[2022] KEHC 11698 (KLR)

Nyambeki v Speaker, Kisii County Assembly & 2 others (Petition 17 of 2021) [2022] KEHC 11698 (KLR) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11698 (KLR)

Republic of Kenya

In the High Court at Kisii

Petition 17 of 2021

REA Ougo, J

July 12, 2022

IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF ARTICLES 1, 2, 10, 20, 22, 47, 50, 165 (3) (b), (d), 174, 181, 196, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010; AND IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013; AND IN THE MATTER OF: KISII COUNTY ASSEMBLY STANDING ORDERS, MORE PARTICULARLY STANDING ORDERS NO 174; AND IN THE MATTER OF: THE REMOVAL OF THE CHAIRPERSON OF THE COMMITTEE ON LABOUR, MANPOWER AND SOCIAL WELFARE, HON. SAMUEL NYAMBEKI

Between

Samuel Nyambeki

Petitioner

and

Speaker, Kisii County Assembly

1st Respondent

County Assembly of Kisii

2nd Respondent

James Anunda

3rd Respondent

Judgment

1. The Petitioner is an elected member of the County Assembly of Kisii representing the citizens of Getenge ward, he shall hereinafter be referred to as the ‘Petitioner’.

2. The 1st Respondent, hereinafter referred to as the 1st Respondent, is the Speaker of the County Assembly of Kisii elected into office pursuant to the provisions of Article 178 of the Constitution.

3. The 2nd Respondent, hereinafter referred to as the 2nd Respondent, is established pursuant to the provisions of Article 176 of the Constitution.

4. The 3rd Respondent, hereinafter referred to as the 3rd Respondent, is a Member of the County Assembly of Kisii.

Petitioner’s Case 5. The petitioner was elected as a member of the County Assembly for Getenge ward in the elections held on 8th August 2017. He was thereafter nominated to be a member of the committee of Labour, Manpower and Social Welfare alongside other six members pursuant to the provisions of standing order 154 of the Kisii County Assembly (‘committee’). The committee first met on 16th October 2017 and elected the petitioner as its chairperson. The petitioner was therefore required to preside over meetings of the committee, be the committee’s spokesperson and perform any other functions and exercise powers assigned to the office of the chairperson. The petitioner had expectation to hold his position as chairman until the next general elections and would only be discharged as provided under Standing Order 157. The petitioner states that he could also be removed from office through a vote of no confidence in compliance with Standing order 174, the Fair Administrative Actions Act and the Constitution of Kenya.

6. The petitioner further states that Standing Order 174 makes it mandatory that a resolution by a majority of the members of the committee can be made that they have no confidence in the chairperson, and the said resolution be served upon the chairperson with written notice of the intended vote of no confidence, and if the members constitute a majority the clerk will be requested to call a meeting at the expiry of 3 days after giving notice, and after the meeting, the members of the committee shall report the resolution to the liaison committee which shall soon as practicable direct the clerk of the house to conduct election for the vacant seat.

