[2024] KEHC 10991 (KLR)

Mwangaza v County Assembly of Meru (Petition E013 of 2024) [2024] KEHC 10991 (KLR) (19 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10991 (KLR)

Republic of Kenya

In the High Court at Meru

Petition E013 of 2024

EM Muriithi, J

September 19, 2024

IN THE MATTER OF ARTICLES 1, 2, 3, 4, 10, 19, 20, 21, 22, 23, 24, 165, 174, 175, 176, 195, 258 AND 259 OF THE CONSTITUTION AND IN THE MATTER OF VIOLATION OF ARTICLES 38, 47 & 48 OF THE CONSTITUTION AND IN THE MATTER OF COUNTY GOVERNMENTS ACT, NO. 17 OF 2012 & SECTION 18(1) OF THE COUNTY ASSEMBLIES POWERS AND PRIVILEGES ACT, 2017 (NO. 6 OF 2017) AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS, PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF EXCESSIVE AND ILLEGAL EXERCISE OF POWERS BY THE COUNTY ASSEMBLY OF MERU AND IN THE MATTER OF IMPEDING INFRINGEMENT AND CONTRAVENTION OF CHAPTERS ONE, TWO, FOUR, EIGHT AND TEN; AND PARTICULARLY ARTICLES 1(1) AND 93 OF THE CONSTITUTION OF KENYA ON THE APPLICATION OF THE DOCTRINE OF “SEPARATION OF POWERS” OF THE ORGANS OF THE STATE

Between

Hon. Kawira Mwangaza

Petitioner

and

The County Assembly of Meru

Respondent

Ruling

1. A Notice of Preliminary Objection dated 21/7/2024 and a further Notice of Preliminary Objection dated 6/8/2024 were taken out by the Respondent on the grounds that:1. Binding precedent forbids this Honorable Court from granting the reliefs sought in the Application and the Petition (c.f the Judgment in Justus Kariuki Mate & Another v Martin Nyaga Wambora & another, Supreme Court Petition No. 32 of 2014 and the Ruling in Hon. Kawira Mwangaza v County Assembly of Meru, Court of Appeal (Nyeri) Civil Application No. E093 of 2023).2. The Application and the Petition effectively seek, under the guise of judicial review, the judicial emasculation of constitutionally ordained accountability mechanisms and processes.3. This Honorable Court is not the constitutionally ordained forum for interrogating the merits, demerits, veracity or falsity of the allegations outlined in the impeachment motion.4. The Application and the Petition offend the doctrine of justiciability (specifically, the ripeness and separation of powers limbs of the doctrine).5. Given the matter set out in paragraphs 1 to 4 above, this Honorable Court has no jurisdiction , at the moment, to issue the prayers sought in the Application and the Petition.6. The Application and the Petition do not disclose any or any reasonable justification for judicial intervention in inchoate legislative/impeachment processes. Specifically, the Application and the Petition do not meet the legal threshold set in Anarita Karimi Njeru v Republic, High Court (Nairobi) Miscellaneous Criminal Application No. 4 of 1979. 7.Such other, further or incidental objection(s) as may emerge or be canvased at the hearing of the Application.

