[2022] KEHC 11238 (KLR)

Ndirangu & 2 others v Clerk-County Assembly of Embu & 3 others (Constitutional Petition 16 of 2018) [2022] KEHC 11238 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11238 (KLR)

Republic of Kenya

In the High Court at Embu

Constitutional Petition 16 of 2018

LM Njuguna, J

June 8, 2022

Between

Ruth Wambui Ndirangu

1st Petitioner

Grace Wanja Muriithi

2nd Petitioner

Samuel Wachira Njue

3rd Petitioner

and

Clerk-County Assembly of Embu

1st Respondent

Speaker - County Assembly Of Embu

2nd Respondent

County Assembly Of Embu

3rd Respondent

Public Service Board Of Embu County

4th Respondent

Judgment

1. The petitioners herein moved this court via a petition dated 03. 12. 2018 supported by a joint affidavit of the petitioners of even date and a notice of motion seeking for prayers as enumerated on the face of the petition.

2. The petitioners’ case is that they filed the petition herein challenging the resolution by the 3rd respondent on 29. 11. 2018, requiring them to step aside pending investigations by the 3rd respondent which investigations were to be conducted on allegations against the applicants which included incompetence, abuse of office, breach of Public Finance Management Act, breach of County Government Act and breach of the Constitution of Kenya. That the applicants were not aware of the said allegations and they came to learn of the 3rd respondent’s resolutions through grape vine on the 30. 11. 2018. That the applicants have never been served with any notice of particulars of the allegations against them requiring them to answer to the allegations. That the 3rd respondent after passing the resolution, resolved to constitute an ad hoc committee to investigate the allegations. The applicants aver that they were condemned unheard and were denied an opportunity to rebut the allegations.

3. That the 1st respondent proceeded to serve the petitioners with summons requiring them to file documents and appear before the committee, but which summons were not honoured given the fact that the summons were subject of the petition herein. That the ad hoc committee proceeded to sit and made recommendations in its report which it submitted for approval to the 3rd respondent on 17. 01. 2019 and seeking removal of the petitioners’ from office within 24 hours. It was their case that the same amounted to them being condemned unheard; breach of their rights to fair administrative action as enshrined under article 47 of the Constitution and they were at the verge of losing their employment through an unlawful process as the recommendations had not been approved and were in the process of being implemented.

4. The respondents in response filed a notice of preliminary objection dated 19. 12. 2018 on the ground that the court lacks jurisdiction in view of the provisions of the County Assembly (Powers and Privileges) Act No. 6 of 2017 and urged the court to strike out the petition. By a ruling dated 17. 01. 2019, Muchemi, J. ruled that the court has jurisdiction to determine the petitionherein.

5. The respondents filed a replying affidavit sworn on 27. 11. 2019 by Hon. Josiah M. Thiriku wherein it was deposed that the County Assembly has an oversight role which includes considering matters of accountability and transparency of County Governments. That the ad hoc committee was formed to investigate the petitioners herein and the same was in exercise of the said oversight powers and which committee’s sittings, the applicants failed to attend despite being served with summons. That there were serious allegations arising out of the motion that had been tabled in the County Assembly and adopted on 29. 11. 2018 and therefore, there was need of collecting information from the petitioners, members of the public and other sources to establish whether the same were true and further make appropriate recommendations. As such, the petition herein has no merits as the applicants failed to attend the said meetings and therefore they cannot allege that they were denied a right to a fair hearing. Further, this Honourable court should not be used by county government officials to avoid investigations and accountability to the County Assembly as required by the law.

6. The petition was canvassed by way of written submissions.

7. The respondents submitted that the role of the 3rd respondent is clearly set out in article 185 of the Constitution to include inter alia the exercise of oversight over the county executive committee and other organs to ensure transparency and accountability in the execution of their functions. That in its purported functions as conferred by the Constitution, County Governments Act and its standing orders, the 3rd respondent considered the motion grounded on various allegations attributed to the petitioners herein and subsequently adopted its own ad hoc committee report submitted for approval on 17. 01. 2019 seeking the removal of the petitioners within 24 hours and purporting to block them from discharging their functions.

8. That the motion and its recommendations arose from a session of the 3rd respondent whose convening and proceedings, petitioners had notice and were invited to. That this was in breach of Section 40(4) of the Act and the petitioners’ rights to a lawful, reasonable and procedurally fair administrative action guaranteed under the articles 25 (c) and 47 of the Constitution. It was submitted that the salient provisions of the Employment Act requiring the petitioners to be accorded a fair hearing prior to suspension from employment were not taken into consideration prior to the 3rd respondent’s recommendation for them to step aside pending investigations and as such, they are entitled to all the rights and benefits accruing from their contracts.