7. The petitioner states that he was shocked on 4th August 2021 when the deputy speaker, Hon. Davins Okindo Ngoge communicated that 3rd Respondent had been elected as the chairperson of the committee. It was also alleged that a vote of no confidence against the petitioner had been made on 3rd August 2021. It was averred that the alleged vote of no confidence taken against him if at all there was any, was un-procedural, highly irregular and in total disregard of the provisions of Standing Order 174. He explained that prior to the impugned vote of no confidence, there was no resolution at all taken by a majority of the members of the committee to the effect that they had no confidence on the petitioner as the chairperson of the committee. He was not given any reasons for the alleged vote of no confidence contrary to Article 47 (2) of the Constitution. He further contends that he was not afforded an opportunity to exonerate himself with the allegations imputed against him as provided under Article 50 of the Constitution. The petitioner thus seeks the following orders that:1. A declaration be and is hereby issued that the process of removing the Petitioner as a chairperson of the Committee on Labour, Manpower and Social Welfare violated his rights as enshrined in Articles 32, 47, 50 (2) (b), 50 (2) (c), 50 (2) (k) and 50 (2) of the Constitution.2. A declaration be and is hereby, issued that the process of removing the Petitioner did not meet the threshold provided under the standing orders of the 2nd Respondent.3. A declaration be and is hereby issued that the elections purportedly carried out on the 3rd day of August 2021 culminating into the removal of the Petitioner as the chairperson of the Committee on Labour, Manpower and Social Welfare was in breach of the 2nd respondent’s standing orders thus null and void.4. An order of certiorari be issued to remove into this honourable court for purpose of quashing the decision made on the 3rd August, 2021 by a faction of the members of the committee on Labour, Manpower and social welfare purporting the remove the Petitioner herein as its chair.5. That the Petitioner herein be reinstated as the Chairperson of the Committee on Labour, Manpower and Social Welfare of the County Assembly of Kisii unconditionally with full salary, benefits and allowances from the 3rd of August 2021. 6.That a Permanent order of injunction be and is hereby issued restraining the Respondents herein, whether by themselves or their servants or agents or otherwise howsoever, from illegally removing the Petitioner herein as the Chairperson of the Committee on Labour, Manpower and Social Welfare.7. SUBThat the Honourable court be pleased to order for compensation of the petitioner by way of general damages for violation of the petitioner’s rights.8. Costs of this Petition.

8. The petitioner submitted on three issues:i.Whether the removal of the Petitioner from the position of Chairperson of the Committee on Labour, Manpower and Social Welfare was lawful;ii.Whether the Petitioner’s right to a fair hearing and administrative action were violated/infringed; andiii.Whether the petitioner is entitled to the orders sought

9. On the first issue, the petitioner submitted that the removal of the Petitioner as the chairperson of the committee was not lawful and was carried out in a manner inconsistent with the Constitution and the Fair Administrative Action Act and the Kisii County Assembly Standing Orders. That that the notice was generated, served and a vote of no confidence taken, all within a span of hours, all on the 28th July 2021. The tenets of fair administrative action and fair hearing were flouted. In the case ofSamuel Tuinoi v Speaker Nakuru County Assembly & 2 Others [2019] eKLR the court observed:“44. The question that is to be asked is whether the 2 hours envisaged under Standing Order 64 (3) would be sufficient time for the Petitioner to adequately interrogate the allegations and prepare to defend himself. I don’t think so. In this regard I find that the notice of an hour and a half does not constitute adequate notice for the Petitioner to prepare to defend himself. Similarly, there has been no evidence adduced by the Respondents that the Petitioner was furnished with the sufficient evidence that would allow him to defend himself.”

10. He also relied on the case ofEmeritus Kasee Musya V Speaker, County Assembly of Kitui & Another [2021] eKLR where the court held as follows:“38. This court finds that the Respondents breached the law when they purported to table a motion to remove the Petitioner, without affording him a reasonable opportunity to be heard. He was not served with any allegations levelled against him prior to his removal when the Standing Orders (173) cited above and the law provided that he was entitled to be subjected to a fair process as stipulated. The Fair Administrative Actions Act, 2015 passed by Parliament in compliance with Article 47 (3) of the Constitution of Kenya, is quite elaborate on procedural requirements which must be followed when administrative actions are taken against any person………………….………….The central theme of the above provisions is the right to be heard. That right as stipulated under Article 25 (c) is a component of a fair trial which is a fundamental right and sacrosanct in the Constitution of Kenya 2010. It cannot be disregarded. It cannot be swept aside as a mere formality as contended by the Respondents. It is basic and a minimum requirement and the Respondents appears to have been well informed of this legal obligation because if they gave the Petitioner herein, a chance to be heard before removing him as the Chairperson of Liaison Committee, they were well aware of their Constitutional and Statutory obligations to subject the Petitioner to a fair and lawful process.39. It is apparently clear, reading from the Standing Orders of County Assembly of Kitui, the Statute (Fair Administrative Actions Act), and the Constitution of Kenya that the removal of the Petitioner from his position was rather impulsive, irrational and was tainted with illegalities and procedural improprieties. The action evidently violated his Constitutional rights. The intervention of this court is necessary in the circumstances.”

