[2017] KEHC 2327 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

PETITION NO. 13 OF 2016

IN THE MATTER OF ARTICLES 2, 10, 165, 174, 175, 179, 185, 190, 196, 201, 224 AND 258 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF SECTIONS 9 AND 87 OF THE COUNTY GOVERNMENTS ACT, ACT NO17 OF 2012

IN THE MATTER OF SECTIONS 104, 107,125, 129, 131, 132, 134 AND 138 OF THE PUBLIC FINANCE MANAGEMENT ACT, CHAPTER 412C OF THE LAWS OF KENYA

IN THE MATTER OF REGUALATION 25 AND 37 OF THE PUBLIC FINANCE MANAGEMENT (COUNTY GOVERNMENTS) REGULATIONS, 2015

IN THE MATTER OF SECTIONS 4, 9,16 AND 17 OF THE NYERI COUNTY PUBLIC PARTICIPATION ACT, 2015

IN THE MATTER OF CONTRAVENTION OF ARTICLES2, 10, 104,174, 179, 185, 196, 201, 224 AND 232 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF CONTRAVENTION OF THE DOCTRINE OF SEPARATION OF POWERS

IN THE MATTER OF CONTRAVENTION OF THE DOCTRINE OF PUBLIC PARTICIPATION

IN THE MATTER OF CONTRAVENTION OF THE DOCTRINE OF RULE OF LAW

BETWEEN

PAUL MWANGI NGIRIA……………………………………………….1ST PETITIONER

EDWIN WACHIRA NJOGU…………………………………………….2ND PETITIONER

RICHARD NGATIA KANYIGE………………………………………….3RD PETITIONER

JOSEPH MURIUKI GITHOGO………………………….………………4TH PETITIONER

JAMES MATHU WAKAHIU…………………………………………….5TH PETITIONER

DANIEL MAINA KANYIGI………………………….………………....7TH PETITIONER

JULIET WAMBUI MUGA……………………………………….…….8TH PETITIONER

WILSON KARIUKI MUNENE………….…………………….………19TH PETITIONER

JAMES GITONGA MUNENE………………………………….……10TH PETITIONER

MARGARET WANJIRU MATHENGE………………....………….11TH PETITIONER

CHARLES NGARI GICHOHI……………………………………….12TH PETITIONER

JOSEPH KARIUKI MUTENDERU……………………..……………13TH PETITIONER

MOSES MUGO MUTONGU………………….……………………14TH PETITIONER

PRISCILLA WANJIRA MWANGI……………….……………….15TH PETITIONER

STPHEN WACHIRA MUCHEMI…………………………….…….16TH PETITIONER

PATRICK MAINA MURERA…………………………………….17TH PETITIONER

JANE WAMBUI…………………………………………………….18TH PETITONER

JOSEPH MAIGWA NDIRANGU………………………….……….19TH PETITIONER

KELVIN WARUI WANJUA……………………………………….20TH PETITIONER

AND

THE GOVERNOR, NYERI COUNTY……………..............……1ST RESPONDENT

THE COUNTY GOVERNMENT OF NYERI…………………….2ND RESPONDENT

THE COUNTY ASSEMBLY OF NYERI………….…………….3RD RESPONDENT

THE CONTROLLER OF BUDGET…………………………….4TH RESPONDENT

RULING

THE PARTIES

The Petitioners were female and male adults respectively all of sound mind drawn from Othaya, Nyeri Town, Tetu, Kieni, Mukurweini, Mathira East and Mathira West Sub counties of Nyeri County, led by the 1st petitioner Member of the County Assembly of Nyeri representing the people of Chinga Ward.

The 1st Respondent was the Governor of Nyeri County whose office is established under Article 179(2)(a) of the Constitution of Kenya and whose functions are clearly outlined under section 30(2) of the County Governments Act (herein after, 1st Respondent)

The 2nd Respondent was the County Government of Nyeri established by virtue of Article 176(1) of the Constitution of Kenya which provides that there shall be a county government for each county, consisting of a county assembly and county executive (hereinafter, 2nd Respondent)

The 3rd Respondent was the County Assembly of Nyeri established by Article 176(1) of the Constitution of Kenya and whose mandate is provided under section 8 of the County Governments Act, Act number 17 of 2012. (hereinafter, the 3rd Respondent)

The 4th Respondent was the Controller of Budget whose office is established by virtue of Article 228(1) of the Constitution of Kenya which provides that there shall be a Controller of Budget who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President and who under Article 228(4) of the Constitution of Kenya is charged with the oversight of the implementation of the budgets of the national and county governments by authorizing withdrawals from public funds under Articles 204, 206 and 207.

