[2020] KEHC 10365 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

PETITION NO. E348 OF 2020

NAIROBI CITY COUNTY GOVERNMENT..........................................PETITIONER

VERSUS

NAIROBI METROPOLITAN SERVICES.....................................1ST RESPONDENT

THE HON. THE ATTORNEY GENERAL....................................2ND RESPONDENT

MAJOR GENERAL MOHAMMED A. BADI...............................3RD RESPONDENT

BRIG. GEN. FREDRICK LEURIA................................................4TH RESPONDENT

MAJOR J.V MBITHI.......................................................................5TH RESPONDENT

MAJOR A.N NYAKUNDI.................................................................6TH RESPONDENT

MAJOR J.K NJOROGE....................................................................7TH RESPONDENT

LT. COL. J.K BIOMDO.....................................................................8TH RESPONDENT

MAJOR A.L MUSOMA.....................................................................9TH RESPONDENT

WILLIAM KANGETHE THUKU..................................................10TH RESPONDENT

THE CS, DEPARTMENT OF NATIONAL

TREASURY & PLANNING............................................................11TH RESPONDENT

DEPARTMENT OF DEVOLUTION & ASALS............................12TH RESPONDENT

THE NAIROBI CITY COUNTY ASSEMBLY..............................13TH RESPONDENT

THE CONTROLLER OF BUDGET................................................14TH RESPONDENT

RULING NO. 1

Introduction:

1. This matter mainly focuses on, inter alia, the relationship between the Petitioner herein, Nairobi City County Government,and the Nairobi Metropolitan Services, the 1st Respondent herein. The relationship is anchored on the Deed of Transfer of Functions dated 25th February, 2020 between the Petitioner and the National Government. I will hereinafter refer to the Petitioner as either ‘the Petitioner’or‘the County Government’ and the First Respondent to as either ‘the 1st Respondent’or‘the NMS’.

2. In the main, the Amended Petition seek judicial intervention on the interpretation of Article 187(2)(b) of the Constitution, the legality of the appointment, deployment and secondment of officers of the Kenya Defence Forces into the NMS, the constitutionality of the Nairobi City County Appropriation Act, 2020, the constitutionality, further implementation and termination of the Deed of Transfer of Functions dated 25th February, 2020 and orders on return of staff files allegedly carted away by NMS from the Petitioner’s custody.

3. Pending determination of the above issues, the Petitioner filed an Amended Notice of Motion dated 6th November, 2020 (hereinafter referred to as ‘the application’).

4. The application is vehemently opposed by all the Respondents.

The Application:

5. The application seeks the following orders: -

1. This Motion be certified urgent, and be heard ex-parte owing to its demonstrated urgency, and service thereof on the Respondents be dispensed with in the first instance.

2. Pending the inter-partes hearing and determination of the Motion herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, restraining the 1st Respondent, Nairobi Metropolitan Services, by itself, its agents and servants the 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Respondents herein, or otherwise howsoever from executing further executing, assuming, or further assuming, or discharging any aspect of the 4(Four functions) "transferred" to the National Government from the Nairobi City County Government as contained in Article 3 of the Deed of Transfer of Functions published in the Kenya Gazette Notice No. 1609 dated 25th February 2020, and from demanding any payment, or any sums from any party in furtherance of the 4 Functions contained in the Deed of Transfer Functions set out in the Kenya Gazette Notice No. 1609 dated 25th February 2020, or otherwise howsoever receiving any funds allocated to the Nairobi City County Government under the Division of Revenue Act, 2020, until the dispute arising from, and/or relating to the Deed of Transfer of Functions between the parties as contained in Kenya Gazette Notice No. 1609 dated 25th February 2020, is subjected to, and determined through the dispute resolution procedures set out under Article 11. 2 of the said Deed of Transfer of Functions, or by a Judgement of this Honourable Court.

3. Pending the hearing and determination of the Petition herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, restraining the 1st Respondent, Nairobi Metropolitan Services, by itself, its agents and servants the 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Respondents herein, or otherwise howsoever from executing further executing assuming, or further assuming, or discharging any aspect of the 4 (Four functions) "transferred" to the National Government from the Nairobi City County Government as contained in Article 3 of the Deed of Transfer of Functions published in the Kenya Gazette Notice No. 1609 dated 25th February 2020, and from demanding any payment or any sums from any party in furtherance of the 4 Functions contained in the Deed of Transfer Functions set out in the Kenya Gazette Notice No. 1609 dated 25th February, 2020, or otherwise howsoever receiving any funds allocated to the Nairobi City County Government under the Division of Revenue Act, 2020 until the dispute arising from, and/or relating to the Deed of Transfer of Functions between the parties as contained in Kenya Gazette Notice No. 1609 dated 25th February 2020, is subjected to, and determined through the dispute resolution procedures set out under Article 112 of the said Deed of Transfer of Functions, or by a Judgement of this Honourable Court.

4. Pending the inter-partes hearing and determination of the Motion herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, restraining the 13th Respondent, Nairobi City County Assembly from allocating any funds to the 1st Respondent, Nairobi Metropolitan Services from such of the funds allocated to the Nairobi City County Government under the Division of Revenue Act, 2020, or generated by the Nairobi City County Government as part of its revenue, or under the Nairobi City Country Appropriation Bill, 2020 and/or any subsequent Nairobi City County Appropriation Act, until the dispute arising from, and/or relating to the Deed of Transfer of Functions between the parties as contained in Kenya Gazette Notice No. 1609 dated 25th February 2020, and its Addendum, is determined through the dispute resolution procedures set out under Article 11. 2 of the said Deed of Transfer of Functions, or as may otherwise be Ordered herein, or by a Judgement of this Honourable Court.

5. Pending the hearing and determination of the Petition herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, restraining the 13th Respondent, Nairobi City County Assembly from allocating any funds to the 1st Respondent, Nairobi Metropolitan Services from such of the funds allocated to the Nairobi City County Government under the Division of Revenue Act, 2020, or generated by the Nairobi City County Government as part of its revenue, or under the Nairobi City County Appropriation Bill, 2020 and/or any subsequent Nairobi City County Appropriation Act, until the dispute arising from, and/or relating to the Deed of Transfer of Functions between the parties as contained in Kenya Gazette Notice No. 1609 dated 25th February 2020, and its Addendum is determined through the dispute resolution procedures set out under Article 11. 2 of the said Deed of Transfer of Functions, or as may otherwise be Ordered herein, or by a Judgement of this Honourable Court.

6. Pending the inter-partes hearing and determination of the Motion herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, restraining the 11th and 14th Respondent, from disbursing any funds to the 1st Respondent Nairobi Metropolitan Service, (NMS) as contained in the Nairobi City County Appropriation Bill, 2020 and/or any subsequent Nairobi City County Appropriation Act, or otherwise howsoever, in purported execution of the Nairobi City County Government Functions.

7. Pending the hearing and determination of the Petition herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, restraining the 11th and 14th Respondent, from disbursing any funds to the 1st Respondent Nairobi Metropolitan Service, (NMS) as contained in the Nairobi City County Appropriation Bill, 2020 and/or any subsequent City County Appropriation Act, or otherwise howsoever, in purported execution of the Nairobi City County Government Functions.

8. Pending the inter-partes hearing and determination of the Motion herein, this Honourable Court be pleased to issue a Conservatory Order directing the 11th Respondent to release to the Petitioner such of the funds allocated, budgeted for, and set aside to pay hitherto contracted work, and so contractually completed by contractors hitherto lawfully engaged by the Petitioner to execute works and render services under the four Functions set out in paragraph 3 of the "Deed of Transfer of Functions" in Kenya Gazette Notice No. 1609 dated 25th February 2020.

9. Pending the 'inter-partes hearing and determination of the Petition herein, this Honourable Court be pleased to issue a Conservatory Order directing the 11th Respondent to release to the Petitioner such of the funds allocated, budgeted for, and set aside to pay hitherto contracted work, and so contractually completed by contractors hitherto lawfully engaged by the Petitioner to execute works and render services under the four Functions set out in paragraph 3 of the "Deed of Transfer of Functions" in Kenya Gazette Notice No. 1609 dated 25th February 2020.

