[2022] KEHC 13699 (KLR)

Musyoka & another v County Public Service Board, Kitui County & 4 others (Constitutional Petition E002 of 2021) [2022] KEHC 13699 (KLR) (4 March 2022) (Judgment)

Neutral citation: [2022] KEHC 13699 (KLR)

Republic of Kenya

In the High Court at Kitui

Constitutional Petition E002 of 2021

RK Limo, J

March 4, 2022

IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS OF FUNDAMENTAL RIGHTS UNDER ARTICLES 10 AND 201 OF THE CONSTITUTION OF KENYA, 2010

Between

Peter Makau Musyoka

1st Petitioner

Mike Muli Munyao

2nd Petitioner

and

County Public Service Board, Kitui County

1st Respondent

County Assembly Of Kitui

2nd Respondent

County Executive Committee Member County Treasury, Kitui County

3rd Respondent

The Controller Of Budget

4th Respondent

The Attorney General

5th Respondent

Judgment

1. Peter Makau Musyoka and Mike Muli Munyao, the petitioners herein, who state are residents of Kitui County have petitioned this court for the following reliefs/orders namely: -i.That an order of certiorari does issue to recall to this court and quash the Notice of the Respondents dated 26/8/2019 and any other subsequent notice either formal or verbal calling the ex-parte applicant to appear before the disciplinary tribunal or disciplinary process or the Respondents pursuant to the allegations of sexual harassment contained in Mwingi Senior Resident Magistrate’s Court Criminal Case (SO) No 12 of 2019. ii.That an order of prohibition does issue prohibiting the Respondents from subjecting the ex-parte applicant to any disciplinary process pursuant to the allegations of sexual harassment contained in Mwingi Senior Resident Magistrate’s Court Criminal Case (SO) No 12 of 2019iii.That costs of the application be provided for.

2. The Petitioners have sued Kitui Public Service Board the 1st Respondent and the Other 4 named respondents on the basis of their respective constitutional and statutory mandates.

3. The gist of the Petitioners case is that the 1st Respondent has contrary to the law never developed an approved staff structure and has advertised in the Daily Nation and Star Newspapers of May 11, 2021 and July 22, 2021 respectively, vacancies for various positions within the County including 17 posts for County Officers.

4. The Petitioners challenge the decision of hiring additional county staff because in their view the recruitment will balloon the 1st Respondent’s budgetary allocation for personnel emoluments beyond the 35% limit set by regulation 25(1) (b) of the Public Finance Management (County Government) Regulations, 2015(hereinafter to be referred to as PFM Regulations, 2015 for ease of reference).

5. The Petitioners fault the 4th Respondent for failing to discharge its constitutional mandate of ensuring that the recommendations she issued regarding the 1st Respondent’s budgetary allocation for personnel emolument were adhered to.

6. The Petitioners argue that the 1st Respondent’s actions of establishing new offices is unconstitutional, an illegal, null and reckless because too much public resources are going towards sustaining the bloated wage bill at the expense of development programs in the County of Kitui.

7. In their written submissions made through learned counsel M/s JM Muthami & Co Advocates, the Petitioners contend that the crust of their case is a challenge to their intended recruitment of amongst other staff, 19 extra Chief Officers in the County Government of Kitui.

8. They submit that the impugned recruitment is being challenged because it contravenes the constitutional requirement on prudent and responsible use of Public Finances as stipulated under article 201(d) and (e) of theConstitution and the provisions of Public Finance Management Act, 2012 (hereinafter to be referred to as PFM 2012) and regulation 25 (i) (b) of PFM Regulations 2015.

9. The petitioners aver that the 1st Respondent proceeded with the appointments despite issuance of a warning by the 4th Respondent that it had surpassed the set limit of funds allocated to personnel emoluments in its budget estimates.

