[2022] KEHC 16361 (KLR)

Okoiti v National Assembly & another (Petition E224 of 2021) [2022] KEHC 16361 (KLR) (Civ) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16361 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Petition E224 of 2021

M Thande, J

December 16, 2022

Between

Okiya Omtata Okoiti

Petitioner

and

The National Assembly

1st Respondent

The Hon. Attorney General

2nd Respondent

Judgment

1. By his petition dated June 17, 2021, the petitioner challenges the Kenya Roads (Amendment Bill, 2021, which was published on 30. 4.21, in the Kenya Gazette Supplement No 78 (National Assembly Bills No 13). The petitioner contends that the principal object of the Bill in sections 2 and 3 thereof, is to inter alia amend sections 13 and 14 of the Kenya Roads Act to change the term of office and qualifications of the directors general of the Kenya National Highways Authority (KENHA), the Kenya Rural Roads Authority (KERRA) and the Kenya Urban Roads Authority (KURA). The remaining sections 4 and 5 seek to make editorial changes to section 38 and 44 of the Kenya Roads Act. Similarly, the petitioner contends that principal object of the Bill as stated in the Bill’s memorandum of objects and reasons dated 19. 4.21, is misleading. And that the information in the advert published on 11. 6.21 in the media inviting members of the public and relevant stakeholders to submit memoranda on the Bill, is deceptive. The petitioner sought a raft of reliefs.

2. The 1st respondent opposed the petition vide a preliminary objection dated 6. 7.21, challenging in the main, the jurisdiction of this court to entertain the petition. Vide a ruling of 18. 11. 21, this court found that it lacked jurisdiction to entertain matters in a number of prayers but found that it has the requisite jurisdiction to deal with the following prayers in the petition:A declaration;5. That this honourable court should intervene to demand that Parliament enacts the legislation required to operationalize article 118(1) (b) of the Constitution on public participation.An order:3. Compelling the 1st and 2nd respondents to enact the legislation required to operationalize article 118(1)(b) of the Constitution on public participation.4. Compelling the respondents to pay the petitioners the costs of this suit.3. Any other appropriate relief the court may deem just to grant.

3. According to the petitioner, the memorandum of objects and reasons and the said advert concealed the truth by:a.Misleadingly claiming that the principal object of the Bill is to amend the Kenya Roads Act, (No 2 of 2007) to align the same with the provisions of the Constitution with regard to the auditing functions of the office of the Auditor-General.b.Failing to refer to the appointment of the directors-general who are appointed undersections 13 and 14 of the Kenya Roads Act, No 2 of 2007, and instead referring to the appointment of the Director-General of the Kenya Roads Board who is appointed under section 12 of the Kenya Roads Board Act, No 7 of 1999 and is not under any provisions of the Kenya Roads Act, 2007.

4. It is the petitioner’s case that the said errors are deliberate and designed to conceal from the public, the truth about the intended amendments to the terms of office of and the qualifications for the said Directors-General of the 3 roads authorities. In view of the cited error, the Bill does not have a valid memorandum of objects and reasons. The said concealment of the truth he says will have a direct negative impact on the quality of public participation in the law-making process. The petitioner is further aggrieved that the 1 week deadline of 18. 6.21 for submission of memoranda by stakeholders and members of the public is too short and cannot allow for effective stakeholder and public participation on the changes proposed in the Bill.

5. Of relevance to this judgment, is the petitioner’s contention that there is no national legislation providing an effective mechanism for ensuring public participation in the legislative process. The procedure in standing orders 113 to 165 of the National Assembly Standing Orders (5th edition) relating to the enactment of legislative proposals in Parliament do not provide an effective mechanism for public participation, complete with timelines, mode of advertising and threshold to be met. It is his case that article 118(1)(b) places an obligation on Parliament to enact national legislation to facilitate public participation and involvement in the legislative and other business of Parliament and its committees. He posits that this cannot be achieved through the very limited Standing Orders of the 2 houses.

6. In view of the foregoing, the petitioner urged the court to intervene to demand that Parliament enacts the legislation required to operationalize article 118(1)(b) of the Constitution.

