[2019] KEHC 7897 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 195 OF 2018

PATRICK KABUNDU............................................................1ST PETITIONER

MUTUMA CALEB MWITI..................................................2ND PETITIONER

CHICHI KIMANI..................................................................3RD PETITIONER

VERSUS

MOMBASA COUNTY GOVERNMENT......................…1ST RESPONDENT

THE GOVERNOR MOMBASA COUNTY......................2ND RESPONDENT

MOMBASA COUNTY PUBLIC SERVICE BOARD.....3RD RESPONDENT

THE CLERK OF MOMBASA COUNTY ASSEMBLY..4TH RESPONDENT

THE MOMBASA COUNTY ASSEMBLY COMMITTEE

ON SECURITY AND ADMINISTRATION THROUGH

CHAIRPERSON................................................................5TH RESPONDENT

THE MOMBASA COUNTY ASSEMBLY COMMITTEE

ON JUSTICE AND LEGAL AFFAIRS THROUGH

CHAIRPERSON................................................................6TH RESPONDENT

MOHAMED AMIR

MOMBASA INSPECTORATE DIRECTOR.................7TH RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTION.......1ST INTERESTED PARTY

THE ATTORNEY GENERAL.............................2ND INTERESTED PARTY

THE CHIEF MAGISTRATE MOMBASA.......3RD INTERESTED PARTY

THE INSPECTOR GENERAL

NATIONAL POLICE SERVICE......................4TH INTERESTED PARTY

THE MOMBASA LAW SOCIETY...................5TH INTERESTED PARTY

RULING

1. By the Notice of Motion application dated 11th July, 2018, thePetitioners herein seeks the following orders:

a) Spent

b) That this Honourable court certify this Petition raising substantial question of law hence be heard by an uneven number of judges.

c) That this court does issue temporary injunction order restraining the respondent jointly and severally either acting on their own or through its agent’s employee’s servants from collecting any revenue arising from out of violation of the county legislation until this application is heard and determined.

d) that this court does issue temporary injunction order restraining the 1st Respondent either acting on their own and or through its agents employees servants from collecting any revenue arising from out of violation of the county legislation until the hearing and determination of this petition.

e) That conservatory order be issued directing all revenue accruing from collection arising from violation of the county legislation to be paid to judiciary accounts and applied to the consolidated funds until the hearing and determination of this Application.

f) That conservatory order be issued directing all revenue accruing from collection arising from violation of the county legislation to be paid to judiciary accounts and applied to the consolidated funds until the hearing and determination of this petition.

g) That cost of this application be granted.

2. The Application is premised on grounds set out there in and on theFurther Affidavit in support of the motion dated 11thJuly 2018.

3. In response to the Application, the 1st to 4th Respondents filed Groundsof Opposition and Replying Affidavit both dated and filed on the 30thJuly 2018.

4. The 7th Respondent in response to the Petitioner’s Application filedGrounds of Opposition dated 10thAugust 2018.

5. The parties were directed by this Court at a hearing held on 24th July2018 to canvass the Application by way of written submissions. The 1stPetitioner who appears in person and also had the authority to plead on behalf of the 2ndPetitioner filed his Amended submissions dated 19thNovember 2018. The 1stto 4thRespondents filed their submissions on the 24thAugust 2018 and reply submissions to the 2ndPetitioner’s submission on the 26thOctober 2018. The 7thRespondent filed his submissions on 15thOctober 2018. The 1-4thInterested Parties filed their submissions on 13thNovember 2018. The 5thInterested Party filed its submissions on 8thOctober 2018.

6. No evidence was led by the Petitioners in support of their prayer forempanelment of a bench of an uneven number of judges and it is this Courts view that this prayer was abandoned.

Brief Background Facts

7. The 1st Petitioner avers that he was arrested, charged and uponpleading not guilty he was released on a cash bail ofKshs.5, 000/= and issued with a cash bail receipt in the name of the 1stRespondent.

8. The 1st Petitioner avers that while preparing for trial, he filed his defence to the charge which was assessed at Kshs.75/= and he wasinstructed to pay via pay bill number858355Mombasa County which account, he came to realize is not linked to any commercial bank account and upon payment being confirmed he was issued with a receipt dated 19thJuly 2018 originating from Mombasa County.

9. The 1st Petitioner avers that after the repeal of the Local GovernmentAct by the County Government Act of 2012, the Chief Registrar of the Judiciary as an Accounting Officer, directed all head of stations and Chief Magistrates to ensure that all revenue accruing from Court fines, bail and fees be collected by the Judiciary and later on be applied to the consolidated fund.