9. Further, it was their case that the 3rd respondent and its ad hoc committee ignored the express provisions of standing order 204 (5) of the Embu County Assembly that require it to inter alia investigate, inquire into and report on all matters relating to the mandate, management, activities and operations of the assigned departments and in this case, the 3rd respondent cannot be heard purporting that it conducted investigations without considering the input of the petitioners. That the 3rd respondent erred in constituting themselves as complainant, investigator, prosecutor, adjudicator and executor; accordingly, the test of an independent tribunal envisaged under article 50(1) of the constitution was thus never met. In the end, this court was urged to grant the declarations and orders sought in the petition herein. Reliance was placed inter alia on the cases of Martin Nyaga Wambora & the County Government of Embu v Speaker County Assembly of Embu & Others [2014]; Nakuru ELRC Petition 5 of 2019, Eng. Lucy Wanjiru Kariuki v County Assembly of Nakuru & Others.

10. The 1st – 3rd respondents chose to adopt their replying affidavit on record filed on 28. 11. 2019 and sworn by Hon. Josiah Muriithi Thiriku.

11. The 4th respondent in its submissions came up with two main issues for determination as follows: whether the petitioners’ fundamental rights were contravened as alleged and whether the petitioners are entitled to the remedies sought. In regards to the first issue, it was submitted that the procedure for removal from office of a county executive committee member as highlighted in section 40 of the County Government Act was followed during the process of removal of the petitioners from office. That the County Assembly through a public notice carried in the Star Newspaper on 22. 12. 2018 and further by summons dated 20. 12. 2018 summoned the petitioners to submit specified documents needed in the investigations and attend the committee meetings to address the allegations levied against them. It was its case that the petitioners ignored the summons and/or refused to attend the committee meeting for purposes of addressing the allegations and instead, the petitioners through their advocates wrote to the County Assembly Committee stating that they will not honour the summons. Therefore, the petitioners can’t be heard to say that they were not accorded a chance to participate in the investigations or that they were not given a chance for fair and impartial hearing.

12. It was further submitted that the functions of the respondents are well enumerated under Section 59 of the County Government Act 2012 and as such, it acted within its powers and statutory mandate by acting on the recommendations of the 3rd respondent and as such, it cannot be faulted for discharging its functions diligently. In regards to the second issue, it was submitted that given that the petitioners were accorded their right to fair hearing, they cannot be heard to say that due process was never followed and that their rights were infringed upon thus the remedies sought are unmerited and should not be granted.

13. I have considered the petition herein, the response thereto and the submissions as filed by the parties. The issue before the court is on the manner in which the 3rd respondent carried out the process of removal of the petitioners herein.

14. Rule 10 of the Mutunga Rules, 2013 clearly provides what a competent Petition should include. Rule 21(3) of the Mutunga Rules, 2013 provides that the court may frame the issue for determination at the hearing and give such directions as are necessary for the expeditious hearing of the case and lastly, rule 22(2)(b) provides that submissions shall contain a brief statement of facts with reference to exhibits, if any, attached to the petition, issues arising for determination ; and a concise statement of argument on each issue incorporating the relevant authorities referred to, together with the full citation of each authority.

15. The Court of Appeal affirmed the test outlined in Anarita Karimi Njeru and in Mumo Matemu (supra). On its part the Supreme Court confirmed the importance of complying with the stated principle by stating in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR as follows:“(349)…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”

16. The first question, therefore, is whether the petitioners have disclosed a violation of the Constitution, the constitutional provisions violated and the manner in which the provisions were violated. In their petition, the petitioners allege violation of their rights and principles enunciated and protected by inter alia articles 2, 3, 10, 19, 20, 21, 22, 23, 165, 185(3), 235, 47 of the Constitution. The petitioners’ case is that they were condemned unheard and their rights to fair administrative action as enshrined under article 47 of the Constitution violated. They proceeded to specify the orders they are seeking against the respondents which are tied to the statutory and constitutional mandates of the respondents. Whether their pleadings disclose a constitutional dispute is an issue this court proceeds to determine.

17. On whether the petitioners have established a case for the grant of the orders sought, the petition is premised on the articles and sections as indicated on the face of the petition. The alleged infringement of the petitioners’ rights under the said provisions is then tied to the alleged violation of other constitutional rights under inter alia articles 2, 3, 10, 19, 20, 21, 22, 23,165, 185(3), 235, 47 of the Constitution.

18. The above conclusions would then lead me to the question whether these rights were violated as alleged.

19. In the case of County Government of Nyeri & another v Cecilia Wangechi Ndungu Civil Appeal 2 of 2015 the Court of Appeal held that there are two methods by which a member of a County Executive Committee could be dismissed from service. Under section 40, a Governor could dismiss a County Executive Committee member on any specified ground following a resolution by the County Assembly for dismissal. Under section 31(a), a Governor could dismiss a County Executive Committee member on his own motion at any time if he considered it appropriate and necessary to do so.

