[2023] KEHC 25795 (KLR)

Mohamed Jelle Hussein t/a Alamagan Enterprise Group & 2 others v County Government of Wajir & another (Constitutional Petition E006 of 2023) [2023] KEHC 25795 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25795 (KLR)

Republic of Kenya

In the High Court at Garissa

Constitutional Petition E006 of 2023

JN Onyiego, J

November 10, 2023

IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 19(2), 20 (1), ARTICLE 21(1) (3), ARTICLE 22(1) AND (2), ARTICLE 35, ARTICLE 40, ARTICLE 42, ARTICLE 43 (1) (2), ARTICLE 46, ARTICLE 47, ARTICLE 60(1), ARTICLE 61, ARTICLE 67, ARTICLE 62, ARTICLE 69, ARTICLE 70 AND ARTICLE 72 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 10(A)(B), 20,21,22,27,36,55 (B), 56(A),57(A), 157(A), 174(C), 196,201 OF THE FOURTH SCHEDULE, PART II, 14 OF THE CONSTITUTION AND IN THE MATTER OF THE WAJIR COUNTY FINANCE ACT,2003 AND IN THE MATTER OF THE COUNTY GOVERNMENT ACT, 2012

Between

Mohamed Jelle Hussein t/a Alamagan Enterprise Group

1st Petitioner

Ibrahim Mohamed Abdirahman t/a Alamagan Enterprise Group

2nd Petitioner

Ambiya Mohamed Kassim t/a Alamagan Enterprise Group

3rd Petitioner

and

The County Government of Wajir

1st Respondent

The Honourable Attorney General

2nd Respondent

Judgment

1. Before this court is a petition dated June 12, 2023 filed by the petitioners through the firm of Paul Mugwe Advocates seeking the following orders:i.A declaration that there was no public participation in enacting the Wajir County Finance Act, 2023, Kenya Gazette Supplement No. 11 (Wajir County Act No. 1).ii.A declaration under articles 23(3)(d) that the Wajir county Finance Act, 2023 Kenya Gazette Supplement No. 11 (Wajir County Act No. 1) violates the constitution and the same is null and void.iii.Costs of the petition be borne by the respondents.iv.Any other orders the Honourable Court may deem just and appropriate.

2. The petition was supported by the affidavit of Mohamed Jelle Hussein who deposed that he runs a miraa transport business in Wajir in the name and style of Alamagan Enterprises Group. He averred that the 1st respondent enacted the Wajir County Finance Act, 2023 which legislation governs the collection of fees in the said County. It was further deposed that the said Act revised upwards all fees payable by various businesses in Wajir interalia; miraa business in respect of which the impugned Act sets the fees payable at Kes. 35,000 up from 15,000. 00.

3. It was the petitioner’s case that the process of enacting a legislation at the County level must be inclusive as the same means that public participation as provided for in article 10,174(c), 196 (1) (b), 201 and 209 of the constitution must be adhered to. That the said act is oppressive as it threatens the closure of the said business hence the necessity of the prayers sought.

4. The firm of Gedi & Associates Advocates representing the 1st respondent filed a replying affidavit sworn on July 11, 2023 by Naema Ibrahim, an attorney of the respondent who deposed that according to article 209 (2) and (4) of the constitution, County Governments have an obligation to impose property rates, entertainment taxes and any other tax that is authorized to be imposed by an Act of Parliament and to impose charges for services provided. It was urged that the Wajir County Finance Act 2023 was passed in compliance with; the constitution, the County Governments Act 2012 and the Public Finance Management Act. He denied the accusation that due process was not followed in enacting the said Act. It was his case that article 175 (b) of the constitution empowers the respondent to have reliable sources of revenue to enable it govern and deliver services effectively.