10. They aver that the 3rd Respondent in her letter dated June 14, 2021, had undertaken to curb high wage bill and following that the County Treasury had frozen further employment by County Ministries as well as engaging casuals across the Ministries but despite that, they claim that the 1st Respondent has been busy recruiting new staff which they aver has pushed the wage bill to 37. 5% of the County’s budget which in their view, surpasses the Constitutional ceiling of 35%.

11. The petitioners contend that the recruitment is unjustified and amounts to wasteful expenditure of Public funds and would result in duplication of roles and functions.

12. They have asked for the intervention of this court through the prayers sought in this petition and have invoked the powers of this court under article 23 and 165 of theConstitution of Kenya 2010.

13. The 1st Respondent’s CaseThe 1st Respondent has opposed this petition through a replying affidavit sworn on September 24, 2021 by its Chairperson Dr Florence Munane Malombe Makindi.

14. The 1st Respondent avers that when it comes to making appointments to the County Public Service, it works on the request of County Chief Executive, the Clerk of the County Assembly or on its motion and that in this case, it received a letter dated July 9, 2021 from the County Secretary and Head of Public Service indicating that there were vacancies within the County Public Service which the County Executive intended to fill adding that there was availability of personnel emoluments (PE) in the budget to cater for the said appointments.

15. That upon receipt of the letter, the 1st Respondent responded on July 13, 2021 and raised various issues particularly on guidelines and implementation of the financial year budget 2021/2022 and that the County Secretary together with the Head of Public Service responded the same day advising the 1st Respondent that there was allocated funds for the purpose.

16. The 1st Respondent insists that it got approval from 3rd Respondent (County Treasurer), that the recruitment of new staff was within its budget and that it was on that basis that it placed advertisement on the newspapers.

17. It further claims that there was a consultative meeting between its board and the second respondent through its Labour and Social Welfare Committee where it claims it answered all issues of concern to the satisfaction of the said committee of the House who according to them gave its green light to the recruitment process.

18. The 1st Respondent avers that there was a need to fill vacant positions within the county public service with qualified personnel following a recommendation for the same by the Directorate of Public Service Management.They fault the petitioners for rushing to court instead of first raising the issue with them.

19. In its written submissions through its counsel M/s Kimanthi and Associates, the 1st Respondent contends that the Petitioners are unclear on what they mean by ‘‘extra Chief Officers’’. It submits that as a statutory body it is mandated to establish, abolish or appoint persons to hold offices within the County Public Service. They fault the petitioners for unnecessarily trying to interfere with its work and mandate under Section 59 & 60 of the County Government Act.

20. The 1st Respondent faults the Petitioners for filing the Petition without seeking clarification on why there was a need to recruit Chief Officers. They further submit that the Petition does not demonstrate how the recruitment supersedes the County budget or the personnel emolument Cap of 35%. Finally, that the recruitment was justified and aimed at optimizing service delivery in the County.

21. The 2nd Respondent’s Case.For the record, the 2nd respondent did not file any formal response other than the written submissions made through Counsel M/s Gladys Mwendwa and dated February 22, 2022.

22. The 2nd Respondent contends that the reliefs sought against it are misconceived because its role under the law is not to recruit but only approve or disapprove nominees to occupy offices created by law. They submit that creation of those offices is beyond its mandate. It reiterates that its mandate is to undertake oversight, legislate and approve nominees for appointment to different County Offices.

23. The 3rd Respondent’s CaseThe 3rd Respondent (County Executive Committee Treasury) has also opposed this petition through a replying affidavit of Ben Katungu sworn on October 18, 2021.

24. The 3rd Respondent avers that the budget process is a continuous process involving more than one institution and that the exercise is closely monitored by the 4th Respondent (The Controller of Budget).

25. He faults the petitioners for exhibiting only one letter from the 4th Respondent raising budgetary concerns regarding personnel emoluments surpassing 35% limit set by regulation 25(i) (b) of PFM Regulations 2015. The 3rd Respondents claims that there were other communications over the issue.

