[2022] KEHC 17255 (KLR)

Mzee & another v County Government of Kajaido (Constitutional Petition 4 of 2019) [2022] KEHC 17255 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17255 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition 4 of 2019

SN Mutuku, J

November 7, 2022

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 27, 43 AND 47 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF KAJIADO COUNTY FINANCE ACT 2016 AND IN THE MATTER OF THE BAN OF OVERWEIGHT TOMATO CRATES BY THE COUNTY GOVERNMENT OF KAJIADO

Between

Collins Mzee

1st Petitioner

Munyalo Kimote & 25 others

2nd Petitioner

and

County Government of Kajaido

Respondent

Judgment

Introduction 1. The Petitioners are tomato farmers in Rombo, Kimana, Langata Ngima, Olorika Esnet, Namelo, Imbiron, Njukini and part of Imbirikani areas, all in Oloitoktok within Kajiado County. In a Petition dated 8th February 2019 and filed on 11th February 2019, the Petitioners have sued the County Government of Kajiado claiming contravention of their constitutional rights under articles 27, 43 and 47 of theConstitution of Kenya.

2. The Petitioners are seeking three prayers, namely:i.A declaration that the Petitioners’ fundamental rights under articles 10, (5) (c), 27, 43, 47 (1) (2) and 50 (1) of the Constitution have been grossly infringed and violated by the Respondent’s decisions to impose the ban on them.ii.A declaration that the Respondent did not and does not have power to partially implement the requirements of the standard weights in only one part of the country and that the Press Statement of 19th October, 2018 and the subsequent ban dated 4th January, 2019 are illegal and that the Petitioners should continue with the tomato farming and business as was before the impugned ban.iii.Costs of the Petition.

3. The Respondent opposed the Petition by filing Grounds of Opposition dated 2nd December, 2019 in which six grounds have been raised. In summary form, the Respondent states that:i.That due process was followed in issuing the ban and that the County Government of Kajiado is authorized under the law to issue trade directives in accordance with the Kajiado County Government Finance Act, 2016. ii.That the Petitioners’ rights were never violated.iii.That the Respondent was ready and willing to explore an out of court settlement with the Petitioners.iv.That the Respondent’s actions are in conformity with the provisions of Weights and Measures Act, (Cap. 513 Laws of Kenya)v.That the Petitioners have not demonstrated that they have a case with overwhelming chances of success, that they stand to suffer an irreparable loss and that they have not proved their case on a balance of probabilities to warrant the reliefs sought.vi.That the Petition lacks merit and is an abuse of court process and ought to be dismissed with costs.

Petitioners’ Case 4. It is the case for the Petitioners that they cultivate areas ranging from small scale farm of 2 acres to large scale farms of 100 acres with each farmer employing farm hands to plant, weed, harvest, sort and pack tomatoes for markets in various parts of the country and outside the country as far as South Sudan and Uganda. It is their case that they provide livelihood to their families and many people employed in tomato farms and that they have sought loans from various financial institutions so as to finance their farming.

5. It is their case that tomato farming is done all year round and that during high season, large scale farmers harvest over 100 lorry loads and small-scale farmers 5 lorry loads of tomatoes.

6. They accuse the County Government of Kajiado, through its County Executive for Trade, Culture, Tourism and Wildlife, of issuing a Press Statement on 19th October 2018 “banning, with immediate effect, the use of unstandardized units of measuring and weighing farm produce such as overweight/overfilled crates of tomatoes in Kajiado County.”

7. They accuse the County Government of Kajiado of issuing a directive on 4th January, 2019, on the ban on overweight tomato crates stating that it was issued pursuant to the Press Statement of 19th October 2018 with directions to various agents of the Respondents to enforce. The Petitioners claim that the ban has forced them to stop transporting their tomatoes as they used to; that they transport tomatoes from the farms to various markets without covering them; that the ban demands that the Petitioners must not heap tomatoes as expected by their customers but must transport them in what the Respondent refers to as standard weights which standard is not defined by the Kajiado County Finance Act of 2016.

8. It is argued that the measures prescribed in the ban are awkward, ambiguous and too general to be enforced in a uniform manner given that the standard weight and an overweight crate have not been defined thereby creating room for abuse of power by the agents of the Respondent tasked with enforcing the ban.