10. This Honourable Court be pleased to refer the dispute between the Petitioner and the 2nd and 12th Respondents, implicating the 1st Respondent, for resolution pursuant to the dispute resolution mechanisms set out under Article 11. 2 of instrument between the said parties dated 25th February 2020 as contained in Gazette Notice No. 1609 dated 25th February 2020, and its undated Addendum.

11. This Honourable Court be pleased to place in abeyance such of the Questions for the exclusive determination by this Honourable Court under Article 165(4) of the Constitution, raised in the Petition herein pursuant to Section 31(b) as read with Section 33(2) of the Intergovernmental Relations Act, 2012, upon the reference of the dispute between the Petitioner and the 1st and 2nd Respondents for resolution of such issues raised by the Petitioner in its Notice of Declaration of Dispute pursuant to the dispute resolution mechanisms set out under Article 11. 2 of the Agreement between the said parties.

12. Leave be granted to the Petitioner (in saving Judicial Time and Costs), to rely on the Deposition tendered in support of this Motion mutatis mutandis for the trial of the Petition herein.

13. This Honourable Court be pleased to issue a Certificate under Article 165(4) of the Constitution for the determination of the Questions raised in the Petition herein by a 3 Judge Bench, and upon issuance of the same, the Petition be referred to His Lordship the Chief Justice for the constitution of the relevant Bench.

14. The costs of this Motion be to the Petitioner in any event.

6. In support of the application are 3 dispositions. They were all sworn by the Governor of the Petitioner County one, Mike Sonko Mbuvi Gidion Kioko, on 22nd October, 2020, 5th November, 2020 and 20th November, 2020 respectively.

7. The Petitioner further filed written submissions.

Responses:

8. The 1st to 12th Respondents were represented by the Honourable Attorney General. They relied on a Notice of Preliminary Objection dated 17th November, 2020, a Replying Affidavit sworn by one Kang’ethe Thuku and written submissions.

9. The Notice of objection is tailored as follows: -

1. THATthe Honourable Court lacks the jurisdiction to hear and determine the application and the Petition herein.

2. THATthe Petition and interlocutory application are premature having been instituted contrary to the provisions of Article 189 (3) and (4) of the Constitution, Sections 31 (a) & (b), 32, 33 and 34 of the Intergovernmental Relations Act.

3. THATArticle 11. 2 of the Deed of Transfer specifically provides that in the event of a dispute between the Parties arising from a matter provided for, governed by or arising out of this Agreement, the Parties shall at the first instance endeavor to resolve the dispute amicably through negotiations, but if the dispute is not resolved amicably within 30 days from the date one party notifies the other of the dispute in writing, the Parties shall refer the dispute to the National and County Governments Co-ordinating Summit which has not been done in the present case.

4. THATthe question of the establishment and legality of Nairobi Metropolitan Services is Res Judicata having been an issue that was determined by a court of competent jurisdiction in Nairobi ELRC 52 of 2020: Okiya Omtatah Okoiti -versus- Nairobi Metropolitan Service & Others in which the Petitioner herein was a party as admitted in paragraphs 21, 22, 23, 24 and 25 of the supporting affidavit of Hon. Mike Sonko Mbuvi Gidion Kioko the Governor of Nairobi City County.

5. THATthe issue of secondment of officers to the Nairobi Metropolitan Services is Res Judicataas it was determined in the case of Okiya Omtatah Okoiti -versus- Nairobi Metropolitan Service & Others (supra) where the Petitioner herein was an interested party and is also pending determination in Nairobi High Court Constitutional Petition No. 164 of 2020: Kiogora George & another -versus- Nairobi Metropolitan Services & others

6. THATthe Honourable court lacks the jurisdiction to hear and determine matters that deal with deployment, secondment and transfer of public officers being matters reserved for the exclusive jurisdiction of the Employment and Labour Relations Court by dint of the provisions of Articles 165 (5) (b) of the Constitution.

7. THATsome of the matters raised by the Petitioner herein are sub judice being matters that are substantively in issue there are several pending suits before the High Court between the parties arising from and in relation to the operationalization of the Deed of Transfer; Nairobi Constitutional Petition No. 64 of 2020 between Okiya Omtatah & Another vs. The National Executive and 2 others, Nairobi Constitutional Petition No. 66 of 2020, Katiba Institute & Another vs. Cabinet Secretary & 3 others, Nairobi Constitution Petition No. 164 of 2020Kiogora George & Another vs. Nairobi City County Government & 4 others.

10. The 13th Respondent filed and relied on a List of Authorities dated 1st December, 2020. The 14th Respondent did not file any document to the application but was, nevertheless, allowed to address the Court.

Issues for Determination:

11. I have carefully read and understood the contents of the application, the responses, the submissions and the judicial decisions on record. The following issues arise: -

(i)Whether this Court has jurisdiction to deal with the Petition and the application by dint of the provisions of Article 165(5)(b) and Article 189(3) and (4) of the Constitution as read with Sections 31 (a) & (b), 32, 33 and 34 of the Intergovernmental Relations Act.

(ii)Whether thequestion of the establishment and legality of Nairobi Metropolitan Services and the issue of deployment and secondment of officers of the Kenya Defence Forces to serve in the Nairobi Metropolitan Services are res judicata having been issues that were determined by a Court of competent jurisdiction in Nairobi ELRC 52 of 2020: Okiya Omtatah Okoiti -versus- Nairobi Metropolitan Service & Others.

(iii) Whether there is any dispute for referral to arbitration; and whether there is any residual question(s) to be determined by this Court under Article 165(3) of the Constitution;

(iv) Whether a certification should issue for empanelment of an expanded bench.

(v) Whether conservatory orders ought to issue.

Analysis and Determinations:

12. I will now address each of the identified issues in seriatim.

Whether this Court has jurisdiction to deal with the Petition and the application by dint of the provisions of Article 165(5)(b) and Article 189(3) and (4) of the Constitution as read with Sections 31 (a) & (b), 32, 33 and 34 of the Intergovernmental Relations Act.

13. This issue raises two sub-issues. The first sub-issue is based on Article 189(3) and (4) of the Constitution and Sections 31(a) & (b), 32, 33 and 34 of the Intergovernmental Relations Act (hereinafter referred to as ‘the Relations Act’). The other sub-issue focusses on Article 165(5)(b) of the Constitution.

14. On the first sub-issue, the 1st to 12th Respondents posit that the dispute before Court relates on how the two levels of Government are conducting themselves on the basis of a Deed of Transfer of Functions dated 25th February, 2020. Therefore, and, in the first instance, the dispute must be resolved through the alternative dispute resolution mechanism contemplated under Article 11. 2 of the Deed of Transfer, Articles 159(2)(c) and 189(3) & (4) of the Constitution and Part IV of the Relations Act.

15. According to the Respondents, Article 11. 2 of the Deed of Transfer expressly provide that: -

…that in the event of a dispute between the Parties arising from a matter provided for, governed by or arising out of this Agreement, the Parties shall at the first instance endeavor to resolve the dispute amicably through negotiations, but if the dispute is not resolved amicably within 30 days from the date one party notifies the other of the dispute in writing, the Parties shall refer the dispute to the National and County Governments Co-ordinating Summit.

16. The Respondents urge this Court to find that the Petitioner did not comply with the Deed of Transfer, the Constitution and the law by failing to refer the dispute to the Summit. Consequently, this Court lacks the jurisdiction over the matter.

17. The Respondents relied on Council of County Governors v Lake Basin Development Authority & 6 others [2017] eKLR, Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR,Daniel N. Mugendi vs. Kenyatta University & 3 Others (2013) eKLRand County Public Service Board & Another vs. Hulbhai Gedi Abdille (2017) eKLR in urging the Court to strike out the Petition and application with costs to the Respondents.

18. On the second sub-issue, the Respondents submit that Article 165(5)(b) the Constitution divests the High Court of jurisdiction over matters reserved for the Courts established under Article 162(2). It is the Attorney-General’s submission that the High Court does not have jurisdiction to determine matters that are a preserve of the Employment and Labour Relations Court and vice versa.

19. The Respondents contend that the Petitioner has raised issues on the secondment of staff to NMS, the deployment of officers of the Kenya Defence Forces to serve in civilian affairs and the issue of the transfer of employees’ information to NMS. On that, the Respondents submit that such issues fall exclusively within the jurisdiction of the Employment and Labour Relations Court and not the High Court.