7. The 1st respondent opposed the petition vide a replying affidavit by Jeremiah Ndombi, MBS, sworn on 4. 2.22 in which he challenged the jurisdiction of this court to entertain the petition. He deposed that the request by the petitioner to compel Parliament to enact a legislation to address matters of public participation, is not anchored in the Constitution or any other enabling provision of the law. Further the National Assembly enacted all the statutes required to be enacted by Parliament under the fifth schedule to the Constitution, within the set constitutional timelines. Further, that there is no requirement in the fifth schedule to the Constitution for Parliament to enact any specific or general law regarding public participation in Kenya.

8. Regarding public participation during the legislative process, he deposed that it is a national value that is clearly set out and provided for under article 10, 118, 124, 201, 221 and 232 of the Constitution. He stated further that public participation being central to the legislative process, is undertaken throughout the formulation of any legislation. Further, that pursuant to article 118 of the Constitution, the 1st respondent has in standing order 127, clearly provided the procedure for undertaking public participation. Accordingly, the 1st respondent has provided proper mechanisms on ensuring adequate pubic participation in all its legislative business in accordance with the Constitution.

9. It is the 1st respondent’s further contention that the conduct of public participation in legislative business is a procedural aspect of the mandate of Parliament. As such, it ought to be left upon the houses of Parliament to establish rules of procedure on how to process legislation, which has been achieved through the clear guidelines stipulated in the standing orders. The doctrine of separation of powers bars this court from exercising its powers over the role reserved for Parliament.

10. Additionally, the 1st respondent averred that article 119 of the Constitution has afforded the petitioner an avenue through which he can petition Parliament on any matter. Thus, the petition is premature as the petitioner has not exhausted such mechanism. Accordingly, this court should afford it an opportunity to exercise its mandate. Furthermore, the petitioner has failed to demonstrate actual or threatened violation of rights and fundamental freedoms guaranteed under the Constitution to warrant this court’s interference.

11. The 2nd respondent filed grounds of opposition dated 14. 2.22. The grounds appear to address the issues dealt with in the ruling of 18. 11. 21. The grounds do not speak to the remining issues in the petition, save to say that petition is not merited as the petitioner has failed to demonstrate how his or any person’s constitutional rights have been violated or threatened with violation.

12. Parties filed their respective submissions which I have carefully considered together with all the cited authorities. The following issues arise for determination: -i.Whether this court should compel the 1st respondent to enact a legislation to operationalize article 118(1)(b) of the Constitution on public participation.ii.Whether the measures put in place by the 1st respondent are effectiveiii.Who should be awarded costs?

Whether This Court Should Compel The 1St Respondent To Enact A Legislation To Operationalize Article 118(1) (b) Of The Constitution On Public Participation 13. In his submissions dated 22. 3.22, the petitioner contends that the standing orders of the 2 houses of Parliament are inadequate to govern public participation under article 118(1)(b) of the Constitution. The petitioner further submitted that the 3 bills on public participation which the 1st respondent said were being harmonized have died a natural death given that the 12th Parliament had adjourned sine die. For this reason, the petitioner submitted, there is an urgent need for the 1st respondent to enact legislation to operationalize article 118(1)(b) of the Constitution, to provide a general framework for effective public participation.

14. The petitioner relied on article 261(1) and the fifth schedule of the Constitution to emphasize the need to have such legislation in place. Further that under the fifth schedule, Parliament was required to enact any other legislation required by the Constitution within 5 years, but has failed to do so. The petitioner therefore urged this court to compel Parliament to do so pursuant to article 261(5) and 261(6) of the Constitution.

15. In its submissions dated 7. 11. 22, the 1st respondent contended that the conduct of public participation in the legislative process is a procedural aspect of the mandate of Parliament. It should therefore be left upon each house of Parliament to establish rules of procedure on how to process legislation. It was further submitted that the 1st respondent had in place an effective mechanism for ensuring public participation in its processes, in standing order No 127. The 1st respondent further dismissed the petitioner’s assertion that article 118 requires it to enact national legislation on public participation. It posits that article 118(1)(b) as juxtaposed with article 261(1) indicates that that the duty of the 1st respondent is to facilitate public participation and there is no specific requirement to enact any legislation as claimed by the petitioner.