The case against the 5th Respondent who was the Attorney General of the Republic of Kenya whose office is established under Article 156(1) of the Constitution of Kenya was withdrawn.

THE BRIEF FACTS

This petition was brought under certificate of urgency on the basis that the County Government of Nyeri, Budget Estimates for the financial year 2016/2017 contravened the doctrine of Rule of Law , the doctrine of Public Participation the doctrine of separation of powers by failing to adhere to the clear provisions of the Constitution of Kenya, the Public Finance Management Act and the Public Finance Management(County Governments)Regulations (2015) , the County Government’s Act and the Nyeri Country Public Participation Act, 2015.

The Petitioners were apprehensive that unless the court intervened an unconstitutional appropriation bill be enacted into law either by the 1st respondent the Governor of the County of Nyeri assenting the bill into law or by members of 3rd Respondent, the County Assembly of Nyeri upon the 1st Respondent referral of the Bill to the 3rd Respondent for reconsideration, setting in motion the Constitutional obligations of the 4th Respondent, the Controller of Budget , an act that would be detrimental to the people of Nyeri County as service delivery in the county would be greatly affected.

According to the petitioners in the financial year 2015/2016, the 2nd Respondent herein initiated the budget process for the upcoming financial year 2016/2017 in line with the provisions of section 125 of the Public Finance Management Act which provides for the stages in county government budget process as follows;

(1) The budget process for county governments in any financial year shall consist of the following stages—

(a) integrated development planning process which shall include both long term and medium term planning;

(b) planning and establishing financial and economic priorities for the county over the medium term;

(c) making an overall estimation of the county government’s revenues and expenditures;

(d) adoption of County Fiscal Strategy Paper;

(e) preparing budget estimates for the county government and submitting estimates to the county assembly;

(f) approving of the estimates by the county assembly;

(g) enacting an appropriation law and any other laws required to implement the county government’s budget;

(h) implementing the county government’s budget; and

(i) accounting for, and evaluating, the county government’s budgeted revenues and expenditures.

(2) The County Executive Committee member for finance shall ensure that there is public participation in the budget process.

The County Executive Committee in compliance with section 125(2) held public participation forums in each of the wards in Nyeri County between 12th and 15th January 2016, during which the petitioners and other members of the public participated. A list of ward priorities which were to be implemented through the county budget for the financial year 2016/2017 was compiled and utilized by the 2nd Respondent to draft the County Fiscal Strategy Paper (CFSP)2016

This CFSP 2016 was submitted to the 3rd respondent for approval. The 3rd respondent referred it to its Budget and Appropriations Committee. The Committee discussed and reviewed the same and submitted a report to 3rd Respondent with recommendations that theproposed ceilings on the county fiscal strategy paper 2016, be adopted without amendments. The 3rd Respondent proceeded to pass a resolution adopting the CFSP 2016 without any amendments. On that basis the 2nd respondent drafted the County Government of Nyeri budget estimates for the financial year 2016/2017 and submitted these estimates to the 3rd respondents in the month of April, 2016. The 3rd Respondent’s Sectoral Committee and the Budget and Appropriation Committee discussed the same with a view to giving recommendations. On 10th of June 2016 the Budget and Appropriation Committee called for a public participation forum on the 17th June 2016 at Wambugu Farmers Training Centre, but on 16th June 2016, a day to the meeting, changed the venue to YMCA Hall in Nyeri Town, resulting not only to a limited participation of the members of the public but also in violation of clear provisions of the Article 10(2)(a) , 196 (1) of Constitution and section 17(2) of the NYERI COUNTY PUBLIC PARTICIPATION ACT, 2015 on the requirement for public participation.