11. On the issue of quantum, the petitioner relied on the case of Jane Chepkorir Barus v County Assembly of Baringo & 3 Others [2021] eKLR where the petitioner was awarded Kshs 1,000,000/- as general damages upon the court’s finding that the Petitioner’s Constitutional rights were violated by the respondents.

12. The 1st and 2nd Respondents did not respond to the petition nor did they file any written submissions on the Petition.

The 3Rd Respondent’s Case 13. The 3rd respondent filed a replying affidavit on 23rd August 2021. He averred that the petitioner failed to discharge his duties as the chairman of the committee as he failed to provide effective leadership to the rest of the members of the committee. The petitioner failed to attend meetings without any notification to the committee as provided under Standing Order No. 168 of the Kisii County Assembly Standing Order. It also become tedious for the committee to perform its functions as provided under Standing order 191. As a result of the petitioner’s conduct, the committee was perceived to be sluggish in the manner in which it was performing its mandate and the members resolved they had no confidence in the petitioner. A notice was generated on 28th July 2021 in regard to the intended meeting on the vote of confidence on the petitioner and widely circulated within the precincts of the County Assembly. The committee conducted its meeting at 12:40 p.m. as scheduled but the petitioner declined to attend. The meeting resolved to remove the petitioner from office and reported the resolution to the Liaison committee so that the Liaison Committee could give directions to the clerk to conduct an election for the chairperson in accordance to Standing

14. Order No 160. On 29th July 2021 a notice on a vote of no confidence on the petitioner as the chairperson was served on the petitioner by affixing it at the entrance of the petitioner’ office. The notice was also circulated and posted within the precincts of the County Assembly. The liaison Committee had its meeting on 2nd August 2021 and resolved that the clerk of the County Assembly do proceed to hold the elections for the position of the Chairperson of the Committee. Once the vacancy in the office of the chairperson occurred, the clerk was required to appoint the place and time of the committee to elect the chairperson within 7 days. The meeting of 3rd August 2021 was therefore in accordance with the stipulated timelines. The 3rd respondent was unanimously elected as the chairperson of the committee and the deputy speaker upon receipt of the outcome communicated the same to the county assembly on 4th August 2021.

15. According to the 3rd respondent the orders sought by the petitioner cannot issue as they have been overtaken by events following the County Assembly ratifying his appointment as the Chairperson of the committee on 4th August 2021. The Kisii County Assembly Standing Orders were strictly followed. The 3rd respondent contends that the allegation that the fundamental rights and freedoms of the petitioner have not been infringed has not been demonstrated. The petitioner having declined to participate in the proceedings is undeserving of the orders sought.

16. The 3rd respondent filed his submissions on 12th January 2022. He submitted that the notice dated 28th July 2021 was for purpose of all the members of the committee to have a meeting. The petitioner being a member was expected to attend. The notice was affixed in the precincts of the county assembly including the door of the office of the petitioner as his door was locked as provided by standing order no. 162 and 174. They submitted that annexure 13, the Plenary Register reveals that the petitioner was present on the 28th and 29th July 2021. According to the respondent he must have therefore seen the notices that were affixed within the various points of the assembly. They argued that the petitioner was given an opportunity to defend his position but he distanced himself from the proceedings therein by failing to attend the meeting as required under Standing Order No. 168.

17. The 3rd respondent submitted that pursuant to passing the resolution to pass a vote of no confidence on the petitioner, the committee in compliance with standing order 174 reported its decision vide a notice dated 28th July 2021 thereby creating a vacancy and an election conducted pursuant to the notice of 2nd August 2021 within the 7-day period in accordance with standing order no. 160. The provisions of the standing order were followed to the latter. He cited the case of Wilfred Achilla v Mombasa Golf Club [2021] eKLR the court stated:“27. According to the Memorandum and Articles of Association, the Respondent followed the due procedure. As per Section 4 of the Fair Administrative Actions Act, the Ex parte Applicant was given prior and adequate notice. He was also given an opportunity to be heard. However, he did not make an appearance. The Ex parte Applicant claimed that he needed to travel out of town the day for the disciplinary hearing and the same day he participated in a tournament at the same location. This is an act that would make it impossible for the board of the Respondent to consider rescheduling the hearing.”