16. Relying on article 259 of the Constitution and the South African case of Doctors for Life International v Speaker of the National assembly and others (CCT 12/05) [2006] ZACC 11 2006 (12) BCLR the 1st respondent urged the court to attach such meaning and interpretation that meets the purpose of guaranteeing constitutionalism in interpretation the Constitution and find that the petition herein is misleading and an abuse of the court process. It again argued that the petitioner’s interpretation of the provisions of article 118 is inconsistent with a holistic reading of the Constitution and serves the purpose of misinterpreting the provision in his favour. To buttress that argument, it relied on the case of Ugandan case of Olum v The Attorney General of Uganda [2002] EA.

17. Additionally, the 1st respondent submitted that it has enacted various legal provisions on the requirement for public participation in legislative process. Examples being the Petitionsto Parliament (Procedure) Act No 22 of 2022 and section 5 of the Statutory Instruments Act, 2013. Further, as pleaded in the replying affidavit, there has been good will by the 1st respondent to formulate an act of parliament on public participation. In any event, the petitioner being a sitting member of the Senate, has the power pursuant to article 109(5) of the Constitution, to introduce a bill on public participation.

18. In his submissions dated 18. 7.22, the 2nd respondent did not speak to the issue of this court compelling the 1st respondent to enact the legislation to operationalize article 118(1)(b) of the Constitution. However, in the grounds of opposition dated 14. 2.22 it was asserted that the legislature is not bound to enact legislation in accordance with the views of any particular interest group and public participation should not be used to overrule or veto the acts of the legislature.

19. The Legislature falls under chapter eight of the Constitution. Part 4 thereof provides for procedures for enacting legislation. Article 118 which falls under part 4 provides for public access and participation as follows:1. Parliament shall-(a)conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and(b)facilitate public participation and involvement in the legislative and other business of Parliament and its committees.2. Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion

20. The right to public participation in formulating legislation or government policy cannot be gainsaid. It is a fundamental right which in the process of law-making, is to afford the public, the opportunity to influence the decision of the law-makers. Through public participation, representative sectors of the public engage in an open, democratic and accountable process of in formulating policies and developing laws that affect them. Public participation is a national value that is central to the legislative process and is entrenched in articles 10, 118, 124, 201, 221 and 232 of the Constitution.

21. Article 261(1) of the Constitution obligated Parliament to enact consequential legislation within the period specified in the fifth schedule, commencing on the effective date as follows:1)Parliament shall enact any legislation required by this Constitutionto be enacted to govern a particular matter within the period specified in the Fifth schedule, commencing on the effective date.(2)Despite clause (1), the National Assembly may, by resolution supported by the votes of at least two-thirds of all the members of the National Assembly, extend the period prescribed in respect of any particular matter under clause (1), by a period not exceeding one year.(3)The power of the National Assembly contemplated under clause (2), may be exercised—(a)only once in respect of any particular matter; and(b)only in exceptional circumstances to be certified by the Speaker of the National Assembly.(4)For the purposes of clause (1), the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified. (5) If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter(5)If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.(6)The High Court in determining a petition under clause (5) may—(a)make a declaratory order on the matter; and(b)transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.(7)If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.(8)If Parliament has been dissolved under clause (7), the new Parliament shall enact the required legislation within the periods mentioned in the fifth schedule beginning with the date of commencement of the term of the new Parliament.(9)If the new Parliament fails to enact legislation in accordance with clause (8), the provisions of clauses (1) to (8) shall apply afresh.

22. The fifth schedule of the Constitution lists the specific legislation to be enacted by Parliament and the respective timelines. Under general, the schedule stipulates that for any other legislation required by the Constitution, the time specification is 5 years.

23. What is evident from the above cited provisions of the Constitution is that this court is vested with the mandate to compel Parliament to enact legislation, pursuant to the requirement in the fifth schedule where there has been default. Does article 118(1)(b) require the 1st respondent to enact legislation on public participation? Is there any requirement to enact legislation to govern a public participation within the period specified in the fifth schedule, commencing on the effective date? The answer is clearly in the negative. A careful reading of articles 118 and 261 as well as the fifth schedule will show that there is no requirement to enact specific legislation to govern public participation. The constitutional requirement is for Parliament to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

24. The jurisprudence that has emerged from our courts on public participation is that Parliament has the discretion to determine how public participation is achieved in its legislative process. The obligation on Parliament is to ensure that relevant stakeholders and members of the public are adequately informed and accorded an opportunity to have an informed say in the process of making legislation.