2. The Respondent, vide its written submissions and further written submissions dated 21/7/2024 and 24/7/2024 respectively urges that the Petition invokes rhetorical and omnibus constitutional provisions that are allegedly violated but solely lacking in particulars thus falling short of the threshold established in Anarita Karimi Njeru v Republic (1979) eKLR and augmented by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance (2013) eKLR, that a Petitioner who alleges violation of a constitutional right must precisely plead the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it. It urges that the Petition, as drafted has not demonstrated, with any reasonable degree of precision, the rights, fundamental freedoms or constitutional provisions, if any, that it has allegedly breached and how it has breached them. It urges that the Petition and the Application are injusticiable and premature for want of ripeness, which requires that the factual claims underlying the litigation must be concretely presented and not based on speculative future contingencies. Further, the doctrine of ripeness and mootness are counterpoises of each other, and it is a remarkably tortuous, reckless and outrageous misreading of the Constitution for the Petitioner to invoke the process of this Court at this stage in view of an inchoate legislative/impeachment process. Consequently, this honorable court’s jurisdiction to entertain the application and the Petition is expressly ousted by the Supreme Court in Justus Kariuki Mate & Another v Martin Nyaga Wambora & another (2017) eKLR and the Court of Appeal in Hon. Kawira Mwangaza v County Assembly of Meru, Court of Appeal (Nyeri) Civil Application No. E093 of 2023, that courts cannot in the first instance intervene in the impeachment of the Petitioner by using the kind of prayers sought because of the strict timelines involved in impeachment proceedings. It urges that this court is not the constitutionally ordained forum for interrogating the merits, demerits, veracity or falsity of the allegations outlined in the impeachment motion, and cites Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others (2014) eKLR. It urges that there is a three-tier process for redress of any violation of the Petitioner’s rights by raising the same in her defence at the County Assembly, at the Senate and ultimately in the courts, thus the Application and the Petition are not ripe for consideration and/or determination by this court and the court is precluded from assuming jurisdiction, by dint of the hallowed doctrine of separation of powers. Further, the supervisory jurisdiction vested in this court by Article 165 (6) of the Constitution in so far as it relates to bodies or authorities exercising quasi-judicial functions can only be exercised after a resolution has been passed by the Senate. Supervisory jurisdiction can only be exercised in regard to that which has already happened and not futuristic or anticipated events. It is only after independent consideration of the impeachment motion by the Senate in the exercise of its quasi-judicial function that this court can scrutinize the processes and procedure at the County Assembly in conformity with the applicable law. Additionally, the supervisory jurisdiction of this court should be exercised in a manner that does not stall the constitutional motions and processes of other constitutional organs. It urges that the Petition and the Application are an attempt at judicial emasculation of a constitutionally ordained accountability mechanism exercised through a time specific and time bound process. While citing Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (2014) eKLR and Invesco Assurance Co. Ltd v MW (Minor suing thro’ next friend and mother (HW) (2016) eKLR, it urges that if the conservatory orders are granted at this stage, the Petition will be rendered a still birth and there will be nothing to preserve or determine. It relies on Okiya Omtatah Okoiti v Judicial Service Commission; Philomena Mbete Mwilu & another (Interested Parties) (2021) eKLR for its proposition that it will suffer unmitigated prejudice and the greatest harm if conservatory orders are granted at an interlocutory stage, as the Petition will be rendered an academic exercise and the final orders would be inconsequential. It urges that there is a greater public interest in allowing it to proceed with its constitutional accountability and oversight mechanisms as opposed to preserving the individual private rights of the Petitioner to be shielded from scrutiny and accountability. It cites the celebrated locus classicus case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR and prays for the Application and Petition to be struck out or dismissed in limine, with costs.

3. The Petitioner urges that the established test for a preliminary objection as held in Mukisa Biscuit v West End Distributors Ltd (1969) E.A 696 requires the objection to be of a nature capable of disposing the suit in limine. She urges that the preliminary objection raised cannot dispose the Petition since it raises a question of constitutionality of a legislative provision of section 33(8) of the County Governments Act. She urges that this court is properly seized with the jurisdiction to hear and determine this matter as was reiterated in Martin Nyaga Wambora & 3 Others v Speaker of the Senate & 6 others (2014) eKLR, Meru Constitutional Petition No. E024/2022, Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others (2018) eKLR, Re The Matter of the Interim Independent Electoral Commission Advisory Opinion No. 2 of 2011. She urges that she has demonstrated that this matter raises novel issues, and presents a set of circumstances that were never considered or even envisioned in the cases forming the judicial precedents cited in the Preliminary Objection. She urges that this court is rightly seized of the requisite jurisdiction to handle the matter since it has the authority to uphold and enforce the Bill of Rights. She urges that she has set out the threatened violation of her right to fair hearing under Article 50 (1) of the Constitution with specificity, and calls upon the court to exercise its judicial authority, without undue regard to procedural technicalities, as reiterated in Sang & 12 Others v Principal Secretary, Ministry of Lands and Physical Planning & 33 Others (Environment & Land Petition 12 of 2019 & Environment & Land Case 37 of 2020 (Consolidated) [2024] KEELC 1261 (KLR) (7 March 2024) (Judgment) and Muslim for Human Rights (MUHURI) & another v Inspector General of the National Police Service & 2 others (Petition E070 of 2022) [KEHC 3233 (KLR) (19 March 2024) (Judgment). She urges that this matter is fit for grant of conservatory orders, in consideration of the facts before the court as set out in the Constitution, and cites Aden Ibrahim Mohamed & 6 others v County Assembly of Wajir & 9 others (2022) eKLR and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) eKLR, Centre for Rights Education and Awareness (CREAW) & Another v Speaker of the National Assembly & 2 others (2017) eKLR and Simeon Kioko Kitheka & 18 Others v County Government of Machakos & 2 Others (2018) eKLR.

Analysis and Determination 4. After a critical consideration of the Preliminary Objections and the augmented written submissions together with the authorities cited therein, the singular issue for determination is whether preliminary objections were properly taken.

