[2024] KEELRC 1749 (KLR)

Miruka v Nyagara & 4 others; Ethics & Anticorruption Commission & another (Interested Parties) (Petition E206 of 2021) [2024] KEELRC 1749 (KLR) (5 July 2024) (Judgment)

Neutral citation: [2024] KEELRC 1749 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E206 of 2021

NJ Abuodha, J

July 5, 2024

Between

Victor Odhiambo Miruka

Petitioner

and

Paul Nyamwaya Nyagara

1st Respondent

The Hon. Governor, Nairobi City County

2nd Respondent

Nairobi City County

3rd Respondent

County Public Service Board, Nairobi City County

4th Respondent

County Secretary, Nairobi City County

5th Respondent

and

Ethics & Anticorruption Commission

Interested Party

The Nairobi County Assembly

Interested Party

Judgment

1. The Petitioner through a Petition dated 20th December, 2021 alleged inter alia;i.The Petitioner averred that the 1st Respondent has been illegally occupying and discharging the functions of the office of the Chief Executive officer of the County Public Service Board, albeit in acting capacity, in blatant contravention of Sections 58 (1) (c) and 64 (1) of the County Government Act.ii.The Petitioner averred that the 1st Respondent had been acting in the said position indefinitely, having been initially appointed for a period of six months, which has since long expired, in violation of Section 64 (2) of the County Government Act.iii.The Petitioner averred that the 1st Respondent was seconded in Acting capacity to the county public service board of Nairobi to perform the functions of the Chief Executive Officer and secretary of the County Public Service Board vide a letter dated the 20th of May, 2020 for a period of Six Months despite not possessing the mandatory minimum qualification of being a Certified Public Secretary.iv.The Petitioner averred that the 1st Respondent is an advocate of the High Court of Kenya and ought to respect uphold the law in which he swore to protect his continued occupation of the office is not only a disregard to the rule of law but an abuse of public duty.v.The Petitioner averred that the office of the 2nd Respondent had initially attempted to fill the position of the Chief Executive Officer of the County Public Service Board by forwarding the name of Phillip Polland George Kaingu as the nominee to be vetted by the County Assembly but the County Assembly rejected him for not meeting the required qualifications.vi.The Petitioner averred that the 2nd Respondent having realized that the County Assembly will not endorse any illegal action that is contrary to the express provisions of a statute, it decided to circumvent the County Assembly by appointing the 1st Respondent to the position of the Chief Executive officer of the Board in an acting capacity.vii.The Petitioner averred that the impugned action by the 2nd Respondent was in contravention of Section 58 (1) of the County Government Act since the 1st Respondent does not meet the mandatory minimum qualification for appointment to the said position.viii.The Petitioner averred that the impugned action of the 2nd Respondent of appointing the 1st Respondent as the acting secretary of the board, a position that he does not qualify to hold substantively, is contrary to the express provisions the law and a nullity.ix.The Petitioner averred that the action of the 1st Respondent is motivated by impunity, lack of respect for the rule of law, and a deliberate scheme to circumvent the County Assembly, which has refused to endorse an illegality.x.The Petitioner averred that whereas the 2nd Respondent had initially appointed the 1st Respondent for a period of six months, the same has now been transmuted to an indefinite appointment, since it is no longer time bound.xi.The Petitioner averred that consequently, the County Public Service Board is not properly constituted to discharge its statutory functions and the actions it is currently undertaking are illegal.xii.The Petitioner averred that in the event that this Court does not issue the orders sought in the Application herewith, the 3rd Respondent may be exposed to grave financial losses should the Court later on annul the activities and /or decisions undertaken by the Nairobi County Public Service Board.xiii.The Petitioner alleged violation of Constitution and legislation ranging from Articles 10, 22 and 23, of the Constitution and sections 58(1) (c ) and 64(1) of the County Government Act.

2. The Petitioners prayed for: -a.A declaration that the appointment of the 1st Respondent as the acting Secretary of the 4th Respondent is in Contravention of Section 58 (1) (c) and 64 (1) of the County Governments Act therefore null and void.b.A declaration that all the business and recruitment conducted by the 4th Respondent during the period when the 1st Respondent was acting as the Secretory) to the board is illegal, null and void, since the 4th Respondent lacked quorum.c.A declaration that the appointment of the 1st Respondent as the secretary of the board for an indefinite period to be illegal and against Section 64 (1) of the County Governments Act.d.An order of mandamus compelling the 2nd Respondent to fill the position of the Secretary of the 4th Respondent with a person who is properly qualified under the County Government Act to occupy that position.e.An order that all financial benefits accrued to the 1st respondent during his illegal occupancy of the office be recovered by the county governmentf.An order does issue that costs of this Petitioner's be borne by the Respondents.