25. In the case of Commission for the Implementation of the Constitution v Parliament of Kenya & 5 others [2013] eKLR Majanja, J addressing the issue of how the national assembly achieves the object of public participation, stated:74. The National Assembly has a broad measure of discretion in how it achieves the object of public participation. How this is affected will vary from case to case but it must be clear that a reasonable level of participation has been afforded to the public. Indeed, as Sachs, J observed in Minister of Health and another NO v New Clicks South Africa (Pty) Ltd and others 2006 (2) SA 311 (CC) at para 630,“The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

26. And in Robert N Gakuru & others v Governor Kiambu County & 3 others [2014] eKLR, Odunga, J (as he then was) stated:49. From the foregoing provisions it is clear that public participation plays a central role in both legislative and policy functions of the Government whether at the National or County level. It applies to the processes of legislative enactment, financial management and planning and performance management.

27. The learned judge went on to reproduce the pronouncements of Ngcobo, J of the South African Constitutional Court in Doctors for Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC), who in delivering the leading majority judgement, expressed himself as follows:“The right to political participation is a fundamental human right, which is set out in a number of international and regional human rights instruments. In most of these instruments, the right consists of at least two elements: a general right to take part in the conduct of public affairs; and a more specific right to vote and/or to be elected….. Significantly, the ICCPR guarantees not only the “right” but also the “opportunity” to take part in the conduct of public affairs. This imposes an obligation on states to take positive steps to ensure that their citizens have an opportunity to exercise their right to political participation………The right to political participation includes but is not limited to the right to vote in an election. That right, which is specified in article 25(b) of the ICCPR, represents one institutionalisation of the right to take part in the conduct of public affairs. The broader right, which is provided for in article 25(a), envisages forms of political participation which are not limited to participation in the electoral process. It is now generally accepted that modes of participation may include not only indirect participation through elected representatives but also forms of direct participation…….”

28. It is readily discernible that it is widely accepted that Parliament has the discretion to determine how it achieves the object of public participation in formulating legislation. How this is done will vary from case to case. Clearly, what matters is that stakeholders, interested parties and the public are afforded reasonable involvement in the process.

29. The 1st respondent urged the court to refrain from interfering with its constitutional mandate, as no constitutional obligation has been violated to warrant the intrusion of the court.

30. It is well settled that every constitutional and statutory body such as the 1st respondent, must be given the space to discharge its mandate and to exercise its discretion in doing so. The court will only intervene where there has been breach of the Constitution of the law.

31. In the case of Tom Dola & 2 others v Chairman, National Land Commission & 5 others [2020] eKLR the Court of Appeal spoke to this issue and stated:In Pevans East Africa Ltd & another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR, this court emphasised, and we reiterate, that where the Constitution has vested specified functions in a state institution or organ, the courts will not readily interfere with the discharge of that mandate unless it is demonstrated that the institution or organ in question has acted ultra vires or in breach of the Constitution or the law.

32. Article 1(1) of the Constitution provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. Under article 1(3) that sovereign power is delegated to the 3 arms of government namely, the Legislature, the Executive and the Judiciary. The Constitution has further made clear provisions of separation of powers between these co-equal arms of government, ensuring that each carries out those functions assigned to it and that none encroaches on the authority or functions of the others unless there is breach.

33. In the case of Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) (Petition 229 of 2012) [2012] KEHC 2480 (KLR) (Constitutional and Human Rights) (20 September 2012) (Judgment) a 3-judge bench of this court considered this principle of separation of powers in relation to the judiciary and the legislature, and observed as follows:63. In answering these constitutional questions, it is imperative that we begin by re-stating that the doctrine of separation of powers is alive and well in Kenya. Among other pragmatic manifestations of the doctrine, it means that when a matter is textually committed to one of the coordinate arms of government, the courts must defer to the decisions made by those other coordinate branches of government. Like many modern democratic Constitutions, the new Kenyan Constitution consciously distributes power among the three co-equal branches of government to ensure that power is not concentrated in a single branch. This design is fundamental to our system of government. It ensures that none of the three branches of government usurps the authority and functions of the others.