5. What properly constitutes a preliminary objection has been defined times over including in the locus classicus case of Mukisa Biscuit Company v Westend Distributor Limited (1969) EA 696 as follows:-“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

6. Comparatively, this court in Meru Succession Cause No. 26/1988 In the Matter of the Estate of Thomas Mbui Njenge Alias Thomas Nchenge (Deceased) David Mbuko T. Mbui v Susan Gacheri VOL. 8 NO. 62 held that:“In the circumstances, a preliminary objection should only be raised where there are no disputations on matters of facts by parties. Although parties did not address the Court on the import and tenor of a preliminary objection, this Court finds this to be an important matter which has the potential of either granting or divesting this Court with jurisdiction to entertain the preliminary object which forms the subject of this Ruling. This Court cannot overlook the question of jurisdiction, even with respect to entertain the preliminary objection. Should this Court find that there any disputations of fact which will require it to look at evidence adduced and interrogate factual issues, the Court will not have jurisdiction to entertain the preliminary objection.”

7. To ascertain whether the preliminary objections have been properly raised, the court will set out in verbatim the fundamental prayers sought in the Petition dated 18/7/2024 as follows:1. A declaration that the County Assembly of Meru, through the routine and perpetual impeachment motions of the petitioner, is guilty of exercising its powers in an illegal, excessive and abusive manner thus violating the doctrine of separation of Powers and undermining the Principles of devolved government as captured under Article 175 which provides that “County governments established under this Constitution shall reflect the following principles: a) County governments shall be based on democratic principles and the separation of powers.”2. A declaration that Petitioner’s rights as guaranteed under Article 50(1) of the Constitution of Kenya stands to be violated especially the right to fair hearing considering the glaring partisan and biased nature of the County Assembly of Meru on the subject of Impeachment of the Petitioner vide the flawed motion for impeachment.3. A declaration that the past and present conduct of Meru Count Assembly demonstrates that it lacks capacity to act independently and as an impartial Tribunal in as far as the removal of the Petitioner from office through impeachment of the Petition is concerned.4. A Declaration that section 33 (8) of the County Government Act is unconstitutional in so far as it allows a county assembly to re-introduce the same charges which previously failed to result into the removal of a Governor after the expiry of three months in that the said proviso amounts to double jeopardy and is a clear contravention of Article 50 (2) (O) of the Constitution which states that a person shall not be tried for an offence in respect of an act or omission for which the accused person has previously been acquitted or convicted.5. A declaration that the notice of motion of impeachment dated 15th July, 2024 does not meet the threshold for impeachment set out under Article 181 (1) of the Constitution, section 33 of the County Governments Act and the Meru County Assembly standing orders hence the same be and is hereby set aside.6. An order of injunction restraining the Respondents from in any manner discussing, debating and or in any way dealing with the removal of the Petitioner from office through impeachment.7. Costs be provided for.

8. In the Notice of Motion dated 18/7/2024, the Petitioner seeks:1. Spent2. That pending the hearing and determination of this Application inter-partes, this Honorable Court be pleased to issue interim Conservatory Orders against the Respondent suspending the debating, considering and/or acting upon the motion for removal of the Applicant from office through impeachment.3. That pending the hearing and determination of this Application and the main petition, this Honorable Court be pleased to issue interim Conservatory Orders against the Respondent suspending the debating, considering and/or acting upon the motion for removal of the Applicant from office through impeachment.4. That costs be provided for.

9. The jurisdiction of this court to issue conservatory orders and the declarations sought in the Application and the Petition has been probed.

10. This Court draws its jurisdiction from Article 165 (3) of the Constitution which provides that:-“(3)Subject to clause (5), the High Court shall have — (a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144; (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of — (i) the question whether any law is inconsistent with or in contravention of this Constitution; (ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under Article 191; and (e) any other jurisdiction, original or appellate, conferred on it by legislation.”

11. The Petitioner alleges violation of Articles 50 (1), (2) (O), 175 and 181 (1) of the Constitution, which is within the jurisdictional purview of this court under Article 165 of the Constitution.

12. The Court of Appeal in Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others (Supra) contextualized the issue in the following terms;“Our reading of Article 165 (6) of the Constitution reveals that the role of the High Court for purposes of removal of a Governor from office is inter alia supervisory in nature to ensure that the procedure and threshold provided for in the Constitution and the County Governments Act are followed. If the process for removal of a Governor is unconstitutional, wrong, un-procedural or illegal, it cannot be said that the court has no jurisdiction to address the grievance arising therefrom. (See Mumo Matemu – vs- Trusted Society of Human Rights Alliance & 5 Others (supra)). In its supervisory role, the jurisdiction of the High Court is dependent on the process and constitutionality of the action taken. In the instant case, in its supervisory role, the High Court is to examine whether any procedural law was violated by the County Assembly or Senate in arriving at their decision. We are of the view that Article 181 of the Constitution as well as Section 33 of the County Governments Act can neither be interpreted as clauses that oust the supervisory jurisdiction of the High Court, nor limit the power of the High Court to interpret Article 181 nor be construed as provisions that prohibit the right of a citizen to access a court of law where there is an allegation of infringement of a constitutional right to hold a public office under Article 38 (3) ( c) of the Constitution.”