26. He avers that his office submitted draft budget estimates to the 4th Respondent and vide a letter dated June 10, 2021, the 4th Respondent issued advice to the County on its budget estimates. He avers that the budget estimate submitted to the 4th Respondent was merely a draft budget.

27. He claims that his office wrote to the 4th Respondent on August 4, 2021 and clarified on the query on Source Revenue Projection of approximately one billion and further that the County was increasing money for development and decreasing the wage bill below 35%.

28. He further avers that the 4th Respondent wrote back to his office advising the County Government to monitor its performance to avoid a deficit in its budget.

29. The deponent justifies the recruitment stating that the county is in a position to engage the staff due to County’s own generated revenue.

30. The deponent has faulted the Petitioners for filing the Petition prematurely stating that appointment of Chief Officers is still subject to approval by the County Assembly and it is yet to be done. Further, that the Petitioners have filed the draft estimates of budgetary allocations and not the actual approved budget and supplementary budget leaving the court to speculate on whether the wage bill in the actual budget surpasses the set statutory limit.

31. The 4th Respondent, through an affidavit of Dr. Margaret Nyakango sworn on October 13, 2021, has denied failing to discharge its duties and mandate pursuant to article 228 of the Constitution of Kenya 2010 and the Controller of Budget Act, 2016.

32. The 4th Respondent has pointed out that her role is to oversight and monitor the use of public funds with a view to reporting back to parliament on the utilization of funds in order to promote accountability and prudent use of public resources. It further points out that her other roles are; controlling role (authorizing withdrawals from Public Coffers including Consolidated Funds County Revenue Funds, and Equalization Fund), reporting role, advisory role, investigative role, Dispute resolution role, Public Sensitization role, monitoring role and enforcement of budget ceilings role.

33. The 4th respondent concedes that in the fulfilment of the above roles, she is guided by article 1, 3, 10, 73, 20,228 and 249 of theConstitution of Kenya, the Controller of Budget Act, 2016as well as PFM 2012.

34. The Controller of Budget avers that since one of its constitutionally mandated roles entails providing advice to National and County governments on financial matters, the Kitui County Executive Committee Member of Finance (CECM-F) submitted a draft budget estimate of Kitui County on May 18, 2021. She states that her office reviewed the budget estimates for the Financial Year 2021/2022 and noted that the County had allocated 37. 5%% of its budget to personnel emolument which was contrary to regulation 25(1) of the PFM (County Government) Regulations 2015 which set a ceiling on County Government expenditure on wages and benefits at 35% of its total revenue.

35. She adds that in the exercise of its advisory role, her office wrote the county on 10th June 2021 and notified it that there was a possibility of unrealistic Own Source Revenue (OSR) target and that the County wrote back to her office on June 14, 2021 stating that it had employed new strategies of raising revenue adding that was a result of an increase in demand of health care staff and annual salary increment. She contends that to curb the high wage bill the County Treasury had issued directive freezing further employment.

36. The 4th Respondent has further deposed that upon receipt of the County’s response, her office issued further advisory on the two items as follows; that although the county had potential of raising the projected revenue it needed to monitor the Own Source Revenue (OSR) performance and with regard to on the exceeded wage bill, her office advised the county to ensure compliance with the legal limit of expenditure on personnel emoluments.

37. She avers that her office did not fail to perform her constitutional mandate as it identified the County’s non-compliance with the law after reviewing its budget estimates. Further, that the Petitioner’s prayer seeking to prohibit her office from approving budgetary allocations or withdrawals from the County Revenue fund for the newly recruited staff would be going against employment law as the persons recruited are entitled to a salary. She avers that the only remedy available to Petitioner would be an order stopping recruitment.

38. In her written submissions through Learned Counsel M/s Emily Njiru, the 4th Respondent remains non-committal on the issues at hand which are whether the recruitment done by the 1st Respondent breached the law and the regulations in place. All she contends is that when the estimates of Kitui County landed on her office she noticed that the County had allocated up to 37. 5% in respect to personnel emoluments contrary to regulations 25(1) of PFM Regulations 2015 which sets the ceiling at 35% of the County’s total revenue. She contends that she advised the County Government in respect to the said non-compliance. She submits that any further recruitment should factor in the ceiling set by law and that it was on that understanding that the County Government of Kitui wrote to her office indicating that it was freezing further employment.

39. The 5th (Attorney General) Respondent’s CaseThe fifth Respondent through Gracie Mutindi, Senior State Counsel opposed this petition through grounds of opposition dated September 13, 2021.

40. The Attorney General points out that creation of any new public office within the County Service Board and the appointment of persons to hold or act in such offices is a mandate solely vested on the 1st respondent under section 59 of County Governments Act No 17 of 2012.

41. The Attorney General further points out that the power vested upon the 1st Respondent to make appointment in the County Public Service is exercisable either at the request of the relevant Chief Officer of department to which the appointment is to made, or at the request of the clerk of the County Assembly or on its own motion on account of best interest of the County Public Service and Party of treatment of Public Officers taking into account circumstances of each case but considering the standards, values and principles set out in articles 10, 27(4), 56(c) and 232 (1) of theConstitution of Kenya.

42. The 5th Respondent contends that filling of a vacancy in the office of a County Chief Officer is anchored in the County Governments Act and does not require public participation.

43. The 5th Respondent further contends that the petitioners have failed to demonstrate how respondents have breached the Constitution and/or failed in their constitutional obligations.

44. This court has considered this petition and the petitioners case. I have also considered the response made by all the respondents and their respective submissions for those who chose to file them. There is only one issue that has cropped up in this matter and that is whether the recruitment and/or advertisement for recruitment made by the 1st Respondent on May 11, 2021 and July 22, 2021 was done contrary to the dictates of theConstitution, the County Governments Actand the Public Appointments (County Assemblies Approval) Act No 5 of 2017. )

45. This Court has looked at the evidence presented by the petitioners. The Petitioner Case in my view is hinged on the budget estimate forwarded by County Government of Kitui to the 4th Respondent for review and approval. That budget took into account the percentage of the personnel emoluments including that of fresh recruitments to be carried out in that financial year.

46. The petitioners are challenging the process of recruitment of more County Chief Officers for the simple reason that the same is likely to increase and surpass the set ceiling of personnel emoluments of 35% of the total budget.

47. Section 107 (1) of the PFM Act 2012, provides as follows: -“A County Treasury shall manage its Public Finances in accordance with the principles of fiscal responsibility set out in submission (2) and shall not exceed the limits stated in the regulations.’’Regulation 25(1) (a) and (b) of the PFM (County Government) Regulations 2015 provide as follows: -‘‘In addition to the fiscal responsibility principles set out Section 107 of the Act, the following fiscal responsibility Principles shall apply in the management of Public finances: -a)The County Executive Member with the approval of the County Assembly shall set a limit on the County government’s expenditure on wages and benefits for its public officers pursuant to Section 107(2) of the Act.b)The limit set under paragraph (a) above shall not exceed thirty-five (35) percent of the County government’s total revenue…………………..’’

48. The law is therefore, clear as clearly stipulated above on how public finances should be managed in respect to recurrent expenditure. Fiscal discipline is required of those in charge which begs the question who is in charge? The answer to that question in my view brings out the elephant in the room in this matter.

49. To clearly understand the trajectory of that position, it may perhaps be of help if we consider the role of the 1st Respondent visa viz the role of County Government.

50. While it’s true that the responsibility or mandate of managing public finances to ensure that the same is in accordance with the principles of fiscal responsibility and ensuring it does not exceed set limits is granted to the County Treasury headed by County Executive Committee County treasury. The appointment of those County Executive Committees is the mandate of the Governor with of course the approval of County Assembly going by the provisions of article 179(2) (b) of theConstitution of Kenya and section 30 (1) (d) of the County Governments Act, 2012.

