[2016] KEHC 7985 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 29 OF 2016

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CERTIORARI

AND

IN THE MATTER OF GAZETTE NOTICE NO. 9451 AND PUBLISHED ON 24TH DECEMBER 2015

AND

IN THE MATTER OF THE PURPORTED APPOINTMENT OF THE INTERESTED PARTIES AS INSPECTORS OF THE ANTI-COUNTERFEIT AGENCY

AND

IN THE MATTER OF THE ANTI-COUNTERFEIT ACT, NO. 13 OF 2008

AND

IN THE MATTER OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE UNDER ARTICLE 10 OF THE CONSTITUTION

AND

IN THE MATTER OF THE VALUES AND PRINCIPLES OF PUBLIC SERVICE UNDER ARTICLE 232 OF THE CONSTITUTION

AND

IN THE MATTER OF THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, 2015

AND

IN THE MATTER OF

REPUBLIC ………….………..............………..………….….APPLICANT

VERSUS

ANTI-COUNTERFEIT AGENCY……......…….………..…..RESPONDENT

AND

CLIVE CETEWAYO MUTISO….....……….…..1ST INTERESTED PARTY

TIMOTHY M. IKOLI IDELE…..……....………2ND INTERESTED PARTY

GEORGE OUMA JUMA.………….…..……….3RD INTERESTED PARTY

YAAKUB AHMED………………………………4TH INTERESTED PARTY

BONIFACE APAMO AKUSALA………........….5TH INTERESTED PARTY

EVELYN K. LUSENEKA.…………………......….6TH INTERESTED PARTY

ALVIN KIMANI MUHORO..…………….........…..7TH INTERESTED PARTY

EX PARTE: MOSES MAINA MATURU

JUDGEMENT

Introduction

1. By a Notice of Motion dated 3rd February, 2016, the ex parte applicant herein Moses Maina Maturu, seeks the following orders:

(a) That an order of Certiorari be and is hereby issued to bring into this court and quash Gazette Notice No. 9451 published on 24/12/2015 appointing the interested parties as inspectors of the respondent.

(b) That costs of this application be provided for.

Applicant’s Case

2. According to the applicant, by way of Gazette Notice No. 9451 and published in the Kenya Gazette Issue of 24th December 2015 the Respondent purportedly appointed the Interested Parties as inspectors purportedly appointed under Section 22(1) of the Anti-Counterfeit Act (hereinafter referred to as “the Act”). Whereas the applicant appreciated that section 22(1) of the said Act empowers the Respondent to appoint such number of inspectors as it may deem appropriate, it was contended that the Respondent is a State Corporation that is subject to the provisions of the Constitution in the conduct of its affairs including any appointment.

3. The Applicant averred that the 1st-3rd Interested Parties are private persons employed by the Petroleum Institute of East Africa, a private lobbyist for multinational petroleum companies to which the immediate past Chairman of the Respondent’s Board of Directors who signed the aforesaid Gazette Notice was also the Chairman. It was averred that the 4th & 5th Interested Parties are employees of the Pharmaceutical Society of Kenya, a private closed association of pharmaceutical practitioners operating in Kenya while the 6th Interested Party is an employee of Agro-Chemicals Association of Kenya, and therefore a private individual and not a public officer. As for the 7th Interested Party, it was averred that he is a serving legal officer at the Energy Regulatory Commission, a State Corporation, and therefore is incapable of being appointed an inspector of the Respondent as that would amount to him holding two posts in the public service which is outlawed.

4. It was the applicant’s position that any appointment by the Respondent has to meet the Constitutional test laid down under Article 232 of the Constitution which includes affording adequate and equal opportunities for appointment and also fair competition and merit as the basis of appointments.

5. It was averred that the Respondent has never advertised for positions of inspectors to which the Interested Parties applied, were interviewed, passed and were therefore eligible for appointment as inspectors. In the applicant’s view, the Interested Parties have been appointed by the Respondent at the behest of Mr. Polycarp Igathe, the immediate past Chairman of the Respondent in a manner that is contrary to the Constitution and in a manner that is manifestly ultra vires.

