[2022] KEHC 10872 (KLR)

Mutua v Governor, Kitui County & 4 others; Muisyo, Acting Municipal Manager, Kitui Municipality & 3 others (Interested Parties) (Constitutional Petition 16 of 2020) [2022] KEHC 10872 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10872 (KLR)

Republic of Kenya

In the High Court at Kitui

Constitutional Petition 16 of 2020

RK Limo, J

June 8, 2022

IN THE MATTER OF THE PREAMBLE TO THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 3(1), 10, 27, 47, 56, 73, 81, 83, 88,165(3) (d) (ii) 181(1), 181(a), 181(c) 179(1), 184, 226, 232(1), 258 and 259 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF SECTIONS 8, 31, 34,35, 45 OF THE COUNTY GOVERNMENTS ACT NO 17 OF 2012 SECTION 148 AND 149 OF THE PUBLIC FINANCE MANAGEMENT ACT NO 18 OF 2012 SECTION 44 OF THE PUBLIC PROCUREMENT AND DISPOSAL ACT NO 33 OF 2015 SECTIONS 6 AND 8 OF THE PUBLIC APPOINTMENTS (COUNTY ASSEMBLIES APPROVAL) ACT NO 5 OF 2017

Between

Antony Mukula Mutua

Petitioner

and

The Governor, Kitui County.

1st Respondent

The County Secretary, Kitui County

2nd Respondent

The Kitui County Government.

3rd Respondent

The County Assembly of Kitui

4th Respondent

County Executive Committee Member for Treasury, Kitui County

5th Respondent

and

Job Muisyo, Acting Municipal Manager, Kitui Municipality

Interested Party

Min. of Lands, Infrustructure, Housing & Urban Development

Interested Party

John Mailu Kunga, Acting Chief Officer Min. Of Lands, Infrustructure Housing & Urban Development

Interested Party

Everlyne Kasyoka Musembi Acting Chief Officer, Min. Of Environment and Natural Resources

Interested Party

A county secretary does not have power to appoint county officers and county executive committees members in an acting/permanent capacity

There were no provisions in law that delegated powers granted to the county public service board to the county secretary. Appointments made by the county secretary without the involvement of the county public service board and without the vetting and approval of the county assembly were a nullity.

Reported by John Ribia

Devolution– county governments – powers to appoint the county public service – powers of the county public service board vis-à-vis the powers of the county secretary - whether the powers of the county public service board to make appointments of persons to the county public service could be delegated to the county secretary - whether a county secretary had the power to appoint county officers and county executive committees members in an acting capacity pending vetting and approval by the county assembly – Constitution of Kenya, 2010, articles 10, 179 and 232; County Government Act (Act No. 17 of 2012) sections 30(2), 35(1), 44(3) and 45. Constitutional Law– fundamental rights and freedoms – equality and freedom from discrimination – two thirds gender rule – where the appointment of county executive committee members and county chief officers in the County of Kitui was challenged for violating the two thirds gender rule - claim that the entire list of a 9 member of County Executive Committee had no female member and that out of a list of 14 County Chief Officers, only two were women - whether the appointment of Kitui County Chief Officers and members of the County Executive Committee violated the two-thirds gender rule – Constitution of Kenya, (2010), articles 27(3); County Government Act (Act No. 17 of 2012), section 35(2).

Brief facts The petition challenged the appointment of the interested parties to the positions of county chief officers and municipal manager among other county public service positions in Kitui County. The petitioner alleged that the appointments were unconstitutional and a breach of the County Government Act as they were made by the county secretary and not county public service board. The petitioner also contended that the appointment of county chief officers was done in violation of the two thirds gender rule. He stated that out of the 14 chief officers only 2 were females while the entire list of a 9 member of County Executive Committee had no female member.

Issues

Whether the powers of the County Public Service Board to make appointments to the County Public Service could be delegated to the County Secretary.

Whether a county secretary had the power to appoint county officers and county executive committees members in an acting capacity pending vetting and approval by the county assembly.

Whether the appointment of Kitui County Chief Officers and members of the County Executive Committee violated the two-thirds gender rule.

Held

State organs and State officers in all their decisions, or activities, had to reflect the national values and principles of governance stipulated under article 10 of the Constitution of Kenya, 2010 (Constitution). Any State officer/public officer had to adhere to the above guidelines if they did not want to run afoul of the Constitution.

The process of appointment of county chief officers, as provided for under section 45 of the County Government Act, entailed involvement of the county public service board which identified suitable candidates through competitive sourcing, and made recommendations to the governor, the nominees could however only be appointed by the governor upon approval by the county assembly.

It was not clear why two chief officers were appointed in acting capacity to the Ministry of Lands, Infrastructure, Housing and Urban Development within a span of four months. It was also not clear whether one replaced the other or if they were both holding the same position. However, that was neither here or there what was important was if they were properly appointed.

The powers/functions of a county secretary were provided for under section 44(3) of the County Government Act. Section 44(3) did not grant the county secretary powers to designate officers in an acting capacity pending recruitment. The county secretary in respect to appointment of county officers and county executive committees members was only required to convey the decisions to recommend appointments to the county assembly for purposes of vetting/approval or rejection.

Section 59(1) of the County Governments Act provided that it was the county public service board that had the power to make appointments of persons to the county public service. The county secretary or anyone for that matter could not bypass the county public service board when making appointments whether the appointments were temporary or not. That function was reserved to another body.

There were no provisions for appointment of the county officers and county executive committees members in acting capacity. The county secretary had no power in law to make such substantive appointments. The appointed officers occupied substantive offices and discharged substantive duties. Where one disregarded clear provisions of the law there was no place to hide.