34. It has been seen that there is no requirement in the Constitution for enactment of legislation to govern public participation. It is also clear that how public participation is carried out in the legislative process, is a matter of discretion of the 1st respondent. The petitioner has not demonstrated any breach or violation of the Constitution by the 1st respondent to warrant the intervention of this court. Consequently, this court must show deference to the constitutional independence of the 1st respondent and refrain from directing it to enact legislation on public participation as sought by the petitioner.

Whether The Measures Put In Place By The 1St Respondent Are Effective 35. In the present case, the petitioner submitted that the measures put in place by Parliament are not effective. The 1st respondent however asserted that submitted that it had provided the procedure for undertaking public participation extensively in standing order 127 which provides for committal of bills to committees and public participation as follows:(1)A Bill having been read a first time shall stand committed to the relevant departmental committee without question put.(1A)Save for a Finance Bill, the Speaker may refer various provisions of a Bill proposing to amend more than one statute in its principal provisions to the relevant Departmental Committees in accordance with their mandates(2)Notwithstanding paragraph (1), the Assembly may resolve to commit a Bill to a select committee established for that purpose.(3)The departmental committee to which a Bill is committed shall facilitate public participation on the Bill through an appropriate mechanism, including—(a)inviting submission of memoranda;(b)holding public hearings;(c)consulting relevant stakeholders in a sector; and(d)consulting experts on technical subjects.(3A)The departmental committee shall take into account the views and recommendations of the public under paragraph (3) in its report to the House.(4)Subject to standing order 129 (second reading of a Bill to amend the Constitution) the Chairperson of the Departmental Committee to which a Bill is committed or a Member designated for that purpose by the Committee shall present the Committee’s report to the House to inform debate within thirty calendar days of such committal and upon such presentation, or if the Committee’s report is not presented when it becomes due, the Bill shall be ordered to be read a second time on such day as the House Business Committee shall, in consultation with the Member or the Committee in charge of the Bill, appoint.(4A)The Speaker may extend the period for public participation under paragraph (4) where various provisions of a Bill proposing to amend more than one statute in its principal provisions are referred to separate Departmental Committees under paragraph (1A).

36. A reading of standing order 127 leaves no doubt in one’s mind that the 1st respondent has provided mechanisms in for facilitating public participation. These include the requirement for the departmental committee to which a bill is committed, to invite submission of memoranda, to hold public hearings, to consult relevant stakeholders in a sector and to consult experts on technical subjects. The standing order further requires that such departmental committee shall take into account the views and recommendations of the public, in its report to the House.

37. In the present case, the 1st respondent did call for submission of memoranda in respect of the Kenya Roads (Amendment) Bill, 2021, in line with standing order 127. Indeed, the reason why the Petitioner came to court is his allegation that the advert seeking submission of memoranda from the public was misleading.

38. In the case of Moses Munyendo & 908 others v Attorney General & another [2013] eKLR, Majanja, J had this to say on the discretion of the 1st respondent in facilitating public participation:The National Assembly and public institutions have a broad measure of discretion in how they achieve the object of public participation. How it is affected will vary from case to case but it must be clear that a reasonable level of participation has been afforded to the public. Sachs J, observed in Minister of Health and another NO v New Clicks South Africa (Pty) Ltd and Others2006 (2) SA 311 (CC) at para. 630, that,“The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

39. And in Nairobi Metropolitan Psv Saccos Union Limited & 25; others v County of Nairobi Government & 3 others [2013] eKLR, Lenaola, J stressed that what matters is not so much how public participation was conducted but that the public was reasonably involved. He stated:Further, it does not matter how the public participation was effected. What is needed, in my view, is that the public was accorded some reasonable level of participation and I must therefore agree with the sentiments of Sachs J in Minister of Health v New Clicks South Africa (PTY) Ltd (supra) where he expressed himself as follows;“The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.”

40. As indicated herein, standing order 127 has provided mechanisms for public participation. How such mechanisms are employed is atg the discretion of the 1st respondent and will vary from case to case. Accordingly, my finding is that the mechanisms provided by the 1st respondent are adequate.