9. The Petitioners argue that pursuant to and in observance of the ban, the tomatoes are left uncovered leading to unprotected crates being loaded to lorries and transported to various markets. This leads the tomatoes being squeezed, loss of colour, discoloration and loss of freshness as a result of which farmers suffer huge losses through wastage. They further claim that this method of transportation forces the farmers to sort the tomatoes afresh at the destination markets at great expense exposing farmers’ rejection of their produce by customers because of changed condition of the tomatoes.

10. The Petitioners argue that the ban is selectively enforced in the areas mentioned in this Petition leaving other tomato farming areas like Embuko, Isarak, Ngatu, Mashuru and part of Imbirikani which is discriminatory; that the ban is partially and discriminatively enforced as it does not cover the entire country since tomato farming is carried out in various parts of the country where no such ban; that tomatoes from Tanzania are allowed in the country through the Respondent’s borders yet the ban is not enforced against such suppliers as a result of which the Petitioners have been denied an opportunity to fairly compete in the open market for tomato customers.

11. They claim that this ban is being implemented against the wishes of the members of the public and tomato farmers since there was no public involvement; that the entire process leading to the implementation of the ban and the decision to enforce it was done without recourse to the laid down procedures and the law and violated fundamental constitutional rights and freedoms under articles 47 (1) and (2), article 25 (e) and 50 (1), article 10 (1) (b) (c) and 10 (2) (e), article 27 and the principle of natural justice.

Respondent’s case 12. The Respondent has raised six grounds of opposition as specified under paragraph 3 of this judgment. I need not repeat the said grounds here.

Petitioners’ Submissions 13. The matter proceeded by way of written submissions as directed by this court (Mwita, J). When I took over this matter, I was of the view that parties ought to highlight the written submissions in order to clarify the issues arising from their pleadings. This, however, became untenable due to the busy schedule of the court. Parties opted to leave the matter to court to decide basing on the written submissions.

14. The Petitioners have submitted that there was no consultation before the policy was implemented as the Respondent did not convene a meeting with the Petitioners to enable them participate in the making of the policy that was going to affect their livelihood. They submitted that the Respondent merely issued a press statement on 18th October 2018 and thereafter a Ban on 4th January 2019 without involving the Petitioners through an advertisement or by inviting them to a meeting to submit their views for consideration a clear violation of the constitutional requirement on people participation under Article 174 (c) and Article 196 of the Constitution of Kenya.

15. The Petitioners have submitted that there was no public notice published in the official website of the County Government or in the Daily Nation or any other newspaper, nor was there circulation of the notice in churches within the County. They cited, at length, the case of Robert N. Gakuru & Others v. Governor Kiambu County & 3 Others [2014] eKLR to support their arguments on public participation.

16. The Petitioner submitted that the Respondent undertook the policy so as to enhance the economic interests of the farmers and enhance its revenue base but this was contrary to what was expected of it by scope of Article 209 (3), (4) and (5) of the Constitution. They submitted that Kajiado County- produces 9% of the tomatoes consumed mostly outside the County yet the Respondent set out to come up with a policy which affected and prejudiced national economic activities across the County boundaries contrary to Article 209 (5) of the Constitution.

17. They have submitted that tomato farming makes the backbone of the economy of the Petitioners and making a policy or legislative enactment affecting tomato farming, transport and marketing affects the lives of the Petitioners’ rights under Article 43 of the Constitution. They cited Article 25 of the Universal Declaration of Human Rights (UNDHR), 1948 to support their argument. They submitted that the action of the Respondents is an infringement of economic and social rights of the Petitioners. They cited John Kinyua Munyaka & 11 others v County Government of Kiambu & 3 others[2014] eKLR and Kitale Shuttle Ltd & 5 others v County Government of Trans Nzoia[2015] eKLR to support their argument.

18. The Petitioners submitted that the Respondents did not equally treat all areas in the same manner because some areas of Imbirikani and tomatoes coming from Tanzania were not subject to the same restriction, a discrimination act that is contrary to Article 27 of the Constitution. They submitted that this court has power to ensure that the rights of the Petitioners are not infringed and urged that this court upholds the Petition and grant the prayers sought.