There were no provisions in law that delegated powers granted to the county assembly (vetting and approving) to the county secretary. The County Secretary acted contrary to the values and principles of public service under article 232 of the Constitution. County secretaries were required to respect inter alia principles of equality in employment, transparency, accountability and ensure there was no discrimination in appointments or promotion.

In effect the letters of appointments signed by the office of the County Secretary purporting to appoint the interested parties to the office of Chief Officers and Municipal Manager of Kitui County were illegalities null and void. The County Secretary lacked the legal capacity to appoint them whether on temporary or permanent basis.

The 1st respondent (the Governor) and the County Secretary may have acted in good faith to address a gap that may have occurred due to some unforeseen exigencies but they had no excuse to disregard the law in the given manner. They should have moved in to address the question of lack of a county public service board through legal means instead of resorting to short cuts to circumvent the law. If the County Assembly became unruly and unreasonably thwarted all its efforts to put in place a county public service board, they should have resolved the matter politically or look for legal solutions. It was contradictory for the County Secretary to state on one hand that there were no substantive appointments and on another appoint substantive officers who discharged substantive duties.

The challenge on the process of appointment was legitimate in the face of article 10 and 179(2)(b) of the Constitution. The impugned appointments infringed both on the statute and the Constitution. No attempt was ever made to comply with the national values and principles under article 10 of the Constitution.

The impugned appointments violated the rule of law to the extent that the appointment disregarded the provisions of section 30(2), 35(1) and 45 of the County Government Act for the reasons below: There was no transparency in the impugned appointments because the vacant seats were not advertised.

There was no public participation because views from the public regarding the suitability of the officers to be appointed were not taken.

There was no accountability because the impugned decisions were unilateral.

Historically the female gender had often faced discrimination on account of their sex. That was the genesis of affirmative actions taken by Kenya and in particular during the making of the Constitution. It was no longer viable for anyone to state that the issue of gender should be considered in a progressive way.

The constitutional imperative that appointments had to be competitive and transparent under article 10 and 232 of the Constitution ensured that any qualified persons were appointed to important and sensitive public offices. The imperative ensured that the people got quality services in a transparent, accountable way. When qualified persons were employed competitively to fill vacant positions in public service the appointed persons would owe their appointment to their qualifications rather than cronyism which more often than not lead to undesired practices such as corruption. In an open democratic State that cherished the rule of law such incidents should be nipped in the bud.

The appointment of the cited officers fell short of the constitutional demands. To the extent that the impugned appointments contravened the provisions of the Constitution, the appointments were a nullity.

The impugned appointments did not take into account inclusiveness in terms of gender. The female gender was not given equal treatment contrary to article 27 of the Constitution. Had the 1st respondent involved the 4th respondent in the appointments perhaps such illegalities would have been avoided but choosing to act unilaterally and against the clear provisions of the law, the 1st respondent breached the same law and to that extent the appointments were rendered unlawful, null and void.

The High Court under article 165(3)(d) of the Constitution had jurisdiction to entertain any matter that challenged the constitutionality of actions taken by any person, State or State organ. The jurisdiction of the High Court was broad enough to cover review of the constitutionality or legality of the appointments made by public bodies including County Governments. Therefore, there was basis for the court to intervene in the interest of justice and the rule of law.

Petition allowed.

Orders

Declaration made that the appointments by the 1st and 2nd respondents of persons designated as County Chief Officers and County Executive Committee as done through letters of appointments signed by the 2nd respondent (County Secretary) was done in breach of the constitutional requirements as stipulated under article 10 and 179(2)(b) of the Constitution and statutory requirements under sections 30(2), 35 and 45 of the County Government Act.

A declaration was made that the 1st and 2nd respondents acted in contravention of the Constitution was selecting and maintaining officers that did not meet the gender principle as provided under article 10(b) and 27(8) of the Constitution.

A judicial review order of mandamus was issued directing the 1st and 3rd respondent to comply with section 45 of the County Government Act and two thirds gender rule was appointing qualified persons to offices of Chief Officers and County Executive Committee members.

An order of prohibition was issued to prohibit and or restrain the appointed officers in acting or executing their mandate until and after their appointment were duly regularized under the law.

An order of mandamus was hereby issued directing the 1st respondent to comply with the constitutional requirement and ensure that the names of the officers in acting capacity (if qualified) were placed before the County Assembly of Kitui for vetting adhering to the provisions of article 179 of the Constitution and provisions of County Government Act and Public Appointment (County Assemblies Approval) Act.

An order of certiorari was issued quashing the 1st and 3rd respondents letters of appointment in respect to Chief Officers namely Job Muisyo, Jeremia Kisilo, John Mailu Kunga & Everlyne Kasyoka Musembi (the interested parties) and appointment letters of other Chief Officers and County Executive Committee Members appointed in contravention of the law.

Costs of the petition were awarded to the petitioner.

In order not to disrupt services to the people of Kitui the judgement of was to take effect 30 days from the date of the instant judgement in order to give humble time or chance to the 1st, 3rd and 4th respondents to correct their shortcomings cited in the instant judgement.

