[2025] KEHC 3758 (KLR)

Ngeno & 3 others v County Government of Bomet & 2 others (Petition E007 of 2024) [2025] KEHC 3758 (KLR) (24 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3758 (KLR)

Republic of Kenya

In the High Court at Bomet

Petition E007 of 2024

JK Ng'arng'ar, J

March 24, 2025

IN THE MATTER OF ARTICLES 1, 2, 3, 4, 10, 19, 20, 21, 22, 23, 24, 165, 174, 175, 176, 195, 232, 251, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE VIOLATION OF ARTICLES 38, 47 AND 48 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE COUNTY GOVERNMENT ACT, 2017, THE PETITION TO COUNTY ASSEMBLY (PROCEDURES) ACT, CAP 274 AND THE STANDING ORDERS OF BOMET COUNTY ASSEMBLY AND IN THE MATTER OF THE UNPROCEDURAL AND ILLEGAL REMOVAL FROM OFFICE OF THE CHAIRPERSON AND MEMBERS OF BOMET COUNTY PUBLIC SERVICE BOARD

Between

Eng Alexander Ngeno

1st Petitioner

Ms Milcen Soi

2nd Petitioner

Mr Isaiah Byegon

3rd Petitioner

Mr David Tuei

4th Petitioner

and

County Government of Bomet

1st Respondent

Speaker of the County Assembly of Bomet

2nd Respondent

Hon Kibet Ngetich

3rd Respondent

Ruling

Background 1. The Petitioners moved this court through the Petition dated 9th September 2024 where they sought declaratory orders against the Respondents. The Petitioners challenged the process of their removal from the Bomet County Public Service Board by the County Assembly citing undue procedure thereby violating their constitutional rights.

2. Alongside the Petition, the Petitioners filed a Notice of Motion Application dated 9th September 2024 where they sought the following Orders:-I. Spent.II. Spent.III. That the Honourable Court be pleased to set aside the entire Resolution of the 1st Respondent dated 13th August 2024 as its special sitting for failure to comply with their constitutional, statutory and other laws and regulations in place.IV. That this Honourable Court be pleased to issue conservatory orders against the impugned Special Motion, procedure and resolution and to declare it as null and void ab initio.V. That this Honourable Court be pleased to issue an urgent date and further Orders be set for the expeditious inter-parties hearing.

3. The Application was accompanied by the Supporting Affidavit of the 1st Petitioner sworn on 9th September 2024. This Affidavit was challenged by the 1st and 2nd Respondents in their Notice of Motion Application dated 17th October 2024. In order of procedure, it would be prudent to dispense of the 1st and 2nd Respondent’s Application dated 17th October 2024 as the outcome would be critical to the survival of the Petitioners’ Notice of Motion Application dated 9th September 2024.

Notice of Motion Application dated 17th October 2024. 4. The 1st and 2nd Respondent (Applicants) sought the following Orders:-I. That the Affidavit purportedly sworn by Eng. Alexander Ngeno on 9th September 2024 and filed in support of the Notice of Motion of even date, be struck out for being incurably defective and improperly commissioned.II. That the Notice of Motion dated 9th September 2024 be struck out in its entirety as the Affidavit in support is legally defective, rendering the entire motion unsustainable.

5. It was their case That the Affidavit was defective as it had been sworn in Nairobi and attested in Thika. That the signatures on the Affidavit were done digitally and not in the legally recognized methods. It was their further case That the 1st Petitioner did not appear in person for the attestation of his Affidavit and That was contrary to section 5 of the Oaths and Statutory Declarations Act. That the 1st Petitioner’s Letter of Authority to Plead suffered from the same defects.

6. The 1st and 2nd Respondents (Applicants) stated That there was no law which recognized digital signatures. That reliance on the impugned Affidavit would undermine fairness and the integrity of the judicial process and That the impugned Affidavit should be struck out.

7. In his submissions dated 16th December 2024, the 1st Petitioner submitted he voluntarily swore the impugned Affidavit which was then commissioned by a qualified Commissioner of Oaths in accordance to section 5 of the Oaths and Statutory Declarations Act. That section 5 of the Oaths and Statutory Declarations Act did not oppose digital signatures and the 1st and 2nd Respondent’s assertion That the signature was digitally manipulated was unfounded and he did not provide any evidence of improper signing and commissioning of the impugned Affidavit. It was the Petitioner’s further submission That the 1st and 2nd Respondents failed to prove their allegations of fraud. He relied on Central Kenya Limited v Trust Bank Limited & 4 others [1996] KECA 130 (KLR) and section 109 of the Evidence Act.