Respondents’ Submissions 19. The Respondents have identified two issues for determination, namely:i.Whether or not the Petitioners’ constitutional rights and fundamental freedoms under Articles 10, 5(c), 27, 43, (1) and (2) and 50 (1) of the Constitution were grossly violated by the Respondent.ii.Whether or not the Petitioners are entitled to the reliefs/remedies sought in the Petition.

20. On the first issue, the Respondent submitted that there was public participation in coming up with the policy and that all stakeholders and tomato farmers in the entire Kajiado County were engaged in formulation of the policy in line with the Kajiado County Government Finance Act 2016 and Weights and Measures Act, Cap. 513 Laws of Kenya.

21. It was submitted that the Petitioners allegation of discrimination on the non-implementation of the ban within some parts of Emburko, Isarak, Ngatu, Mashuru and part of Imbirikani is untrue and misleading as the ban has been implemented throughout the entire Kajiado County; that no petitioner has sworn an affidavit adducing evidence of the alleged discrimination. It was submitted that everyone is equal before the law as espoused under Article 27 of the Constitution and that the overweight tomato crates and use of unstandardized huge crates by the Petitioners was discriminatory against the traders who used standardized crates.

22. The Respondent submitted, further, that the notice of ban on overweight tomato crates was copied to all Chief Officers within Kajiado County, Sub-County Administrators for Kajiado East, West, Central and South that are predominantly farmers and sellers of tomatoes and that the area chiefs and administrators sensitized the farmers and sellers of tomatoes in the affected areas of the said notice. It is submitted that the decision by the County Executive Committee Member of Trade, Culture and Wildlife to ban the use of overweight tomato crates is lawful and well within the confines of the law under the Kajiado County Government Finance Act, 2016.

23. The Respondent submitted that a right can be limited under Article 24 of the Constitution if it infringes/interferes with the rights of others.

24. On the second issue it is submitted that the Petitioners are not entitled to the reliefs they are seeking for the reasons that the Petitioners have not particularized how the Respondent has violated their rights and that the Petition is not clear on which Article of the Constitution has been violated and that no declaration has been sought with regard to the alleged violation of rights. It is submitted that the Petition is brought in bad faith; lacks merit and is an abuse of the due process of the court and ought to be dismissed with costs.

Determination 25. I have considered the Petition and the Grounds of Opposition. I have considered the submissions of the parties. Central to the Petition before me is the claim by the Petitioners that the Respondent formulated a policy to ban overweight tomato crates and implemented the said policy without consulting them or engaging in public participation thereby denying them an opportunity to have their views considered as a result of which their trade and livelihoods have been adversely affected. It is their claim that this action infringed on their rights under the Constitution.

26. On the other hand, the Respondent claims to have acted within the law and engaged the Petitioners in public participation, consultation and sensitization in formulating and implementing the policy in issue.

27. The burden of proof lies on the party who desires the court to rule in its favour as to the legal right or liability dependent on the existence of facts which that party asserts. That party has the onus of proving that those facts exist (see section 107 of the Evidence Act). It is trite that the legal burden of proof in civil cases lies on the plaintiff. In the case under determination, the Petitioners bears the legal burden of proof. The Petitioners are required under the law to prove the allegations they make on a balance of probability by adducing credible evidence. Once the legal burden has been discharged, then the evidentiary burden will keep on shifting to any party in rebuttal.

28. In support of their case, the Petitioners contend that tomato farming is their livelihood; that they employ many workers to prepare the farms, plant, weed, harvest, sort the tomatoes and pack them in crates ready for the market within Kenya and beyond. They contend that all these people are affected by the ban. It is their claim that the right to fair administrative action under Article 47 (1) and (2) of the Constitution has been violated and the principle of natural justice denied them. They have contented that they were discriminated against by the Respondent by not implementing the ban in all the areas where tomatoes are planted contrary to Article 27 of the Constitution.

29. They also identify other articles of the constitution, as specified in the Petition, as been violated. They have sought, in their prayers, declaratory orders in prayers 1 and 2.