Citations CasesKenya Ambasa, Benard v Institute of Human Resource Management & 3 others; Lilian Ngala Anyango (Interested Party) Petition E040 of 2021; [2021] eKLR - (Applied)

Anarita Karimi Njeru v Republic (No 1) Miscellaneous Criminal Application 4 of 1979; [1979] KEHC 30 (KLR); [1976-80] 1 KLR 1272 - (Explained)

County Assembly of Kitui v Governor, Kitui County Government & another; Kitui County Public Service Board & another (Interested Parties) Constitutional Petition 19 of 2020; [2021] KEHC 8557 (KLR) - (Explained)

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] 3 KLR 718 - (Explained)

Kamuru, Marilyn Muthoni & 2 others v Attorney General & another Petition 566 of 2012; [2016] eKLR - (Applied)

Koech, John Kipng'eno & 2 others v Nakuru County Assembly & 5 others Election Petition 23 & 25 of 2013; [2013] KEHC 2130 (KLR) - (Explained)

Langat, Moses Kiprotich v Kericho County Assembly Committee on appointments & 3 others Petition 12 of 2017; [2018] KEELRC 1969 (KLR) - (Explained)

Mureithi, Benson Riitho v JW Wakhungu & 2 others Petition 19 of 2014; [2014] eKLR - (Explained)

Mwangi, Maureen Muthoni & another v Speaker County Assembly of Kirinyaga & another Petition 119 of 2020; [2020] eKLR - (Mentioned)

Temoi, John Mining & another v Governor of Bungoma County & 17 others Petition 2 & 2 'A' of 2014; [2014] KEHC 5453 (KLR) - (Explained)

CanadaRepublic v Big M Drug Limited [1985] 1 SCR 295 - (Explained)Trinidad and TobagoHarrikisson v Attorney General of Trinidad & Tobago [1980] AC 265 - (Explained)StatutesKenya Constitution of Kenya (Repealed) section 77 - (Interpreted)

Constitution of Kenya, 2010 articles 3(1); 10; 27; 47; 56; 73; 81; 83; 88; 165(3)(d)(ii); 179(1)(2)(b); 181(1)(a)(c); 184, 226, 232(1), 258, 259; Chapter Six - (Interpreted)

County Governments Act, 2012 (Act No 17 of 2012) sections 8, 30(2); 31; 34; 35(2); 44(3); 45; 59(1) - (Interpreted)

Public Appointments (County Assemblies Approval) Act, 2017 (Act No 5 of 2017) sections 6, 8 - (Interpreted)

Public Finance Management Act, 2012 (Act No 18 of 2012) sections 148, 149 - (Interpreted)

AdvocatesNone mentioned

Judgment

1. Antony Mukula Mutua, the petitioner herein, has lodged this petition which was amended on September 22, 2020. The petition itself is against the Governor Kitui County, County Government of Kitui and five others. The petitioner has invoked various articles of theConstitution (article 3(1), 10, 27, 47, 56, 73, 81, 83, 88, 165(3), 181(1), 181(a) & e, 179 (1), 184, 226, 232(1), 258 and 259. He also invokes various sections of County Governments Act No 7 of 2012 (sections 8, 31, 34, 35, 45). The Public Finance Management Act No 18 of 2012 (sections 148 & 149) and, The Public Appointments (County Assemblies Approval) Act No 5 of 2017 (sections 6 and 8) in seeking the following reliefs;a.A declaration that the appointment by the 1st respondent of persons as Accounting officers, County Chief Officers and to the County Executive Committee was done in contravention of the principle of rule of law and good governance because it contravenes articles 10, 27 (8) and 232(1)(i) of the Constitution and the requirement that an appointive body should not have more than two-thirds of persons of the same gender.b.A declaration that the 1st respondent has acted in contravention of theConstitution in selecting and marinating officers that do not meet the two third gender requirement under articles 10 and 27(8) of theConstitution, appointing unqualified persons and failing to forward nominees to the County Assembly for vettingc.A declaration that the Governor by violating the requirement of article (27)(8) in regard to the composition of the executive committees has established the committees otherwise than in compliance with theConstitution directly violating the requirement of articles 10 and 27 of theConstitution and section 35 of the County Government Actd.An order of mandamus compelling the 1st respondent to comply with the constitutional gender requirement and ensure that at eight of the twenty-three appointees are of the opposite gender be and is hereby issued to ensure that only qualified appointees are forwarded to the 3rd respondent for vettinge.An order of prohibition and or restraining the nominees who are yet to be vetted and confirmed by the County Assembly from acting in their respective capacities until their selection has been duly regularizedf.An order of mandamus directing the 1st respondent to comply with the constitutional requirement and ensure that the names of the officers in acting capacities are placed before county assembly for vetting adhering with article 179(1) of theConstitution and section 35 and 45 of theCounty Government Act, section 8 of the County Government’s Actand section 6 and 8 of the Public Appointments (County Assemblies Approval) Act.g.An order prohibiting all officers who have not gone through the due process from acting as accounting officers.h.An order of certiorari calling up and forthwith quashing the 1st respondent’s letter for having nominated unqualified persons for the Chief Officers positions namely Job Muisyo, Jeremiah Kisilu, John Mailu Kunga and Everlyne Kasyoka Musembi, the interested parties herein in contravention of the principles of law and good governance and a declaration that the principles of law and good governance and a declaration that the appointment of the unqualified Accounting Officers, Chief Officers and County Executive Committee members is unconstitutional, null and void.i.An order of certiorari calling up and forthwith revoking and quashing the 1st respondent’s letter appointing officers acting as Accounting officers, chief officers and county executive committee membersj.An order of certiorari calling up and forthwith quashing all decisions and transactions made by unqualified and unapproved Accounting Officers, Chief Officers and County Executive Committee members.k.A declaration that the County Assembly acted in violation of theConstitution and section 35(2) of the County Governments Act by failing in its oversight role over the County Executive Committees and failing to vet and approve the nominees by the Governor.l.An order prohibiting the 1st, 2nd, 3rd and 4th respondents from further appointing any person to act as accounting officers, chief officers and county executive committee members without the approval of the 3rd respondent.m.An order awarding costs of the petition to the petitioner.n.Any other or further orders, writs and direction this honourable court considers appropriate and just to grant for the purpose of enforcement of the petitioner’s fundamental rights and freedoms.

The Petitioners Case 2. The basis of the petition is that the appointments made by the 1st and 2nd respondents violates the two third gender rule and further, that said appointments failed to meet the requirement of vetting by the County Assembly and finally that the appointees failed to meet required qualifications to serve in their respective capacities.