6. The Applicant averred that, based on some unethical and criminal actions of certain private persons and especially the 1st Interested Party, the applicant did enquire from the Respondent by way of letter dated 1st September 2015 whether the, inter alia, the 1st Interested Party was one of its inspectors and prosecutors but the Respondent failed to respond to the said enquiry contrary to Article 232 (1) (f) of the Constitution and instead purported by way of the aforesaid Gazette Notice to appoint the said persons as inspectors as a means of hoodwinking the public and covering up legitimate enquiries that had been made. However it was the Applicant’s case that he made enquiries and established from very credible and unimpeachable sources that the Interested Parties are not employees of the Respondent but are employees of the aforesaid private entities and have been purportedly “appointed” at the behest of Mr. Polycarp Igathe as a means to please, empower and reward his friends in the private sector.

7. The Applicant asserted that any person Gazetted as an inspector of the Respondent automatically enjoys full police powers and that it is against public policy and public interest to clothe private persons with full police powers that include the power of arrest etc. To the Applicant, the Respondent’s Board of Directors is not empowered to appoint anyone as an inspector without ensuring that such appointment meets the Constitutional requirements aforesaid.

8. It was therefore averred that the aforesaid “appointment” was unilateral and illegal as it was pushed and carried out by Mr. Polycarp Igathe, the immediate past Chairman of the Board of Directors on his own accord. Being a unilateral act of the said Mr. Polycarp Igathe, and not that of the Board of Directors of the Respondent, it was contended that the act is clearly illegal and ultra vires and a classic case of abuse of power and avoidance of the rule of law. The Applicant disclosed that Polycarp Igathe being the immediate past Chairman of Petroleum Institute of East Africa, his unilateral appointment of the 1st-3rd Interested Parties, employees of the Petroleum Institute of East Africa as inspectors of the Respondent is a case of conflict of interest and violation of law that should be stopped by this Court.

9. It was emphasised that the purported “appointments” are illegal and constitutes big lies to the public and clearly therefore contrary to the national values and principles of the Constitution that, inter alia, espouses integrity and the rule of law in the conduct of public affairs. Further the aforesaid “appointments” were made in excess and/or without power and jurisdiction in that the Anti-Counterfeit Act at section 22(1) as read together with the Constitution does not allow or permit the appointment of the Interested Parties singularly and unilaterally by the Chairman of the Respondent’s Board of Directors.

10. The Applicant averred that the invocation of the provisions of the Anti-Counterfeit Act in the purported appointment of the Interested Parties without abiding by the Constitution and the Respondent’s internal recruitment procedures is blatantly erroneous, illegal and wrong and that the appointment having been made in excess and/or without power and jurisdiction is therefore illegal and a nullity ab initio and is only appropriate to be quashed.

11. To him, the law is very clear and unambiguous in the appointment of any public officer and the same must be done publicly by affording all Kenyans equal opportunities through a competitive process and that section 22 does not empower the Respondent to appoint none-employees as inspectors and further does not allow the Respondent to “appoint” private persons employed by other private bodies as inspectors. Further whereas the Act empowers the Board of the Respondent to appoint inspectors for the purposes of the Anti-Counterfeit Act which appointment must accord with the Constitution, it neither empowers nor envisages a situation where the Chairman of its Board of Directors, acting alone and to the exclusion of the other members of the Board of Directors purports to “appoint” his friends and cronies as inspectors of the Respondent hence the aforesaid appointment was made by a stranger to the law, a non-appointing authority and is therefore clearly in excess of power and jurisdiction since it is a product and a clear case of the usurpation of power by an individual and is therefore unsustainable in law.