30. Specifically, the Petitioners have cited Article 10 of the Constitution which provides that:“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, orc.makes or implements public policy decisions.The national values and principles of governance include- patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.

31. The Petitioners have cited Article 174 (c) of the Constitution that outlines a key role of devolution as “to give power of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them.”

32. Article 196 (1) (b) of the Constitution provides for facilitation of public participation and involvement in the legislative and other business of the County Assembly and its committees.

33. There are various decisions touching on public participation, including Kenya Small Scale Farmers Forum & 6 others v Republic of Kenya & 2 others [2013] eKLR andPoverty Alleviation Network & Others v President of the Republic of South Africa & 19 others, CCT 86/08 [2010] ZACC 5, where the same Court stated as follows:“…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.”

34. The Respondent has maintained, all through their submissions, that there was public participation through area chiefs and administrators who sensitized farmers and tomato traders. It is clear to me that it is the word of the Petitioners against that of the Respondents. There is no evidence adduced in court to support the allegation that there was public participation. There is no evidence to controvert the evidence by the Petitioners that they were discriminated by the ban operating in selected parts of Kajiado County instead of the entire County.

35. With no evidence to counter the statement by the Petitioners that there was no public participation, it is my finding and I agree with the Petitioners that there was no consultation before the policy was implemented for failure by the Respondent to convene a meeting with the Petitioners to enable them participate in the making of the policy that was going to affect their livelihood. I agree with the Petitioners that the Respondent issued a press statement on 18th October 2018 and thereafter a Ban on 4th January 2019 without involving the Petitioners through an advertisement or by inviting them to a meeting to submit their views for consideration. These actions by the Petitioners are a clear violation of the constitutional requirement on people participation under Article 174 (c) and Article 196 of the Constitution of Kenya.

36. I find no evidence by the Respondents that there was public notice published in the official website of the County Government or in the Daily Nation or any other newspaper, nor was there circulation of the notice in churches within the County.

37. I find that the Respondents did not equally treat all areas, where tomato farming in the County is carried out, in the same manner because some areas of Imbirikani and tomatoes coming from a neighbouring country were not subject to the same restriction. This resulted in discrimination against tomato farmers in areas affected by the ban, an act that is contrary to Article 27 of the Constitution.

38. It is my considered view that contrary to the claim by the Respondent that the Petitioners have not particularized how the Respondent has violated their rights and that the Petition is not clear on which Article of the Constitution has been violated, the Petitioners have demonstrated the rights that have been violated by the Respondent as shown in this judgment.

39. It is my view that the ban affected the Petitioners by stopping them from transporting their produce, tomatoes, to the markets thereby affecting their livelihoods that depended on tomato farming and trading in the produce. It is my view that by implementing the policy without engaging the Petitioners in public participation, the Respondents violated the rights of the Petitioners to participate in decision making on issues affecting them. It is my view, further, that by implementing the ban selectively discriminated against the Petitioners thereby infringing on the constitutional requirement of equal treatment to all.

40. I am persuaded that the Petitioners have proved their case on a balance of probabilities. I will therefore answer the issues raised by the Respondents in the affirmative that yes, the Petitioners’ constitutional rights were violated by the Respondent and that the Petitioners are entitled to the reliefs/remedies they seek in the Petition.

41. Consequently, I allow this Petition in the following terms:i.That a declaration is hereby issued that the Petitioners’ fundamental rights under articles 10, (5) (c), 27, 43, 47 (1) (2) and 50 (1) of the Constitution have been grossly infringed and violated by the Respondent’s decisions to impose the ban on them.ii.That a declaration is hereby issued that the Respondent did not and does not have power to partially implement the requirements of the standard weights in only one part of the country and that the Press Statement of 19th October, 2018 and the subsequent ban dated 4th January, 2019 are illegal and that the Petitioners should continue with the tomato farming and business as was before the impugned ban.iii.That costs of this Petition shall be paid to the Petitioners by the Respondent.

42. Orders shall issue accordingly.

Dated, signed and delivered this 7thNovember, 2022. S. N. MUTUKUJUDGE4| Judgment in Kajiado Constitutional Petition No. 4 of 2019