20. The decisions in Malindi Law Society vs. Attorney General & 4 Others [2016] eKLR and Republic vs. Karisa Chengo & 2 Others [2017] eKLR were referred to in support of the submission.

21. The Petitioner opposed the Respondents’ position. According to the Petitioner, the dispute is not premature before Court as the Petitioner fully complied with the Constitution and the law. That, it forwarded the dispute to the Summit as required and since there was no resolution, the Petitioner exercised its other right under the law.

22. The Petitioner further submits that the preliminary objection did not attain the legal threshold for such an objection as it is intertwined between factual issues and legal points. It referred to Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696, Mariam Mueni Musembi & Another vs. Commissioner of Lands & 5 Others (2009) eKLR,Oraro -vs- Mbaja (2005) KLR 141, John Njuguna Kimunya vs. Tersiah Wachuka Kimunya & Another (2016) eKLRandKenya Council of Employment Migration Agencies vs. Nyamira County Government & 10 Others (2015) eKLRin affirming that the Notice of Preliminary Objection cannot stand.

23. I would have taken the liberty to consider if the Notice of Preliminary Objection attain the legal threshold of a properly pleaded preliminary objection. However, I will not do so. The reason is that the contents of the Notice of Preliminary Objection were replicated in the Replying Affidavit of Kang’ethe Thuku. Those issues were responded to by the Petitioner and were, to a large extent, controverted. As a result, such issues cannot be a basis of a preliminary objection. That is the legal position flowing through the various decisions referred to by the Petitioners.

24. I will, nevertheless, consider the two sub-issues.

25. I recently dealt with the subject of jurisdiction in Nairobi High Court Constitutional Petition No. E282 of 2020 David Ndii & Others vs. The Attorney General & Others (unreported). This is what I stated: -

24. Jurisdictionis defined in Halsbury’s Laws of England(4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”. Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.

25. In Words and Phrases Legally DefinedVol. 3, John Beecroft Saunders defines jurisdiction as follows:

By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

26. That, jurisdiction is so central in judicial proceedings, is a well settled principle in law. A Court acting without jurisdiction is acting in vain. All it engages in is nullity. Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited[1989] KLR 1 expressed himself as follows on the issue of jurisdiction: -

Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…

27. Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & anotherCivil Appeal No. 103 of 2016 [2018] eKLR stated as follows: -

Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577,as follows;

1) ……..

2) The jurisdiction either exists or does not ab initio…

3) Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.

4) Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

28. On the centrality of jurisdiction, the Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLRstated that: -

So central and determinative is the jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings in concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cui-de-sac. Courts, like nature, must not sit in vain.

29. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Constitutional Application No. 2 of 2011 In the Matter of Interim Independent Electoral Commission (2011) eKLR held that: -

Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid down in judicial precedent ….

30. Later, in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & Others (2012) eKLR Supreme Court stated as follows: -

A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.

31. And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -

[44] …. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...

32. From the foregoing, it is sufficiently settled that a Court’s jurisdiction is derived from the Constitution, an Act of Parliament or a settled judicial precedent.

26. I still hold the above position. As to whether this Court’s jurisdiction is ousted under Article 189(3) and (4) of the Constitution and Sections 31(a) & (b), 32, 33 and 34 of the Relations Act, the starting point is to ascertain if the said provisions apply to this case. I will, hence, reproduce the said provisions.

27. Article189(3) and (4) of the Constitution provides as follows: -

(3) In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.

(4) National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration

28. Sections 30(2), 31(a) & (b), 32, 33 and 34 of the Relations Act states as follows: -

30. (2) This Part shall apply to the resolution of disputes arising—

(a)between the national government and a county government; or

(b)amongst county governments.

31. The national and county governments shall take all reasonable measures to—

(a)resolve disputes amicably; and

(b) apply and exhaust the mechanisms for alternative dispute resolution provided under this Act or any other legislation before resorting to judicial proceedings as contemplated by Article 189(3) and (4) of the Constitution.

32. (1) Any agreement between the national government and a county government or amongst county governments shall— (a) include a dispute resolution mechanism that is appropriate to the nature of the agreement; and (b) provide for an alternative dispute resolution mechanism with judicial proceedings as the last resort.

(2) Where an agreement does not provide for a dispute resolution mechanism or provides for one that does not accord with subsection (1), any dispute arising shall be dealt with within the framework provided under this Part.

33. (1) Before formally declaring the existence of a dispute, parties to a dispute shall, in good faith, make every reasonable effort and take all necessary steps to amicably resolve the matter by initiating direct negotiations with each other or through an intermediary.

(2) Where the negotiations under subsection (1) fail, a party to the dispute may formally declare a dispute by referring the matter to the Summit, the Council or any other intergovernmental structure established under this Act, as may be appropriate.

34. (1) Within twenty-one days of the formal declaration of a dispute, the Summit, the Council or any other intergovernmental structure established under this Act shall convene a meeting inviting the parties or their designated representatives—

(a) to determine the nature of the dispute, including—

(i) the precise issues in dispute; and

(ii) any material issues which are not in dispute; and

(b) to—

(i) identify the mechanisms or procedures, other than judicial proceedings, that are available to the parties to assist in settling the dispute, including a mechanism or procedure provided for in this Act, other legislation or in an agreement, if any, between the parties; or

(ii) subject to Article 189 of the Constitution, agree on an appropriate mechanism or procedure for resolving the dispute, including mediation or arbitration, as contemplated by Articles 159 and 189 of the Constitution.

(2) Where a mechanism or procedure is specifically provided for in legislation or in an agreement between the parties, the parties shall make every reasonable effort to resolve the dispute in terms of that mechanism or procedure.

(3) Where a dispute referred to the Council or any other intergovernmental structure established under this Act, fails to be resolved in accordance with section 33(2), the Summit shall convene a meeting between the parties in an effort to resolve the dispute and may recommend an appropriate course of action for the resolution of the dispute.

29. The parties to the Deed of Transfer of Functions are the Petitioner and the National Government. The Petitioner is a County Government; a creation of the Constitution and the County Government Act. The dispute stems from the Deed of Transfer of Functions. It is, therefore, a dispute between the National Government and a County Government. It is one of the disputes contemplated under Article 189(3) of the Constitution and Section 30(2)(a) of the Relations Act.

30. Such a dispute must be dealt with in accordance with the provisions of the Relations Act. The applicable procedure has been reproduced above. The history of the dispute has been deponed to at length by the Petitioner. According to a letter dated 19th October, 2020 the Petitioner referred the dispute to the National and County Governments Co-ordinating Summit (hereinafter referred to as ‘the Summit’).

31. The Petitioner contend that the Summit failed to resolve the dispute and as such the Petitioner exercised its right to refer the dispute to arbitration and to institute appropriate judicial proceedings.

32. Having gone through the record, I find the position taken up by the Respondents that the dispute was yet to be referred to the Summit a bit disturbing. I say so because on one hand the Respondents hold that the Petitioner did not refer the dispute to the Summit and on the other hand, it is the Respondents through paragraph 38 of the Affidavit of Kang’ethe Thuku, who introduced the Petitioner’s letter dated 19th October, 2020. To me, the fact that the Petitioner decided to refer the dispute to the Summit is a clear signal that it was not contented with the discussions between itself and the National Government’s representative. Whether the referral of the dispute to the Summit was premature and/or whether the Summit’s jurisdiction was properly invoked are matters to be addressed elsewhere.

33. I would have readily agreed with the Respondents had the Petitioner failed to adhere to the laid down procedures in the law. However, in this case, I find and hold that, the Petitioner duly complied with the provisions of the Relations Act upto and including referring the dispute to the Summit. The objection, therefore, fails.

34. On whether the Petitioner has raised issues on the secondment of officers to NMS, the deployment of officers of the Kenya Defence Forces to serve in civilian affairs and the issue of the transfer of employees’ information to NMS, I find it prudent to reproduce the prayers sought by the Petitioner in the Amended Petition.

