[2024] KEHC 16312 (KLR)

Mwangi v Speaker of the County Government of Kiambu & another; County Government of Kiambu (Interested Party) (Petition o48 of 2024) [2024] KEHC 16312 (KLR) (17 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16312 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition o48 of 2024

DO Chepkwony, J

December 17, 2024

IN THE MATTER OF: THE SOVEREIGNITY OF THE PEOPLE, SUPREMACY OF THE CONSTITUTION AND ENFORCEMENT OF THE CONSTITUTION UNDER ARTICLES 1, 2, 3(1), 145, 150(1)(B), 258(1) AND 259 OF THE CONSTITUTION OF KENYA. AND IN THE MATTER OF: THE PROPOSED PUBLIC INTEGRATION STRATEGIC PLAN FOR THE YEARS 2020 – 2030 BY THE COUNTY GOVERNMENT OF KIAMBU. AND IN THE MATTER OF: THE CONTRAVENTION OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE UNDER ARTICLE 10 OF THE CONSTITUTION OF KENYA. AND IN THE MATTER OF: THE CONTRAVENTION OF THE POWER AND FUNCTIONS OF THE LEGISLATURE UNDER ARTICLES 10, 94(4), 95(5), 96(4) AND 118(1) OF THE CONSTITUTION AND IN THE MATTER OF: THE JURISDICTION AND AUTHORITY OF THE HIGH COURT UNDER ARTICLES 21. 22(1), 23(1)(3), 165(3), 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010, READ TOGETHER WITH SECTION 5 OF THE HIGH COURT (ORGANISATION AND ADMINISTRATION) ACT, NO.27 OF 2015.

Between

Patrick Ng'ang'a Mwangi

Petitioner

and

The Speaker of the County Government of Kiambu

1st Respondent

The Clerk of the County Assembly of Kiambu

2nd Respondent

and

County Government of Kiambu

Interested Party

Ruling

1. This matter was scheduled for interparties hearing of a Notice of Motion application dated 15th November, 2024 on 4th December, 2024. However, the court did not sit. The hearing was then rescheduled to today, 17th December, 2024.

2. When the matte came up today, the court found another application being a Notice of Motion application dated 26th November, 2024 which had been filed by the Respondent and directions issued for the same to be served upon the Respondent/Petitioner so that a response would be filed and thereafter parties to file and exchange written submissions in canvassing the same. The parties were also meant to confirm compliance of those directions today.

3. Mr. Onyango counsel holding brief for Mr. Odhiambo, counsel for the Petitioner confirmed that Mr. Odhiambo was yet to comply with the directions as he had fallen ill and requested that the be granted at least three (3) days to file written submissions in support of his application.

4. Mr. Ligunya strongly opposed this request, arguing that it contradicts the specific directions earlier issued by this court on 19th November, 2024. He clarified that on that date, the court expressly directed that the Petitioner’s application proceeds for hearing inter partes, and there were no directions issued for the filing of submissions with respect to the said application. He confirmed that he had filed a Replying Affidavit sworn by Waithera Waiyaki, the County Attorney and was ready to proceed with the hearing of the application.

5. Mr. Ligunya further told court that he had filed an application dated 25th November, 2024 in which they are seeking joinder of the County Government of Kiambu and an order for setting aside the interim orders issued on 19th November, 2024 and explained that it is the application where the orders directing the filing of written submissions had issued on 6th November, 2024. He also confirmed that he had fully complied with the said directions and filed their submissions, but the Petitioner had neither filed a response nor submissions on the said application dated 26th November, 2024, thus the same is unopposed.

6. Counsel proceeded to urge the court to set aside the interim orders issued on 19th November, 2024, arguing that their continued subsistence poses a serious financial risk to the County Government of Kiambu. He submitted that the County Government stands to lose a substantial sum of Kshs.1,600,000,000. 00, which is earmarked for funding under the World Bank Urban Support Program. The program, he emphasized, is critical as it seeks to establish and strengthen urban institutions in selected municipalities across Kenya. Expounding further, Mr. Ligunya clarified that the World Bank funding is governed by a strict set of eligibility criteria that municipalities must satisfy before they can be selected as beneficiaries. One of the key pre-conditions, he explained, is that the municipality must possess an approved Urban Integrated Development Program (UIDP), either in physical or by an online form, duly passed by the County Assembly. Further, Counsel emphasized that the sub-counties or municipalities excluded from the Urban Integrated Development Program are those that have failed to meet the threshold requirements set by the World Bank. The World Bank, according to counsel, is responsible for assessing various municipalities to ensure their compliance with these pre-conditions.

7. Counsel has contended that the orders issued on 19th November, 2024, which have temporarily interfered with the execution of the program, threaten to derail the County’s compliance with the World Bank’s conditions and could result in the loss of funding.

8. Mr. Ligunya further submitted that the 3rd Respondent and the Interested Party would suffer greater prejudice if the interim orders are not set aside. He underscored the significant financial implications for the County Government, which is at risk of losing funding that is critical to the development of urban infrastructure and institutions. In his view, the balance of convenience clearly favours the setting aside of the orders issued on 19th November, 2024.

9. In response, Mr. Onyango, while reiterating his request for more time to file submissions, urged the court not to set aside the interim orders. He contended that the Petitioner would suffer greater prejudice if the orders are vacated and insisted that the court allows the Petitioner an opportunity to file their written submissions. He even added that the court issue a ruling date as they proceed to file their written submissions.