13. This court is bound by the dicta in Civil Appeal E003 of 2023 & E016, E021, E049, E064 & E080 of 2024 (Consolidated) where the Court of Appeal held that:“Accordingly, we agree with Mr. Ochiel’s argument that the High Court in the impugned holding misinterpreted Articles 10 and 165 (3) on its jurisdiction effectively abdicating its jurisdiction to test the constitutionality of “anything” including policy said to infringe the Constitution. It is only when a State organ is executing policy within the law that the courts will be slow to intervene.”

14. This court finds that it is properly seized with the jurisdiction to determine whether the Petitioner’s constitutional rights are threatened with violation and effectuate the much desired reprieve.

15. This Court equally has interpretative jurisdiction to determine if any law is inconsistent with the Constitution or anything said to be done under the authority of the Constitution or of any law is inconsistent with the Constitution.

16. The Petitioner challenges the constitutionality of Section 33 (8) of the County Governments Act which provides that:“If a vote in the Senate fails to result in the removal of the governor, the Speaker of the Senate shall notify the speaker of the concerned county assembly accordingly and the motion by the assembly for the removal of the governor on the same charges may only be re-introduced to the Senate on the expiry of three months from the date of such vote.”

17. To bar or otherwise restrain the Respondent from re-introducing a motion to impeach the Petitioner on the selfsame grounds to those futilely debated on in the Senate in the past is untenable. The failure of a motion of impeachment may be as a result of scantiness of evidence and not necessarily because the charges are fallacious. Conversely, nothing would preclude the Respondent from re-introducing a motion of impeachment of the Petitioner, the outcome of the previous motion notwithstanding, where it can be established on the facts that there is adequate evidence to support the charge.

18. Most importantly, this court in Mwangaza v County Assembly of Meru & another (Petition E024 of 2022) [2024] KEHC 9544 (KLR) (18 July 2024) (Judgment) comprehensively addressed its mind to that issue as follows:“It would be absurd to require an electorate to condone, tolerate or endure bad governance for any period because it would be too soon after the election of the office holder. Once conduct within the prescription of Article 181 (1) of the Constitution is established or alleged, the process of removal of the governor crystallizes without the need to wait for the expiry of any specified period. To hold otherwise would be to condone for the time-being violation of the Constitution in terms of Article 181 by reason of gross violation of this Constitution or any other law; serious reasons for believing that the county governor has committed a crime under national or international law; abuse of office or gross misconduct; or physical or mental incapacity to perform the functions of office of county governor, without authority of the Constitution. Such action would infringe on the principles and values of accountability, integrity and the rule of law among other principles and values set out in Article 10 of the Constitution. It would also be improper to hamper the operation of the Constitution’s integrity and accountability provisions in a manner not contemplated in the Constitution, which would, in my respectful view, be a subversion of the Constitution. The right to hold elective office under Article 38 of the Constitution must be construed purposively and in harmony with the provisions for removal from office for unconstitutional conduct, that is conduct proscribed under the Constitution such as the provisions of Article 181 (1) of the Constitution. The enforcement of the Article 38 of the Constitution on the right to hold office cannot be construed as to hamper the implementation of the removal provisions of Article 181 (1) of the Constitution. The two constitutional provisions must be construed as directed under Article 259 of the Constitution in a manner that “(a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” The purposes, value and principles of accountability, integrity and rule of law are central to the Constitution. There is no moratorium or earliest time limit in the removal provisions of Article 181 of the Constitution before which action contemplated thereunder may be initiated. Any attempt to legislate time-lines without express or implied authority of the Constitution would be unconstitutional. The Court cannot direct the performance of an unconstitutional act consistent with the principle of the supremacy of Constitution under Article 2(4) of the Constitution that “(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid…The Court would find that the provisions of section 33 of the County Governments Act have not been shown to be inconsistent with or in contravention of the Constitution, to require this court’s intervention.”

Orders 19. Accordingly, for the reasons set out above, this court finds that the Notice of Preliminary Objection dated 23/9/2022 and the further Notice of Preliminary Objection dated 6/8/2024 are without merit, and they are dismissed.

20. Costs in the Cause.

21. Directions as to hearing of the Petition on 7/10/2024. Order accordingly.

DATED AND DELIVERED THIS 19THDAY OF SEPTEMBER, 2024. EDWARD M. MURIITHIJUDGEAppearancesMr. Ashaba for Mr. Mutuma for the Petitioner.Mr Ndegwa Njiru with Mr. Mawira, Mr. Muriuki and Mr. Mureru for the Respondent.