Article 10 which provides for the national values and principles of governance to participation of the people at (2) (a);

Article 196(1) (b) which provides

(1) A county assembly shall—

(a) facilitate public participation and involvement in the legislative and other business of the assembly and its committees. Article 201 which provides the principles of public financeo includes public participation in financial matters; and section 87 of COUNTY GOVERNMENTS ACT laying down the principles of citizen participation in counties to include (a)timely access to information, data, documents, and other information relevant or related to policy formulation and implementation;

(b) reasonable access to the process of formulating and implementing policies, laws, and regulations, including the approval of development proposals, projects and budgets, the granting of permits and the establishment of specific performance standards; and more specifically provisions of the NYERI COUNTY PUBLIC PARTICIPATION ACT, 2015 Section 17(2) of the which carries a mandatory provision for the clerk of the County Assembly to ensure that all relevant notices related to public participation are posted on the notice boards at least seven days prior to the event.

Following the purported public participation forum, the 3rd respondent’s Budget and Appropriations Committee, proceeded to make numerous major changes to the budget estimates as follows;

a) Increasing and reducing numerous expenditures in the budget estimates beyond the statutorily required limit of one (1%) percent of the vote’s ceiling provided for under regulation 37(1) of the Public Finance Management (County Governments) Regulations. This affected the budget estimates of the office of the Governor, the office of the county secretary, the department of Finance and Economic planning, the department of roads and infrastructure development, the department of Health services and sanitation, the department of special programs, Youth and sports, the department of public administration, information and communication, the department of agriculture, livestock and fisheries, the department of trade, industrialization, culture, cooperatives and tourism development, the department of education, information and communication technology, the department of water, environment and natural resources, the department of lands, housing and physical planning, the department of energy, the county public service board and the county assembly.

b) increasing the allocation of the 3rd respondent to a total of ksh.612,580,707 out of a total county revenue of ksh.6,464,561,041 representing 9. 5% of the total revenue for the county despite the provisions of regulation 25(1)(f) of the Public Finance Management (county Governments) regulations which provides that the approved expenditures of a county assembly shall not exceed (7%) per cent of the total revenues of the county government or twice the personal emoluments of that county assembly, whichever is lower.

c) usurping the execution function of the county executive by going ahead to identify and select the projects to be implemented by the county budget and which projects had not been selected by members of the public during the public participation forums held by the 2nd respondent prior to the drafting of the CFSP 2016. The 3rd respondent then proceeded to adopt all the changes made by the Budget and Appropriations Committee by a report dated 30th June 2016, despite the opposition by the Petitioners.

The 1st and 2nd respondents supported the petition.

The 3rd Respondent opposed the petition and denied any violation of the law. It argued that under section 131(1) of the Public Finance Management Act, (PFMA) 2012, it was not meant to be a mere rubberstamp of the County Executive in the budget making process and with regard to the budget estimates or bills tabled before it, but that it was within its mandate to make the adjustments to the estimates as it did. Further that it complied with its standing orders.

In addition, County Executive Committee members were invited to make submissions on specific issues before its Sectoral Committees but they did not honour the invitations and/ or provide the relevant details so requested. In the 3rd respondent’s view, they failed in their duty under the law.

Further the 3rd respondent was of the view that the County Executive Committee Member in charge of the finance had failed to carry out his duties as required under the PFMA 2012 Section128(2) which provides that “Not later than the 30th August in each year, the CountyExecutive Committee member for finance shall issue a circular setting out guidelines to beFollowed by all of the county government’s entities in the budget process.”; section 129(5) stating that “The County Executive Committee member for finance shall ensure that the budget processis conducted in a manner and within a timeframe sufficient to permit the participants in the processto meet the requirements of the Constitution and this Act” and section 133 to the effect that “Not later than ninety days after passing the Appropriation Bill, the county assembly shall consider and approve the Finance Bill with or without amendments.”

The case against the 5th respondent was withdrawn on the 8th of September 2016.

The 4th respondent did not file any papers.

It is in the backdrop of the foregoing that the Petitioners seek the following orders;

(a)(a) government of Nyeri, budget estimates for the financial year 2016/2017 failed to adhere to the provisions of Articles 10(2)(a), 190(2) and 224 of the Constitution of Kenya, section 131(2), 131(3), 132(3)€ 138(5) and 138(1)(b)(iii)of the Public Finance Management Act, section 104(1) of the County Government’s Act and Regulations 25(1)(f) and 37(1) of the Public Finance Management (County Governments) Regulations and in so doing contravened the doctrine of Rule of Law enshrined in Article 10(2)(a) of the Constitution of Kenya and to that extent the approved budget estimates as contained in the report dated 30th June 2016 are null and void to the extent of the such inconsistency.

