[2023] KECA 1422 (KLR)

Mugwe v Waititu & another; Speaker, Kiambu County Assembly & 2 others (Interested Parties) (Civil Appeal 245 of 2018) [2023] KECA 1422 (KLR) (24 November 2023) (Judgment)

Neutral citation: [2023] KECA 1422 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal 245 of 2018

DK Musinga, HA Omondi & GWN Macharia, JJA

November 24, 2023

Between

John Githigi Mugwe

Appellant

and

Hon Ferdinand Ndung’u Waititu Babayao

1st Respondent

Kiambu County Government

2nd Respondent

and

The Speaker, Kiambu County Assembly

Interested Party

The Clerk, Kiambu County Assembly

Interested Party

Kiambu County Assembly

Interested Party

(Being an appeal from the Ruling and Order of the Employment and Labour Relations Court at Nairobi (H. Wasilwa, J.) delivered on 19th June 2018 in ELRC Judicial Review No. 12 of 2018 Judicial Review 12 of 2018 )

Judgment

1. This appeal emanates from an application dated 11th May 2018 filed by the appellant in the trial court seeking:1. That this Honourable Court do grant leave to the applicant to file proceedings for an Order of Certiorari by way of calling for, into this Court and quashing the 1st respondent’s decision to relieve from duties and dismiss the appellant from Kiambu County as County Executive Committee member made on 8th May 2018. 2.That this Honourable Court do grant leave to the Applicant to file proceedings for an order of mandamus by way of judicial review compelling the 1st respondent to restore and/or reinstate the applicant to his position as County Executive Committee member.3. That this Honourable Court do grant leave to the applicant to file proceedings for an order of prohibition by way of judicial review prohibiting the 1st respondent from appointing any other person to the post of County Executive Committee member until this matter is adjudicated.4. That this Honourable Court do grant leave to the applicant to file proceedings for an order of prohibition by way of judicial review prohibiting the interested parties from vetting, approving and/or conducting public participation with the aim of appointing any other person to the post of County Executive Committee member until this matter is adjudicated.5. That the leave so granted in terms of prayers 1, 2, 3, and 4 herein above do operate as a stay of any and all actions or proceedings to enforce, execute, implement or put into effect in any manner whatsoever the said decision of the 1st respondent dismissing the applicant from his duty as the County Executive Committee member Kiambu County until the hearing and determination of the substantive Motion.6. That costs of this application be provided for.

2. At all material times, the 1st respondent was the Governor of Kiambu County. It was the appellant’s contention that he was appointed by the 1st respondent as a member of the County Executive Committee for Roads, Transport and Public Works on 2nd November 2017, and on 12th April 2018 he was asked to immediately proceed on leave for thirty days with effect from that date. He was also informed in the letter asking him to proceed on leave that at the expiry of the leave, he was to have a meeting with the 1st respondent so as to agree on his performance and set targets accordingly. While on leave on 8th May 2018, he was relieved of his services by the 1st respondent, who cited reasons for doing so to be that he was not a good team player, and this was affecting delivery of services to the people of Kiambu County. The 1st respondent then proceeded to nominate another County Executive Committee member for the office previously held by him. The nominee’s name was seconded for vetting and approval before the 3rd respondent.

3. What took the appellant before the trial court was the 1st respondent’s action of nominating his replacement in the County Executive Committee, and subsequently forwarding his name to the 3rd respondent for vetting and approval.

4. The respondents opposed the application vide a replying affidavit deponed to by the 1st respondent. According to the respondents, the appellant should have petitioned the 3rd interested party under Article 118 and Chapter 6 of the Constitution, and section 35 of the County Government Act, to ventilate his views on why the nominee should not be approved by the 3rd respondent, rather than injuncting a process of the 3rd interested party. He contended that any action that the court would take would be a violation of the doctrine of separation of powers, more so if it were to issue orders stopping a process the 3rd interested party was mandated to undertake; that section 31 of the County Government Act empowers a Governor to dismiss a County Executive Committee member where the Governor deems it appropriate; and that the 1st respondent therefore acted in an appropriate manner in order to maintain cohesiveness in the executive team by relieving the appellant of his duties.

5. The respondents further contended that the court lacked jurisdiction to entertain the petition as it was not a labour dispute, as there did not exist an employer/employee relationship between the parties; that they were not under any duty to communicate the reasons for 1st respondent’s decision to the extent that he considered it appropriate to relieve the appellant of his duties as provided for under Act 47(2) of the Constitution; and that the decision to appoint a County Executive Committee member was a political question, consequent to which the court should exercise restraint under the doctrine of constitutional avoidance.