3. The petitioner further faults the 1st, 2nd and respondents for failing to uphold the two third gender rule in the appointment of the Chief Officers and members of the County Executive Committees. The petitioner states that out of a list of fourteen nominees for the Chief Officer position only two are women and that no woman was nominated to the County Executive Committee out of a list of nine nominees.

4. On the appointees’ qualification, the petitioner’s case is that several of the appointed officers are unqualified. He states that the Department of Infrastructure and Development have two unqualified persons acting as chief officers. It is his case that the Chief Officer Lands, Infrastructure, Housing and Urban Development (LIHUD) and Municipality Manager are unqualified adding that qualified candidates were instead allocated junior roles.

5. The petitioner further states that the current Chief Officers and Members of the County Executive Committees were not appointed through a competitive process.

6. The petitioner has faulted the appointment of the following persons appointed as Chief Officers (hereinafter to be referred to as ‘‘cited officers’’ for ease of reference) namely: -

Appointee Gender Chief Officer

1. Zakayo Kimanzi Male Office of the Governor

2. Kimanga Mutua Male Finance Treasury

3. Justus Makau Male Trade & Cooperation

4. Justus Makau Male Finance Planning & Budgeting

5. Geoffrey Changangu Male Health & Sanitation

6. Agnetta Peter Female Tourism, Sports and Culture

7. Songolo Mbii Male Agriculture & Livestock

8. Benjamin Kiilu Male Water

9. Christopher Syengo Male Lands & Housing

10. John Kunga Male Infrastructure Development

11. Agnes Maleva Female Basic Education

12. Clement Muguthya Male Environment & Natural Resources

7. On the part of County Executive Committee, the petitioner has listed the following officers (hereinafter to be referred to as cited offers per ease of reference) as having been appointed irregularly namely;Appointee Gender Department

1. Benard katungi Male Public Service & Administration

2. Benard Katungi Male Finance (County Treasurer)

3. Philip Mumo Male Trade and Cooperatives

4. David Kivoto Male Education, ICT & Youth Development

5. N/A Vacant Health & Sanitation

6. Patrick Koki Musau Male Tourism, Sports and Culture

7. Patrick Koki Musau Male Environment & Natural Resources

8. Emmanuel Kisangau Male Agriculture, Water & Livestock

9. Jacob Kakundi Male Lands, Infrastructure, Housing and Urban Development

8. The petitioner contends that the above lists are betrayal to equality, quality, and the principle of two third gender rule and equity which he points out is an important virtues envisaged under article 10 of theConstitution of Kenya. He further points out that the list of appointed County Executive Committee’s has no single female and faults the 1st respondent for acting discriminatively and in breach of theConstitution.

9. It is also the petitioner’s case that the 1st respondent acted in breach of the County Government Act and the Public Appointments (County Assemblies Approval) Act by allowing officers to serve in their capacities without the approval of the County Assembly as required by law.

10. The petitioner’s case received unlikely support from the 4th respondent, the County Assembly of Kitui. This court has therefore decided to include their representations together with the petitioner’s for ease of reference. The 4th respondent through a replying affidavit of George Mutua Ndotto, the Hon Speaker of County Assembly of Kitui sworn on October 16, 2020 distances itself from the actions of the 1st and 2nd respondent. He avers that the Assembly of Kitui was not a party to their actions which he terms as illegalities.

11. It adds that the 1st and 2nd respondent made impugned decisions by various appointment and/or secondments unilaterally to the exclusion of the 3rd respondent. He states that the 1st and 2nd respondent took advantage of the Covid-19 pandemic to by-pass the lawful process stipulated under the County Government Act. The Public Appointment (County Assembly) Approval Act and theConstitution of Kenya 2010 of Kenya 2010.

12. He avers that the County Assembly retains the powers and mandate to vet, approve and recommend for appointment any such names forwarded to it by the 1st respondent. The 4th respondent contends that the provisions of sections 45 & 46 were contravened by the 1st and 2nd respondents in the appointment of the cited officers.

13. He concurs with the petitioner that the public appointments made ought to have been competitive, and merit based. He avers that the stipulated requirements were not adhered to and has called for the intervention of this court in the manner and style as sought in this petition.

The Respondent’s Case 14. The 1st, 2nd and 5th respondents, have opposed to this petition through grounds of opposition dated August 18, 2020 which was in relation to the notice of motion and the petition. The 1st, 2nd, 3rd and 5th respondents also filed a replying affidavit sworn on August 20, 2020 by the County’s Secretary and Head of Public Service in opposition of this petition. The said replying affidavit was missing in the file when the court retired to write this judgement and had to halt the writing of the judgement mid-way and invited the parties to clear the air because while the 1st, 2nd and 5th respondent in their written submissions had referred to the said replying affidavit, I could not locate it. When the parties appeared before me on May 25, 2022, it was still not clear whether the replying affidavit had been filed on time or at all because, the copy provided by the 1st, 2nd and 5th respondents’ counsel was unstamped by court’s registry to show when it was filed. That notwithstanding, this court has found it just and in the interest of justice to consider the said replying affidavit with a view to determining this matter on merit as opposed to deciding it on a technicality.

15. In the replying affidavit, the County’s Secretary and Head of Public Service Mr Joshua K Chepchieng defends the impugned appointments and avers that the appointment of the cited officers was done constitutionally. He avers that the tenure of Kitui County Service Board at the time had expired and as such it could not be able to make the appointment to the cited offices and that he had the power to step in and appoint the cited officers in acting capacity.

16. He contests the allegations made that Everlyne Musembi, John Mailu Kunga and Eng Stephen Kithongo are not holders of substantive offices.

17. He avers that article 232 of theConstitution gave him powers to make the impugned appointments. He further avers that they could not make substantive appointment because efforts to appoint County Service Board was thwarted by the County Assembly.