3. The Respondents by reply to the Notice of Motion and the Petition filed their grounds of opposition dated 14th January,2022 and alleged inter alia that;i.The Petition was mischievous, misconceived and an abuse of court process aa well as being incompetent and fatally defective for the reasons that;a.Provisions of Part VII of the County Government Act which is the basis of this instant petition governs the county Public Service Board while making appointments and not the governor who is the appointing authority in purview of section 44 of the County Government Act.b.The Petitioner has elected to ignore the Procedure and grounds if any for removal of a members of the County Public Service Board as per sections 58(5) (a) and (b) of the County Governments Act as read with the provisions of Article 251(1) of the Constitution which procedure was not exhausted by the Petitioner.c.The Petitioner never tabled the allegations fronted in his Petition before the Nairobi Public Service Board as per section 64(5) (a) and (b) of the County Governments Act for it to take action if any which internal procedure was not exhausted by the Petitioner.d.That despite the Petitioner being aware that the appointing authority of the 1st Respondent was vested upon the 2nd Respondent as per section 44 of the County Governments Act the 4th Respondent being body corporate with perpetual succession and a seal and capable of suing and being sued in its corporate name as per section 57 of the County Governments Act but elected to sue the 1st Respondent occasioning a misjoinder.e.That the 1st Respondent was legally appointed by the 2nd Respondent to take up the acting position as per section 64 of the County Government Act. As read together Human Resource Policies and procedures Manual for the Public Service, 2016 under clause C.15(1).

4. The Petitioner filed a supplementary affidavit sworn on 5th March,2024 and alleged that he instructed his advocates to establish and confirm whether the 1st Respondent was a Certified Public Secretary and hence qualified to hold the position that he held. That through a letter dated 7th September,2023 his advocates wrote to the Institute of Certified Secretaries inquiring on the same.

5. That vide a letter dated 7th September, 2023 the Institute of Certified Secretaries responded to the said letter confirming that the 1st Respondent was not a member of the institute. That the 1st Respondent therefore was not of good professional standing and hence not qualified to hold the position of the 4th Respondent’s acting CEO/Secretary.

6. The parties agreed to dispose this Petition by written submissions.

Petitioner’s Submission. 7. The Claimant filed written submissions dated 19th March, 2024 and on the issue of Whether there was a competent petition before the Court, the Petitioner submitted that the petition met the legal requirements for a constitutional petition as it clearly outlined the constitutional violations, the provisions infringed, and how they were infringed and relied on the case of Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.

8. The Petitioner further submitted that the failure by the office of the 2nd Respondent to adhere to the express provisions of section 58 (7) (c) of the County Governments Act, 2012 ran afoul of the constitutional imperative and principle of the rule of law entrenched under Article 10 of the Constitution.

9. It was the Petitioner's submission that by appointing and continuing to retain office an individual who is not duly qualified for the position of the CEO of the 4th Respondent, the 2nd Respondent violated the constitutional value and principle of good governance under Article 10 of the Constitution.

10. It was the Petitioner’s submission that the 2nd Respondent appointed the 1st Respondent to a position he was not qualified for, violating constitutional principles of accountability, transparency, equality, and non-discrimination.

11. On the issue of whether the 1st Respondent's Appointment by the 2nd Respondent to the Position of Acting Secretary of the 4th Respondent Board was Unconstitutional, null and void, the Petitioner submitted that that the 1st Respondent’s appointment as the CEO of the 4th Respondent Board was unconstitutional as the 1st Respondent did not meet the statutory requirements under section 58 of the County Governments Act, 2012.

12. The Petitioner submitted that he swore a supplementary affidavit dated 5th March, 2024 annexing a letter from the Institute of Certified Secretaries confirming that indeed the 1st Respondent was not a member of the said Institute.

13. It was the Petitioner’s submission that the 1st Respondent being not a member of the Institute of Certified Secretaries means he is not a certified Public Secretary of good professional standing and hence not qualified to hold the position of the CEO of the 4th Respondent contrary to section 4 (1) of the Certified Public Secretaries of Kenya Act.