(b) A declaration that the 3rd respondent in reviewing, amending and approving the county government of Nyeri, budget estimates for the financial year 2016/2017 failed to adhere to the provisions of Articles 10(2)(a), 196(1)(b) 201(a) and 232(1)(d) of the constitution of Kenya, section 131(2) of the Public Finance Management Act, section 87(a) of the County Government’s Act and sections 4(b), 9(a), ((b), 16(a) and 17(2) of the Nyeri County Public Participation Act, 2015 and in so doing contravened the doctrine of Public Participation Act, 2015 and in so doing contravened the doctrine of Public participation as enshrined in Articles 10(2)(a), 196(1)(b), 201(a) and 232(1)(d) of the Constitution of Kenya and to that extend the approved budget estimates as contained in the report dated 30th June, 2016 are null and void to the extent of the such inconsistency.

(c) A declaration that the 3rd respondent in reviewing, amending and approving the county government of Nyeri, budget estimates for the financial year 2016/2017 failed to adhere to the provisions of Articles 175(a), 174(i), 179(1), 185(1) and 185(3) of the constitution of Kenya and section 9(1) and 9(2) of the County Government’s Act and in so doing contravened the doctrine of separation of powers enshrined in Articles 174(i), 175(a) and 185(3) of the Constitution of Kenya and to that extent the approved budget estimates as contained in the report dated 30th June, 2016 are null and void to the extent of the such inconsistency.

(d) An order directing the 2nd respondent to re-submit the County Government of Nyeri, Budget Estimates for the financial year 2016/2017 to 3rd respondents in turn to re-consider these estimates and pass them in accordance with the provisions of the constitution of Kenya, the public Finance Management Act, Public Finance Management (County Governments) Regulations and the Nyeri County Public Participation Act.

(e) A conservatory order permanently restraining the 1st respondent from assenting a county appropriation bill as a consequence of the county government of Nyeri, budget estimates for the financial year 2016/2017 as contained in the 3rd respondent’s report dated 30th June, 2016.

(f) This Honourable Court be pleased to issue any other appropriate order or relief as it may deem fit and just.

(g) Costs of the petition.

ISSUES FOR DETERMINATION

There was no set of agreed issues.

The 3rd Respondent framed one issue;

1. Whether the 3rd Respondent in approving the Budget estimates of the financial year 2016/2017 contravened the Constitution of Kenya 2010by failing to adhere to the doctrines of separation of powers, rule of law and public participation.

This appears to be the same for the Petitioners from their submissions.

The 1st and 2nd Respondents framed the following issues

1. Whether court may inquire into the legislative processes of the 3rd respondent

2. Whether the acts of the 3rd Respondent in amending the Budget estimates contravened the Constitution of Kenya

3. Whether the remedies sought in the petition are appropriate.

For purposes of the determination, I will adopt the three issues and consider the 3rd respondent’s and the petitioners’ issue together with the 1st and 2nd respondents issue no. 2

THE SUBMISSIONS

On the 1st issue, it is the 3rd respondent who contended that the petitioners had brought to court an issue that the court had no business dealing with. However, though the 3rd respondent did not address the issue directly in its submissions, it submitted that the petition was precisely a challenge of its role in the budgeting process. Citing the Constitution at Article 185 and section 8(1) (c) of the County Government Act it set out its role and mandate in the legislative and budget making processes. Article 185(3) specifically speaks to the respect for the principle of separation of powers while exercising its oversight over county executive committees.

It was submitted for 1st and 2nd respondents that the Constitution of Kenya under Article 165(3)(d) confers this court with jurisdiction to hear any question respecting its interpretation including to determine

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

It goes without saying that the budgeting process is subject to constitutional principles, and legislation which in itself has no choice but to be consistent with the Constitution. The allegations by the petitioners and 1st and 2nd respondents, and the denial by the 3rd respondent, that the process of reviewing and approving the budget estimates for the year 2015/2016 was tainted by violation of constitutional principles and violation of the peoples right of participation, places the matter right within the jurisdiction of this court.

On the second issue, the parties addressed it under three subheads.