12. It was contended that the appointment of the Interested Parties as inspectors of the Respondent was made contrary to the critical values and principles set out in the Constitution that govern and regulate appointment to public office and therefore illegal and unconstitutional. The said values which were allegedly violated were identified by the Applicant as:

a. Fair competition and merit as the basis of appointment.

b. Affording adequate and equal opportunities for appointment at all levels of the public service.

c. Involvement of the people.

13. According to the Applicant, the aforesaid values and principles, among others, require that the vacancy, if any, of inspectors of the Respondent be notified to the public and that the public be afforded an opportunity to apply based on clear and set qualifications. However, the said appointment was opaque, unilateral, exclusive, illegal, unconstitutional and shrouded in mystery to such an extent that the matters or factors that were considered in the appointment can only be said to constitute irrelevant considerations and therefore contrary to public interest and legitimate expectations; is marred by manifest procedural impropriety, illegality and non-compliance with the law. It was alleged that some of the Interested Parties and especially the 1st Interested Parties have been engaged in criminal activities and are unfit to be appointed to such sensitive positions.

14. Based on the foregoing the Applicant sought for an order quashing the said appointments.

Respondents’ Case.

15. On behalf of the Respondent, it was averred that vide the gazette notice number 9451 published in the Kenya Gazette issued on 24th December, 2015 several inspectors were appointed by the agency and that the appointment of the Inspectors is set out under section 22 (1) of the Anti Counterfeit Act whereby the board is empowered for the purposes of enforcing the provisions of the Act to appoint such number of inspectors as it may deem appropriate.

16. It was contended that pursuant to the said powers, the board sat on 30th November, 2015 and appointed several persons who were later gazetted in that capacity. According to the Respondent under the said provisions of the law, the Board has powers to designate public officers to be inspectors hence the notion that public officers are not eligible to be appointed as inspectors is a misrepresentation. On the same breath, the Board is mandated to appoint private persons as inspectors as long as it issues to them in writing, or such forms as may be prescribed, certificate of authority to act as inspectors.

17. It was therefore the Respondent’s position that all the laid down procedures were adhered to in regard to the said appointments and that no inspector was appointed by the agency at the behest of Mr. Polycap Igathe as alleged by the Applicant.

18. It was averred that all persons appointed and designated to be inspectors for the purposes of the act acquire full police powers in the exercise of their duties irrespective of whether they were appointed as private persons or public officers.

19. In the Respondent’s view this suit is not based on any merits, but it’s a scheme to paralyze the operations of the agency through frivolous and vexatious proceedings by the ex parte applicant working in cahoots with other persons whose interests are unknown to the agency. The said group of persons, it was averred have been behind several court cases, which the agency is forced to defend thereby directing its resources from the fight against counterfeiting.

20. The Respondent asserted that there has been neither an objection or complaint from any quarter based on the alleged engagement in criminal activities of any of the interested parties appointed as the inspectors nor has any criminal prosecution proceedings been preferred against any of the said inspectors.

21. With respect to the annexure on the judicial review miscellaneous application filed by the ex parte applicant, it was averred that the same is a board paper which is used by the Ant- Counterfeit Agency in its internal operations and the manner in which it was obtained is questionable and raises the issue as to the legitimacy and legality of the annexture.

Rejoinder by the Applicant

22. By way of a rejoinder, the Applicant averred that it is not in dispute that the Board of Directors of the 2nd Respondent can appoint inspectors under Section 22(1) of the Anti-Counterfeit Act, No. 13 of 2008. What is in dispute is whether the Board of Directors of the Anti-Counterfeit Agency can appoint inspectors contrary to its internal rules as contained in the Human Resources Manual and contrary to the Constitution. It was also conceded that the Board of Directors of the Anti-Counterfeit Agency can designate inspectors from public officers under Section 22(3) of the Anti-Counterfeit Act. However, what is in issue here is whether the Board of the Anti-Counterfeit Agency can designate persons other than public officers as inspectors of the 2nd Respondent. It was averred that the replying affidavit did not set out the procedures that were followed and if they meet the Constitutional test. Further the said affidavit also failed to provide the evidence of the procedures that were followed e.g. a board paper from the Human Resource Committee of the Board of Directors of the Respondent that proposed and recommended the impugned appointment and the basis, if any, of those proposals or recommendations.