35. The prayers are as follows: -

a. A declaration be made on the scope and meaning of the expression contained in Article 187(2)(b) of the Constitution of Kenya that "the Constitutional responsibility for the performance of the function or exercise of the power [over such of the transferred functions between the National and County Governments] shall remain with the government to which it is assigned by the Fourth Schedule, in light of the Deed of the Transfer of Functions dated 25th February 2020 between the Petitioner and the National Government of Kenya means that the National Government has no unbounded power to exercise over the Petitioner, and the Petitioner remains vested with the statutory and constitutional duty to do only what is both necessary and proper in furtherance of the constitutional Principles and Objectives of Devolution.

ALTERNATIVELY, to "a". above

b. A declaration do issue that by operation of Article 187(2)(b) of the Constitution of Kenya, the application of the doctrine of "Constitutional responsibility for the performance of the function or exercise of the power [over the Four transferred functions]" under the Deed of Transfer of Functions dated 25th February 2020 remaining with the Petitioner government to which it is assigned by the Fourth Schedule means, and implies that the entity assuming the 4 Transferred Functions cannot override the Petitioners Constitutional and Statutory provisions circumscribing the exercise of the Four Functions subject of the Deed of Transfer of Functions dated 25th February 2020.

c. A declaration do issue that by operation of Article 196(1)(b) of the Constitution of Kenya the 13th Respondent, the Nairobi City County Assembly, is enjoined in mandatory terms to facilitate public participation and involvement in the legislative and other business of the Assembly and its committees, which mandate includes the business under its relevant Committees of the 1st Respondent NMS touching on the Four functions under the Deed of Transfer of Functions Gazetted on 25th February 2020.

d. A declaration do issue that any appointments to the Nairobi Metropolitan Services, AIMS so far as it purports to execute any of the functions of the Nairobi City County must be subjected to the mandatory demands of the PUBLIC APPOINTMENTS (COUNTY ASSEMBLIES No. 5 of 2017), as read with the Public Service Commission Act, when, and if it does assume ANY functions of the Petitioner, Nairobi City County Government.

e. A declaration do issue that the appointments to the 1st Respondent Nairobi Metropolitan Services, NMS of Major General Mohammed Abdalla Badi, BRIG. GEN. FREDRICK LEURIA, MAJOR J. V MBITHI , MAJOR A. N. NYAKUND/ , MAJOR J. K. NJOROGE, LT. COL. J. K. BIOMDO, MAJOR A. L. MUSOMA, while being members of the Kenya Defence Forces, and without the written approval of the National Assembly for such deployment prior to such deployment, or anytime thereafter constitutes a contravention of Article 241(3)(b) and (c) of the Constitution of Kenya.

f. A declaration do issue that, there being no patent situation of declared emergency or disaster in Nairobi City County, there was no justification ab initio, and there currently subsists no justification for the deployment of members of the Kenya Defence Forces, Major General Mohammed Abdalla Badi, BRIG. GEN. FREDRICK LEURIA, MAJOR J. v MBITHI, MAJOR A. N. NYAKUNDI, MAJOR J. K. NJOROGE, LT. COL. J. K. BIOMDO, and MAJOR A. L. MUSOMA to undertake civilian duties in Nairobi City County under the Nairobi Metropolitan Services (NMS) without the written approval of the National Assembly, and the said deployment constitutes a violation of Article 241(3)(b) of the Constitution of Kenya.

g. A declaration do issue that the Nairobi City County Appropriations Bill, 2020 was published and presented to the Petitioner's Governor for assent in violation of Section 23 of the County government Act which demands that a Money Bill be subjected to public participation, by reason of which breach it is null and void and incapable of enforcement or application, absent such compliance.

h. A declaration do issue that all appointees set out in the letter dated September I St 2020 signed by the Respondent having not been made in compliance with the PUBLIC APPOINTMENTS (COUNTY ASSEMBLIES No. 5 of 2017), and no advertisement thereof, inviting applications for nomination for appointment to such offices having been made, and without any vetting of such nominees by the 13th Respondent Nairobi City County Government, the said purported appointments are null and void.

i. A declaration do issue that the foregoing failure, refusal, and/or neglect by the 1 and 2nd Respondent to abide by the Principles of good governance, transparency, co-operation is a continued threat to a violation of Articles 187(2)(b), and 189(1) of the Constitution of Kenya.

j. By way of Judicial Review, an Order of Certiorari do issue to forthwith remove to this Honourable Court for purposes of being quashed, and to quash, the decision made on September 2020 by the 3rd Respondent Major General Abdalla Badi, purporting to make appointments to the 1st Respondent Nairobi Metropolitan Services without compliance with the Public Service Commission Act, as read with the Public Appointments (County Assemblies Approval) Act, No. 5 of 2017, and which act is ultra vires Sections 63 and 64 of the County Government Act.

k. By way of Judicial Review an Order for Prohibition do issue, prohibiting the 1st Respondent Nairobi Metropolitan Services, MMS through its "Director General" Major General Mohammed Abdalla Badi, BRIG. GEN. FREDRICK LEURIA, MAJOR J. V MBITHI , MAJOR A. N. NYAKUNDI , MAJOR J. K. NJOROGE, LT. COL. J. K. BIOMDO, MAJOR A. L. MUSOMA, while being members of the Kenya Defence Forces, and without the written approval of the National Assembly for such deployment prior to such deployment or anytime thereafter to the Nairobi City County civilian Functions from executing any civilian duties under the Deed of Transfer of Functions dated February 25th 2020, and to forthwith cease from any such deployment, undertaking, task, or position.

l. A declaration do issue that the Deed of Transfer of Functions dated 25th February, 2020 as contained in GAZETTE NOTICE NO. 1609 DATED 25TH FEBRUARY 2020, vol. CXXII — No. 38 OF 2020, (together with the undated Addendum thereto) is illegal, inoperative, unenforceable, null and void and unconstitutional for want of effectual and meaningful public participation; its violation of the Objects, and Principles of Devolution set out in Article 174(a), and (c); violation of the Principles and Values of Good governance, sharing and devolution of power, the rule of law, democracy, participation of the people, accountability, integrity, and transparency as espoused in Article IO(2)(a) and (c) of the Constitution of Kenya, as well as being in breach of Section 26(2)(e) of the Intergovernmental and Relations Act.

m. An order do issue, forthwith terminating the Deed of Transfer of Functions dated 25TH February 2020 as contained in GAZETTE NOTICE NO. 1609 DATED 25 FEBRUARY 2020, vol. CXXII- No. 38 OF 2020, (together with the undated Addendum thereto) and in consequence thereof, the said GAZETTE NOTICE NO. 1609 DATED 25TH FEBRUARY 2020, vol. cxxll- No. 38 OF 2020 be, and is hereby quashed.

n. An injunction do issue, restraining the 11TH Respondent, Cabinet Secretary, Ministry of Finance and Planning, from disbursing any funds to the 1st Respondent Nairobi Metropolitan Service, (NMS) as contained in the Nairobi City County Assembly Appropriation Bill, 2020, and/or any subsequent Nairobi City County Appropriation Act, or otherwise howsoever, in purported execution of the Nairobi City County Government Functions.

o. An injunction do issue, restraining the 1st Respondent, Nairobi Metropolitan Services, by itself, its agents, and servants the 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Respondents herein, or otherwise howsoever from executing, further executing, assuming, or further assuming, or discharging any aspect of the 4 (Four functions) "transferred" to the National Government from the Petitioner Nairobi City County Government as contained in Article 3 of the Deed of Transfer of Functions published in the Kenya Gazette Notice No. 1609 dated 25th February 2020, and from demanding any payment, or any sums from any party in furtherance of the 4 Functions contained in the Deed of Transfer Functions set out in the Kenya Gazette Notice No. 1609 dated 25th February 2020, or otherwise howsoever receiving any funds allocated to the Nairobi City County Government under the Division of Revenue Act, 2020, or by any instrument on behalf of the Petitioner in furtherance of any aspect of the terms of the Deed of Transfer Functions set out in the Kenya Gazette Notice No. 1609 dated 25th February 2020.