5. It was the 1st respondent’s case that on 23. 09. 2022, an appropriate advertisement was placed by the County Executive Committee Member for the Finance and Economic Planning in the Daily Nation Newspaper which said newspaper, is of a nationwide circulation inviting the public to air their views on the County Finance Bill of 2023. That the same was further placed in the County website https:/wajir.go.ke under public participation on County Budget estimates FY 2022/2023 – 2024/2025 Finance Bill 2022. It was argued that the said notice contained the date, venue and time of the forums and further asked members of the public to submit their views either through the email addresses provided or through the office of the CEC member for the finance and economic planning.

6. It was his evidence that the respondent undertook a public participation exercise to collect views from the general public and relevant stakeholders through public consultation fora that were held in the following sub counties: Eldas Sub County at the Administrator’s Office at 03. 09. 2022; Wajir South Sub County at Habaswein Community Library on 03. 10. 2022; Wajir East at the ICT Hall on 03. 10. 2022; Tarbaj Sub County on 03. 10. 2022 and, at Bute Sub county Hall on 03. 10. 2022. It was further stated that at the said venues, all members of public attending to the said public participation were given opportunities to peruse the proposed Finance Bill and then taken through item by item.

7. Thereafter, the Bill was introduced in the County Assembly where the County Finance, budget and Appropriations Committee once again facilitated a public participation exercise in all the sub counties. It was stated that the Act clearly shows that the miraa transportation sector was not the only affected business in the increase in rates. That in as much as the respondent has a responsibility to inform the public, be open, accountable and invite the stakeholders for public participation, it is not it’s duty to compel the attendance of the persons invited.

8. That the public participation conducted met the required standards and therefore, the petitioners cannot be heard to say that the respondent acted arbitrarily. It was its case that this Honourable Court cannot therefore direct the 1st respondent on how to exercise its mandate of levying the cess and how to administer the same.

9. The 2nd respondent filed grounds pf opposition dated 07. 07. 2023 opposing the petition herein on grounds that the same did not meet a constitutional threshold. It was stated that the petitioners did not sufficiently prove the nature and manner in which the 2nd respondent allegedly violated their rights or any of the provisions of the constitution. Reliance to support the same was placed on the case of Anirita Karimi Njeru v Republic (No. 1) [1979] KLR to urge that the petition is incompetent in so far as it failed to precisely state the nature of constitutional provision that was violated. That apart from citing omnibus provisions of the constitution, the petition provided neither particulars of the alleged complaints nor the manner of the alleged infringements against the 2nd respondent.

10. It was argued that article 156 of the constitution establishes the office of the Attorney General as the principal legal advisor to the government and is only mandated to represent the national government in court or in any other legal proceedings and so, the issues raised herein are purely within the purview of the 1st respondent. This court was urged to dismiss the petition against the 2nd respondent as the same was misconceived, incompetent and devoid of any merit.

11. The court directed that the application be canvassed by way of written submissions and that parties file and exchange the same.

12. The petitioner submitted in reference to three issues coined for determination as follows: Whether there was public participation in the formulation and passing of the Wajir County Finance Act, 2023; if there was no public participation, whether the Wajir County Finance Act, 2023, violates the constitution and thus null and void and; whether the miraa transportation cess imposed by the Wajir County Finance Act, 2023is exorbitantly high.

13. On the first issue, the petitioners submitted that it cannot be reasonably urged that the 1st respondent through the County Executive Committee member for Finance and Economic Planning placed an advertisement in the Daily Nation Newspaper, the County website and the official County Facebook as the adult illiteracy in Wajir is at a high rate of 86%. Reliance to that end was placed on the case of Robert Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR where the court opined that public participation in its real sense can only be attained where the quantitative and qualitative tests are met.

14. Further, that the setting up of only a specific day (10. 10. 2022) through which the ‘public participation’ was taking place offended the cardinal rules of public participation. That the limitation of public participation to one day meant that if an individual was held up at work on the said date, or were out of town, then they would be excluded from public participation in such an important bill. That as a consequence of the above, it was only reasonable to state that there was no public participation in the formulation and passing of the Wajir County Finance Act 2023 for the reason that neither the qualitative and quantitative tests were met.

15. On the second issue, it was submitted that given that the 1st respondent failed to meet the prerequisites towards conducting public participation as stipulated in the constitution, the same violated the constitution and thus null and void to the extent of its inconsistency as per the dictates of article 2(4) of the constitution. The petitioners relied on article 196(1)(b) of the constitution to aver that the alleged public participation did not meet the expectations alluded to by the constitution.

16. On the third issue, the petitioners averred that the said Act noted that there was no inter group equity and fairness as the miraa traders seem to be among the few, if not the only sector that was disenfranchised a great deal by the increase in taxes. In the end, the petitioners beseeched this court to allow the prayers sought.

17. The 1st respondent on the other hand submitted in reference to whether the Wajir County Finance Act 2023 was taken through adequate public participation.

18. It was contended that the Act was subjected to public participation in line with the demands of the constitution, the Public Finance Management Act and the County Governments Act, 2012. To that end, the respondent relied on the case of Commission for the Implementation of the constitution v Parliament of Kenya & Another [2013] eKLR where it was stated that …what amounts to a reasonable opportunity will depend on the circumstances of each case. It was further contended that an advertisement was placed on the Daily Nation Newspaper which is a paper of nationwide circulation which the said notice informed the Public of the County Finance Bill and asked the public of their views.

19. That the said advertisement informed the public on how to submit their written memoranda and also informed them on the respective dates and venues for consultative forums that were to be held throughout the County where the bill would be discussed further. That foras were also held in all the sub counties and interested members of the public who attended aired their views in regards to the said bill. Reliance was placed on the Court of Appeal decision in the case of Nairobi Metropliltan PSV Saccos Union Limited & 25 Others v County of Nairobi Government & 3 Others [2014] eKLR where the three judge bench rendered themselves that:“...it cannot be expected of the law that a personal hearing will be given to every individual who claims to be affected by the regulations that are being made…”

20. It was submitted that the claims by the petitioners that they were not individually informed of the forums cannot stand as prudent business people had an obligation to be vigilant so as not to miss the said notices. That the burden of proof rested on the petitioners to prove that the public participation conducted did not meet the requisite threshold. To that end, reliance was placed on the case of Amos Kiumo & 19 others v Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 8 others [2014] eKLR where it was held that:“The test whether the public participation was good or ample cannot be measured by the outcome of the decision reached…”

21. That a critical reading of the petition shows that the petitioners mainly feel aggrieved by what they term as ‘exorbitant and oppressive’’ cess fees and their claim for lack of public participation in the enactment process of the Act is only a ploy. In the end, the 1st respondent urged this court to declare that the Wajir County Finance Bill was subjected to adequate public participation and the petition herein be dismissed with costs.

22. I have considered the petition herein, the responses thereto, and the written submissions by the parties. The sole issue for determination in this application is whether there was public participation in enacting the Wajir County Finance Bill 2023.

23. The petitioners have argued that prior to the enactment of the impugned Wajir County Finance Bill 2023, the 1st respondent failed to procure their views as stakeholders as required and mandated by the public participation principle under Article 10(2) and 118 of the constitution. The 1st respondent on the other hand asserted that public participation was conducted as evidenced by the 1st respondent’s account and evidence in its replying affidavit.

24. One of the hallmarks of the constitution of Kenya is the involvement of the public in its affairs so much so that it forms one of the national values and principles as envisaged in Article 10 of the constitution. The County Government is obligated under the constitution and further, the County Governments Act to facilitate public participation and involvement in the course of executing its legislative duty and any other businesses of the County including its committees. It cannot be denied that public participation is a key element in the legislative functions of the government at all levels.

25. The Supreme Court in the case of British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR loudly spoke on the principle of public participation by giving guidance on its determination as follows:“85Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10 of the constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions”.