18. The 1st, 2nd and 5th respondents maintain that it is a responsible government and has abided by the rule of law and all legal provisions in its all business. They aver that the petition is misconceived, incompetent and bad in law.

Submissions 19. The petitioner in his written submissions through counsel framed two issues which he has asked this court to determine namely:i.Whether the appointments by the 1st respondent of the cited Chief Offices and County Executive Committee were done in accordance with the law or in contravention of the statute and theConstitution and;ii.Whether the petition is merited.

20. The petitioner has attacked the 1st and 2nd respondent’s action in appointment of the cited officers basically on two grounds namely: -i.Two third gender rule.ii.The process of appointment

21. On the gender rule, the petitioner submits that the 1st, 2nd and 4th respondents have violated the gender rule in appointment of the subject County Chief Officers and County Executive Committee members (CEC). He states that out of the 14 Chief Officers only two are females while the entire list of a 9 member of County Executive Committee has no female member.He contends that the women, youth and persons with disabilities have historically been marginalized and that article 27 of theConstitution demands equality and freedom from discrimination.

22. The petitioner submits that the respondents have violated theConstitution and has sought the intervention of this court. He relies on the following authorities: -a.Marilyn Muthoni Kamuru & 2 others v Attorney General andanother [2016] eKLR. In that matter, the court was asked to interrogate whether appointments done by the President and approved by the National Assembly of persons for the positions of Cabinet Secretaries was done in contravention of article 27(8) of theConstitution. The court found that the President had acted in contravention of theConstitution and the principle of good governance in the appointment of cabinet secretaries for failing to observe the two-thirds gender rule. In its decision, the court referred to a decision by the Supreme Court of Canada in Republic v Big M Drug Limited [1985] 1 SCR 295 on purposive interpretation of theConstitution. The court held that theConstitution must be read in a manner that gives full effect to its purpose, specifically to why the two-third gender rule was provided for in the Constitution.b.Moses Kiprotich Langat v The Kericho County Assembly Committee & 3 others [2018] eKLR. In that case the petitioner applied for the position of County Executive Committee Member in charge of Education, Culture and Social Services, which he was successful. However, at the approval stage, the petitioner was found unsuitable by the Kericho County Assembly Committee for reasons that he was related to another nominee and further that he did not have experience for management of ECDE and village polytechnic. In its decision, the ELRC Court found that the reasons advanced for rejection of the petitioner’s nomination at the vetting stage were discriminatory. The court held that vetting must incorporate principles of fairness and natural justice and relied on the decision in John Mining Temoi & another v Governor of Bungoma County & 17 others [2014] eKLR where the court held a similar view.

23. On the question of the process of appointment, the petitioner submits that the current acting Chief Officers and Members of County Executive Committee were not selected through a competitive process. He also contends that there was no public participation in the process of their selection or transparency and accountability. He cites that section 45 (1) of the County Governments Act stating that the same was violated and that the process of appointment was not competitive. He relies on the case of John Mining Temoi & another v Governor of Bungoma County & 17 others [2014] eKLR where the court inter alia held;‘‘that merit and fair competition demand that those interested and selected had applied for the specific jobs.’’

24. The petitioner submits that the appointment of the cited officers was done in blunt contravention of the principle of law and good governance and that it was done with disregard of theConstitution. He asks this court to intervene and grant appropriate reliefs.

25. The 4th respondent on its part on its written submissions dated March 24, 2021 has largely supported the petitioners position and submits in summary that the 1st respondent acted in violation of theConstitution, County Government Act and Public Appointment (County Assembly) Approval Act in the appointment of the Kitui County Executive Committee and the County Chief Officers. The 4th respondent concurs that the appointment violated the two-third gender rule and the requirement for appointees to be vetted and approved by the County Assembly before appointment.

26. It submits that this court is seized with jurisdiction to entertain this matter and cites; John Kipng’eno Koech & 2 others v Nakuru County Assembly & 5 others where the court held that the High Court had the mandate to handle matter relating to contravention of theConstitution.

27. On the procedure leading to the appointments, the 4th respondent relies on the case of the County Assembly of Kitui v Governor Kitui County Government & another; Kitui County Public Service Board & another (Interested Parties) [2021] eKLR. The court in that case found that appointment of Chief Officers required approval by the County Assembly.

28. It cites the decision in Benson Riitho Mureithi v JW Wakhungu & 2 others [2014] eKLR. In that case, the petitioner challenged the constitutionality of the appointment of the chairman of the Athi Water Services Board vide Gazette Notice No 115 of January 10, 2014. The court found that theConstitution required persons appointed to any public office to meet values enshrined in chapter 6 of theConstitution. The court also stated that since there were serious unresolved questions raised with regard to the integrity of the appointee, the 1st respondent’s failure to consider those allegations prior to making the appointment was in contravention of her constitutional mandate.

29. The 4th respondent also cites Maureen Muthoni Mwangi & another v Speaker County Assembly of Kirinyaga & another [2020] eKLR; in its contention that the Covid-19 pandemic was not a good enough reason for circumventing the laid down constitutional procedures.

30. On gender disparity, the 4th respondent cites the case of; In the matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR. In that case the Supreme Court gave advisory opinion that the implementation of the two-third gender rule in theConstitution would take a progressive mode of implementation. However, the then Chief Justice Willy Mutunga held the view that implementation of the rule needed to be immediate in view of the general elections that were coming up on August the following year, 2013.

Submissions by the Respondents (1,2 &5) 31. The 1st, 2nd and 5th respondents as well as the interested parties submit that the petitioner has not provided evidence of anyone complaining that he was affected adversely by the process. They have relied on the case of Anarita Karim Njeru v Republic [1979] eKLR. The applicant in that matter sought to have her trial in the magistrates’ court nullified for the reasons that section 77 of the then Constitution had been contravened by the trial court. The applicant averred that she had been denied an adjournment to enable her call a witness. The court while dismissing the application noted the importance of a party being precise by indicating to the court how their rights have been infringed.

32. They also submit that the appointments complained of were done in acting capacity and were not substantive appointments. They aver that there was no County Public Service Board in place to make substantive appointments as the previous board’s term had lapsed. They have also contested the 2/3 question and relied on the Supreme Court’s Advisory Opinion In The MatterofThe PrincipleofGender Representationin theNational AssemblyandThe Senate [2012] eKLR on the two-thirds gender rule. They submit that the majority opinion from Supreme Court was that the 2/3 rule ought to be implemented progressively.

33. The 1st, 2nd and 5th respondents have framed the following issues for determination namely: -i.Whether the petition herein has met the constitutional threshold.ii.Whether in making what they refer as the ‘‘interim appointments’’ the second respondent acted within the spirit of the law and theConstitution.iii.Whether the appointment violated two-third gender rule.

34. The 1st, 2nd and 5th respondents submit that the petitioner has cited various articles of theConstitution of Keya but failed to set out precisely the way they were violated. They fault him for not specifically stating how the specific articles of the Constitution have been violated.

35. The respondents (1st, 2nd & 5th) also contend that there is no evidence by way of an affidavit tendered of anyone who claims to have been affected by the infringements of procedures in the appointments of Chief Officers and County Executive Committee members.

36. The respondents (1,2 and 5th) submit that the alleged infringements are statutory and not constitutional and that the allegation made by the petitioner do not amount to infringements of any right or freedom under theConstitution. They rely on the decision of Harrikisson v Attorney General of Trinidad & Tobago (1980) AC 265 where the court decried the tendency of people rushing to institute constitutional petitions alleging violation of fundamental freedoms where there was none.The respondents (1st, 2nd & 5th) and the interested parties contend that this petition falls short of the required constitutional threshold based on the above cited authority and have urged this court to dismiss it.

Determination 37. This court has considered this petition and the authorities cited. I have also considered the responses made by the respondents (1,2 & 5th) and the interested parties who have simply adopted their response.The issues for determination in this matter can be summarized into three namely;i.Whether the appointments of the cited officers (whether interim, acting or permanent by the 1st respondent was done outside the statutory and constitutional demands.ii.Whether the appointment of Kitui County Chief Officers and members of the County Executive Committee (whether on temporary basis or permanent.) violated it two-third gender rule.iii.Whether there is a constitutional question that warrants intervention by this court and grant the reliefs sought.

(i) Whether appointment of Kitui Chief Officers & County Executive Committee Members (CEC) by the 1st Respondent violated the Constitution of Kenya and Statutory Requirements. 38. The petitioner is challenging the appointment of the cited officers to the County Government of Kitui on grounds that the appointments were done without adherence to the laid down procedures in that the process was not transparent, and competitive because unqualified persons ended up being appointed.

39. It is now a requirement under theConstitution that state organs, state officers and in all their decisions, or activities, must reflect the national values and principles of governance stipulated under article 10 of theConstitution of Kenya 2010. The article States;‘‘10. (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; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; (c) good governance, integrity, transparency and accountability;’’

40. It is therefore, imperative that any state officer/public officer must adhere to the above guidelines if they do not want to run afoul of theConstitution. Before I delve on or whether the impugned appointments infringed the Constitution, it is important to first look into the process of appointments and check out if the same was done in accordance with the relevant statutes.

41. The process of appointing County Chief Officers is provided for under section 45 of the County Government Act, No 17 of 2012. It provides as follows: -‘‘Appointment of county chief officers(1)Whenever a vacancy arises in the office of a county chief officer, the respective governor shall within fourteen days(a)nominate qualified and experienced county chief officers from among persons competitively sourced and recommended by the County Public Service Board; and(b)with the approval of the county assembly, appoint county chief officers.’’ (emphasis added)

42. The process of appointment of County Chief Officers entails involvement of the County Public Service Board which identifies suitable candidates through competitive sourcing, and makes recommendations to the governor, the nominees can however only be appointed by the Governor upon approval by the County Assembly.

43. The petitioner avers that the Governor appointed the 2nd 3rd and 4th interested parties as Chief Officers in the Ministry of Lands, Infrastructure, Housing and Urban Development on September 20, 2019, Ministry of Lands, Infrastructure, Housing and Urban Development on January 21, 2020 and Ministry of Environment and Natural Resources on July 29, 2020 respectively.

44. Section 45 of the County Governments Act speaks to the appointment of a chief officer to the respective county department, it is not quite clear why two chief officers were appointed in acting capacity to the Ministry of Lands, Infrastructure, Housing and Urban Development within a span of four months. It is not clear whether one replaced the other or they were both holding the same position. That however is neither here or there what is important is if they were properly appointed.

45. In his affidavit sworn on August 20, 2020, the County Secretary Mr Joshua K Chepchieng has averred that he has powers in his capacity to designate officers in an acting capacity pending recruitment. The powers/functions of a county secretary provided for under section 44(3) of the County Government Act however does not seem grant him such powers. The section provides;‘‘The county secretary shall;a.be the head of the county public service;b.be responsible for arranging the business, and keeping the minutes of the county executive committee subject to the directions of the executive committeec.convey the decisions of the county executive committee to the appropriate persons or authorities; andd.perform any other functions as directed by the county executive committee.’’The County Secretary in respect to appointment of County Officers and County Executive Committees Members is only required to convey the decisions to recommend appointments to the County Assembly for purposes of vetting/approval or rejection.