Analysis And Determination 18. The petitioner in his case has faulted the respondents for failing to comply with the county assembly’s Standing Orders 174 on vote of no confidence in the chairperson of a committee. However, the court must exercise restraint and only intervene in appropriate instances so that it does not interfere with the principle of separation of powers amongst the three arms of government. The court in Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others[2018] eKLR observed as follows:76. …………in a jurisdiction such as ours in which the Constitution is supreme, the Court has jurisdiction to intervene where there has been a failure to abide by Standing Orders which have been given constitutional underpinning under the said Article. However, the court must exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.77. In this case therefore the issue will require the interpretation and application of some constitutional provisions. Apart from that it is contended that the ex parte applicants were not just elected by the members of the Jubilee Party but were elected by the whole House hence their discharge cannot be treated just like an internal party affair. Whether that argument holds water or not cannot be determined in a summary manner as the Respondents believe. That is a matter that requires arguments before the Court can make a determination thereon.78. It is therefore my view and I hold that the purported alternative dispute resolution mechanism prescribed by section 40 of the Political Parties Act cannot be said to be a more convenient, beneficial and efficacious remedy.79. While this Court appreciates the importance of party discipline amongst its members, it must be appreciated that party membership does not necessarily imply that a member of a political party by virtue of such membership surrenders or cedes his or her inalienable constitutional rights to the political party. To my mind political parties are vehicles through which one’s freedom of association and political rights under Articles 36 and 38 respectively of the Constitution are enjoyed, fulfilled and realized. They are not cemeteries or graveyards where such rights and ambitions are interred, extinguished or dimmed.

19. The petitioner’s case is that his rights to fair administrative action under Article 47 and his right to a fair hearing under Article 50 of the Constitution were violated. While it is not in dispute that the committee of Labour, Manpower and Social Welfare passed a vote of no confidence in the petitioner who was at the time the chairperson, it is the procedure adopted that is being challenged. The procedure for the vote of no confidence in the chairperson has been laid down under Standing Order 174, the said order states as follows;174. (1)A Committee may, a resolution supported by a majority of its members, resolve that it has no confidence in the chairperson or vice-chairperson and a member designated by the committee for that purpose shall thereupon report the resolution to the Liaison Committee which shall, as soon as it is practicable, direct the Clerk to conduct an election for the chairperson or vice-chairperson, as the case may be, in accordance with Standing Order 160 (Conduct of election).(2)The members desiring to make a resolution under paragraph (1) shall serve the chairperson or vice-chair person with a written notice of the intended vote of no confidence and may, if they constitute a majority, request the Clerk to call for a meeting at the expiry of three days after the giving of such notice.(3)The notice under paragraph (2) shall be deemed to have been given upon circulation of the notice in the offices of Members and posting on notice boards in the precincts of the County Assembly.(4)A notice under paragraph (2) shall be deemed to have been given upon delivery to the Chairperson’s or vice-chairperson’s official email address and by delivery of the notice to the office of the chairperson or vice-chairperson, as they case may be.

20. While the 3rd respondent defended the respondents’ actions arguing that they complied with the procedure set out in standing order no. 174, it was not in dispute that the notice on the intended vote of no confidence was circulated within the precincts of the County Assembly on 28th July 2021. It is also not contested that the committee proceeded to have a meeting concerning the intended vote of no confidence on the same day at 12:40 p.m. The question that has been raised by the petitioner is whether the notice to the petitioner was adequate. In Republic v Kenyatta University Ex parte Martha Waihuini Ndungu[2019] eKLR the court held that:“48. There are five mandatory procedures that must be followed when performing an administrative action that has a particular impact on a person or persons. These are that the affected person must be given, before the decision is taken, adequate notice of the nature and purpose of the proposed administrative action, a reasonable opportunity to make representations; After the decision is taken, a clear statement of the administrative action; Adequate notice of any right of review or internal appeal; and Adequate notice of the right to request reasons.49. “Adequate notice” means more than just informing a person that an administrative action is being proposed. The person must be given enough time to respond to the planned administrative action. The person also needs to know enough information about the proposed administrative action to be able to work out how to respond to the proposed action. They need to know the nature of the action (what is being proposed) and the purpose (why is the action being proposed).”