6. The interested parties too opposed the application vide a replying affidavit sworn on 28th May 2018 by one Angela Kagunyi, the acting Deputy Clerk of the 3rd interested party. She deposed that the appellant was approved and vetted by the 3rd interested party, and was subsequently appointed by the 1st respondent to serve in the office of the 2nd respondent as County Executive Committee member in charge of roads, transport and public works; that after the appellant was relieved of his duties, the 1st respondent nominated one Karungo Wa Thang’wa to serve in the Ministry of Roads, Public Works and Utilities; and that the said nomination was published. It was upon this nomination that the interested parties were to be seized of the function of vetting the preferred nominee; that the vetting process is a statutory guided process with strict timelines that must be observed by the 3rd interested party; that after the name of the nominee was presented to the 1st interested party, the motion for the vetting was yet to be moved to the floor of the 3rd interested party for purposes of the 3rd interested party taking a decision capable of being challenged by way of the application, and, as such, the application was premature, malicious and unlawful because neither the 1st nor 3rd interested parties had taken any decision on the matter that was capable of being quashed by the court.

7. They further contended that they had a monopoly of exercising constitutional and statutory powers under Article 183(3) of the Constitution and section 8(3) of the County Government Act, and that no other constitutional organ could purport and/or attempt to curtail, clog, or restrain another organ while exercising its constitutional mandate; and that the court had no jurisdiction to entertain the application.

8. The trial court in its ruling held that the leave being sought would interfere with the 3rd interested party’s privilege to conduct its work, as the 3rd interested party had not in any way acted adversely against the appellant; and, that, therefore, issuing leave to seek judicial review orders against the interested parties would be tantamount to fettering their legitimate prerogative, and meddling in their duties. It consequently found that it did not have jurisdiction to entertain the application before it.

9. Aggrieved, the appellant filed the instant appeal raising two grounds of appeal in his Memorandum of Appeal dated 18th July 2018, which we duplicate as follows: that the learned Judge erred in law in holding that the effect of the leave sought would go beyond affecting the respondents into the power and privileges of the interested parties yet she had correctly held that the application before the court was hinged on the Constitution and fair administrative action and rules of natural justice and therefore the court had jurisdiction to deal with the questions raised therein; and that the learned Judge erred in law in failing to weigh all the evidence on record which would have led her to find that she had jurisdiction to consider the application before her in terms of the actions done by the 1st respondent as against the appellant and proceeded to grant leave to apply for an order of certiorari as prayed in the appellant’s application.He urges that the appeal be allowed with costs, the ruling of the learned Judge be set aside, and that leave be granted to proceed with the application to apply for an order of certiorari together with costs in the superior court.

10. When the matter came up for hearing before us on 27th June 2023, only learned counsel Mr. Mwangi K.M. for the 1st and 2nd respondents was present. He was also holding brief for learned counsel Mr. Ndegwa for the interested parties, with instructions that the appeal had already been overtaken by events. He hinged the submission on the ground that the matter relates to the national election cycle of 2017, yet another cycle had come around, being the general election of 2022, and so any orders that may be given will be in vain.

11. Mr. Mwangi on his part stated that the 1st respondent exited office even before the term of the last election cycle was over. Further, the appellant was re-appointed to the 2nd respondent, and he served as the director of the Delivery Portal; consequently, he could not be seeking reinstatement when he had already been re-appointed to a full-term service. Counsel also highlighted that the appeal seeks to challenge a discretionary decision, for which the appellant had not advanced a justification to warrant its being interfered with. To the counsel, the appeal was for dismissal, premised on two grounds: firstly, that it had been overtaken by events; and secondly, that the appellant had not demonstrated how the trial court improperly exercised its discretion.

12. Notwithstanding the above oral submission, more so that the appeal had been overtaken by events, the appellant did not apply to withdraw the appeal, consequent to which this Court was obligated to make a determination, particularly on whether the learned Judge had jurisdiction to entertain the application before her.

13. Relying on submissions dated 27th March 2019, the appellant submitted that in judicial review applications, leave is sought before filing the substantive application so as to identify and filter out claims which may be trivial, or are unmeritorious. It was submitted that though County Executive Committee members serve at the pleasure of the Governor, such pleasure should be exercised for the public good, and in line with relevant provisions of the Constitution; that the 1st respondent by relieving the appellant of his duties had demonstrated that that decision was illegal, unfair and irrational; that the application raised serious issues, thus warranting the grant of leave to file the substantive judicial review proceedings; and that the question of what reliefs were available to him ought to have been canvassed at the hearing of the substantive application. He thus urged us to allow the appeal, and that the costs thereof be borne by the respondents.