23. The applicant asserted that the issues raised here are serious issues of public law and therefore his application is merited and he was unaware of any scheme to paralyze the operations of the Respondent. To him, the Constitution being the basic law is so supreme that if compliance with it means that the 2nd Respondent has to come to a halt or cease operations then so be it since there is no excuse for violating the Constitution. He contended that the Respondent as a public body must at all material times obey and defer to the Constitution and no price is heavier than compliance with the Constitution.

24. The Applicant noted that the Respondent had not denied the fact of the existence of the said Board Paper that was actually prepared by John Akoten for the consumption and use of the Respondent and in which the said John Akoten was clearly blaming Polycarp Igathe, the then chairman of the Board of Directors of the respondent for single handedly pushing through the impugned appointments and gazettement. To him, this Court is empowered to look at all the documents and evidence placed before it and to come to a conclusion based on the evidence before it and that the mere fact that the Respondent has acknowledged and accepted the existence of the Board Paper is a further indication that the Respondent is being untruthful with this Honourable Court when looked at against the backdrop of its depositions in the Replying Affidavit.

25. The applicant reiterated that the interested parties and especially Clive Mutiso, the 1st interested party, are private individuals and not in the employ of the respondent and were therefore never appointed as public officers of the respondent so as to be able to be gazetted as inspectors. According to the Applicant, the respondent has no power to appoint or designate private individuals who are employed by private entities like PIEA to carry out inspection work under the Anti-Counterfeit Act but if the respondent wants to engage private individuals as anti-counterfeit inspectors then the law and procedure is clear and that involves advertising and recruitment on merit and the said private individuals upon appointment will be public officers who can then be gazetted as inspectors. However the law does not allow the respondent to purported to appoint private individuals who are not on its payroll and who are in the payroll of private entities as inspectors and that this is an absurdity that must be quashed by this Court.

Determinations

26. I have considered the application, the affidavit filed in support of the application, the grounds of opposition as well as the submissions filed.

27. Section 22 of the Anti-Counterfeit Act provides as follows:

(1) The Board shall, for purposes of enforcing the provisions of this Act, appoint such number of inspectors as the Board may consider appropriate and shall issue to them, in writing or in such form as may be prescribed, certificates of authority to act as inspectors.

(2) A person appointed as an inspector under subsection (1) shall—

(a) hold office subject to such terms and conditions as the Board may determine;

(b) have full police powers in the exercise of their duties under this Act.

(3) In addition to inspectors appointed under subsection (1), any member of the Board, police officer, authorised customs officer, trade development officer, industrial development officer, trade mark and patent examiner, seed and plant inspector, public health inspector, and inspectors appointed under the Standards Act (Cap. 496), the Weights and Measures Act (Cap. 513), the Copyright Act (No. 12 of 2001), the Food, Drugs and Chemical Substances Act (Cap. 254), the Pharmacy and Poisons Act (Cap. 244) and the Pest Control Products Act (Cap.

346) are hereby designated as inspectors for purposes of this Act.

(4) The Board may designate other public officers to be inspectors for purposes of this Act.

(5) The Board may amend or withdraw appointment of inspectors or designated inspectors under this section.

(6) Appointment of inspectors under this section shall be by notice in theGazette.

28. From the foregoing, it is clear that there are two ways in which inspectors are recruited under the Act. The first mode of recruitment is by way of fresh appointments while the second mode of recruitment is by deployment of serving public officers.

29. The Act does not seem to lay down the procedure for the fresh appointment of the said inspectors though the Act is clear that such appointees have full police powers in the exercise of their duties under the Act. Accordingly on appointment the inspectors become public officers since section 2 of the Leadership and Integrity Act defines a “public officer” as having the meaning assigned to it under Article 260 of the Constitution under which the term means any State officer or any person, other that a State Officer, who holds a public office. Article 232(1)(g) of the Constitution provides that the values and principles of public service include subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions. Paragraphs (h) and (i) deal with representation of Kenya’s diverse communities; and affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of men and women; the members of all ethnic groups; and persons with disabilities.