21. Section 4 (3) (a) of the Fair Administrative Action Act, 2015 provides that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action.

22. The 3rd respondent gave evidence that the petitioner was served with a written notice of the intended vote of no confidence as the same was circulated in the offices of members and posted on notice boards in the precincts of the county assembly. There was evidence that the petitioner was within the assembly on the 28th July 2021 as he had signed the plenary register for the morning and afternoon session. The written notice of the intended vote of no confidence was given on 28th July 2021 called for members of the committee to deliberate on the issues surrounding the incompetence of the petitioner as chairperson of the committee. The petitioner was therefore not afforded adequate notice so that he could respond to the question of his incompetence. The process at the inception violated the petitioner’s right under Article 47 of the Constitution. The said notice to the Petitioner was to be made by the members of the committee desirous to make a resolution that it had no confidence on the petitioner. On the contrary, the notice was made by the clerk of the committee. There is no doubt that the petitioner’s right to fair administrative action under Article 47 was violated.

23. The petitioner has sought an order of certiorari to quash the decision made by the committee to remove him as the chairperson. In Republic v Chief Officer, Roads, Transport and Public Works, County Government of Kilifi & another Ex parte Mohamud Gulleid t/a Premier Shuttle [2021] eKLR the court stated that:“Certiorari is designed to make the machinery of government operate according to law and public interest. Certiorari issues to quash decisions, which are ultra vires, arbitrary or oppressive. Certiorari thus is a remedy for something done in the past. (See Administrative Law, 5th Edition, HWR Wade)The ex-parte applicant bears the burden of proof on a balance of probability. For certiorari to issue, the decision must be of a public interest as opposed to a private character. According to Law v National Grey Hound Racing Club Ltd(1983) 3 ALL ER 300, Certiorari does not lie in respect of contractual powers nor powers derived from property rights, these being regarded as private law matters.”

24. Following his removal has chairperson, the petitioner remained a member of the committee and the 3rd respondent assumed the position of the chairperson. Although the respondent was not issued with adequate notice and neither was the procedure laid down in Standing Order No 174 complied with, he continued acting in his capacity as a committee member deliberating on various issues and enjoyed the privilege that comes with being a member of the committee. Therefore, an order of certiorari in this case would not be the most appropriate relief.

25. The court in Emeritus Kasee Musya V Speaker, County Assembly of Kitui & Another [2021] eKLR awarded the petitioner damages of Kshs 500,000/- where it was not legally viable for a petitioner to be reinstated. The petitioner herein had also sought for compensation by way of damages and in its submissions proposed an award of Kshs 1,000,000/- as damages. In my view an award of Kshs. 1,000,000/- is too high considering that the petitioner herein have continued serving as a member of the committee enjoying all the privileges that comes with being a member of the committee.

26. In the circumstances, I find that Kenya shillings one hundred thousand (Kshs. 200,000/-) is reasonable compensation for the violation of the Petitioner’s rights under Article 47 of the Constitution. I also make a declaration that the petitioner’s right to fair administrative action was breached by the 1st and 2nd Respondents.

27. In the end, I make the following orders:

28. A declaration that the process of removing the Petitioner as a chairperson of the Committee on Labour, Manpower and social welfare violated his rights as enshrined in Articles 47 and 50 (2) (c) of the Constitution.

29. A declaration be that the process of removing the Petitioner did not meet the threshold provided under the standing orders of the 2nd Respondent.

30. The petitioner is awarded general damages of Kshs 200,000/= for violation of the petitioner’s rights.

31. The petitioner shall have costs of the petition.

DATED, SIGNED AND DELIVERED AT KISII THIS 12TH DAY OF JULY 2022. R.E. OUGOJUDGEIn the presence of:Miss Moguche For the Petitioner1st Respondent Absent2nd Respondent AbsentMr. Mulisa For the 3rd RespondentMs. Aphline Court Assistant