14. The respondents relied on submissions dated 4th February 2023. It was submitted that the appellant’s vacancy was already filled by the time the trial court was moved, rendering the application for leave to file judicial review proceedings and this appeal otiose; that nevertheless, the 1st respondent cannot be said to have acted arbitrarily or irrationally as he assigned reasons to his decision; that it is a common ground that the appellant was to serve at the pleasure of the Governor and he did not enjoy any security of tenure, and so the termination was neither illegal nor arbitrary; and that it was a decision taken in the interest of effective running of the 2nd respondent, and for public good.

15. The respondents further submitted that the appellant was later appointed as the head of the County delivery unit by the 1st respondent’s successor for the balance of the election cycle, hence he never remained unemployed; that the appeal is obviously overtaken by events as the term of the 1st respondent has since lapsed; that furthermore, the 1st respondent ceased to hold the office of the Governor of Kiambu County well before his term as a Governor lapsed, and, thereafter, he lacked the powers to either appoint County Executive Committee members or reinstate them; that simply stated, he is bereft of the appointing authority; and that granting leave to file judicial review proceedings in such circumstances would be an exercise in futility and contrary to public policy, as the orders would be incapable of being enforced.

16. This being a first appeal, we are cognizant that our primary role is to re-evaluate the evidence tendered before the ELRC and draw our own conclusions. This mandate is spelt out in rule 31(1)(a) of the Court of Appeal Rules thus:On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power-(a)To re-appraise the evidence and to draw inferences of fact.

17. The role of a first appellate court is also well enunciated in a plethora of cases, inter alia, the case of Peters v Sunday Post Limited [1958] EA 424, where the then Court of Appeal for Eastern Africa, stated that:“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide.”

18. We have carefully considered the appeal and the submissions made by the respective parties. It is our view that this appeal will be restricted to the determination of whether the trial court had jurisdiction; firstly, to grant leave to the appellant to file substantive judicial review application, for orders of certiorari that the appellant was seeking before it; and secondly, to entertain the entire petition as an employment and labour relations dispute. The second limb of the issue before us is drawn from the respondents’ submission that ELRC did not have jurisdiction to entertain a dispute that was not premised on an employer/employee dispute. In other words, we have to determine whether the matter was properly before the trial court before delving into other issues that were raised during the hearing.

19. As Nyarangi, JA. put it in the landmark case of Owners of the Motor Vehicle M.V. Lillians v Caltex Oil (Kenya) Limited (1989) KLR1:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

20. We will address the question of jurisdiction in twofold; firstly, whether the trial court had jurisdiction to “interfere” with the County Assembly privilege of vetting the nominee who was to replace the appellant after the appellant was terminated from employment, and secondly, whether the Employment Actapplied to the parties herein. The latter issue is informed by the fact that, although the learned Judge’s finding was a blanket downing of tool in declining to grant the leave, the judicial proceedings were filed in the Employment and Labour Relations Court. No doubt the proceedings were hinged on alleged violation of constitutional rights. To us therefore, we must draw our minds to whether the trial court was seized of jurisdiction to determine the issues that were raised in the petition, notwithstanding the likely outcome.

21. On the first limb, the learned Judge declined to grant leave, holding that it was tantamount to interfering with the powers and privileges of the 3rd interested party to carry out its mandate of vetting a nominee who would be a member of the County Executive Committee (CEC). The rationale to this reasoning was that, at the time the appellant sought leave, the 3rd interested party had been presented with the name of the proposed appellant’s replacement for vetting as a member of the CEC for Roads, Transport and Infrastructure of the 2nd respondent. The nominee had yet to be vetted, and therefore, according to the learned Judge, granting leave would have interfered with the 3rd interested party’s duty and process of vetting the nominee. She thus held that she had no jurisdiction to stop the vetting process.

22. This Court, differently constituted, in the case of Mumo Matemu v Trusted Society of The Human Rights Alliance & 5 Others [2013] eKLR held that:“It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of powers does not only prescribe organs of government from interfering with other functions. It also entails empowering each organ of government with counter veiling powers which provide checks and balances on actions taken by the other organs of government. Such powers are, however, not a licence to take over functions vested elsewhere. There must be judicial legislative and executive deference to repository of the function.[“Separation of powers must mean that the courts must show deference to the independence of the legislature as an important institution in the maintenance of our constitutional democracy as well as accord the executive sufficient latitude to implement legislative intent. Yet as the Respondents concede, the courts have an interpretive role including the last word in determining the constitutionality of all government actions”].

23. In Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR, the Supreme Court held as follows; -(84)From the facts of this case, it is clear to us that the integrity of Court orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under the Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case.”

24. The Court had earlier observed that:(63)From the course of reasoning emerging from such cases, it is possible to formulate certain principles, as follows:a.each arm of Government has an obligation to recognize the independence of other arms of Government;b.each arm of Government is under duty to refrain from directing another organ on how to exercise its mandate;c.the Courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgment;d.for the due functioning of constitutional governance, the Courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;e.in the performance of the respective functions, every arm of Government is subject to the law.”

25. A court is thus vested with the jurisdiction of determining the constitutionality of the process of appointments of the County Executive Committee members by a County Assembly. The scope of a court's jurisdiction extends to the procedural improprieties, as well as the legality of the appointment decision to determine whether it accords with the constitutional threshold. The court applies an objective test where each case is determined on its own merit. Thus, in our considered view, the trial court had jurisdiction to consider the application seeking leave to file substantive judicial proceedings. However, in so considering the application, the court should have been cognizant of the specific circumstances before it, and grant leave or decline to do so.

26. In Speaker of the Senate &anotherv Attorney General & 4 Others, Reference No. 2 of 2013; [2013] eKLR, the Supreme Court held that:“It makes practical sense that the scope for the Court’s intervention in the course of a running legislative process, should be left to the discretion of the Court, exercised on the basis of the exigency of each case. The relevant considerations may be factors such as: the likelihood of the resulting statute being valid or invalid; the harm that may be occasioned by an invalid statute; the prospects of securing remedy, where invalidity is the outcome; the risk that may attend a possible violation of the Constitution.”

27. What took the appellant to the trial court was claim of alleged infringement of his constitutional rights, and that his dismissal was tainted with unconstitutionality and impropriety. By the court pausing the actions of the interested parties, all it would have been doing was interrogating the alleged unconstitutionality and/or illegality of the actions of the respondents together with those of the interested parties. Taking into account that one of the remedies that was available was to declare their actions unconstitutional, unlawful, arbitrary and unfair, it would have defeated the purpose of the interested parties in proceeding with the vetting and appointing a new person into office. The failure to adhere and observe the express provisions of a statute or legislative instrument by which a person or public body exercises jurisdiction to make a decision would render the decision made by an organ illegal, and illegality is one of the grounds upon which a court is entitled to quash a decision.

28. On the second aspect of jurisdiction, which is whether the Employment Act applies to the parties herein, from the appellant’s appointment letter, he was appointed as a member of the County Executive Committee by the 1st respondent pursuant to Article 179(2)(b) of the Constitution and the powers conferred upon him under section 30(2)(d) of the County Government Act. The letter also provided that he could be terminated in accordance to Section 31 of the Act.

29. Article 200 (1) and (2)(c) of the Constitution provides that:1. Parliament shall enact legislation providing for all matters necessary or convenient to give effect to this Chapter.2. In particular, provision may be made with respect to —(c)the manner of election or appointment of persons to, and their removal from, offices in county governments, including the qualifications of voters and candidates;

30. Article 176 (1) provides as follows:(1)There shall be a county government for each county, consisting of a county assembly and a county executive.

31. Article 179 goes on to state that:179. County executive committees1. The executive authority of the county is vested in, and exercised by, a county executive committee.2. The county executive committee consists of—a.the county governor and the deputy county governor; andb.members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.3)……………………………………..4)……………………………………..5)………………………………………6. Members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers.7. If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2)(b) cease to hold office.