51. The County Executive Members (CECs) are answerable to the Governor of Course they are bound by the law and theConstitution but they serve at the pleasure of the head of the County Executive who is the Governor. The Governor plays a key and critical role in the establishment of the County Officers.

52. A further look at establishment of County Public Service Board under Section 57 & 58 of the County Governments Act, 2012shows that the Chairperson of the County Public Service Board indeed all its members are appointed by the Governor with the approval of the County Assembly. It is quite apparent therefore that the person who calls the shots in the County Public Service Board is the County Executive headed by the Governor.

53. The provisions of section 59 of the County Governments Act are patently clear. The Public Service Board function and acts on behalf of the County Government. My reading of article 179 (1) of the Constitution of Kenya bring the point home. It states: -‘‘The executive authority of the County is vested in and exercised by a County Executive Committee.’’Subsection (2) goes ahead to give what comprises the executive arm of County Government asa)The Governor and the Deputy Governor.b)Members appointed by the governor, with approval of the assembly.

54. From the foregoing, the question as to whether the 1st respondent or the 3rd Respondent acts in isolation particularly in regard to matters employment is brought to rest. The petitioners have faulted the 1st Respondent and the 3rd Respondent for intention and/or appointment of inter alia 17 extra Chief Officers but provisions of section 45(1) of theCounty Governments Act 2012, gives the mandate to appoint the Chief Officers in a County. to the Governor with the approval of the County assembly.

55. It is quite apparent therefore, that while the petitioners may have legitimate concerns regarding the breaching of the law and in particular section 107 of the PFM 2012, their action in seeking redress is akin, I am afraid, to a parable told in many African tribes (hunters) and in particular the Kalenjin, of a hunter who goes hunting for an antelope for a meal but in the bush he stumbles upon a fox and instead of concentrating on his mission of hunting the antelope he waste his arrows shooting a fox and in the end even if he manages to shoot down the fox the question as to whether he and his family will get a meal is anyone’s guess.

56. The petitioners here by opting to leave out the County Government of Kitui in this petition and instead choosing to go after the 1st and 3rd Respondents is what the English people call a red herring but in our own situation the tale I have narrated above, would perhaps make more sense.

57. This court finds that the concerns brought out by the petitioners are legitimate because the 4th Respondent despites sounding like it is sitting on the fence in this matter appears to express the same concerns because going by the affidavit of Dr Margaret Nyakango sworn on October 13, 2021 under paragraph 11 thereof she clearly states that the County Government of Kitui (Not the named respondents herein) allocated 37. 55% to personnel emolument contrary to regulations 25(1) (b) of the PFM (County Government) Regulations 2015 which sets the ceiling of such expenditure to 35%. There is no doubt therefore, that the petitioners in this matter had valid and good intentions of putting the County Government to account but in their enthusiasm to do so unfortunately went for the ‘‘red herring’’ or the ‘‘fox’’ instead of the ‘‘real antelope’’. The result of such misadventure unfortunately cannot be fruitful as illustrated above.

58. This court is alive to the fact that one is tempted to ask why this court is not minded to look at the substance of the issues raised here rather than the form given the dictates of article 159 (2) (d) of theConstitution of Kenya 2010 but there is a fundamental question that must be addressed. That question touch on a substantive party who has not been sued. There is no way a court can be moved to issue adverse orders against a party who has not been sued and secondly, someone who has not been given a chance to be heard. A right to be heard is entrenched and protected under article 25 (c) of theConstitution of Kenya 2010. That right cannot therefore, be ignored by this court.

59. This court has said enough to show that despite its well-intended purpose, the petition herein in the manner presented is unsustainable. The same is incompetent and the only option open to this court is to strike it out but for the reasons I have stated above I will make no order as to costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 4TH DAY OF MARCH, 2022. HON JUSTICE RK LIMOJUDGE