Who Should Be Awarded Costs? 41. The petitioner submitted, relying on Erick Okeyo v County Government of Kisumu & 2 others [2014] eKLR, that costs follow the event. Therefore, he should be awarded costs. He nonetheless submitted that in the event that he is not successful the court should not award costs to the respondents. For this argument, he relied the South African case of Biowatch case cited as CCT 80/2008 or 2009 ZA CC 14 at paragraph. On its part, the 1st respondent submitted that the petitioner has failed to lay any basis for the grant of the reliefs sought in the petition and is not entitled to costs. It urged the court to dismiss the petition and award it costs. To buttress this submission, the case of Okiya Omtatah v Communications Authority of Kenya & 14 others [2015] eKLR was cited, where Lenaola, J (as he then was) stated:In my view, this court has a duty to protect the noble motive of public interest litigation from those who file claims out of mischief and less than genuine interest in the guise of protecting a public interest. The filing of false and frivolous public interest litigation which risk diverting the court’s attention from genuine cases will not be entertained.

42. The 2nd respondent submitted that the petitioner is not entitled to costs, and that in suits involving genuine public interest litigation, courts are slow to award costs. The 2nd respondent relied on the case of Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR, where the Court of Appeal had this to say on the issue of the award of costs by courts:And embracing those sentiments, the same court in the case of Jasbir Singh Rai case (supra), had this to say on the question of costs where public interest litigation was concerned;“…in the classic common law style, the courts have to proceed on a case by case basis, to identify “good reasons” for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs...” (Emphasis ours)It is therefore clear that in suits involving genuine public interests litigation, courts are slow to award costs.

43. It is trite that costs always follow the event. Rule 26(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, provides that the award of the costs is at the discretion of the court. Sub rule (2) provides that in exercising its discretion to award costs, the court shall take appropriate measures to ensure that every person has access to the court to determine their rights and fundamental freedoms. In determining whether or not to award costs therefore, this court must be mindful not to deter parties from filing petitions in the public interest or for the determination of their rights and fundamental freedoms, thereby hindering the advancement of constitutional justice.

44. In the case Brian Asin & 2 others v Wafula W Chebukati & 9 others [2017] eKLR Mativo, J (as he then was) extensively discussed the issue of costs in constitutional litigation and stated:51. In addition to the above reasons, it is important to point out that costs are awarded at the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise.[32] Discussing the same point, the supreme court of Kenya in the case of Jasbir Singh Rai & others v Tarlochan Rai & others[33] observed that:-“in the classic common law style, the courts have to proceed on a case by case basis, to identify “good reasons” for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…….”52. The reason for the above reasoning is that in public litigation, a litigant is usually advancing public interest as opposed to personal gain.53. The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice.[34]The “nature of the issues” rather than the “characterization of the parties” is the starting point.[35]Costs should not be determined on whether the parties are financially well-endowed or indigent.[36]54. The court in its discretion may say expressly that it makes no order as to costs and in that case each party must pay his own costs. But the court must not apply this or any other general rule in such a way as to exclude the exercise of the discretion entrusted to it and the material must exist upon which the discretion can be exercised. The discretion, like any other must be exercised judicially and the court ought not to exercise it against the successful party except for some reason connected with the case. It is not judicial exercise of the judge’s discretion to order a party who was completely successful and against whom no misconduct is even alleged to pay costs.[37]55. It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is a matter in which the trial judge is given discretion. ……But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.[38]56. It is correct that there are exceptions to the general rule that in constitutional litigation an unsuccessful litigant in proceedings against the state ought not to be mulcted with costs as they may have a chilling effect on them. One of the exceptions, that justify a departure from the general rule, is where the litigation is frivolous or vexatious.[39]

45. It is not disputed that what is before the court is a public interest matter, specifically on the issue of public participation in the process of enacting legislation. Further, the respondents have not demonstrated that petition is frivolous and vexatious. Accordingly, the circumstances of this case do not call for an award of costs.

46. The upshot is that prayers 1. 5, 2. 3, 2. 4 and 3 sought herein lack merit with the result that the petition dated June 17, 2021 is hereby dismissed, but with no order as to costs.

DATED AND DELIVERED IN NAIROBI THIS 16TH DAY OF DECEMBER, 2022M THANDEJUDGEIn the presence of:-…………………………………………………………for the petitioner.…………………………………………………………for the 1st respondent.…………………………………………………………for the 2nd respondent.…………………………………………………………court assistant.