46. The 1st, 2nd and 5th respondent’s as well as the 1st - 4th interested parties assertion is that the chief officers mentioned above were appointed in acting capacity and that the County Secretary had the power to make the appointment, (he was indeed the one who signed the letters of appointment) but as however as I have observed above the law does not grant the County Secretary power to make such appointments. Furthermore, in respect to other County Officers section 59(1) of the County Governments Act provides that it is the County Public Service Board that has the power to make appointments of persons to the County Public Service specifically. The statute provides;‘‘ 1. The functions of the County Public Service Board shall be, on behalf of the county government, to;(b)appoint persons to hold or act in offices of the county public service including in the Boards of cities and urban areas within the county and to confirm appointments…’’The County Secretary or anyone for that matter cannot bypass the County Service Board when making appointments whether the appointments are temporary or not. That function is reserved to another body as stipulated above.

47. The respondents (1, 2 & 5) claim that the appointments were temporary or that the appointed officers were engaged only on acting capacity but the reading of the above provisions clearly shows that there is not provisions for appointment of the cited officers in acting capacity. The County Secretary therefore, had no room/latitude or power in law in his capacity as the County Secretary to make such substantive appointments such as the ones he purported to make. The appointed officers occupy substantive offices and discharge substantive duties. Where one disregards clear provisions of the law there is no place to hide.

48. There are simply no provisions in law that delegates powers granted to the County Assembly (vetting and approving) to the County Secretary. The County Secretary states that they acted within article 232 of theConstitution but looking at article, it is evident that the 1st and 2nd respondent actually did contrary to the values and principles enunciated therein. They were required to respect inter alia principles of equality in employment, transparency, accountability and ensure there is no discrimination in appointments or promotion.

49. In effect the letters of appointments signed by the office of the County Secretary (Dr Joshua Chepchieng) purporting to appoint the officers to the office of Chief Officers and Municipal Manager of Kitui County were illegalities null and void. The said officer (County Secretary) lacked the legal capacity to appoint them whether on temporary or permanent basis. The 1st respondent and the County Secretary may have acted in good faith to address a gap that may have occurred due to some unforeseen exigencies but they had certainly had no excuse to disregard the law in the given manner. They should have moved in to address the question of lack of a County Service Board through legal means instead of resorting to short cuts to circumvent the law. A court of law cannot condone such actions. If the County Assembly became unruly and unreasonably thwarted all its efforts to put in place Public Service Board, they should have resolved the matter politically or look for legal solutions. I also find it contradictory for the 2nd respondent to state on one hand that there were no substantive appointments and on another appointed substantive officers who discharged substantive duties.

50. The respondents (1,2 & 5) claim that there was no infringements of theConstitution in the impugned appointments made.That contention however appears unfounded in light of clear constitutional provisions cited by the petitioner.Article 179(2) of theConstitution deals with the composition County Executive Committee’s and how the positions are filled. The article provides;‘‘(2)The county executive committee consists ofa.the county governor and the deputy county governorb.members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly. (emphasis added).’’

51. The County Governor, through the County Secretary with the approval of the County Assembly, appoints members of the County Executive Committee.

52. Section 30(2) of the County Government Act provides;Subject to theConstitution, the governor shall-(a)Diligently execute the functions and exercise the authority provided for in theConstitution and legislation:(d)Appoint, with the approval of theCounty Assembly, the county executive committee in accordance with article 179(2)(b) of theConstitution;…..(Emphasis added)

53. Section 35 of the same Act further states as follows:-‘‘35(1)the governor shall, when nominating members of the executive committeea.ensure that to the fullest extent possible, the composition of the executive committee reflects the community and cultural diversity of the county andb.take into account the principles of affirmative action as provided for in the Constriction.’’

54. The petitioner’s challenge on the process of appointment of the 8 members nominated to County Executive Committee is legitimate particularly in the face of the provisions of article 10 and 179(2)(b) of theConstitution. It is therefore, clear that the impugned appointments infringed both the statute and theConstitution.The questions posed is, was the recruitment/appointment process transparent, and accountable? Did the 1st respondent when appointing the County Executive Committee Members take into consideration the rule of law and participation of the people of Kitui and beyond through for example adverts inviting people’s views? The answers to those questions are partly answered by the 4th Respondent who states that they were not involved. What is more glaring however is that going by the replying affidavit filed by the County Secretary it’s obvious that no attempt was ever made to comply with the principles articulated under article 10 of theConstitution of Kenya.

55. The impugned appointments violated the rule of law to the extent that the appointment disregarded the provisions of section 30(2), 35(1) and 45 of the County Government Act as cited above for the following reasons namely;i.There was no transparency in the impugned appointments because the vacant seats were not advertised.ii.There was no public participation because views from the public regarding the suitability of the officers to be appointed were not taken.iii.There was no accountability because the impugned decisions were simply unilateral in all aspects whichever way one looks at it.

56. It is not disputed that historically in this country like many other places in the world, female gender has often faced discrimination on account of their sex. That is the genesis of affirmative actions taken by Kenya and in particular during the making of the new Constitution of Kenya 2010. The decision in Marilyn Muthoni Kamuru (supra) is relevant here. Having made the strides this country has made over the gender question it is no longer viable at this time for anyone to state that the issue should be considered in a progressive way.I find the argument especially coming from the 1st respondent a bit odd because she should be indeed an inspiration to the female gender by championing the two third rule but I will leave it at that.

57. It is also important to say something regarding the requirements that appointment such as the subject matter herein should be competitive and transparent. This constitutional imperative (under article 10 & 232) ensures that any qualified persons are appointed to important and sensitive public offices. The reasons behind that is to ensure that the people get quality services in a transparent, accountable way (see John Mining Temoi & another, (supra). When qualified persons are employed competitively to fill vacant positions in public service the appointed persons would owe their appointment to their qualifications rather than cronyism which more often than not lead to undesired practices such as corruption. In an open democratic state that cherishes the rule of law such incidents should be nipped in the bud.