Determination 10. Having carefully listened to and considered the oral submissions by both counsel in regard to why the matter had come up today, this Court must first clarify that as correctly pointed out by Mr. Ligunya, the directions issued by this court on 19th November, 2024 did not provide for the filing of submissions with respect to the Petitioner’s application. The court had expressly directed that the matter proceeds for interparties hearing. However, it is worth noting from counsel’s prayer that clearly the Petitioner/Applicant who brought the application dated 15th November, 2024 under Certificate of Urgency is not ready to proceed with hearing of the same.

11. At this juncture, the court is solely tasked with determining whether the interim orders issued on 19th November, 2024 should remain in force or be set aside, especially in consideration of the Notice of Motion application dated 26th November, 2024 which is yet to be responded to by the Petitioner he principles of justice, fairness, and the balance of convenience as has been raised by the 3rd Respondent’s counsel.

12. The court has taken note of the concerns raised by the 3rd Respondent and the Interested Party regarding the potential loss of funding amounting to Kshs.1. 6 billion under the World Bank Urban Support Program. It is evident that the program is of significant public interest, as it is designed to enhance urban infrastructure and strengthen governance in municipalities across Kenya.

13. The court has also taken note of there being no response filed by the Petitioner on the application dated 26th November, 2024. The court further notes that counsel for the Petitioner has not addressed this application or rebutted the claim by the 3rd Respondent’s counsel that any delay or impediment to the program implementation could have far reaching financial and development complications for the County Government and its residents. The application dated 26th November, 2024 is therefore unopposed.

14. The Petitioner/Applicant’s counsel has merely stated that vacating the interim orders may cause prejudice to the Petitioner’s interests without explaining how the program has been discriminatory against the three counties as highlighted his application dated 15th November, 2024. It is therefore incumbent upon this Court to weigh the competing interests of the parties and determine where the balance of convenience lies.

15. In balancing the competing interests, the court must prioritize the greater harm and ensure that justice is not only done but seen to be done. In this case, the balance of convenience tilts overwhelmingly in favour of the County Government and the Interested Party. In the present circumstances, this Court finds that the risk of the County Government losing substantial funding, which would impact the broader public interest, outweighs the prejudice likely to be suffered by the Petitioner at this interlocutory stage.

16. The loss of Kshs.1. 6 billion in the World Bank Funding, under the World Bank Urban Support Program is not only time-bound but is also subject to strict pre-conditions and eligibility criteria set by the World Bank. The potential loss of this funding would not only harm the County Government but would also have a ripple effect on the residents of Kiambu County, who stand to gain from the improved infrastructure and services facilitated by the program, and this represents a harm of far greater magnitude than the prejudice claimed by the Petitioner.

17. It is a well-settled principle that where public interest is involved, courts must give due regard to the greater good of society. As observed in the case of R –vs- Kenya Airports Authority Exparte Nairobi Bottlers Ltd [2014]eKLR, public interest is a critical factor in determining applications for interim relief, particularly where public resources or programs are likely to be affected. The court must ensure that its orders do not unnecessarily frustrate projects or initiatives that are designed to serve the broader public interest.

18. These facts were not listed in the Petitioner’s application earlier hence it is therefore incumbent upon the court to safeguard the public interest by vacating the interim orders issued on 19th November, 2024 to allow for the County Government to comply with the World Bank's eligibility criteria and secure the funding necessary for urban development programs. On the other hand, the Petitioner still retains the right to pursue his claims during the substantive hearing of the Petition, where all issues raised will be fully ventilated and determined on their merits.

19. In summary, the court’s duty at this stage is to strike a fair balance between the parties while ensuring that public interest is not unduly prejudiced. The substantial risk posed to the County Government and the broader public clearly outweighs any inconvenience or prejudice likely to be suffered by the Petitioner at this interlocutory stage.

20. Therefore, having carefully weighed the submissions and the circumstances of this case, I find that the continued subsistence of the interim orders issued on 19th November, 2024 is not justified. The court is satisfied that sufficient cause has been demonstrated by the 3rd Respondent and the Interested Party to warrant the setting aside of those orders. Accordingly, the Court proceeds to make the following orders: -a.The Notice of Motion application dated 26th November, 2024 is allowed in terms that, the order to set aside, vary and discharge the conservatory orders issued on 19th November, 2024 upon the hearing of this application be and is hereby granted.b.The interim orders issued on 19th November, 2024 be and are hereby set aside.c.The applications dated 15th November, 2024 and 26th November, 2024 be canvassed jointly by way of written submissions.d.Leave is granted for the Petitioner to file his response to the application dated 26th November, 2024 alongside written submissions on both applications within fourteen (14) days. And thereafter, the Respondents be at liberty to file and serve their further submissions within seven (7) days upon being served by the Petitioner.e.Mention on 11th February, 2025 to confirm compliance.It is so ordered.

RULING/DIRECTIONS DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 17TH_DAY OF DECEMBER, 2024. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Onyango holding brief for Mr. Odhiambo counsel for the PetitionerMr. Mararo counsel for the 1st RespondentMr. Ligunya counsel for the 3rd Respondent and Intended Interested PartyCourt Assistant - Martin