1. Contravention of the doctrine of separation of powers.

It was submitted for the petitioners that the 3rd respondent committed this sin by omission- failure to adhere to the provisions of Articles of the Constitution; 175(a) county governments shall be based on democratic principles and the separation of powers; 174 (i) to enhance checks and balances and the separation of powers ;179(1) The executive authority of the county is vested in, and exercised by, a county executive committee; 185(1) The legislative authority of a county is vested in, and exercised by, its county assembly; 185(3) A county assembly, while respecting the principle of the separation of powers, may exercise oversight over the county executive committee and any other county executive organs; and provisions of the County Governments Act; section 9 which provides that (1) A member of a county assembly shall—

(a) maintain close contact with the electorate and consult them on issues before or under discussion in the county assembly;

(b) present views, opinions and proposals of the electorate to the county assembly;

(c) attend sessions of the county assembly and its committees;

(d) provide a linkage between the county assembly and the electorate on public service delivery; and (e) extend professional knowledge, experience or specialized knowledge to any issue for discussion in the county assembly.

(2) A member of the county assembly shall not be directly or indirectly involved in the—

(a) executive functions of the county government and its administration; or

(b) delivery of services as if the member were an officer or employee of the county government;

According to the petitioners it is only the executive arm of the county that is mandated to prepare the budget. The process is set out under section 117 of the PFMA 2012 as follows;

(1) The County Treasury shall prepare and submit to the County Executive Committee the County Fiscal Strategy Paper for approval and the County Treasury shall submit the approved Fiscal Strategy Paper to the county assembly, by the 28th February of each year.

(2) The County Treasury shall align its County Fiscal Strategy Paper with the national objectives in the Budget Policy Statement.

(3) In preparing the County Fiscal Strategy Paper, the County Treasury shall specify the broad strategic priorities and policy goals that will guide the county government in preparing its budget for the coming financial year and over the medium term.

(4) The County Treasury shall include in its County Fiscal Strategy Paper the financial outlook with respect to county government revenues, expenditures and borrowing for the coming financial year and over the medium term.

(5) In preparing the County Fiscal Strategy Paper, the County Treasury shall seek and take into account the views of—

(a) the Commission on Revenue Allocation;

(b) the public;

(c) any interested persons or groups; and

(d) any other forum that is established by legislation.

(6) Not later than fourteen days after submitting the County Fiscal Strategy Paper to the county assembly, the county assembly shall consider and may adopt it with or without amendments.

(7) The County Treasury shall consider any recommendations made by the county assembly when finalising the budget proposal for the Financial year concerned.

(8) The County Treasury shall publish and publicise the County Fiscal Strategy Paper within seven days after it has been submitted to the county assembly.

Section 129(2)(b) further provides that

(2) Following approval by the County Executive Committee, the County Executive Committee member for finance shall—

(a) submit to the county assembly the budget estimates, supporting documents, and any other Bills required to implement the budget, except the Finance Bill, by the 30th April in that year; and

(b) ensure that the estimates submitted in subsection (a) are in accordance with the resolutions adopted by county assembly on the County Fiscal Strategy Paper.

What happened in this case was that the County Fiscal Strategy Paper was prepared and placed before the County Assembly who passed a resolution adopting it without any amendments. The 2nd respondent went ahead and prepared the budget estimates based on the CFSP. The budget estimates were approved by the County Executive Committee and were submitted to the County assembly. Upon this submission, the County Assembly went ahead to increase, reduce and set aside some of the provisions made in the budget estimates.

They also went further to approve various projects that had not been approved by the County Executive Committee, and to publicise the budget estimates contrary to s. 131 (6) of the PMFA 2012.

The 3rd Respondent argues that the Petitioners and the 1st and 2nd respondents are mistaken. The mere fact that the 3rd respondent approved the CSFP without any amendments does not mean that it could not review and amend the budget estimates. Relying on sections 128(2), 129(5), 133 of the PMFA 2012, the 3rd respondent submitted that the budget process was clearly set out and that once the 3rd respondent had approved the estimates the county executive member in charge of finance was required by law to prepare and submit the Appropriation Bill, which would be subjected to the sectoral committees and the Budget and Appropriation Committee.

Each party relied on the case of Mumo Matemu v Trusted Society of Human

Rights Alliance & 5 others [2013] eKLRwhere it was held that

It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of powers does not only proscribe organs of government from interfering with the other’s functions. It also entails empowering each organ of government with countervailing powers which provide checks and balances on actions taken by other organs of government. Such powers are, however, not a license to take over functions vested elsewhere. There must be judicial, legislative and executive deference to the repository of the function.