30. Under Article 232 of the Constitution, the values and principles of public service include high standards of professional ethics; efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable provision of services; involvement of the people in the process of policy making; accountability for administrative acts; transparency and provision to the public of timely, accurate information; and subject to affording adequate and equal opportunities for appointment, training and advancement, at all levels of men and women, the members of all ethnic groups and persons with disabilities; fair competition and merit as the basis of appointments and promotions. These values and principles of public service apply to public service in all State organs in both levels of government and all State corporations.

31. Article 259(1) provides that:

(1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and

(d) contributes to good governance.

32. Good governance, it is my view, can only be achieved when the persons who are qualified to perform the tasks for which they are appointed are the ones considered for such positions. In my view even the mandatory Constitutional considerations of gender, ethnic and regional balancing ought not to be an excuse for compromising on the quality of services being rendered to the people of Kenya. In other words, fair competition and merit, representation of Kenya’s diverse communities, affording adequate and equal opportunities to men and women, the members of all ethnic groups and persons with disabilities are all factors which must be considered in promotions and appointments.

33. I associate myself with the decision of Nyamu, J (as he then was) in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] KLR 240where he held:

“On the issue of discretion Prof Sir William Wade in his Book Administrative Lawhas summarized the position as follows: The powers of public authorities are...essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land...regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose the merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them...when litigants come to the courts it is the core business of the courts and the courts role is to define the limits of their power. It is not for the Executive to tell them when to come to court! It is the constitutional separation and balance of power that separates democracies from dictatorships. The courts should never, ever, abandon their role in maintaining the balance...From the above analysis this is a case which has given rise to nearly all the known grounds for intervention in judicial review, that is almost the entire spectrum of existing grounds in judicial review. It seems apt to state that public authorities must constantly be reminded that ours is a limited government – that is a government limited by law – this in turn is the meaning of constitutionalism.”

34. In this case it is contended that the appointment of the interested parties was shrouded in mystery and did not pass the test of transparency and accountability which are some of the values and principles of governance specified in Article 10 of the Constitution.

35. In making appointments to public offices heed ought to be taken of the holding of by Mumbi Ngugi, J in Benson Riitho Mureithi vs. J. W. Wakhungu & 2 others [2014] eKLR where the learned Judge expressed herself as follows:

