit that the petitioners are not entitled to the reliefs sought for failure to prove how their rights have been violated.

19. The petitioners’ complaint emanates from the alleged movement of a village known as Changara from Bungoma to Busia counties by the 1st respondent while drawing the map for the newly created Teso District allegedly acting on the powers conferred by the Districts and Provinces Act 1992. That from that map, Changara location was placed in Teso district. That to date the Act has never been amended to correct the anomaly.

20. Under the current constitutional dispensation, the power to review boundaries is a preserve of the Electoral and Boundaries Commission as mandated under article 89 of theConstitution. TheConstitution allows the commission to alter such boundaries and names if necessary in consultation with all the interested parties. The court is satisfied that this dispute is not one falling under the mandate of 3rd interested party.

21. Since the petitioners’ grievance relate to acts allegedly committed in 1997, the governing statute by then was the Districts and Provinces Act, 1992. A detailed description of the districts is given under the second schedule. Both Bungoma and Busia Districts boundaries have been described.

22. From the several annextures attached to the petition, it is clear that the petitioners have gone to great lengths to have the matter resolved. The petitioners have even petitioned the senate which upon deliberation by the standing committee on lands and natural resources recommended the 1st respondent visits the site and implement the boundary as described in the Districts and Provinces Act, 1992.

23. The court has also considered the letter from the Cabinet Secretary Ministry of Lands and Physical Planning which gives a chronology of events on how the location was moved from Bungoma to Busia districts way before the onset of devolved units. The Principal Secretary Ministry of Interior And Coordination of National Government wrote a letter to the clerk of the Senate detailing the movement of the location.

24. From a perusal of the annextures above, the court finds that the findings and the recommendations in both cases are similar to the findings and recommendations by the senate standing committee that the 1st respondent ought to amend the administrative map to reflect the description in the Districts and Provinces Act, 1992.

25. It is also apparent that at some, point, Changara location was not placed in either Bungoma or Busia Districts. An extract from the Lands Cabinet Secretary’s letter dated June 27, 2016 reads in part;Before 1992, Changara location was in Bungoma District. The 1992 Districts and Provinces Act failed to place Changara location in either Busia or Bungoma Districts, however thereafter, when Busia was being partitioned into Busia and Teso Districts, a decision seems to have been made to place Changara location in Teso District.

26. When the county maps were created, Teso District was placed under Busia County. That is how Changara location inevitably found itself in Busia County although it was traditionally part of the then Bungoma District. This was an automatic progressive process.

27. From the above analysis, the court finds that the matter having been deliberated upon by several agencies, the findings that there is need for the 1st respondent to visit the locus and amend the administrative map to bring it into conformity with the description in the Districts and Provinces Act, 1992. This is the inevitable conclusion that the court also arrives at.

28. The assertion that the 1st respondent despite the findings by the above-stated agencies has made no step is worrying. Government institutions ought to work together in delivery of services.

29. The petitioners also assert that as a result of the confusion, they have been excluded from development projects. From the pleadings the petitioners have not demonstrated such exclusion which entitles them to the orders sought. It is trite law as established by the authority in Anarita Karimi Njeru (supra) that constitutional violations must be pleaded with reasonable precision as to the particular breaches.

30. The court finds no basis to make a declaratory order that Changara location is within Bungoma County when the evidence placed before it chronologically explains how the location was ultimately moved to Busia County. The court further finds that the 1st respondent has been sluggish in implementing the findings above to correct the anomaly.

31. At the time of such movement, the present constitutional dispensation was not in force. As such, the alleged violation of the specific articles under the 2010 Constitution were not available to the petitioners at the time of the alleged movement.

32. For the above reasons, the petition is hereby dismissed for lacking in merit. There shall be no order as to costs.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE