[2022] KEHC 13397 (KLR)

Mombosi & 449 others v CS, Ministry of Interior Co-ordination of National Government & 3 others (Constitutional Petition 2 of 2021) [2022] KEHC 13397 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13397 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Constitutional Petition 2 of 2021

F Gikonyo, J

October 3, 2022

In The Matter Of Violation Of The Constitution Of Kenya, 2010 And In The Matter Of: Articles 1(1)(b), 1 (4)(b), 10(1)(c) (2)(a)(b) &(c),19(1, 20,21(1),22(1)(2), 23, 27, 28, 47(1)(2),174(a) (b)(c)(d) &(e) 232(1)(d)€And 258 Of The Constitution Of The Republic Of Kenya, 2010 And In The Matter Of: The Fair Administrative Action Act, Act No 4 Of 2015 Laws Of Kenya And In The Matter Of: National Government Co- Ordination Act, 2013 And In The Matter Of: The Kenya Gazette Notice Of 21St June 2017 And 1 In The Matter Of: Ndoinyo Location Of Keiyan Division Of Transmara West Sub-County – Narok County And In The Matter Of: Transfer Of Naarolong Sublocation In Ndoinyo Division To Kereto Division Of Transmara West Sub-County In Narok And In The Matter Of: Infringement Of The Pettioners’ Rights As Residents Of Naarolong Sub-Location Of Ndoinyo Location Of Keiyian Division Of Transmara Werst Sub-County In Narok County

Between

Samuel Mombosi & 449 others

Petitioner

and

CS, Ministry of Interior Co-ordination of National Government

1st Respondent

The Attorney General

2nd Respondent

Transmara West Sub- County Commissioner

3rd Respondent

Assistant County Commissioner Keiyan Division

4th Respondent

Judgment

Claim that public participation not conducted 1. The petitionersvide the petition dated July 9, 2020 sought the following reliefs that;a.A declaration that the respondents’ decision of relocating Naarolong sub-location from Ndoinyo Location in Keyian Division to Kereto Division is unconstitutional and in violation of Articles 1(1)(b), 1(4) (b), 2(1), 3(1), 6(2) 6(3), 10(1), (s), 2(a) (b), 9 (c), 19(1), 20, 21(1) 22(1) (2), 23, 27, 28, 47(1) (2), 73(1), 174(a) (c) (d), 232(1), (d) (e) and 258 of theConstitution.b.A declaration be issued that the gazette notice dated June 21, 2017 is null and void.c.A declaration be and is hereby issued to quash the Gazette Notice dated June 21, 2017 relocating Naarolong sub location from Ndoinyo Location in Keyian Division.d.A declaration be issued against the respondents from implementing the Gazette Notice No2845 dated June 21, 2017 in respect of Kereto Division in reference to Naarolong sub-location being part of Kereto Division.e.That the respondents bear the cost of the petitioners’ costs or in the alternative each party bears their own costs.f.Any other reliefs that this honourable court may deem just and fair to order.

2The petitioners are residents of Naarolong sub-location of Ndoinyo location in Kieyan Division. Their gravamen as set out in the petition dated July 9, 2020 and the supporting affidavit sworn by Samwel Mombosi is that; the decision by the respondents to relocate Naarolong sub-location of Ndoinyo location from Keiyian Division to Kereto Division contained in Gazette Notice number No 2845 dated June 21, 2017 is unconstitutional for it violates articles 1(1)(b), 1(4)(b), 2(1), 3(1), 6(2) & (3), 10(1)(s), 2(a)&(b), 9(c), 19(1), 20, 21(1), 22(1)&(2), 23, 27, 28, 47(1)&2, 73(1), 174(a)(c)&(d), 232(1)(d)&(e), and 258 of the Constitution.

3The specific complaint is that the alteration of boundaries which relocates Naarolong sub-location from Kieyan Division to Kereto Division was done: -a)Without consulting the residents of the affected sub-location;b)Without conducting public participation or seeking the views of the residents on their willingness for the sub-location to be moved to another Division;c)Without taking into account that the residents of the affected sub-location get government services from Enoosaen Centre, the Headquarter of Keiyan Division which is nearer to the sub-location compared to Kereto Division which is very far;d)Without taking into account that the people of the affected sub-location are of the same clan as those of Kiikat sub-location with whom they share common interest socially and economically. Moving them to another Division will be an act of separating clansmen, thus, an infringement of their economic and cultural rights;e)That the roads from the affected sub-location to Kereto Division are impassable and the route is infested with bandits who attack road users frequently. The people of Kereto Division are from a different clan-siria clan- with whom they had visibly explosive tensions in the past over administrative boundaries. There was a court case on the matter. Therefore, moving the affected sub-location there is unsafe.f)That in addition, there are two large rivers between the affected sub-location and Kereto Division; the rivers burst banks making cutting communication between the two places. Such would be subjecting them to unnecessary inconveniences

4These grounds were adumbrated in their written submissions. They argued that no reasonable steps were undertaken to involve the people of the affected sub-location and the community thereto, yet, they are the people who are to be affected by this decision. They said that the decision affected them; immediately it was made, they were not able to receive government services from Keiyan Division for they now belonged to another Division. They also foresee a dilemma; that by this decision, the administrator of Ndoinyo location will be required to receive mandate from two assistant County Commissioners, that is, Keiyan Division and Kereto Division. According to them, the decision is unlawful for the reasons they have pointed out. In addition, they stated that the decision did not adhere to requirements of fair and lawful administrative action envisioned in article 47 of theConstitution, thus, unlawful. By this decision the respondents violated theConstitution, Bill of Rights, leadership and integrity principles. In the upshot, they submitted that the decision violates the rights of the residents of Naarolong sub-location.