I think the answer to the question as to whether the 3rd respondent violated the doctrine of separation of powers is answered by section 133 of the PMFA 2012. It is correct that the County assembly is not merely a rubber stamp when it considers the budget estimates. Section 133(1) states “The county assembly shall consider the county government budget

estimates with a view to approving them, with or without amendments…”.The catch is however in section 131(3) which stipulates that

“An amendment to the budget estimates may be made by the county assembly only if it is in accordance with the resolutions adopted regarding the

County Fiscal Strategy Paper and if—

(a) any increase in expenditure in a proposed appropriation, is balanced

by a reduction in expenditure in another proposed appropriation; and

(b) any proposed reduction in expenditure is used to reduce the deficit.

(emphasis mine)

The 3rd respondent could only have made amendments to the budget estimates if they were made without consideration of its recommendations under s. 117 (6). Section 117 (7) of the PMFA 2012 makes it mandatory for the County Treasury to consider any recommendations made by the county assembly when finalising the budget proposal for the Financial year concerned. Section 129(2) (b) binds the County executive member in charge of finance ensure that the estimates submitted to the county assembly are in accordance with the resolutions adopted by county assembly on the County Fiscal Strategy Paper. Hence any amendments to the budget estimates by the County Assembly would have to be only to align the estimates with their recommendations on the CFSP.

Cleary that is not a leeway for them to re- open the budgeting process.

In this case the 3rd Respondent went much further than what is stipulated under section 131. In their report of 30th June 2016, the grounds given for amendments were invariably stated as “the result of public opinion during public participation forum held on the 17th June 2016 at YMCA hall and also the report from the Controller of Budget on the Budget Estimates for FY 2016/2017 as ‘unproductive expenditure’. Obviously this is not what was envisaged by section 131(3) of the PMFA 2012.

Finally, on this issue the 3rd respondent, by taking upon itself the role of publishing the budget estimates, violated the provisions of section 131(6) of the PMFA 2012 which confers the responsibility “take all reasonably practicable steps to ensure that the approved budget estimates are prepared and published in a form that is clear and easily understood by, and readily accessible to, members of the public” on The County Executive Committee member for finance.

In a nut shell I do find that the 3rd respondent contravened the doctrine of separation of powers.

2. Whether the 3rd respondent contravened the doctrine on the rule of law.

Tom Bingham’s definition in Rule of Law (2010) quoted in Venice Commission Rule of Law Checklist (2016)[1] covers most appropriately the

essential elements of the Rule of Law:

“All persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.

The Commission further states

“The Rule of Law is a concept of universal validity…[It] has been proclaimed as a basic principle at universal level by the United Nations – for example in the Rule of Law Indicators …by the Organization of American States - namely in the InterAmerican Democratic Charter - and the African Union in particular in its Constitutive Act… The Rule of Law must be applied at all levels of public power…. the principles of the Rule of Law also apply in private law relations…”

It was submitted for the petitioners and the 1st and 2nd respondents that the 3rd respondent contravened the doctrine of the rule of law as enshrined in Article 10(2) (a) as read with 10(1) of the Constitution as one of the national values and principles of governance for the guidance of all persons whenever they apply or interpret the Constitution; enact, apply or interpret any law; or make or implement public policy decisions.

This sin was committed by failure to comply with the clear provisions of the Public Finance management (County Government) Regulations, 2015 specifically regulations 25(1) (f) and 37(1).

These regulations give instructions as to the extent of the powers of the County Assembly under section 131 above.

37. (1) Where a county assembly approves any changes in the Approval of the annual estimates of budget under section 131 of the Act, any increase or reduction in expenditure of a Vote, shall not exceed one (1%) percent of the Vote's ceilings'.

The report dated 30th June 2016 contains shows that numerous votes were reduced or increased beyond this threshold.

The 3rd respondent’s submissions were that it gave clear details on why it adjusted the figures. That may well be so, but that is not what the law required of the 3rd respondent. The 3rd respondent clearly made adjustments to the budget in excess of the powers given to it by the law. To that extent there was a contravention of the doctrine of the rule of law.

3. Contravention of the doctrine of public participation.

The 3rd respondent called for a public participation forum vide a notice dated 10th June 2016 to be held on the 17th 2016 at the Wambugu Agricultural Training Centre. On 16th June 2016, it issued another notice changing the venue to YMCA hall in Nyeri.

