[2017] KEHC 2130 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CONSTITUTIONAL PETITION 2 OF 2016

OMAR JIBRIL MOHAMED………………………………1ST PETITIONER

VS

COUNTY GOVERNOR, MANDERA COUNTY ……...1ST RESPONDENT

COUNTY SECRETARY, MANDERA COUNTY……...2ND RESPONDENT

THE COUNTY GOVERNMENT OF MANDERA……..3RD RESPONDENT

THE COUNTY ASSEMBLY OF MANDERA……..…..4TH RESPONDENT

JUDGMENT

BACKGROUND

1. This is an amended petition dated 21stJuly, 2016 filed by OMAR JIBRIL MOHAMED. The original petition was filed by two petition was filed by two petitioners. However, the 2nd petitioner ABDI ABDILLE ELMI withdrew from the proceedings. The respondents are named as the COUNTY GOVERNOR, MANDERA COUNTY (1st respondent) COUNTY SECRETARY, MANDERA COUNTY (2nd respondent), and THE COUNTY GOVERNMENT OF MANDERA (3rd respondent) and THE COUNTY ASSEMBLY OF MANDERA (4th respondent).

PLEADING OF THE PARTIES

2. In the petition, the petitioner seeks reliefs in the form of conservatory orders, quashing orders, prohibitions and restraining orders, a declaration under the Constitution of Kenya 2010, a declaration under the County Government Act 2012, costs of the petition, and any such order(s) as the court will deem fit to grant. The reliefs sought in the amended petition are a long narrative which covers about nine (9) typed pages.

3. The petition relates to advertisement of tenders by the 2nd respondent, the County Secretary, Mandera County in the Standard newspaper on 24th February, 2016 and 15th May, 2016 for construction of housing for internally displaced persons (IDPs) at Rhamu area. It is alleged by the petitioner that the majority residents therein were people from the Somali Degodia clan from Wajir County and that the aim of the project was to relocate them contrary to the principles of fairness, equality, and equity.

4. It is contended by the petitioner that the process of advertisement for the open tenders violated the resolutions of the mediation of conflict process of the Degodiaand Garre clans, spearheaded by political leaders held at Red Court Hotel Nairobi on 23rd June 2013.

5. In response to the amended petition, the respondents filed a long affidavit sworn by the 2nd respondent, the County Secretary outlining the position of the respondents in detail.

6. The replying affidavit states that the petitioner made false allegations and did not satisfied the threshold required in constitutional petitions as he has not even established a prima facie case.

7. It is stated in the replying affidavit that the construction of houses for IDPs was a project of the National Government supported by the County Government of Mandera, the 3rd respondent, and that the inclusion in the amended petition of the advertisements dated 24th February, 2017 was an afterthought as the project therein had been already awarded and, as such the orders sought had been overtaken by events. The affidavit annexes a number of documents.

8. In response to the replying affidavit of the respondents, the petitioner filed a further affidavit dated 11th July, 2017 maintaining that the petition met the threshold for grant of the orders sought, and reiterated that the advertisement of 15th May, 2016 for bidders to construct IDP units without considering the origin of the IDPs was flawed, null and void as it violated the provisions of the Constitution and the County Government Act 2012.

SUBMISSIONS OF COUNSEL

9. By agreement of counsel on record, the amended petition proceeded by way of written submissions. Counsel for the petitioner filed written submissions on 11th July 2017, in which he relied on a number of case authorities.

10. Though this court granted counsel for the respondent’s adequate time to file and serve their written submissions, I received their written submissions on 7th November 2017.

CONSIDERATIONS

11. I have considered the petition, documents filed on both sides, the submissions filed, the law, and the authorities cited.

12. This is a constitutional petition. Though statutory violations have been alleged by the petitioner, this is primarily a constitutional petition.

13. It is trite law that in proceedings brought by way of a constitutional petition the nature and extent of the violation has to be clear and specific. Many cases have highlighted this position. I will only cite the case of MUMOMATEMU –VS- TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS (2013) eKLR where it was stated as follows:

“Each right under the Constitution is specifically defined and has specific contents. It therefore follows that a party who invokes these provisions must set out clearly the sections or provisions he claims have been infringed or violated and show how these sections have been infringed in relation to him.”