Analysis And Determination A disclaimer 5The decision of the court is based entirely on the material provided and facts disclosed by the petitioners. The respondents, did not file any papers despite service of pleadings and notices for hearing of the petition, and much indulgence by the petitioner and the court. At some stage, the Attorney-General intimated to the court that they are considering amicable settlement after consultation with the parties in these proceedings. Nothing important came to the fore. Nevertheless, I will consider the merits of the case.

Claim: Public participation was not conducted 6It bears emphasizing, the major complaint in this petition is that the decision to relocate Naarolong sub-location of Ndoinyo location from Keiyan Division to Kereto Division was done without public participation of or consultation with the residents of the affected sub-location, and therefore unconstitutional and unlawful.

Constitutional context 7Public participation is one of the fundamental values and principles of governance which guide exercise of public power by state officers and institutions. See Article 10 of theConstitution which provides as follows: -10. National values and principles of governance

(1)The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them—(a)applies or interprets this Constitution;(b)enacts, applies or interprets any law; or(c)makes or implements public policy decisions.(2)The national values and principles of governance include—(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; [Underlining mine](b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;(c)good governance, integrity, transparency and accountability; and(d)sustainable development.

8Similarly, it is a requirement of law and theConstitution that, a person whose right or fundamental freedom has been or is likely to be adversely affected by an administrative action taken by the government or state organ, has the right to be given written reasons for the action. See Article 47 of the Constitution which provides: -47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.

9These provisions occupy a place further up in the order of justification of exercise of public power. They are always speaking of legality of actions in exercise of public power not to depend on a state officer or institution of authority having taken and conveyed an executive decision, but on whether the values and principles laid down in theConstitution for the taking of such action have been complied with. Thus, it is ominous attempt to defend a less austere version to the model sculptured in theConstitution, inter alia, in the National Values and Principles of Governance, and the right to fair administrative action - article 10 and 47 of theConstitution, respectively-; doing so, not only weakens the notion of legality of actions by state officers or institutions in exercise of public power, but thoroughly violates theConstitution. The command of the Constitution is compliance with these values and principles of governance by all State organs, State officers, public officers and all persons whenever any of them—(a)applies or interprets theConstitution;(b)enacts, applies or interprets any law; or(c)makes or implements public policy decisions.

10No lesser measure is expected of implementing institutions or persons in the enforcement, promotion and protection of theConstitution. Within the raging current debate on judicialization of politics, posterity will pronounce its calm and impartial decision; that decision will, I firmly believe, place persons who anchor their actions, and jurisprudence on theConstitution, in eminent chairs of Galileo, and Locke et al.

The impugned decision by Cabinet Secretary 11The Gazette in issue was issued by the Cabinet Secretary for Interior and Co-ordination of National Government pursuant to powers conferred upon him by section 14(1) and (3) of the National Government Coordination Act. Section 14(1) and (3) of the Act provides: -14 Service delivery co-ordination units(1)The Cabinet Secretary may, with the approval of the President and by a notice in the Gazette, establish national government service delivery co-ordination units.(3)Where a county government has not decentralised its units pursuant to section 48(1)(e) of theCounty Government Act, 2012, the national government may, where necessary, establish its own service delivery co-ordination units for purposes of co-ordination of national government functions.

12The objects of the Act are stated in Section 3 as follows: -3. Object of the ActThe object of this Act is to—(a)facilitate the exercise of executive authority pursuant to Articles 131(1)(b) and 132(3)(b) and (c) of theConstitution;(b)provide for the effective co-ordination and administration of the national government functions prescribed in theConstitution, this Act or any other written law; and(c)provide for the establishment of an administrative and institutional framework at the national, county and decentralised units to ensure access to national government services in all parts of the Republic.

13Exercise of the functions under the Act is subject to the National Values and Principles of Governance in article 10 of theConstitution. See express provision on this in Section 4 of the said Act thus: - 4. Guiding principlesIn fulfilling its mandate, the national government shall act in accordance with the national values and principles of theConstitution in particular, those set out in Articles 10, 189, 201(d) and 232.