Section 17(2) of the Nyeri County Public Participation Act provides for a seven-day mandatory notice. The petitioners and the 1st and 2nd respondents submit that this action curtailed the level of public participation. It is also submitted that the number of persons allowed to participate was limited.

On its part the 3rd respondent submits that petitioners have not demonstrated any prejudice they suffered owing to the change of venue.

I was referred to the case of Kenya Small Scale Farmers Forum & 6 others v Republic of Kenya & 2 others [2013] eKLR where the judges while discussing the doctrine of public participation stated as follows;

The essence of public participation has also been captured in the subsequent case of Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others, CCT 86/08 [2010] ZACC 5, where the same Court stated as follows:

“…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.

As this Court observed in Doctors for Life, both the duty to facilitate public involvement and the positive right to political participation “seek to ensure that citizens have the necessary information and the effective opportunity to exercise the right to political participation.” This can be achieved not only through elected representatives, but also by enabling citizens to participate directly in public affairs, “through public debate and dialogue with elected representatives, referendums and popular initiatives or through self-organisation”. (emphasis mine)

Public participation involves engagement with the citizens who have been accorded the effective opportunity and sufficient information to enable them express their concerns, their fears and make demands if need be. The PFMA 2012 provides several stages when the views of the public ought to be considered sought and considered and the County Executive Committee member for finance is bound to ensure that there is public participation in the budget process, s 125(2). That would explain the elaborate plans put in place and evidenced by the participation of members of the public from each ward between 12th and 15th January 2016, during which each ward identified its priority projects. No similar effort was made by the 3rd Respondent.

In Law Society of Kenya vs. The Attorney General [2013] eKLRthe court stated that

“…In order to determine whether there has been public participation the court is required to interrogate the entire process leading to the enactment of the legislation; from the formulation of the legislation to the process of enactment of the statute”

The 3rd respondent called only one meeting in Nyeri Town. The notice for the meeting in the new venue did not comply with the legal requirements. There were no meetings in the other sub counties and hence no evidence that there was participation from these other wards to support the changes the 3rd respondent made to the Budget estimates. The 3rd respondent referred vaguely to “public opinion “of the public participation forum. What was this public opinion in specifics? Public participation is not a mere formality of just calling a meeting hearing from the people. There must be proper engagement with the materials, proper information, proper notices and concrete feedback which cannot be just an amorphous “public opinion”. Justice Odunga said as much in Robert N. Gakuru and others vs. Governor of Kiambu County and 3 others [2014] eKLR

“…public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the constitutional dictates. It is my view that it behoves the county assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively”.

Justice Lenaola in Tyson Ng’etich & another v Governor, Bomet County Government & 5 others [2015] put it this way

“Public participation as a national value under Article 10 of the Constitution is an expression of the sovereignty of the people articulated under Article 1 of the Constitution. Article 185 vests legislative authority of a County Government in a County Assembly. Article 196 (1) (b) obligates a County Assembly to facilitate public participation in its legislative business. Public participation in matters of public finance is also reinforced under Article 201 (a) in that it provides that there shall be openness and accountability, including public participation in financial matters. The County Government Act has also set out elaborate parameters on public participation at the County level. The High Court has also held that the mode and the manner of giving effect to public participation will vary from case to case and there must be some clear and reasonable level of participation afforded to the public - See the decisions in Nairobi Metropolitan PSVs Saccos Union Ltd & 25 Others v County of Nairobi Government & 3 Others (2013) e KLR; Moses Munyendo & 908 Others v Attorney General and Another (2013) e KLR; Richard Dickson Ogendo & 2 Others v Attorney General & 5 Others (2014) e KLR;andRobert Gakuru & Others v Governor Kiambu County & 3 Others (2014) e KLR.(emphasis mine).

The participation of the public must be clear and reasonable.

Whatever happened on the 17th June 2016 at YMCA hall in Nyeri Town cannot amount to public participation of the people of Nyeri County. There was one forum, whose attendance is unknown, and whose feedback has only been reported as “public opinion”.

The petitioners did not have to demonstrate personal individual prejudice. It is sufficient in my view for them to point out the failure on the part of the 3rd respondent to adhere to such a central constitutional principle.

I am persuaded that the 3rd respondent did contravene the doctrine of public participation.

SO WHAT ORDERS SHOULD ISSUE?

The 3rd respondent acted overzealously in reviewing and amending the budget proposals. It would appear that the actions were driven by the desire to micromanage the actions of another arm of government through ‘oversight’, mistaken that it could re write the budget estimates according based on reasons not provided for by the law.

Orders granted should not only be aimed at addressing the issue at hand but at this court doing its sworn duty in the defence of the Constitution stated at article 3(1) that “Every person has an obligation to respect, uphold and defend this Constitution”.

This ruling is coming at a time when the FY 2016/2017 is passed and there is not only a new County Assembly in place, but also a new 1st and 2nd Respondent. Hence some of the prayers sought are spent. Nevertheless, they owe it to the people of Nyeri County to start on a clean slate build on the Constitutional principles, and give life to the spirit of the Constitution with regard to the rule of law, separation of powers and public participation. The Swahili saying “yaliyo pita si ndwele tugange yajayo” or as famously put by one gubernatorial aspirant “yaliyo ndwele sipite” aptly comes to mind.

Be that as it may, it is clear that the 3rd respondent required to be reminded of its true place and role in the budgeting process, so that in future it may adhere to the constitutional values and principles of governance, and align its actions to the guiding principles on the budgeting process set out in all the legislation on management of public finances. The 3rd respondent must read them together in their totality and apply a pragmatic approach to the same. The adherence to the doctrines of the rule of law, separation of powers and public participation were key in the budgeting process as it is one way of growing them into the fabric of the nascent system of devolved government.

I find therefor that the following orders are deserved by the petitioners and the 1st and 2nd respondents;

a. A declaration that 3rd respondent in reviewing, amending and approving the county government of Nyeri, budget estimates for the financial year 2016/2017 failed to adhere to the provisions of Articles 10(2)(a), 190(2) and 224 of the Constitution of Kenya, section 131(2), 131(3), 132(3) 138(5) and 138(1)(b)(iii)of the Public Finance Management Act, section 104(1) of the County Government’s Act and Regulations 25(1)(f) and 37(1) of the Public Finance Management (County Governments) Regulations and in so doing contravened the doctrine of Rule of Law enshrined in Article 10(2)(a) of the Constitution of Kenya.

b. A declaration that the 3rd respondent in reviewing, amending and approving the county government of Nyeri, budget estimates for the financial year 2016/2017 failed to adhere to the provisions of Articles 10(2)(a), 196(1)(b) 201(a) and 232(1)(d) of the constitution of Kenya, section 131(2) of the Public Finance Management Act, section 87(a) of the County Government’s Act and sections 4(b), 9(a), ((b), 16(a) and 17(2) of the Nyeri County Public Participation Act, 2015 and in so doing contravened the doctrine of Public Participation Act, 2015 and in so doing contravened the doctrine of Public participation as enshrined in Articles 10(2)(a), 196(1)(b), 201(a) and 232(1)(d) of the Constitution of Kenya.

c. A declaration that the 3rd respondent in reviewing, amending and approving the county government of Nyeri, budget estimates for the financial year 2016/2017 failed to adhere to the provisions of Articles 175(a), 174(i), 179(1), 185(1) and 185(3) of the Constitution of Kenya and section 9(1) and 9(2) of the County Government’s Act and in so doing contravened the doctrine of separation of powers enshrined in Articles 174(i), 175(a) and 185(3) of the Constitution of Kenya.

d. An order that the 3rd respondents, while considering the budget estimates, to ensure compliance with the provisions of the Constitution of Kenya, the Public Finance Management Act, Public Finance Management (County Governments) Regulations and the Nyeri County Public Participation Act, and in particular the Constitutional principles of public participation, separation of powers and the rule of law, in default of which its actions will be rendered null and void to the extent of any inconsistency to the Constitution.

e. Each party to bear its own costs of the petition.

Dated, Delivered and Signed at Nyeri this 6th Day of September 2017.

……………………………………………………………………………………………................

Teresia Matheka

Judge

In the presence of;

Kebuka Wachira holding brief for Kimunya for the Petitioners

Mshila holding brief for Muchiri was Gathoni for the 3rd Respondents

N/A for 2nd and 4th Respondents

C/A Harriet

[1] Accessed at http://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf

on 13th July 2017