14. The Petitioner submitted that even though the 1st Respondent was appointed in an acting capacity did not preclude him from having to satisfy the requirement for appointment to public office, which are the same for both acting and substantive positions in the public service.

15. The Petitioner submitted that the 2nd Respondent's impugned action of appointing the 1st Respondent as the acting secretary to the 4th Respondent, a position which he does not qualify to hold substantively, is contrary to the express provisions of the law and is thus a nullity as provided under section 64 (1) of the County Governments Act.

16. The Petitioner relied on the case of Kenya Young Parliamentarians Association & 2 others v Cabinet Secretary Labour & Social Protection & 3 others; Institute of Human Resource Management & another (Interested parties) [2020]eKLR where the appointment of Mary Wambui Munene was found to violate various constitutional and statutory provisions, and was therefore declared irregular, unlawful, and quashed.

17. On the issue of whether the Petitioner was entitled to an Order of Mandamus and to the other orders as prayed in the Petition, the Petitioner relied on the case of Republic v Kenya National Examinations Council ex parte Gathenji Others, [1997] eKLR, where the Court of Appeal explained the applicable principles for an order of mandamus to issue and submitted that Petitioner met all the requirements for the grant of an order of mandamus.

18. The Petitioner submitted that there was no condition precedent necessary for the 2nd respondent's appointment duty under section 58 of the Act to accrue. That the duty to appoint a duly qualified person to the position of secretary to the 4th Respondent had thus crystalized and nothing more needed to be done before such an appointment could be made, the only requirement being that the recruitment be done through a competitive process which was mandatory and not subject to the exercise of discretion in any particular manner by the 2nd Respondent.

Respondent’s Submissions 19. The 2nd, 3rd and 5th Respondents filed their written submissions dated 8th May 2024 and on the issue of whether the instant petition met the threshold for a constitutional petition, and therefore, merited, it was the Respondents’ submission that it was trite law following Anarita Karimi Njeru v The Republic [1979] eKLR that a petitioner who brings a constitutional petition to court bears the responsibility of ensuring that they state with particularity, precision, and specificity the constitutional provisions violated or the rights and freedoms under the constitutions that have been violated or threatened with violation and the manner in which such violation has occurred or likely to happen.

20. The Respondents submitted that the Petitioner merely quoted general provisions of the Constitution and statute without spelling exactly how the 2nd, 3rd, and 5th Respondents violated these provisions of the constitution and statute or infringed upon the Petitioner's rights and freedoms under the Constitution

21. The respondent submitted that the Petitioner was being dishonest by concealing material facts, including the fact that Nairobi County was in the process of recruiting a secretary or CEO to the Nairobi City County Public Service Board.

22. It was the Respondents’ submission that the allegation that the 1st Respondent was appointed as the Secretary to the Board on acting capacity to serve for an indefinite period is thus not true and the same is a lie aimed at misleading this Honorable Court into making adverse orders against the County.

23. It was the Respondents’ submission that the Petitioner's allegations in his petition are misguided and baseless by failing to appreciate the fact that the appointment of the 1st Respondent as the secretary to the board was made out of sheer necessity to ensure that no vacuum arose in the office of the Secretary of the Board following the expiry of the term of the former CEO and to ensure a smooth transition process to ensure that the constitutional and statutory mandates of the Board continued to be performed.

24. The Respondents submitted that the petition was unmerited on the basis that the Petitioner did not show through clear and convincing evidence that the 1st Respondent was not a certified Public Secretary.

25. The Respondents submitted that the Petitioner was not entitled to the orders sought including the orders of mandamus as his petition was hopelessly defective and had failed to prove allegations against the 2nd, 3rd, and 5th Respondents to the required standard of proof.

26. The Respondents submitted that the Petitioner was not entitled to the costs of the petition as awarding him costs would go against the principle that costs ought not to be awarded in public interest litigation matters. The Respondents relied on Rule 26(1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013) and submitted that the court had the authority to decide on the awarding of costs, ensured that everyone had access to the court to determine their rights and freedoms.

27. The Respondents submitted that it was the 2nd, 3rd, and 5th Respondents who deserve the costs of the instant petition to compensate them for the trouble taken in defending an otherwise incompetent, defective, frivolous, and vexatious petition by the Petitioner.