26. The Court went on to issue the following guidelines on this principle as follows:“(96)From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments.Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation:Guiding Principles for public participation:(i)As a constitutional principle under Article 10(2) of the constitution, public participation applies to all aspects of governance.(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.(v)Public participation is not an abstract notion; it must be purposive and meaningful.(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.(ix)Components of meaningful public participation include the following:a).clarity of the subject matter for the public to understand;b).structures and processes (medium of engagement) of participation that are clear and simple;c).opportunity for balanced influence from the public in general;d).commitment to the process;e).inclusive and effective representation;f).integrity and transparency of the process;g).capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.

27. From the above, it follows that public participation is anchored on the principle of the Sovereignty of the People in accordance with Article 1(4) of the constitution and the same is exercisable at both national and county levels.

28. In the instant case, the petitioners urged that the said Act was enacted without public participation of the people as the same increased the business license tax payable by 233. 33%; that the same was excessive and if left unchecked, may lead to closures of business.

29. The 1st respondent has opposed the same citing reasons that indeed public participation was not only qualitative but also quantitative in nature as is expected of it. That in as much as it has a responsibility to inform the public, be open, accountable and invite the stakeholders for public participation, it is not it’s duty to compel the attendance of the persons invited. The 1st respondent contended that the onus rested on the petitioners to prove that public participation conducted did not meet the requisite threshold.

30. This court has examined facts and evidence presented before it and the same reveals that the 1st respondent invited the public and the relevant stakeholders to submit memoranda and views for the purposes of public participation through an advertisement in the Daily Nation dated 23rd September,2023, on the websites of the 1st respondent and the various forums held in the various sub counties.

31. Further, it is noted that the said bill was thereafter introduced in the County Assembly where the County Finance, Budget and Appropriations Committee facilitated a public participation exercise in all the sub counties.

32. The court notes that the 1st respondent’s advertisement provided clear information in reference to the said bill. I say so for the reason that members of the public were given information on how and where to submit their views contrary to the petitioners’ averments that they were not invited to give their views on the Bill. The allegation by the petitioners remain hollow as they did not demonstrate how exactly they desired to be invited to submit their views.

33. It is my humble finding that the 1st respondent did not relinquish its constitutional mandate in the enactment of the Wajir County Finance Bill 2023 and its responsibility to submit the Bill to the public for its participation as averred by the petitioners. As rightly put by the parties, it is not only the miraa transport traders that were affected by the enactment of the said bill. I am in agreement with the 1st respondent, as also conceded by the petitioners that the main issue herein is the fact that the new cess rates were allegedly exorbitant by the petitioners. It is my view that the fact that the said rates are considered as exorbitant by the petitioners, that alone does not justify an allegation that rights have been encroached.

34. This court further seeks guidance in the holding in the case of Mark Obuya, Tom Gitogo & Thomas Maara Gichuhi acting for or on behalf of { Association of Kenya Insurers & 5 others v Commissioner of Domestic Taxes & 2 others [2014] eKLR where the court pronounced itself as follows:“32. The legislature is the law making organ and it enacts the laws to serve a particular object and need. In the absence of a specific violation of the constitution, the court cannot question the wisdom of legislation or its policy object.The fact that the particular provision of the statute merely may be difficult to implement or inconvenient does not give the court license to declare it unconstitutional.”

35. Whereas the importance of public participation in any decision-making process is critical, it is not envisaged that every affected citizen by such decision must participate. Once sufficient notification is issued, the duty to attend is purely a personal decision. The county Government of Wajir had no obligation to compel attendance of Wajir people during the various organized forums to deliberate on the proposed finance bill. Whether the petitioners were busy or out of town as claimed in their submissions on the day announced for public participation, it was optional.

36. In the foregoing, it is my humble finding that Wajir County Finance Bill was subjected to adequate public participation and as such, I find that:i.The petition dated June 12, 2023 lacks merit and the prayers sought cannot issue.ii.Costs awarded to the respondent

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 10TH NOVEMBER 2023. J. N. ONYIEGOJUDGE