00. An Order directing the 11th Respondent to release to the Petitioner such of the funds allocated, budgeted for, and set aside to pay hitherto contracted work, and so contractually completed by contractors hitherto lawfully engaged by the Petitioner to execute works and render services under the four Functions set out in paragraph 3 of the "Deed of Transfer of Functions" in Kenya Gazette Notice No. 1609 dated 25th February 2020.

p. By way of Judicial Review an Order of mandamus do issue, compelling the 3rd Respondent, Major General Mohammed Abdalla Badi to, within 24 hours of the making of this order and service thereof on the Respondent at its offices, or by email, to deliver up, and hand over to the Petitioner at the Petitioner's City Hall offices of the Petitioner's County Secretary the 2,000 the Petitioner's personnel files which the 1st Respondent (NMS) by its servant, one Ms. Rachel Njeri unlawfully carted away on 13th October 2020.

pp An Order of injunction do issue restraining the 14th Respondent Controller o Bud et rom authorizing the release of any funds from the Petitioner's Nairobi City County Government's Count Revenue Fund Account under votes within the Nairobi City County Appropriation Act, 2020 that do not comply with the necessary and relevant provisions of the law particularized in the Petition herein in so far as such disbursement of finances to the 1st Respondent Nairobi Metropolitan Services, NMS are concerned, and which votes constitute a violation of the law and the Petitioner's Constitutional rights herein pleaded.

q. Any other relief as this Honourable Court may deem expedient

r. Costs of these proceedings.

36. Prayers (d), (e), (f), (h), (j), (k) and (p) are the relevant ones in this discussion. There is no doubt that the said prayers variously relate to issues of appointments, deployment and employment of officers to the NMS.

37. Article 165(5) of the Constitution states as follows: -

The High Court shall not have jurisdiction in respect of matters—

(a)reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or

(b)falling within the jurisdiction of the courts contemplated in Article 162 (2).

38. Article 162(2) of the Constitution provides that: -

Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—

(a)employment and labour relations; and

(b)the environment and the use and occupation of, and title to, land.

39. The Supreme Court in Republic vs. Karisa Chengo & 2 Others [2017] eKLR exhaustively dealt with the jurisdiction of the High Court and the Courts of equal status contemplated under Article 162(2) of the Constitution. The Court was categorical that the High Court has no jurisdiction over matters falling within the specialised Courts and vice versa. Infact, the position is that the specialised Courts have jurisdiction to even determine any constitutional issues in respect of the matters they have jurisdiction over. That is the law.

40. By applying the obtaining legal position to this matter, I find and hold that, this Court has no jurisdiction to deal with prayers (d), (e), (f), (h), (j), (k) and (p) of the Amended Petition. To that extent, the Respondents’ objection succeeds.

41. In sum, the objection under Article 189(3) and (4) of the Constitution and Sections 31(a) & (b), 32, 33 and 34 of the Relations Act fails whereas the objection under Article 165(2) of the Constitution partly succeeds.

Whether thequestion of the establishment and legality of Nairobi Metropolitan Services and the issue of secondment of officers of the Kenya Defence Force to the Nairobi Metropolitan Services are res judicata having been issues that were determined by a Court of competent jurisdiction in Nairobi ELRC 52 of 2020: Okiya Omtatah Okoiti -versus- Nairobi Metropolitan Service & Others.

42. The Respondents vehemently oppose assumption of jurisdiction by this Court over the issues on the legality and establishment of the NMS, the secondment of officers of the Kenya Defence Force to serve in the MNS and all other staff issues relating to the NMS. They contend that those issues were finally settled in Nairobi ELRC No. 52 of 2020: Okiya Omtatah Okoiti -versus- Nairobi Metropolitan Service & Others.

43. The Petitioner is of the position that the legality and constitutionality of the officers of the Kenya Defence Force to serve in the NMS was not an issue in ELRC No. 52 of 2020 since the said suit only dealt with Executive Order 3.

44. The doctrine of res judicata is not novel. It is a subject which Superior Courts have sufficiently expressed themselves on. The Supreme Court inPetition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLRdelimited the operation of the doctrine of res-judicata in the following terms;

[317] The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.

[318] This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.

[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.

[320] So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a Court is essentially the same as another one already satisfactorily decided, before a competent court.

[333] We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1st, 2nd and 3rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v. Figliola [2011] 3 S.C.R. 422, 438 (paragraph 28)).

[334] Whatever mode the 1st, 2nd and 3rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the Courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v. National Bank of Kenya Ltd. & Others, [2001] EA 177 the Court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”

[352] The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:

But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.

[353] Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & Another v. Attorney General & 6 Others, High Court Const. and Human Rights Division, Petition No. 593 of 2013 [2014] eKLR, Lenaola J. (at paragraph 64) thus stated:

Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the Constitutional Court and where the Court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights-based litigation and the reason is obvious.

[354] On the basis of such principles evolved in case law, it is plain to us that the 1st, 2nd and 3rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.

[355] However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution.

45. The Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR also discussed the doctrine of res judicata at length. The Court stated in part as follows: -

The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.

We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit.

From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -

i)The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.

ii)There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.

iii)The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.

46. I have already made a jurisdictional finding on the deployment or secondment of officers and staff to NMS in the preceding issue. I must add that even the issue of the legality and constitutionality of the officers of the Kenya Defence Force to serve in the NMS is an issue which is caught up by Article 165(5)(b) of the Constitution. The issue falls squarely within the ambit of the Employment and Labour Relations Court. I will, therefore, not endeavour to discuss whether the same issue is also res judicata. I will only deal with whether the legality and establishment of the NMS is, indeed, caught up by the doctrine of res judicata.

47. The Nairobi ELRC No. 52 of 2020 was instituted by way of a Constitutional Petition. The Governor of Nairobi County, H.E. Governor Mike Mbuvi Sonko was the 10th Interested Party.

48. The Petition prayed for the following orders in respect of the creation of NMS: -

(i)A DECLARATION THAT the purported creation of the Nairobi Metropolitan Services was unlawful and unconstitutional and, therefore, invalid, null and void ab initio.

(vi)AN ORDER:

a.QUASHING the creation of the Nairobi Metropolitan Services.

49. The Court in Nairobi ELRC No. 52 of 2020 rendered itself on the above issue in a judgment delivered on 18th June, 2020, and, as follows:

A declaration that the creation of the Nairobi Metropolitan Services was done in violation of the Law and the Constitution.

50. On 17th September, 2020 the Court in Nairobi ELRC No. 52 of 2020 delivered a ruling. The Court held as follows: -

84. Having found as above, I therefore find that the declaration of illegality of the Nairobi Metropolitan Services as created is now lifted.

51. At the hearing of the application, Counsel for the Petitioner indicated that the above ruling is subject of an appeal before the Court of Appeal.

52. Looking at the prayers sought in Nairobi ELRC No. 52 of 2020 and the ruling delivered on 17th September, 2020, it is clear that the issue of legality and establishment of the NMS was the paramount one, that the issue was addressed by the Court and the Court finally rendered itself on it. The issue cannot be relitigated except on appeal or review. However, in the current Petition the issue is not on the legality and establishment of the NMS. One of the issues raised in the current Petition is the constitutionality and legality of the Deed of Transfer of Functions. The issue, of course, has all bearing on the life of the NMS. That issue is substantially different from the former.

53. I now find and hold that whereas the issue of legality and establishment of the NMS is caught up by the doctrine of res judicata, the issue of the constitutionality and legality of the Deed of Transfer of Functions is not. This Court has jurisdiction to deal with the issue of the constitutionality and legality of the Deed of Transfer of Functions.

Whether there is any dispute for referral to arbitration; and whether there is any residual question(s) to be determined by this Court under Article 165(3) of the Constitution:

54. The Petitioner contend that the dispute it referred to the Summit was never dealt with. As a result, it exercised its right to arbitration. The Petitioner now seeks the intervention of this Court under the Arbitration Act for the institution of the arbitral proceedings and the issuance of interim reliefs in the nature of conservatory orders.

55. The Petitioner also contend that even after referring the dispute to arbitration there are still several issues which fall squarely within the mandate of this Court and that the Court ought to determine them as well. The issues are as follows: -

(i)The constitutionality of the Nairobi City County Appropriation Act, 2020;

(ii)The constitutionality of deployment of members of the Kenya Defence Forces into civilian duties;

(iii)The constitutional interpretation of Article 187(2)(b) of the Constitution.

(iv)The legality, constitutionality and termination of the Deed of Transfer of Functions dated 25th February, 2020.

56. The Respondents are of the contrary position. They first contend that the Deed of Transfer did not make any provision for reference of any dispute to arbitration. They further contend that there are other modes of alternative dispute resolution provided for in the Constitution and the law and that the Respondents had not acceded to any reference to arbitration since the matter must first be dealt with by the Summit.