“It would appear from the material before the Court that the question of the Interested Party’s suitability for public office was not addressed in accordance with the requirements of the Constitution. The Cabinet Secretary, the 1st respondent, had power of appointment under section 51 of the Water Act…At section 2 of the First Schedule to the Act, it is provided that those proposed for appointment as Board members of Water Services Boards must be appointed on the basis of educational qualifications, experience, character and integrity of potential candidates for membership. Similar provisions are contained in section 22 of the Public Officers Ethics Act...The 1st respondent, however, had a duty, imposed on her by the people of Kenya, to consider the Interested Party’s suitability under the Constitution, and to make the appointment to the Board in accordance with the dictates of the Constitution...What does the Constitution require with regard to appointments to public office? As already observed, public officers must be appointed on the basis of the criteria set out in Chapter 6. They must also, in addition, be appointed in accordance with the national values and principles set out in Article 10… It has been conceded by Counsel for the respondents, however, that no-one knew or had any inkling that the Interested Party was going to be appointed as Chairman of the Water Services Board; and consequently, there was no opportunity for the petitioner or any other person to seek information about the appointment, or raise objections to the appointment, which objections would be expected to be considered by the Minister, and if found to be valid and sufficient to bar the appointment, the intended appointment ought not to be made...It seems to me therefore that the primary responsibility lay on the 1st respondent, and indeed on any other state officer making a similar appointment, to put in place a mechanism for recruitment or appointment of members of Boards of state corporations that would allow for public participation and consideration of the suitability and integrity of potential appointees as the Constitution now demands…It may seem that the Constitution has imposed an irksome and onerous burden on those responsible for making public appointments by requiring that they make the appointments on the basis of clear constitutional criteria; that they allow for public participation; and that those they appoint meet certain integrity and competence standards. This burden, however, is justified by our history and experience, which led the people of Kenya to include an entire chapter on leadership and integrity in the Constitution…In the present case, as the respondents tacitly concede, there are serious unresolved questions with regard to the integrity of the Interested Party which do not appear to have been considered by the 1st respondent in making the appointment to the Chairmanship of the Athi Water Services Board. It is the duty of the 1st respondent to consider the issues and, in exercise of the powers vested in her office under section 51 of the Water Act, applied in accordance with the Constitution, make a determination of the suitability of the Interested Party under Chapter 6 of the Constitution...In the premises, this petition succeeds to the extent that the Court finds that the 1st respondent failed to act in accordance with the Constitution, and her appointment of the Interested Party as Chairman of the Athi Water Services Board fell below the standard set by the Constitution…In the present case, the Court has found that no inquiry was made with regard to the suitability of the Interested Party under the Constitution, a responsibility that fell on the 1st respondent under the provisions of the Water Act as read with section 7 of the 6th Schedule to the Constitution. The responsibility still remains to make that inquiry. It is a responsibility that the Court does not deem proper to assume, but should require its proper exercise by the office vested with the authority to exercise it- the 1st respondent.”

36. The learned Judge relied on International Centre for Policy and Conflict & 4 Others -vs- Hon. Uhuru Kenyatta and Others, Petition No. 552 of 2012 where it was held:

“On the issue canvassed by the parties on the threshold of integrity required to be met, we note that the purpose of Chapter Six is to set higher standards of integrity for persons seeking to serve as State officers. Integrity is the firm adherence to moral and ethical values in one’s behaviour. Integrity is therefore not only about an individual’s own perception about the correctness or appropriateness of their conduct, but also has a fundamental social and public quality to it. It is our view that as the society also expects certain values to be upheld, the integrity provisions of the Constitution demand that those aspiring to State office be like Caesar’s wife: they must be beyond reproach.”

37. I also agree with the decision in David Kariuki Muigua –vs- Attorney General & Another Petition No. 161 of 2011, which dealt with an appointment by the Minister for Industrialisation of the Chairman of the Standards Tribunal, and in which the Court observed at Paragraph 13 and 15 as follows:

13. “However, it would be expected that the Minister, in making the appointments to the Tribunal, would be guided by the national values and principles set out in Article 10 of the Constitution, in particular participation of the people, equity, good governance, integrity, transparency and accountability. Section 7(1) of Schedule 6 provides that

‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’

Any appointments under the Standards Act should have been done in conformity with the provisions of the constitution and should have observed the national values and principles.

15. There is no evidence that there was a competitive process that would enable public participation in the process and show the transparency and accountability required under the Constitution, thereby giving legitimacy to the appointment of the petitioner. Like his successor, the petitioner was appointed on the basis of a Gazette Notice; the basis of the appointment, the criteria followed in appointing him and the other members of the Tribunal was, from all appearances and regrettably so, more in keeping with the old order that preceded and indeed gave impetus to the clamour for the new Constitution when public officers were appointed at the whim of the Minister or President. To uphold the appointment of the petitioner would be to give a seal of approval to the old order. It is imperative that all public appointments are made in accordance with constitutional values and principles.”

38. This Court expressed itself on the same issue in Republic vs. Attorney General & 3 Others Ex-Parte Tom Odoyo Oloo [2015] eKLR as follows:

“The old order which was being referred to was the system under the retired Constitution where appointments to public offices were not based on any known legal or Constitutional criteria but were, in practice, largely based on ethnicity, social status or origin, political affiliations, friendship and cronyism. It was in appreciation that such a system was not conducive to national development and public interest that the people of this Republic in retiring the former Constitution and enacting unto themselves the current Constitution decided to expressly provide for a clear criteria of appointments to public and State offices. The will of the people as expressed in the current Constitution must be obeyed and any decision taken which contravenes that will, must be quashed.”