Was impugned action in accordance with Constitution? 14The critical question is: Whether within the foregoing framework, was the decision by the respondents to relocate Naarolong sub-location in Ndonyo location from Keiyian Division to Kereto Division in accordance with the National Values and Principles of Governance especially public participation?Understanding public participation

15understanding public participation as a concept and fundamental principle of governance, may present little difficulties. But its application and scope, is most problematic; yet, it is one of the fundamental requirements in the exercise of public power under theConstitution, and has been used to determine watershed cases on public-policy questions and monumental heavily political undertakings and controversies in Kenya. Of great significance is that, judicial pronouncements and other eminent writings continue to grow the concept of public participation; nature, application and scope. For instance, Odunga J in the case ofRobert Gakuru & Others vs The Governor Of Kiambu & 3 Others [2014] eKLR cited and discussed in relevant detail a string of relevant case law on public participation. I am content to cite Odunga J. of public participation: -In my view, Public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the constitutional dictates. It is my view that it behoves…to ensure that the spirit of public participation is attained both quantitatively and qualitatively.

16Accordingly, although public participation may not be measured with mathematical precision, the different methods, mediums and fora employed to attain it should be effective and efficient in publicizing, communicating and educating the public on the nature, content, intent, purpose and objects of the proposed action or activity or law or policy decision in a manner that enables the public to make an informed decision or contribution on the subject. The ultimate goal is to ensure that the people are involved in the entire process from formulation to validation for, to execution. A public decision arrived at in a process devoid of meaningful involvement of the people is tinctured with and is deadly poison; the legitimate antidote the law will administer is for the court to declare such decision to be unconstitutional, null and void.

Applying the test 17The petitioners’ specific complaint is that, whereas the executive may alter administrative boundaries, relocation of Naarolong sub-location of Ndoinyo location from Kieyan Division to Kereto Division was done: -a)Without consulting the residents of the affected sub-location;b)Without conducting public participation or seeking the views of the residents on their willingness for the sub-location to be moved to another Division;c)Without taking into account that the residents of the affected sub-location get government services from Enoosaen Centre, the Headquarter of Keiyan Division which is nearer to the sub-location compared to Kereto Division which is very far;d)Without taking into account that the people of the affected sub-location are of the same clan as those of Kiikat sub-location with whom they share common interest socially and economically. Moving them to another Division will be an act of separating clansmen, thus, an infringement of their economic and cultural rights;e)That the roads from the affected sub-location to Kereto Division are impassable and the route is infested with bandits who attack road users frequently. The people of Kereto Division are from a different clan-siria clan- with whom they had tensions in the past over administrative boundaries. There was a court case on the matter. Therefore, moving the affected sub-location there is unsafe.f)That in addition, there are two large rivers between the affected sub-location and Kereto Division; the rivers burst banks cutting communication between the two places. Such would be subjecting them to unnecessary inconveniences

18Some of the complaints set out above are sensational. Others are quote plausible and rational, and legitimate expectations. Be that as it may, the aim is to demonstrate the importance of engaging them in any alteration of administrative boundaries, for the effects to their social and cultural infrastructure, economic engagement as well as provision of government service.

19This era of justification of exercise of public power; a must is compliance with the conditions set out in the Constitution inter alia in article 10 and 47 of theConstitution. Alteration of administrative boundaries is a public venture and an administrative action which must adhere to the national values and principles of governance as stated in section 4 of the Act. The petitioners have shown, on the material before the court, that the respondents acted with fiat and merely gazetted alteration of the boundary in question without taking reasonable steps to and involve the people of the affected sub-location and the community thereto, yet, they are the people who are to be affected by this decision. They have also demonstrated that the decision affected them; for, immediately it was made, they could no longer receive government services from Keiyian Division for they now belonged to another Division. They have also shown that Keiyian Division is closer to them and convenient for purposes of service delivery than Kereto Division. There is no specific or compelling reason or interest shown by the respondents that the alteration of the administrative boundary in question is necessary for purposes of quick delivery of services to the people or for ease of administration of the sub-location.

20In the upshot, I find and declare that the alteration of boundary whose effect is to relocate Naarolong sub-location of Ndoinyo location from Keiyian Division to Kereto Division was done arbitrarily and without public participation in contravention of article 10 of the Constitution of Kenya , and therefore unconstitutional. In consequence thereof, I quash, but only that part of Gazette Notice NumberNo 2845 dated June 21, 2017 which places Endonyo Narok location under Kereto Division for being unconstitutional, null and void. For the avoidance of doubt, as the gazette notice in question relates to other administrative units, this decision does not relate to or affect alteration of any other administrative area covered by the gazette notice in issue except the one placing Endonyo Narok location under Kereto Division.

21All other reliefs sought which has not been specifically and expressly granted is deemed to be denied.

22Given this is public litigation, I order each party to bear own costs of the petition. It is so ordered.

DATED AND DELIVERED AT KILGORIS THIS 3RD DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS ONLINE APPLICATION----------------------------------F. M. GIKONYOJUDGEIN THE PRESENCE OF:Mr. Miruka for PetitionersMs. Betty Mwanzao for the Respondents – absentMr. Meingati for the Interested Party – absentMr. Kasaso - CA