Determination 28. I have reviewed and considered the petition, the Respondent’s replying affidavits, grounds of opposition, the supplementary affidavit by the Petitioner and submissions by counsel in support and opposition to the case; I have also considered authorities relied on by Counsel.

29. The issue of the of Petitioner’s locus to file this petition was ably dealt with by this court by my sister Hon. Lady Justice Monica Mbaru delivered on 2nd February,2022 and I agree with her on the position that the Petitioner had locus to institute this Petition and say no more. On the merit of the petition, I have come up with three main issues;i.I have Aa. aa. Whether the appointment of the 1st Respondent as the acting CEO/ Secretary of the Board was irregular and unlawful.ii.Whe Whether the Petitioner has proved the violations of the law by the Respondents.iii.Whether the Petitioner is entitled to the prayers sought.

Whether the appointment of the 1st Respondent as the acting CEO/ Secretary of the Board was irregular and unlawful. 30. This court from the onset takes into consideration that the main issue in this case was the appointment of the 1st Respondent as the Acting CEO/Secretary to the Board. Section 58 (1)(c) of the County Government Act provides:“(1)The County Public Service Board shall comprise—(c)a certified public secretary of good professional standing nominated and appointed by the governor, with the approval of the county assembly, who shall be the secretary to the board. In addition, Section 64 (1) of the said Act provides as follows;1. A person shall not be appointed to hold a public office in an acting capacity unless the person satisfies all the prescribed qualifications for holding that public office"

31. From the foregoing provisions, it is clear that section 58 requires that a person to be appointed as Secretary to the Public Service Board must be a certified Public Secretary however clause 15 of the 2nd Respondent’s Human Resource Policies and procedures Manual provided as follows;Where an officer is called to perform duties of a higher post but does not possess the necessary qualifications for appointment to that post, he shall be paid special duty allowance at the rate of 15% of the Officer’s basic salary.

32. This court notes that the appointment of the 1st Respondent by the Governor dated 20th May, 2020 provided that he would be paid the 15% special duty allowance as per the manual. The Respondents produced minutes of the meeting dated 17th November,2020 extending the 1st Respondent’s acting capacity after his term expired. This according to the 2nd respondent was necessary to allow proper running of the County.

33. The court notes that on 14th October,2021 the County advertised for among others the vacancy of the CEO/Secretary to the Board. The 1st Respondent was designated as Accounting Officer on 16th August,2021 which he accepted on 16th September,2021. This therefore meant that at the time the Petitioner filed this Petition the 1st Respondent had already ceased to be an Acting CEO/Secretary to the Board and the process of recruiting a substantive one had kicked off. On this basis it therefore goes without say that the Petition was already overtaken by events at the time it was filed. In that regard, the appointment of the 1st Respondent as the CEO/Secretary to the board was not done irregularly or unlawfully.

Whether the Petitioner has proved the violations of the law by the Respondents.The Respondents have maintained that the Petitioner did not demonstrate with precision how they breached the cited provisions of the Constitution. 34. Whereas I agree that the Petitioner can bring this Petition as public litigation he needs to prove how the said infringements affected the public at large. The assertion that the appointment of the acting CEO/Secretary to the board could cause some lose cannot hold water since the 1st Respondent was only paid special duty allowance as per the manual. The County also initiated the process of recruiting a substantive CEO. The Respondents have explained themselves why the appointment of the acting CEO was crucial for the smooth running of the County even if he was not qualified but as per the manual.

35. I rely on the locus classicus decision in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others[2013]eKLR that the Petition ought to be pleaded with precision as required in constitutional Petitions and held as follows:-It is our finding that the petition before the High Court was not pleaded with precision as required in constitutional petitions. Having reviewed the petition and supporting affidavit, we have concluded that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011. Accordingly, the petition did not meet the standard enunciated in the Anarita Karimi Njeru case (supra)

36. This leads to the Conclusion that the Petitioner has not established a prima facie case against the Respondents on the specific breach of the constitutional provisions.

37. In conclusion the petition is found without merit and the same is hereby dismissed with no order as to costs

38. It is so ordered.

DATED THIS 5TH DAY OF JULY, 2024DELIVERED THIS 5TH DAY OF JULY, 2024ABUODHA NELSON JORUMJUDGE