8. The 1st Petitioner submitted That the Kenya Information and Communications Act, Cap 411A authorises the use of digital signatures. He further submitted That the 1st and 2nd Respondents were intent on obstructing justice by raising baseless allegations. He further submitted That the fact That the Commissioner of Oaths was based in Thika did not undermine the validity of the impugned Affidavit and it did not affect the Commissioner’s qualifications.

9. It was the1st Petitioner’s submission That this court had the discretion to call him to prove the contents he swore in the impugned Affidavit. It was his further submission That his Petition and Application raised substantial issues and the same should not be dismissed solely on the 1st and 2nd Respondent’s unsubstantiated allegations.

10. I have considered the Notice of Motion Application dated 17th October 2024 and the 1st Petitioner’s written submissions dated 16th December 2024. The only issue for my determination was whether the Supporting Affidavit dated 9th September 2024 and sworn by the 1st Respondent should be struck out.

11. The Court of Appeal in Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission, Wilfred Rottich Lesan, Robert Siolei, Returning Officer, Bomet County, Kennedy Ochanyo,Wilfred Wainaina, Patrick Wanyama & Mark Manzo [2013] KECA 113 (KLR) held:-“…….The power to strike out pleadings, and in the process deprive a party of the opportunity to present his case has been held over the years to be a draconian measure which ought to be employed only as a last resort and even then only in the clearest of cases……………….. Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established That where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.The general trend, following the enactment of Sections 1A and 1B of the Civil Procedure Act, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution, is That courts today strive to sustain rather than to strike out pleadings on purely technical grounds……….”

12. Similarly in Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR), the Court of Appeal held:-“It is not for nothing That the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require That the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is That it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations.”

13. The 1st and 2nd Respondent stated That the impugned Affidavit was defective and fraudulent as it was improperly commissioned and it contained a digital signature which was super imposed on the Affidavit. On the issue of the 1st Petitioner not being physically present before the Commissioner of Oaths for his execution, the Applicants have not provided any evidence to back up their assertions and in the absence of such evidence, their assertions remained allegations.

14. On the issue of the digital signature being digitally lifted and reproduced in the impugned Affidavit, the Applicants have equally failed to provide any evidence on the same. I agree with the 1st Petitioner That the Applicants had to prove their allegations of fraud which they failed to do. In the case of R. G. Patel v. Lalji Makanji [1957] EA 314, the former Court of Appeal for Eastern Africa stated:-“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

15. As the two Court of Appeal cases above have stated, the court has discretion on whether or not to strike out pleadings and this discretion must be applied judiciously. I have gone through the Notice of Motion dated 9th September 2024 and the impugned Affidavit and it raises serious public interest issues which deserve to be litigated upon and determined on merit. Striking out the impugned Affidavit at this stage would be draconian in my view and would defeat the course of justice. Ultimately, no party should be driven away from the seat of justice. It is my finding That it is in the best interest of justice That the 1st Petitioner’s Notice of Motion dated 9th September 2024 be heard and determined on merit.

16. In the end, the 1st and 2nd Respondent’s Notice of Motion dated 17th October 2024 has no merit and is dismissed.

Notice of Motion Application dated 9th September 2024. 17. The orders sought by the Applicants/Petitioners have already been listed in paragraph 2 of this Ruling.

The Applicants’/Petitioners’ case 18. It was the Applicants case That they were members of the Bomet County Public Service Board and they were unprocedurally removed from office by the 1st Respondent on 13th August 2024. That their removal from office did not follow the laid down procedure and law as contained in section 58(5) of the County Governments Act as read with Article 251 of the Constitution of Kenya and Standing Order 73 of the Bomet County Assembly Standing Orders. It was their further case That they were denied a hearing.

19. It was the Applicants’ case That section 4 of the Petition to the County Assemblies (Procedures) Act provided mechanisms for presenting a Petition to the Assembly. That in their case, the law was not followed as they were removed from office following the presentation of a Special Motion as opposed to a Petition. It was their further case That the Petition to the County Assembly ought to be presented by a member of the public or by a Member of the County Assembly on behalf of a member of the Public but the Petition should not be presented by a Member of the County Assembly, as the 3rd Respondent did in their case.

20. The Applicants stated That their rights were violated by their unprocedural removal from office. That if the orders they sought were not granted, it would render the outcome of the Petition nugatory.

21. The Applicants filed their submissions dated 15th November 2024. In regards to the prayer for conservatory orders, the Applicants submitted That they had demonstrated That they had a prima facie case. That they had provided evidence That the 3rd Respondent submitted a Special Motion and not a Petition and the same was approved by the 1st and 2nd Respondents. They further submitted That they provided evidence That the Respondents violated Articles 10, 27, 37, 47, 232 and 251 of the Constitution of Kenya by failing to follow the legally provided procedure for their removal from office. They relied on Republic vs Cooperative Tribunal & 2 others Ex-parte Jackson Wekesa Abala (2019) eKLR.