58. This court having gone through the response made by the respondents in this petitions finds that the appointment of the cited officers fell far short of the constitutional demands. To the extent that the impugned appointments contravened clear provisions of theConstitution, the said appointments were nullity and I find them so.

(ii) Whether The Two Third Gender Rule Was Adhered 59. This perhaps the most glaring illegality in the impugned appointment particularly the appointment of Eight (8) County Executive Committee (CEC) Members. Section 35(2) of County Government Actprovides as follows: -‘‘The County Assembly shall not approve nominations for appointment to the Executive Committee that do not take into account;a.Not more than two thirds of either gender.b.Representation of the minority groupsc.Community and cultural diversity within the County.’’ (Emphasis added)The above provisions are in tandem with the constitutional provisions under article 10 and 27 of theConstitution of Kenya. This court finds that the impugned appointments did not take into account inclusiveness in terms of gender. The female gender was not given equal treatment contrary to article 27 of theConstitution of Kenya. Had the 1st respondent involved the 4th respondent in the appointments perhaps such illegalities would have been avoided but choosing to act unilaterally and against the clear provisions of the law, the 1st respondent breached the same law and to that extent the appointments were rendered unlawful, null and void.

(iii) Whether This Petition Raises Any Constitutional Question To Warrant Intervention By This Court 60. The 1st, 2nd, & 5th respondent have responded that this petition does not raise any constitutional issue and/or that the petition is nonspecific on what rights have been infringed but a perusal on the petition and the affidavits filed show that the actions by the 1st, 2nd and 5th respondents in the appointment of the cited officers not only infringed the cited statutes but theConstitution as well. The petitioner has of course cited various provisions in constitution but having gone through the various articles cited, I find that the impugned appointment disregarded the provisions of article 10(2) & 179(2)(b) of the Constitution. This court under article 165(3)(d) has jurisdiction to entertain any matter that challenges the Constitutionality of actions taken by any person, State or State organ. Article 165(3) provides;‘‘Subject to clause (5) the High Court shall have – (d)Jurisdiction to hear any question respecting the interpreting of this Constitution, including the determination of;ii)the question whether anything said to be done under the authority of this Constitution or of any law in inconsistent with or in contravention of this constitution.’’

61. The 2nd respondent vide his replying affidavit justified the impugned appointments and as observed cited article 232 of theConstitution as what gave it power to make the impugned appointments.Article 232 as I have observed above, related to values and principles expected in the public service and includes high standards of professional ethics, transparency and accountability among other but of significance is that the same article provides that persons appointed to the Public Services must be accorded equal opportunities whether they are men or women or people with disabilities. When you look at the impugned appointments you would easily notice that, that threshold is not met.

62. The jurisdiction of this court is broad enough to cover review of the constitutionality or legality of the appointments made by public bodies including County Government.

63. In Bernard Ambasa v Institute of Human Resources Management & 3others [2021] observed as follows;‘‘The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of theConstitution itself: if regard is had to the provisions of……… Constitution, constitutional inconsistent with theConstitution, as well as issues concerning the status, powers and functions of an organ of State…the interpretation, application and upholding of theConstitution are also constitutional issues? So too… is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights.’’In the face of the above cited constitution provision and the above authority this court finds that it is well placed to entertain and determine this matter.

64. This court, finds that given the circumstances obtaining there is basis for this to intervene in the interest of justice and the rule of law. Kenya is now emerging as one of strong open democracies in the world that cherishes the rule of law thanks to theConstitution of Kenya 2010. In that Constitution Kenyans while recognizing the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law enacted for themselves and future generations theConstitution of Kenya 2010. There is no other way other than to abide by those aspirations well captured in the preamble of our Constitution.This court has said enough. The long and short of it is that this court finds merit in this petition. The same is hereby allowed on the following terms.a.A declaration is hereby made that the appointments by the 1st & 2nd respondents of persons designated as County Chief Officers and County Executive Committee as done through letters of appointments signed by the 2nd respondent (County Secretary) was done in breach of the constitutional requirements as stipulated under article 10 & 179(2)(b) of the Constitution and statutory requirements under sections 30(2), 35 and 45 of the County Government Act.b.A declaration is hereby made that the 1st and 2nd respondents acted in contravention of the Constitution is selecting and maintaining officers that do not meet the gender principle as provided under article 10(b) and 27(8) of theConstitution.c.A judicial review order of mandamus is hereby issued directing the 1st and 3rd respondent to comply with section 45 of the County Government Act and two third gender rule is appointing qualified persons to offices of Chief Officers and County Executive Committee members.d.An order of prohibition is hereby issued to prohibit and or restrain the appointed officers in acting or executing their mandate until and after their appointment are duly regularized under the law.e.An order of mandamus is hereby issued directing the 1st respondent to comply with the constitutional requirement and ensure that the names of the officers in acting capacity (if qualified) are placed before the County Assembly of Kitui for vetting adhering to the provisions of article 179 of theConstitution and provisions of County Government Act and Public Appointment (County Assemblies Approval) Act.f.An order of certiorari is hereby issued quashing the 1st and 3rd respondents letters of appointment in respect to Chief Officers namely Job Muisyo, Jeremia Kisilo, John Mailu Kunga & Everlyne Kasyoka Musembi the interested parties herein and appointment letters of other Chief Officers and County Executive Committee Members appointed in contravention of the law.g.Cost of the petition to the petitioner.h.In order not to disrupt services to the people of Kitui the judgement of this court shall take effect 30 days from the date of this judgement in order to give humble time or chance to the 1st, 3rd and 4th respondents to correct their shortcomings cited in this judgement.

DATED, SIGNED AND DELIVERED AT KITUI THIS 8TH DAY OF JUNE, 2022. HON JUSTICE RK LIMOJUDGE