10. The 1st Petitioner avers that the 1st Respondent has never complied withthe directive and keeps on collecting revenue via M-pesa and Cash transactions in total disregard of the directive of the Chief Registrar of the Judiciary.

11. The 1st Petitioner went ahead and furnished this Court with revenuecollection from Machakos County where Court fines recovered from offenders in breach of County Laws are paid into the Judiciary revenue account and not the Machakos County accounts.

12. The 1st to 4th Respondent in response to the Application averred that allmonies collected by the County Treasury from the Courts are received at the County’s banking hall and the same are taken and deposited in a commercial bank with an account designated for Court fines and cash bails and the money is not mixed. Once the money is deposited, there is no officer of the 1stRespondent who is authorized to make any withdrawal from the bank account. Also the 1stRespondent has no mandate to utilize the collected revenue as once the money is collected the commercial bank sweeps the revenue to the County revenue fund account which is maintained at the Central Bank.

13. The 1-4th Respondents aver that the allegations by the Petitioners arehollow as they do not even state who exactly is pocketing the said revenue.

14. On the issue of M-pesa deposits the 1st-4th Respondents submitted thatthe same was not raised in the Notice of Motion or in the 1stPetitioner’s Supporting Affidavit and that the Petitioners M-pesa transactions allegations are unsubstantiated.

15. Counsel for the 1-4th Respondents submitted that the issue of the statusof the County Courts isres-judicataas the High Court and the Court of Appeal have held that all Courts are under the control of the National Government and not the Counties.

The Law

Injunction in Constitutional Petitions

16. Gikonyo j inSouth Imenti Bar Owners S.H.G through itsChairman James Gikunda Ntaragwi v County Government of Meru [2018] eKLRobserved as regards constitutional petitions, as follows:

“Provision of the relief of an injunction in constitutional petitions is doubtless a development of law. See article 23 of the Constitution which gives court authority to grant appropriate orders including an injunction in order to uphold and enforce the Bill of Rights. Article 23 of the Constitution is reproduced below:

23. Authority of courts to uphold and enforce the Bill of Rights

(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction; [underlining mine]

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review.”

17. In order for a petition to qualify to be a constitutional petition thatseeks to enforce or protect fundamental rights and freedoms under the bill of rights, it must meet the test set inAnarita Karimi Njeru vs. Republic [1979] eKLR.That is, the Applicant must specify which specific provisions of the Constitution that declare the rights, the specific rights and freedoms that have been or are threatened to be infringed or violated and the manner in which the respondent has infringed the subject rights. This position has been reiterated time and again.

18. In Robert Amos Oketch vs. Andrew Hamilton & 8 Others[2017] eKLR,the court held: -

“First, this being a constitutional petition, the petitioner is required to show with precision that it meets the test set in the case of Anarita Karimi Njeru v. Republic (supra). In that case, the court stated that … a party who wishes the court to find in his favour must plead with a reasonable degree of precision the rights he claims to have been violated the constitutional provisions allegedly violated and the jurisdictional basis for it.

….

Applying the above principles to this case, I have considered the petitioner’s pleadings, the evidence as well as submission by his counsel and in my view this is not a proper constitutional petition challenging violation of fundamental freedoms. I say so because, although the petitioner had pleaded provisions of the constitution, he has not demonstrated to the required standard how his rights and fundamental freedoms have been violated infringed or are threatened to come within the ambit of Article 23(1) of the constitution for redress”.

19. InHusus Mugiri v Music Copy Right Society of Kenya &another [2018] eKLR Mabeya J held as follows…

“In so far as the petition fell short of the test in the Anarita Karimi’s Case, it is doubtful if the first test of Giella v. Cassman Browncan be met.”

20. From the foregoing, although the petitioners have pleaded provisionsof the Constitution, they need to demonstrate how the conduct of the Respondents have abrogated those provisions and what constitutional injuries they have or are likely to suffer.

21. Onguto J inTom Onyango & 5 others v Independent PoliceOversight Authority & 4 others [2015] eKLRstated the following:

“In the instant case, I confirm that I have read the Petition. The pleadings have not specifically pinpointed the Articles alleged to have been violated. The Petition however takes the trajectory of a constitutional application when the Petitioners complain that their prosecution is an abuse of the Respondents’ constitutional powers and the further that their trial itself is an abuse of the process. I am also not convinced that the Petition is beyond repair through amendments.”

22. From the foregoing, the first question this Court ought to ask iswhether the Petitioners have established aprima faciecase. Aprima faciecase was defined by the Court of Appeal inMrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLRas follows:

“a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

23. The Court of Appeal in Pattni v. Ali & 2OthersCa No. 354 of2004(UR183/04)held as follows:

“… in interlocutory applications, the orders that are sought do not decide the rights and obligations of the parties but are merely meant to keep matters in status quo pending such determination. “

24. In Nguruman Ltd v Jan Bonde Nielsen & 2 others [2014]eKLR, the Court of Appeal stated that:

“We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right, which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”

25. This Court guided by the above dictums notes that the prayers in thePetitioner’s Notice of Motion dated 11thJuly 2018 are substantially the prayers in the Petition filed before this Court. With this in mind, I tread with abundant caution in treating the prayers sought herein, which appears to have the rights of the parties decided at the interim stage.

26. The Petitioners have made very serious allegations that for the lastthree years public funds have been directed to Mombasa County accounts, the same has not been remitted to the Consolidated Fund and that public funds are now being channeled to some people’s pockets in breach of the law.

27. The Petitioners also submit that the government will lose millions inrevenue if the collections by the 1stRespondent in relation to court fines, fees and bail continues.

28. It is this Court’s view that the allegations raised by the petitionersherein are very serious allegations that can be equated to fraud if proved. For the petitioners to raise a prima facie case with a probability of success, they need at least to demonstrate that the monies collected by the 1stRespondent did not end up in the Consolidated Fund but ended up in some people’s pockets as alleged for the petitioners to qualify for the orders of temporary injunction against the 1stRespondent.

29. All that the Petitioners demonstrated was that the monies for Courtfees, fines and bail were paid into a revenue account in the 1stRespondent’s name and not the Judiciary revenue account like in Machakos County, where court fees, fines and bail were deposited in the Judiciary’s revenue account instead of the Machakos County’s account as per the directive by the Chief Registrar of the Judiciary. That alone in this Court’s view is not enough to warrant the issue of a temporary Injunction in the absence of any evidence of diversion of funds.

30. It is this Court’s finding that the Petitioners have not established aprima faciecase with a probability of success. Further, the Petitioners have not demonstrated how the continued collection of court fees, fines and bail by the 1stRespondent will occasion injury or loss to them. The Petitioners never rebutted the 1stRespondent’s response in which it averred that the money collected in form of court fees, fines and bail by them is remitted to the Consolidated Fund. It is this Court’s finding that the Petitioners have failed to demonstrate the injury or loss that will be occasioned if the temporary injunction against the 1stRespondent is not granted.

31. This Court has the powers to issue conservatory orders inconstitutional petitions under Article 23 (3)(c) of the Constitution, and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013.

32. The applicable principles for the grant of a conservatory were detailedby Onguto J. inBoard of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR. Where it was held as follows:

“In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether to grant or deny a conservatory order.”

33. Similar sentiments were shared in Muslimsfor Human Rights(MUHURI) & 2 Others v Attorney General & 2 Others [2011] eKLRIbrahim J held:

“In an application for interim orders of the nature of Conservatory Orders or even one for an injunction, the court is not hearing and/or being called upon to determine the main Petition. The Constitutional court is being called upon to preserve the status quo pending the hearing of the Constitutional Petition or motion. The court does not have to take and hear all the evidence and delve into the entire case on its merits. The hearing of the Petition and determination of all issues and questions in dispute will be done at the “trial” and upon completion thereof when a final judgment is to be delivered.

As a result, at this stage I am not obligated to go into all the evidence and even consideration of all the matters of law. My function is to have a reasonable overview to enable me decide on the criteria or principles applicable when considering an application for a Conservatory Order and to what extent the principles are applicable to the facts and circumstances of this case…”

34. The petitioners having failed to demonstrate a prima facie case witha probability of success and/or likely prejudice if the injunction being prayed for is not granted, have therefore also failed to satisfy the condition for the grant of conservatory orders as set inBoard of Management of Uhuru Secondary School v City County Director of Education(supra)and as a consequence, these prayers for conservatory orders will therefore have to wait full hearing of the Petition to confirm if and when applicable procedures have been met.

35. Accordingly, this Court finds that the Application dated 11th July2018is without merit and the same is hereby dismissed.

36. Costs to be in the cause.

Dated, Signed & Delivered at Mombasa this 9th day of May, 2019.

E. K. OGOLA

JUDGE

In the presence of:

Mr. Kabundu 1st Petitioner

Mr. Mwiti 2nd Petitioner

Mr. Tajbhai holding brief Buti for 1st – 4th Respondents

Mr. Tajbhai holding brief Kisingo for 5th – 7th Respondents

Mr. Isaboke for DPP

Mr. Mkok for 2nd, 3rd & 4th Interested Parties

Mr. Kaunda Court Assistant