22. It was the Applicants’ submission That their unprocedural removal from office would damage their professional reputation and cause future physical, mental and emotional anguish. That the Respondents’ actions were marred with bad faith and disregard for the law. It was their further submission That they would suffer prejudice as a result.

23. The Applicants submitted That they faced a real and imminent threat of significant financial loss as a result of the Respondents’ actions. That such actions not only violated their rights but also That of the County Government.

2nd Respondent’s Response 24. The 2nd Respondent filed an undated Replying Affidavit and stated That the impugned Special Motion was not a resolution of the County Assembly but an annexture to invitation letters issued by the County Assembly’s Investigative Select Committee and it conveyed the particulars of the Motion passed on 13th August 2024. That the impugned Special Motion did not conform to the formal and procedural requirements of a Resolution which in accordance with the established rules must be certified under the hand of the Speaker and possess the full force and authority of the County Assembly.

25. It was the 2nd Respondent’s case That the Special Motion of 13th August 2024 sought to commence the process or removing the Applicants from office and was not a conclusive determination of their removal. That despite the Applicants’ claims That they had been removed from office, they continue to perform official duties.

26. The 2nd Respondent stated That the Petition to County Assemblies (Procedures) Act was not the exclusive law That governed the procedure of removing Members of the County Public Service Board. That it was a narrow interpretation as it overlooked other relevant legal frameworks That govern the removal process. The 2nd Respondent further stated That the Petition to County Assemblies (Procedures) Act did not preclude the County Assembly from invoking its inherent statutory powers under section 58(5) of the County Governments Act to remove the members of the County Public Service Board through a Motion.

27. It was the 2nd Respondent’s case That the Applicants were invited to appear before their respective Select Committees of the County Assembly for a pre-hearing conference. That they were invited to give their input on how the hearings would be conducted. It was his further case That the Applicants did not want to defend themselves in response to the allegations levelled before the County Assembly and were intent on frustrating the proceedings before the 1st Respondent’s Select Committees.

28. The 2nd Respondent stated That it was premature for the Applicants to invoke this court’s jurisdiction at this stage as the matters remain under active consideration by the Select Committees and remain undetermined. The 2nd Respondent further stated That the purpose of Standing Order 73 of the Bomet County Assembly Standing Orders was to specifically allow members of the public to submit Petitions to the 1st Respondent to consider the removal of a member of the County Public Service Board and it did not constitute the exclusive or overarching procedure for initiating such a removal.

29. It was the 2nd Respondent’s case That the procedure for removal of members of the County Public Service Board initiated by a member’s Motion pursuant to section 58(5) of the County Governments Act had been adopted as a precedent by the 1st Respondent as they had handled a similar matter in the year 2014.

30. In response to the prayer for conservatory orders, the 2nd Respondent stated That a prima facie case required more than the mere presentation of an arguable case. That it was no sufficient to only raise issues but the evidence had to demonstrate an infringement of a right and establish a probability of success upon trial. The 2nd Respondent further stated That the Applicants failed to establish a prima facie case as their argument was predicated on a misapplication of constitutional and statutory provisions.

31. It was the 2nd Respondent’s further case That the Applicants failed to demonstrate any irreparable harm they would suffer if the orders sought were not granted. That the Applicants had legal remedies to challenge the final decision of the 1st Respondent. It was the 2nd Respondent’s case That the issuance of conservatory orders would unjustifiably impede the 1st Respondent’s constitutionally mandated oversight functions thereby causing significant disruption to its legislative duties and undermining its authority in execution of its lawful obligations.

32. The 2nd Respondent filed his submissions dated 22nd November 2024. In relation to the prayer for conservatory orders, he submitted That the Applicants failed to demonstrate That they had a prima facie case as they had not provided substantive evidence to substantiate their claim of constitutional infringement. They relied on Mrao Ltd vs First American Bank of Kenya ltd & 2 others (2003) eKLR. He further submitted That the Applicants had misinterpreted the legal framework governing the removal of members of the County Public Service Board. That the misinterpretation was to mislead this court.

33. It was the 2nd Respondent’s submission That the Applicants had not demonstrated the irreparable harm That could not be remedied through damages. That the irreparable harm must go beyond inconvenience and must be of the nature That no remedy other than conservatory orders would suffice. He relied on Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR). It was his further submission That the Applicants’ case was all speculation and was insufficient to meet the threshold for irreparable harm.