39. In my view fresh appointments to the positions of inspectors must be open to the public and such positions must be advertised. It therefore does not matter whether the interested parties were handpicked by the Board or Mr Igathe. The era of handpicking persons and appointing them as public officers was in my view buried with the retired Constitution and has no place in the current constitutional dispensation.

40. In this case the appointing authority was under a duty to uphold the Constitutional and statutory provisions relating to the appointment of the interested parties and one such principle is the need to inculcate public participation in the process of appointments to public offices as mandated under Article 10 of the Constitution. The applicant has averred on oath that the interested parties were not deployed public officers but in fact were fresh appointees. This contention has not been seriously controverted save for bare denials by the Respondent. As was held in Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090:

“In the ordinary way and particularly in cases, which affect life, liberty or property, a Minister should give reasons and if he gives none the court may infer that he had no good reasons.”

41. Judicial review, it has been held,stems from the doctrine of ultra viresand the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. SeeRe Bivac International SA (Bureau Veritas) [2005] 2 EA 43.

42. In this case the appointment of the interested parties has not shown to have complied with the Constitutional and statutory provisions enumerated herein above. The relevant considerations were not taken into account before their appointment. See Padfield vs. Minister of Agriculture and Fisheries [1968] HL quoted in Republic vs. Judicial Commission of Inquiry into Goldenberg Affair [2007] 2 EA 392.

43. Having considered the issues raised herein, I am not satisfied that that both the Constitutional and relevant statutory provisions relating to the appointment of the interested parties as inspectors under the Anti-Counterfeit Act were adhered to. Where there is non-compliance with the provisions of the law the minimum that the executive can do is to give some rational grounds for the action otherwise the Court may well be entitled in concluding that there was no reason for acting in the in manner it did in which case the decision may well be found to be grossly unreasonable since that is the only term that can be applied to an action taken in breach of the law. Whereas the Board has the power to appoint inspectors of the Anti-Counterfeit Agency, the appointments have to be in compliance with the Constitution and the relevant Legislation since, the Board in undertaking its executive functions does so on behalf of the people of the Republic of Kenya and has to bow to the will of Kenyans as expressed in their document delegating their sovereign powers to inter alia the executive, the Constitution. It is the Constitution which sets out the terms under which the delegated sovereign power is to be exercised and those to whom the power is delegated must adhere to it and where certain powers are not expressly delegated, resort must be had to the people by way of a referendum.

44. In our case the Constitution has set out clear guidelines on how executive power is to be exercised and unless the executive in exercise of power complies with both the letter and the spirit of the Constitution, such action is liable to be quashed.

45. In this case there is no evidence emanating from the Respondent that the appointment of the interested parties was in compliance with Articles 10, 129 and 232 of the Constitution. It follows that the appointment of the interested parties cannot be allowed to stand.

46. Accordingly, I do not have to deal with the other issues which were raised by the applicant.

Order

47. Based on the material before me I find merit in Notice of Motion dated 3rd February, 2016 and I issue an order of certiorari removing into this Court for the purposes of being quashed Gazette Notice No. 9451 published on 24th December, 2015 appointing the interested parties as inspectors of the respondent which Gazette Notice is hereby quashed.

48. With respect to costs, although the parties relied on several authorities none of them deemed it fit to avail copies thereof. In my view where parties seek to rely on authorities especially unreported ones, it is incumbent upon them to make copies thereof. This practice is supported by Practice Directions issued by the Chief Justice in 2010.

49. Accordingly, there will be no order as to costs. Orders accordingly.

Dated at Nairobi this 5th day of September, 2016

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Okoth for the applicant

Mr Mutuma for the Respondent

Cc Mwangi