57. I have above dealt with the legal foundation governing dispute resolution between the two levels of Government. I wish not to rehash the same. What I need to deal with here is whether, in view of Nairobi ELRC No. 52 of 2020 and all the other Petitions including Nairobi Petition Nos. 64, 65, 66 and 164 all of 2020, there are still issues to be referred for arbitration.

58. Section 35 of the Relations Act provide as follows: -

Where all efforts of resolving a dispute under this Act fail, a party to the dispute may submit the matter for arbitration or institute judicial proceedings.

59. A look at the Petitioner’s letter dated 19th October, 2020 referring the dispute to the Summit is imperative. The Petitioner was clear in the letter that it intended to terminate the Deed of Transfer of Functions between itself and the National Government. The Petitioner gave three main reasons for such intention. They are: -

(i)That the Petitioner retained constitutional responsibility under Article 187(2)(b) of the Constitution;

(ii)That ‘NMS is not synonymous with the ‘institutional framework’ envisaged within Article 7 of the said Deed; at least the formation of a competing, parallel entity was never within the contemplation of the Nairobi City County Government at any time’, and

(iii)That the Deed of Transfer of Functions is unconstitutional and illegal.

60. It cannot be gainsaid that the mandate to interpret the Constitution, to issue appropriate resultant orders and the determination of constitutionality of statutes and actions rests with the Superior Courts. In the High Court, Article 165 (3) and (4) of the Constitution comes to play. The Article states 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.

(4) Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

61. The Petitioner gave three reasons for the termination of the Deed of Transfer of Functions in the letter to the Summit. I have already outlined the reasons above. The issue of the constitutionality of the Deed of Transfer of Functions and the constitutional interpretation of Article 187(2)(b) of the Constitution are not issue capable of determination by the Summit. Those are pure constitutional issues which can only be addressed by a Superior Court. The Summit has no jurisdiction to express itself on such issues. The other reason related to the legality and constitutionality of the NMS. As said, the issue is now res judicata.

62. It, therefore, follows that the issues identified by the Petitioner to be addressed by the Summit are not available for such consideration. As said, the Summit has no jurisdiction to, inter alia, deal with the interpretation of the Constitution. That being the legal position, there is hence no issue in the Petitioner’s letter dated 19th October, 2020 for referral to arbitration.

63. Conversely, there are three main issues for consideration by this Court. The issues are: -

(i) The constitutionality and legality of the Nairobi City County Appropriation Act, 2020;

(ii) The interpretation of Article 187(2)(b) of the Constitution.

(iii) The constitutionality and legality of the Deed of Transfer of Functions dated 25th February, 2020.

64. This issue is now determined in that whereas there are no issues for reference to arbitration, there are serious constitutional issues which this Court has jurisdiction to deal with.

Whether a certification should issue for empanelment of an expanded bench:

65. Although the Petitioner prayed for an order on empanelment of this Bench in the application, it did not pursue it at the hearing. None of the Respondents also dealt with the prayer.

66. Notwithstanding the above, I will, nevertheless, deal with the issue. In the David Ndii & Others case (supra)I handled an issue of certification as follows: -

65. Applications for certification have a constitutional underpinning. The Constitution provides for certification in the superior Courts under Article163(4)(b)and Article 165 (3) and (4).

66. …..

67. ….

68. …...

69. The manner in which a single Judge of the High Court certifies that a matter raises a substantial question(s) of law so as to warrant the empanelment of an expanded bench has, on several instances, been dealt with by the Superior Courts.

70. The Supreme Court of Kenya inHermanus Phillipus Steyn v Giovanni Gnechi-Ruscone [2013] eKLRestablished the principles for certification under Article 163(4)(b) of the Constitution. However, those principles were adopted, with modification, by the Court of Appeal in Okiya Omtatah Okoiti & another v Anne Waiguru - Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLRwhen the Court of Appeal dealt withan appeal against a refusal by the High Court to certify a matter as raising substantial questions of law under Article 165(4) of the Constitution.

71. …..

72. ……

73. As said, the Court of Appeal applied the above principles inOkiya Omtatah Okoiti & another v Anne Waiguru- Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR and expressed itself thus: -

42. In Hermanus PhillipusSteyn v Giovanni Gnechi- Ruscone [2013] eKLRthe Supreme Court of Kenya pronounced governing principles for purposes of certification under Article 163(4)(b) some of which are relevant in the context of certification under Article 165(4). Drawing therefrom, we adopt, with modification, the following principles:

(i) For a case to be certified as one involving a substantial point of law, the intending applicant must satisfy the Court that the issue to be canvassed is one the determination of which affects the parties and transcends the circumstances of the particular case and has a significant bearing on the public interest;

(ii) The applicant must show that there is a state of uncertainty in the law;

(iii) The matter to be certified must fall within the terms of Article 165 (3)(b) or (d) of the Constitution;

(vi) The applicant has an obligation to identify and concisely set out the specific substantial question or questions of law which he or she attributes to the matter for which the certification is sought.

43. It is our judgment therefore, that whether a matter raises a substantial point of law for purposes of Article 165(4) of the Constitution is a matter for determination on a case-by-case basis. The categories of factors that should be taken into account in arriving at that decision cannot be closed.

74. The High Court has as well severally dealt with the matter. In Republic v Public Service Commission & Keriako Tobiko Ex parte Nelson Havi [2017] eKLRthe Court stated that: -

42. Whereas this Court appreciates that the decision of an enlarged bench may well be of the same jurisprudential value in terms of precedent or stare decisis principles as a decision arrived at by a single High Court judge, the Constitution itself does recognise that in certain circumstances it may be prudent to have a matter which satisfies the constitutional criteria determined by a bench composed of numerically superior judges…

46. In the circumstances, I hereby certify that this matter raises a substantial question of law to warrant reference of the same to the Chief Justice as required under Article 165(4) of the Constitution.

75. InPhilomena Mbete Mwilu v Director of Public Prosecution & 4 others [2018] eKLRthe High Court had the following to say: -

29. I fully agree with the above views on the jurisprudential value of decisions by a bench or a single judge of this court. Although the present petition can be heard by a single judge of this court and also being fully aware that a bench would sometimes require resources both personnel and financial as well as more time to resolve a petition than if it were heard by a single Judge, the present petition is the kind of petition that this court should exercise its discretion in favour of an expanded bench due to its public importance and significance in our constitutional democracy. The issues sought to be decided are not mere questions of law, they are substantial questions of law and their resolution will have a material bearing on the 1st respondent’s decision to arrest and prosecute the petitioner and the independence of the judiciary.

67. Drawing from the above, I will now apply the criterion laid by the Court of Appeal in Okiya Omtatah Okoiti & another v Anne Waiguru case(supra) in this case. I do not find any difficulty in arriving at the finding that the prayer fails the test for certification under Article 165(4) of the Constitution so as to call for an expanded bench of this Court.

68. Whereas on one hand the issues raised in the Petition are weighty and of immense public interest, on the other hand, the issues are not complex. In fact, if anything, the Petition ought to be urgently heard and determined given that one of the issues is on the constitutionality of the Nairobi City County Appropriation Act, 2020 which Act determine budgetary expenditures within the County of Nairobi. Reference of this matter for empanelment will work counter the urgency.

69. This matter, therefore, does not call for an expanded bench at the moment.

Whether conservatory orders ought to issue:

70. The Petitioner has asked for the grant of conservatory orders pending the determination of the matter by this Court or under the arbitration. The application has 14 prayers for such orders. On the basis of Nancy Makokha Baraza vs. Judicial Service Commission & 9 Others (2012) eKLR the Petitioner urge this Court to allow the plea.

71. The Petitioner submit that the orders ought to issue even only on the basis of the unconstitutional and unlawful manner in which the Nairobi City County Appropriation Act, 2020 was dealt with by the 13th Respondent. The Petitioner referred to several such instances.

72. The Respondents are opposed to the grant of any conservatory orders. They contend that the basis of the orders is the reference to arbitration and since there is nothing to refer as such, then the orders sought have no basis or at all. It is also argued that any conservatory orders will adversely affect the war against Covid-19 pandemic since the NMS will not be able to deal with any of the transferred functions which includes health functions.

73. The Respondents further argue that since the Petition is not hinged on allegation of breach of any of the rights and fundamental freedoms in the Bill of Rights then the Constitution makes no provision for conservatory orders.

74. It is also pointed out that prior to the enactment of the Nairobi City County Appropriation Act, 2020 the County used to operate on Vote-On-Account until such enactment. Given that the Act is now in place the former arrangement does not apply and the Controller of Budget awaits the Governor’s Warrant and approved budget to deal further.

75. I will begin with a consideration on whether conservatory orders are only available when a party alleges infringement of rights and fundamental freedoms under the Bill of Rights. I have dealt with this issue before. That was in Nairobi Constitutional Petition No. E364 of 2020 Okiya Omtatah Okoiti vs. Attorney General & 5 Others (unreported). This is what I recently stated: -

21. Article 165(3)(d)(i) and (ii) of the Constitution empowers the High Court to hear and determine questions on the interpretation of the Constitution including the determination of whether any law is inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution. Article 23(3) enumerates the reliefs available in proceedings brought under Article 22 which provision permits any person who claims that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened to institute Court proceedings. The reliefs under Article 23(3) include a conservatory order.

22. Article 258 of the Constitution creates an avenue to any person who claims that the Constitution has been contravened, or is threatened with contravention to institute Court proceedings. Unlike Article 23(3), no reliefs are provided for under Article 258.

23. Article 259 of the Constitution deals with the interpretation of the Constitution. It obligates anyone interpreting the Constitution to do so in a manner that ‘promotes its purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; permits the development of the law and contributes to good governance’. The approach is often described as 'a mandatory constitutional canon of statutory and constitutional interpretation'.

24. There are other settled principles of interpretation of the Constitution. They include that constitutional provisions must be construed purposively and in a contextual manner; that the Constitution must be construed as whole, among others. It therefore behooves a Court interpreting the Constitution to be guided by the language used in the Constitution. A Court should not unduly strain to impose a meaning that the text is not reasonably capable of bearing. It should also avoid what was described as ‘excessive peering at the language to be interpreted’. (See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others vs. Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at para 24 and Johannesburg Municipality vs. Gauteng Development Tribunal and Others [2009] ZASCA 106; 2010 (2) SA 554 (SCA) at para 39, which quoted Jaga v Dönges, N.O. and Another; Bhana v Dönges, N.O. and Another 1950 (4) SA 653 (A) at 664G-H).

25. A Court must also adopt a holistic approach of interpretation. Provisions of a Constitution ought to be taken collectively rather than in isolation.

26. I have carefully considered the 1st Respondent’s argument. I have, as well, reflected on the Petitioner’s response thereto. Whereas the Constitution is silent on the remedies under Article 258, this Court is duty bound to interpret the Constitution in a manner as ordered under Article 259.

27. In a bid to settle the issue, I will consider a hypothetical scenario. The Senate, as part of the Parliament of Kenya, passes an omnibus bill that principally provides for establishment of a government otherwise than in compliance with the Constitution. The Bill also provides for torture, cruel and inhuman treatment, slavery, servitude and takes away the rights to fair trial and an order to habeas corpus. The Bill is assented into law and is ready for operationalization. A Kenyan rushes to the High Court and files a Petition under Article 258 challenging the constitutionality of the new law. The Petitioner pleads with the Court to stop the implementation of the law by initially granting an interim relief in form of a conservatory order. Faced with such a case, should the High Court fold its legal hands and claim that a conservatory order, as an interlocutory relief, is not provided for under Article 258 of the Constitution or that the Petition is not premised on the Bill of Rights? I do not think so, since, such an approach will be tantamount to the Court failing to uphold and defend the Constitution as commanded in Article 3. Further, the Court will be taking such a narrow avenue on interpretation. The Court will, on all four corners, fail the test in Article 259.

28. A Court is always possessed of residual inherent powers. Such powers allow the Court to make any orders in the wider interest of justice. It is for the Court to fashion an appropriate remedy even in instances where the Constitution and the law are silent. A Court cannot just, helplessly so, stare at a Petitioner whose rights and fundamental freedoms are trampled upon or when it is ostensibly demonstrated that the Constitution is either contravened or so threatened. Unless a Court raises to, and asserts its authority, high are chances that it may fail the calling in Article 3 of the Constitution. The result will, undoubtedly, be anarchy and lawlessness in the society.

29. The Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority (2013) eKLRheld that even in instances where there are express provisions on specific reliefs a Court is not precluded from making any other orders under its inherent jurisdiction for ends of justice to be met to the parties. The High Court in Simeon Kioko Kitheka & 18 Others vs. County Government of Machakos & 2 Others (2018) eKLR held that Article 23 of the Constitution does not expressly bar the Court from granting conservatory orders where a challenge is taken on the constitutionality of legislation.

30. In Republic Ex Parte Chudasama vs. The Chief Magistrate’s Court, Nairobi and Another Nairobi HCCC No. 473 of 2006, [2008] 2 EA 311, Rawal, J (as she then was) stated that:

While protecting fundamental rights, the Court has power to fashion new remedies as there is no limitation on what the Court can do. Any limitation of its powers can only derive from the Constitution itself. Not only can the court enlarge old remedies, it can invent new ones as well if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the Court itself, instead of being the protector, defender, and guarantor of the constitutional rights would be guilty of the most serious betrayal.See Gaily vs. Attorney-General [2001] 2 RC 671; Ramanoop vs. Attorney General [2004] Law Reports of Commonwealth (From High Court of Trinidad and Tobago); Wanjuguna vs. Republic [2004] KLR 520…The Court is always faced with variety of facts and circumstances and to place it into a straight jacket of a procedure, especially in the field of very important, sensitive and special jurisdiction touching on liberties and rights of subjects shall be a blot on independence and many facetted jurisdiction and discretionary powers of the High Court. See The Judicial Review Handbook (3rd Edn) by Michael Fordham at 361.

31. The Constitutional Court of South Africa in Fose vs. Minister of Safety & Security [1977] ZACC 6emphasized the foregoing as follows: -

Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.

32. In this case, it is important to note that the Petitioner pleaded the likelihood of infringement of his political rights under Article 38 of the Constitution as a result of the possible implementation of the IEBC Amendment Act.

33. This Court, therefore, find and hold, that the High Court has the requisite jurisdiction to grant any appropriate relief, including a conservatory order, in Petitions challenging the constitutionality of any legislation. It all depends on the circumstances of each case and whether the principles for grant of such a conservatory order are satisfied. The 1st Respondent’s opposition hence fails.

76. I am still of that position.

77. In the said Okiya Omtatah Okoiti vs. Attorney General case(supra)I also dealt with other aspects of conservatory orders. I will reproduce the ones relevant to this matter. This is what I said: -

1. The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed by Courts over time. They are now settled.

2. The locus classicus is the Supreme Court in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR where at paragraph 86 stated the Court stated as follows: -

[86] …… Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant courses.

3. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR after going through several decisions, the Court rightly so, summarized three main principles for consideration on whether to grant conservatory orders as follows: -

(a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.

(b) Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and

(c) The public interest must be considered before grant of a conservatory order.

4. There is also the need to ascertain whether the conservatory order sought will delay the early determination of the dispute. (See Nairobi High Court Constitutional Petition No. E243 of 2020Kenya Tea Development Agency Holdings Limited & 55 Others vs. The Cabinet Secretary Ministry of Agriculture, Livestock, Fisheries & Co-operatives & 2 Others and Kenya Small Tea Holders Growers Association (Kestega) (Interested Party)(unreported).

78. I will now consider the applicability of the principles to the application. A prima facie case was defined in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 to mean: -

…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.

79. The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR while dealing with what a prima facie case is made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396 where the Judge stated thus: -

If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.

80. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The Court in allowing an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -

It is wrong in law for the court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint….... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought.

81. In sum, in determining whether a prima-facie case is demonstrated a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law.

82. There are three issues for determination by this Court in this Petition. They are the constitutionality of the Nairobi City County Appropriation Act, 2020, the constitutionality and legality of the Deed of Transfer of Functions dated 25th February, 2020 and an interpretation of Article 187(2)(b) of the Constitution. I will only deal with the aspect of unconstitutionality of a statute herein below.