34. The 2nd Respondent submitted That the Applicants had several legal remedies under the Constitution. That the issuance of conservatory orders was not a substitute for legal remedies That were available. He relied on Munya vs Dickson Mwenda Kithinji & 2 others (2014) eKLR. He further submitted That the Applicants had failed to satisfy the legal requirements for grant of the conservatory orders.

35. It was the 2nd Respondent’s submission That the Application was premature and halting the process of the 1st Respondent at this stage would undermine the constitutional principles of accountability and fairness. That the balance of convenience weighed against the issuance of conservatory orders. It was his further submission That judicial intervention should only be considered upon the completion of the 1st Respondent’s process and That any premature intervention would infringe upon the doctrine of separation of powers.

36. I have considered the Notice of Motion dated 9th September 2024, the 2nd Respondent’s Replying Affidavit dated 16th September 2024, the Applicants ’written submissions dated 15th November 2024 and the 1st and 2nd Respondents’ written submissions dated 22nd November 2024. The only issue for my determination at this stage was whether the Applicants merited the grant of conservatory orders.

37. The Supreme Court in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) held:-“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. 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 causes.”

38. I am persuaded by Onguto J. (as he then was) in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR), where he elaborately discussed the conditions precedent for the grant of conservatory orders thus:-“I state without vacillation That the path to be followed by a court seized with an application under Article 23 (3) (d) is now relatively clear.Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and That in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others v The Attorney General [HCCP No. 16 of 2011]:“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate That he has a prima facie case with a likelihood of success and That unless the court grants the conservatory order, there is real danger That he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.It is in my view not enough to merely establish a prima facie case and show That it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others v Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others v The Attorney General (Supra) stated as follows:-“I would agree with my brother That an applicant seeking conservatory orders in a Constitutional case must demonstrate That he has a prima facie case with a likelihood of success” (emphasis).Recently the same pertinent observations were made by Ngugi J and Muriithi J sitting separately in Jimaldin Adan Ahmed & 10 Others v Ali Ibrahim Roba and 2 Others [2015] eKLR and Micro Small Enterprises Association of Kenya (Mombasa Branch) v Mombasa County Government [2014] eKLR respectively.Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights: see Patrick Musimba v The National Land Commission & 4 Others HCCP 613 of 2014 (No. 1) [2015] eKLR and also Satrose Ayuma & 11 Others v Registered Trustees of Kenya Railways Staff Retirements Benefits Scheme [2011] eKLR.Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible That any transitional motions before the court do not render nugatory the ultimate end of justice. In these respects the case of Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 Others CP No. 7 of 2014, is relevant, especially paragraphs [59] [60] and [61] thereof.The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others [2014] eKLR is That the court must consider conservatory orders also in the face of the public interest dogma.Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless…….”

39. In determining whether or not the Applicants merit the grant of conservatory orders, I am conscious of the fact That at this stage, I must not venture into scrutiny of the facts and evidence as That would be the preserve of the trial court. On establishing a prima facie case, the Applicants has to establish That their constitutional rights had been violated by the Respondents’ actions. The Applicants stated That the unprocedural removal as members of the Bomet County Public Service Board violated their constitutional rights as it was done in contravention of the Constitution and the law. They laid out their case elaborately and as indicated earlier the court cannot delve into the merits and demerits of this case at this stage. Having considered the Applicants’ averments and their submissions, I am satisfied That they have demonstrated a prima facie case with a likelihood of success.

40. On whether the Petition would be rendered nugatory should the conservatory orders not be granted, I am convinced That the Petition would be rendered nugatory if the conservatory orders were not granted. The substratum of the Petition was That the Applicants challenged the unprocedural removal from office, a move which violated their rights. Granted, the 1st and 2nd Petitioner have put in a robust defence to their actions. In my view if the conservatory orders are not granted, it would make hearing of the Petition moot and an academic exercise.

41. Further, it is in the public interest That the Petition is heard and determined on merit. I say so because the 1st Respondent is a public entity and is among 46 other County Assemblies. All County Assemblies have County Service Boards and the constitutional challenges presented in this case could have ramifications on the 1st Respondent’s operations and by extension to the 46 other County Assemblies. In summary, I agree with Chepkwony J. in Njogu v Attorney General & another [2024] KEHC 13381 (KLR), where she held:-“The Court is therefore required to consider the merits of the case, the public interest, and constitutional values….”

42. In the end, I make the following orders That:-I. A Conservatory Order is issued against the Special Motion, its procedure and Resolution dated 13th August 2024 pending hearing and determination of this petition.II. Costs shall be in the cause.Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 24TH DAY OF MARCH, 2025. ………............................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of Sang for the Respondents, Muchiri for the Petitioner and Susan (Court Assistant)