20. Whichever method is applied in the removal of a member of a CEC, the power to do so must be exercised reasonably and not arbitrarily. In the case cited above, the court went on to state as follows;From the language adopted by the legislator in enacting Sections 40 & 31(a) we discern two methods through which a member of a County Executive Committee can be dismissed. Firstly, under Section 40 a Governor can dismiss a County Executive Committee member on any of the aforementioned grounds following a resolution by the County Assembly for such dismissal. In that case the dismissal is initiated by the County Assembly. Secondly, under section 31(a) a Governor can dismiss a County Executive member on his own motion at any time if he considers it appropriate and necessary to do so. It is this second mode that appears to vest an element of discretion on the part of the Governor and which is the subject of interpretation in this appeal. 21. In this case, it is contended that the notice of motion seeking to have the petitioners step aside pending investigations emanated from the member (Hon. Ireri Duncan) of the 3rd respondent. That the 3rd respondent subsequently proceeded to debate the motion and adopted its recommendations whose effect was to ask the petitioners to step aside pending investigations into the alleged improprieties.

22. That the petitioners were entitled to constitutional and statutory protection as envisaged under section 40(3) of the CGA. So important is the principle of due process that article 236(b) of the Constitution makes it mandatory to accord a public officer facing disciplinary action due process, before dismissal, removal from office or demotion;A public officer shall not be—a)…b)Dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.[See Mary Kanyaman Ekai v County Assembly of Samburu & another [2018] eKLR].23. It was the petitioners’ case that the motion was debated even before the ad hoc committee was formed. According to the respondents, the ad hoc committee was formed after the motion had been tabled, debated and a resolution passed to have the petitioners step aside for investigations. The petitioners have argued that the purported ad hoc committee was formed as an afterthought to sanitize the whole unlawful process which already had a pre-determined outcome.

24. It is trite that the proceedings for removal of County Executive Committee Member must adhere to the rules of natural justice. Section 40(4) of the County Government’s Act, 2017, provides that:The county executive committee member has the right to appear and be represented before the select committee during its investigations.

25. The County Government’s Act, 2017, provides that the county executive committee member has the right to appear and be represented before the select committee during its investigations. The question is therefore whether the petitioner was afforded a hearing before the ad hoc Committee.

26. The petitioners contend that they were not aware of the allegations against them and they only came to learn about the resolution through grape vine on 30. 11. 2018 and that they were never served with any notice of summons from the 3rd or 4th respondents giving particulars of the allegations against them and requiring them to answer to those allegations. On their part, the respondents contended that the petitioners ignored the summons and/or refused to attend the committee meeting for purposes of addressing the allegations and instead, the petitioners through their advocates wrote to the County Assembly Committee stating that they will not honour the summons.

27. The question that this court asks itself thus is, at what particular point does the right to be heard crystalize? As can be discerned from the record, it is quite evident that the 3rd respondent summoned the petitioners before the committee started its hearings.

28. The petitioners don’t deny the fact that they were summoned but through their advocate, they stated that they could not honour the summons given that the matter was in court. In reference to the orders issued by the court in the ruling dated 21. 10. 2021, the court issued conservatory orders restraining the respondents from implementing and/or enforcing the recommendations of the report dated 17. 01. 2019. The court did not, in any way, bar the 3rd respondent via the ad hoc committee from carrying out its statutory duty. [See section 40 of the County Government Act; John Kipng'eno Koech & 2 Others v Nakuru County Assembly & 5 Others [2013] eKLR].

29. The petitioners have not denied that summons were issued to them. They cannot also deny that they were not aware of the allegations levelled against them as the same were carried out in the Star Newspaper of 22. 12. 2018. Indeed, receipt of summons was acknowledged by the petitioners’ advocates in their letter dated the 2. 01. 2019. The purpose of the issuance of summons was for the petitioners to appear within the time specified therein.

30. In my considered view, by constituting an ad hoc committee and by issuing the summons and causing an advertisement on the Star Newspaper as aforesaid, the 3rd respondent gave the petitioners an opportunity to be heard and prove their innocence if any, but they outrightly refused, declined and/or ignored the said opportunity. They cannot therefore claim that they were not given an opportunity to be heard.

31. In the premises, I find the petition unmeritorious and thereby dismiss it but with no order as to costs.

32. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 8TH DAY OF JUNE, 2022. L. NJUGUNAJUDGE…………………………………….for the Applicants……………………………………….for the Respondents