83. Courts have discussed the manner in which the issue of conservatory orders based on an allegation of unconstitutionality of a statute ought to be handled. In AttorneyGeneral & another v Coalition for Reform and Democracy & 7 others [2015] eKLR the Court of Appeal stated as under: -

While the Court appreciates the contextual backdrop leading to the enactment of the SLAA, it must also be appreciated that it is not in the interest of justice to enact or implement a law that may violate the Constitution and in particular the Bill of Rights. Constitutional supremacy as articulated by Article 2 of the Constitution has a higher place than public interest. When weighty challenges against a statute have been raised and placed before the High Court, if, upon exercise of its discretion, the Court is of the view that implementation of various sections of the impugned statute ought to be suspended pending final determination as to their constitutionality, a very strong case has to be made out before this Court can lift the conservatory order. The State would have to demonstrate, for example, that suspension of the statute or any part thereof has occasioned a lacuna in its operations or governance structure which, if left unfilled, even for a short while, is likely to cause very grave consequences to the general populace.

84. It has, as well, been submitted that a statute is always presumed constitutional and that such a statute can only be suspended where its demonstrated that it is a danger to life and limb at the very moment. That is the doctrine of presumption of constitutionality. (See Republic vs. National Assembly & 6 Others exparte George Wang’ung’u (2018) eKLR).

85. I have carefully read and understood the contents of the material before me. The allegations made by the Petitioner against the enactment of the Nairobi City County Appropriation Act, 2020 (hereinafter referred to as ‘the Appropriation Act’) are weighty and enormous. They include lack of public participation, irregular allocation of funds statutorily managed under the Nairobi County Ward Development Fund Act to the NMS, making appropriations above the legal budgetary limits, introduction and failure to deal with an uncushioned deficit of Kshs. 5 Billion, allegations through sworn dispositions by Members of the County Assembly of Nairobi County that the voting on the Governor’s Memorandum on the then Nairobi City County Appropriation Bill, 2020 was seriously and fraudulently flawed and that the result was not the expression of the will of the members, among many other serious allegations.

86. At the very least, impugnment of the political rights of the Members of the County Assembly of Nairobi County under Article 38 of the Constitution and inequality and discrimination under Article 27 of the Constitution, are greatly demonstrated. There is also the serious contention that funds to be statutorily managed by an entity have, instead, been appropriated to a third party.

87. If the Appropriation Act is to be implemented as it is and upon hearing and determination of the Petition it comes out that indeed the red-flag raised by the Petitioner is merited, the situation will be irreversible since NMS or any other recipient will have long committed any funds allocated to them. The result will be a budget not subjected to public participation would have been implemented, funds meant for the benefit of the citizens in the County Wards would be otherwise dealt with to the detriment of the lives of the citizenry, the County will be in serious financial deficit among others. All these matters are not effectively controverted at the moment.

88. This Court is hence convinced that the Petitioner has demonstrated a prima-facie case in the circumstances of this matter.

89. Will the Petitioners suffer prejudice and the Petition rendered nugatory unless the conservatory orders are granted? The Black’s Law Dictionary 10th Edition Thomson Reuters at page 1370 defines ‘prejudice’ as follows: -

Damage or detriment to one’s legal rights or claims.

90. The Petitioner having demonstrated a prima-facie case in the foregoing manner, the Petition will be definitely be rendered nugatory if the substratum thereof is not sustained.

91. On public interest, the Black’s Law Dictionary 10th Edition at page 1425 defines it as: -

The general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole has stake especially in something that justifies government regulation.

92. ‘Public interest litigation’ was described by the Court of Appeal in Nairobi Civil Appeal No. 364 of 2017 Tom Mboya Odege vs. Edick Peter Omondi Anyanga & 2 Others (2018) eKLRas follows: -

A legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

93. The Court further held that: -

….. The best examples are in Articles 22(2)(a) and 258 of the Constitution which grant every person the right to move to court in ‘public interest’ where there is a claim or alleged contravention or infringement of a right or fundamental freedom, or threat thereto, or a contravention or threat to violate the Constitution.

94. The Supreme Court of India in Ashok Kumar Pandey vs. State of West Bengal AIR 2004 SC 280 stated as follows about public interest litigation that: -

…. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.

95. This Court agrees with the Petitioner that it is in great public interest that the Constitution and the law are fully complied with. The Court also agrees with the Respondents that the doctrine of presumption of constitutionality of statutes has a place in our legal system and judicial dispensation and that this Court must consider the effects of the orders especially on public health during this time of Covid-19 pandemic.

96. The NMS has already been judicially adjudged constitutional. One of its duties under the Deed of Transfer of Functions relates to public health. It is a fact that funds must be availed for any of the transferred functions to be provided to the public.

97. The Controller of Budget confirmed that before the enactment of the Appropriation Act the Petitioner used to operate on a Vote-On-Account. That, upon the passage of the Appropriation Act then the Vote-On-Account is no longer in use. If I correctly understood the Counsel for the Controller of Budget, the Petitioner was lawfully operating on the Vote-On-Account basis until the position changed upon the enactment of the Appropriation Act. In that case, therefore, once the position is legally reverted ante the enactment of the Appropriation Act then the arrangement on Vote-On-Account shall definitely, and so lawfully, be reverted to as well. There shall, hence, be no danger of inability to provide for the services to the public pending the determination of the Petition.

98. Having said so, I must also state that given the nature of this matter this Court must focus on an early determination of the dispute. Further, there is every good reason for all matters touching on the Deed of Transfer of Functions dated 25th February, 2020 which this Court has jurisdiction over to be considered together. To that end, I will make appropriate orders.

99. In sum, I am satisfied and convinced that the Petitioner has made an appropriate case for the grant of some conservatory orders.

Disposition:

100. Flowing from the above findings and conclusions, the disposition of the Amended Notice of Motion dated 16th November, 2020 is as follows: -

(a) There are no issues for reference to arbitration on the basis of the Petitioner’s letter dated 19th October, 2020 addressed to the Summit.

(b) The High Court is ONLY seized of jurisdiction to deal with the Amended Petition dated 16th November, 2020 on the constitutionality and legality of the Nairobi City County Appropriation Act, 2020, the constitutionality and legality of the Deed of Transfer of Functions dated 25th February, 2020 and the interpretation of Article 187(2)(b) of the Constitution.

(c) No order for certification on empanelment of an expanded bench of the High Court under Article 165(4) of the Constitution shall issue. Instead this Court shall expedite the determination of the matter.

(d) A conservatory order suspending the implementation of the Nairobi City County Appropriation Act, 2020 be and is hereby issued. For clarity, the 11th and 14th Respondents are restrained from disbursing any funds on the basis of the Nairobi City County Appropriation Act, 2020. The order shall be in force for 10 (Ten) days. Theparties in this matter shall convene a meeting and discuss settlement of the issues relating to theNairobi City County Appropriation Act, 2020 within 7 days of today. The Honourable Attorney General and/or its representative or assignee shall be the convenor of the meeting.

(e) This matter is hereby fixed for directions on the hearing of the Amended Petition on 15th December, 2020. On the said day, the Court will also consider the other Petitions having bearing on the matters raised in this Petition. To that end, the Deputy Registrar of this Court shall issue and serve direction notices in Petition Nos. 64, 65, 66 and 164 all of 2020.

(f) This Court shall review the progress of the settlement at the date of directions and shall be at liberty to extend the conservatory orders if need be.

(g) Parties are at liberty to file and serve any responses and/or further responses to the Amended Petition within 7 days of this order.

Orders accordingly.

DELIVERED, DATEDandSIGNED atNAIROBI this 7th day of December, 2020

A. C. MRIMA

JUDGE

Ruling No. 1 virtually delivered in the presence of:

Mr. Harrison Kinyanjui,Learned Counsel instructed by the firm of Messrs. Harrison Kinyanjui & Company Advocates for the Petitioner.

Mr. Bitta,Learned Deputy Chief State Counsel instructed by the Hon. Attorney General for the 1st to 12th Respondents.

Mr. Okatch,Learned Counsel instructed by the firm of Messrs. Okatch & Partners Advocates for the 13th Respondent.

Miss. Ruto,Learned Counsel for the 14th Respondent.

Dominic Waweru –Court Assistant.