4. The petitioner complaints herein, relate to absence of public participation of the IDP project in Mandera County. The petitioner has gone ahead to mention 2,3,4,6,10,19,20,21,22,23,27,35,48,56,159,174,175,176,183,186,196(1),201,227, and 232 of the Constitution of Kenya 2010, and sections 22,34,37,38,46,47,48,87,90,91,102,103,104,105,107,108,109,110,111,112,113,114,115,116,117,118 and 119 of the County Government Act No. 17 of 2012 which he claims were violated, in respect of the Degodia clan of the Somali Community.

15. My reading of the petition documents filed and submissions convinces me that the petitioner is on a fishing expedition. No facts were provided which would support his assertion that there was need to involve the Degodia Community in the project for IDPs. Other than his bare allegations, no document was filed which would show or support his allegations that the rights of the Degodia Community were under threat, or that their rights were violated or threatened with violation. To demonstrate this point I will consider the issues or complaints revised by the petitioner.

16. The petitioner has complained about denial of natural justice to the IDPs at Rhamu. On this, no facts were placed before this court by the petitioner that anybody from Rhamu said that they were denied natural justice in the advertisement or implementation of the project. This is an allegation that is not anchored on any established facts and it can thus not be sustained.

17. The petitioner has complained that there was breach of legitimate expectations of the Degodiasub-tribe. He breaks the expectations into two categories. Firstly, expectations of legality, and secondly expectations of due process. In the petition, affidavits filed as well as the written submissions, however, I find no facts or substantiation to support this contention. Mere advertisement of a tender for construction of houses for IDPs, in which there is no specific ethnic group or sub-tribe mentioned, in my view did not amount to violating legitimate expectations of the petitioner or the Degodia sub-tribe of the Somali Community.

18. The petitioner has also complained about the action of advertisement being capricious and oppressive. Again no facts were placed before this court to link the advertisement for the project to the petitioner or the Degodia community. This complaint thus stands in the air and cannot be sustained. In addition, for the first time the petitioner says the IDPs were from Garre sub-tribe not the Degodia sub-tribe which he has all along talked bout, which creates confusion, and lack of clarity in respect of both the complaint, and the affected party.

19. Lastly, the petitioner has contended that the decisions and actions of the respondents were ultra vires and an abuse of power. He states that the respondents had no statutory power to allocate funds for projects which had not been budgeted for and more or less to specific sub-tribes. He claimed that in terms of the provisions of Article 1 of the Constitution of Kenya 2010, and the County Government Act 2012, the respondents had failed to carry out allocation of projects in line with the requirements of the law, which, according to him, was a clear indication of misuse of public resources or poor planning.

20. Again this allegation hangs in the air as no evidence or facts were placed before this court by the petitioner to support his contention.

21. In view of what I have said above, the petition herein will fail. In my view, it is not enough for a litigant in a constitutional petition to cite provisions of the Constitution and the law to sustain a claim for constitutional or statutory violations. A person who comes to court must give facts or substantiations which support the claim of such alleged violation. It is only then that the court will be called upon to adjudicate on the matter.

22. Mere broad allegations and innuendos without any facts to ground the allegations will not do. The court does not create a case for litigant, but merely adjudicates on the case of litigant.

DETERMINATION

23. This case has failed because the petitioner has failed to give any facts to support his case or allegations. The petitioner has not established a prima face case and is thus not entitled to any of the orders sought.

24. As for costs, I appreciate that the petitioner appears to be a desperate resident of Mandera County. The respondents have also been abit indolent in contesting the case as they filed written submissions at the eleventh hour. I will thus order that parties bear their respective costs.

25. I thus dismiss the petition herein. Parties will bear their respective costs of the proceedings.

Dated and delivered at Garissa this 8th November, 2017

GEORGE DULU

JUDGE