32. The above provisions bring us to the question of whether the appellant was a State officer or a public officer.

33. Article 260 of the Constitution designates the appellant as a public officer and in particular a State officer. It provides that: -public officer” means—a.any State officer; orb.any person, other than a State Officer, who holds a public office;“State office” means any of the following offices—(h)member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;

34. It is trite that a State officer has the right to be subjected to due process of the law before any position held is adversely affected. Further, we are also of the view that there existed an employer/employee relationship between the appellant and the 2nd respondent. Article 162 of the Constitution envisaged Parliament establishing a Court to hear and determine disputes relating to employment and labour relations. Parliament performed the task it was ordained to do by enacting the Employment and Labour Relations Court Act which operationalized Article 162(2), which creates the Employment and Labour Relations Court, as a court of equal status with the High Court. The jurisdiction of the Court was set out in section 12 (1) of the Employment and Labour Relations Act as follows;12. Jurisdiction of the Court1. The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—a.disputes relating to or arising out of employment between an employer and an employee; (emphasis ours)b.disputes between an employer and a trade union;c.disputes between an employers’ organisation and a trade union’s organisation;d.disputes between trade unions;e.disputes between employer organisations;f.disputes between an employers’ organisation and a trade union;g.disputes between a trade union and a member thereof;h.disputes between an employer’s organisation or a federation and a member thereof;i.disputes concerning the registration and election of trade union officials; andj.disputes relating to the registration and enforcement of collective agreements.

35. To our minds, the jurisdiction of the ELRC encompasses and includes all disputes relating to, or arising out of, employment. To reiterate this position, we can do no better than to quote this Court’s decision in County Government of Garissa & another v Idriss Aden Mukhtar & 2 others [2020] eKLR as follows:“Section 3 of the Employment Act is clear that other than the categories stated therein, the Employment Act applies to all employees employed under a contract of service and provides minimum terms and conditions of employment. Therefore, although the employment of state officers is regulated by the Constitution and relevant statutes, the Employment Act applies to them and they are entitled to rights under the Employment Act, unless the Constitution, or the relevant statute, or their contract of service provide better terms. Given the relationship between the appellants and the respondents, and the matter having been filed in the Employment & Labour Relations Court, we find nothing wrong with the learned Judge being guided by Section 49(1) of the Employment Act in awarding damages.”

36. To paraphrase Nduma, J. in Nick Githinji Ndichu v Clerk, Kiambu County Assembly &another (2014) eKLR, he had this to say:“The law is not concerned with the method of acquiring an employee, whether the person was appointed or elected. Rather, the person must; be having an oral or written contract of service; be providing a service to a real or legal person and be receiving a wage/salary for the services rendered.”

37. From the foregoing, it is our finding that though the trial court was correct in holding that it had no jurisdiction to consider the application before it in terms of the actions done by the 1st respondent as against the appellant, it erred in holding that it lacked jurisdiction on account that leave being sought would interfere with the County Assembly’s privilege to vet the new nominee.

38. Having found as above, it behooves us now to grapple with the question of what remedy lies for the appellant. We turn back to the very issues raised in the respondents’ submissions that a court does not issue orders in vain.

39. Article 179(7) of the Constitution provides that:(7)If a vacancy arises in the office of the county governor, the members of the county executive committee appointed under clause (2) (b) cease to hold office.

40. It is a fact that the 1st respondent herein vacated office before his envisaged five-year term came to an end. As a result, his deputy assumed office and was sworn in as the Governor of Kiambu County. We are now in a new election cycle, and a new Governor for Kiambu County has since taken office. If the appellant were to be successful on appeal, his reinstatement cannot under any circumstance be effected. Hence, the conclusion we arrive at is that this appeal has since been overtaken by events.

41. The respondents submitted that as at the time this appeal was filed, the appellant had been appointed by the same County Government to the position of head of County delivery unit, a position that was not disputed or rebutted by the appellant himself.

42. We also take note of the fact that the appellant and the interested parties were a no show at the hearing, which to us points at the inference that the appellant in particular is no longer interested in pursuing the appeal. What this implies is that the appeal cannot be tenable anymore, but even if it were to proceed and succeed, the victory would be pyrrhic and any orders given would be in vain. It would be of little or no relevance, and indeed an academic exercise. Judicial time is precious and should be spared for the relevant and useful tasks. This is not an appeal that warrants a substantive determination for the reason of its mootness.

43. This Court in Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] at paragraph 65, cited with approval the decision of Mativo, J. (as he then was), in Daniel Kaminja & 3 others (suing as Westland Environment Caretaker Group) v County Government of Nairobi [2019] eKLR, where the learned judge stated that:“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual practical impact…………No court of law will knowingly act in vain … a suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.

44. We can say no more than we have, and as was pronounced in the above case. In the circumstances, the appeal is hereby dismissed. Each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF NOVEMBER, 2023. D. K. MUSINGA, (P)...................................JUDGE OF APPEALH. A. OMONDI...................................JUDGE OF APPEALG.W. NGENYE- MACHARIA...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR