[2017] KEHC 2070 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISC. APPLICATION NO. 485 2016

IN THE MATTER OF AN APPLICATION BY KENYA NATIONAL UNION

OFCO-OPERATIVES STAFF FOR JUDICIAL REVIEW ORDERS OF

CERTIORARIAND PROHIBITION AGAINST THE ENACTMENT OF

THETRAFFIC(MINOROFFENCES) RULES 2016 BY THE CABINET

SECRETARY IN-CHARGEOFTRANSPORT, INFRASTRUCTURE,

HOUSING AND URBANDEVELOPMENT;AND THE

NATIONAL TRANSPORT & SAFETY AUTHORITY

AND

BETWEEN

REPUBLIC......................................................................................................APPLICANT

VERSUS

THE CABINET SECRETARY FOR TRANSPORT,

INFRASTRUCTURE HOUSING AND URBAN DEVELOPMENT....1ST RESPONDENT

THE NATIONAL TRANSPORT & SAFETY AUTHORITY...............2ND RESPONDENT

AND

KENYA NATIONAL UNIONOF CO-OPERATIVES STAFF......EX PARTE APPLICANT

ETHICS AND ANTI-CORRUPTION COMMISSION...................INTERESTED PARTY

RULING ON PRELIMINARY OBJECTION

1. On 12th October 2016, this court granted to the exparte applicant Kenya National Union of Co-operatives Staff, to institute Judicial Review proceedings, against the decision of the Cabinet Secretary, for Transport, Infrastructure, Housing and Urban Development made vide legal notice No.161 of 23rd September, 2016.

2. On 1st November 2016, the exparte applicant dutifully filed the substantive notice of motion within the 21st days stipulated in the order for leave.

3. In response to the substantive notice of motion, on 23rd January 2017, the Attorney General filed a replying affidavit sworn by Mr Irungu Nyakera, the Principal Secretary, Ministry of Transport, Infrastructure, Housing and Urban Development, the 1st respondent herein.

4. It is that replying affidavit and legal representation of the Attorney General’s office of the 1st respondent that invited the exparte applicant herein to file a notice of preliminary objection dated 23rd February 2017 seeking to debar the Attorney General from representing the 1st respondent in these Judicial Review proceedings on the grounds that:

1) The Attorney General’s representation of the 1st respondent offends Article 156(4) and (6) of the Constitution; and Sections 5 and 6 of the office of the Attorney General Act, No. 49 of 2012.

2) Representation of the 1st respondent by the Attorney general places the State/republic on both sides of the dispute in violation of the law and known/settled practice.

3) On the whole, the replying affidavit dated 23rd January, 2017 as drawn and filed by the Attorney General is misconceived, incompetent and fatally defective, hence it should be struck out and or expunged from the record.

5. In support of the preliminary objection, the exparte applicant’s counsel, Mr Miyare filed written submissions quite detailed comprising 13 pages and annexed a list of authorities, 16 in number to fortify his client’s position on the issue of whether or not the Attorney General should represent the Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development in these Judicial Review proceedings.

6. Parties’ advocates also made oral submissions. Mr Miyare counsel for the exparte applicant submitted that the preliminary objection as filed is a pure point of law grounded on the Constitution and Statutory law- office of the Attorney General Act hence it meets the threshold set out in the Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltdcase.

7. There are no proceedings initiated before this court seeking declarations that the Attorney General’s representation of the 1st respondent and all other similar proceedings is unconstitutional and or unlawful.

8. According to Mr Miyare, Judicial Review is public in nature and is brought in the name of the Republic as espoused in the cases of Welamondi vs The Electoral Commission of Kenya Miscellaneous Application No. 82 of 2002 [2002] 1 KLR 486; Farmers Bus Service and Others vs The Transport Licensing Appeal Tribunal [1959] EA 779 as well as in Mohamed Ahmed vs Republic [1957] EA 523; which cases also espouse issues of the parties to Judicial Review proceedings.

9. According to the exparte applicant’s counsel, the Republic is the applicant in Judicial Review proceedings and that under Article 165(6) of the Constitution, the court is the superintendent over the parties. It was submitted that the respondent is the crown agency whose decision is impugned and that the exparte applicant is a mere relator on behalf of the state.

10. Further, it was submitted that in Judicial Review proceedings, there is no true dispute between the crown and the exparte applicant as was stated in the case of Lang vs British Columba (Superitendent of Motor Vehicles [2005] BCCA 244. It was submitted that in Judicial Review everybody is a party thereto. It was further submitted that the role of the Attorney General in Judicial Review proceedings is pursuant to Article 156(6) of the Constitution being that of representing the National Government in civil proceedings before the court or to any other legal proceedings to which the National Government is a party other than criminal proceedings . It was also submitted that the office of Attorney General Act further emphasis the role of the Attorney General.

11. In the circumstances, it was contended that this matter falls outside the National Government since these proceedings are brought by the state at the relation of the state against the state agency, Cabinet Secretary hence the Cabinet Secretary cannot be the National Government to invite legal representation by the Attorney General.

12. Reliance was placed on Article 260 of the Constitution on the definition of the National Government Mr Miyare maintained that the Cabinet Secretary cannot be National Government. He relied on the case of Farmers Bus Service and Others vs The Transport Licencing Appeal Tribunal (supra)citingBurns vs Bansley [1949] 79 CLR 101 to the effect that the government is independent of persons who constitute it.

13. In counsel’s view, state officers are not Government and that therefore the Attorney General will be violating the Constitution and the and the office of the Attorney General Act if he represents the 1st respondent Cabinet Secretary Mr Miyare submitted that it will be an absurdity if the Attorney General is put on both sides of the divide. Instead, he proponed that the Attorney General should represent the exparte applicant.

14. Mr Miyare gave an analogy of where the Director of Public Prosecution in private prosecution would represent the respondent which is unacceptable. He maintained that the only lawful position to be taken by the Attorney General is that of the Republic( exparte applicant) and not the other way round otherwise the absurdity would be inexplicable. He relied on James Aggrey Mwamu & Others vs The Chief Justice of the Republic of Kenya HC Miscellaneous 150 of 2004 unreported where the role of the Attorney General in Judicial Review proceedings was explained by Honourable Tanui J which Mr Miyare submitted that it was decided per incuriam, and which authority counsel urged this court to declare as bad law.

15. In opposition to the preliminary objection, Miss Ngelechei Litigation counsel on behalf of the Attorney General representing the 1st respondent submitted that the Attorney General derives authority from Article 156 of the Constitution 5 of the office of Attorney General Act.

16. Miss Ngelechei submitted that the Attorney General represents the National Government in all legal proceedings except criminal proceedings and that the 1st respondent being sued as an organ of the state, the Attorney General is under a duty to represent it. Miss Ngelechei submitted that in Judicial Review matters , remedies are issued in the name of the stated as a practice but that it did not place the Cabinet Secretary in the place of the applicant hence the Attorney General has locus to represent the Cabinet Secretary. She urged the court to dismiss the preliminary objection with costs.

17. In a brief rejoinder, Mr Miyare submitted that in Judicial Review, the state is the master and is merely supervising its agent through courts and not merely a matter of practice. He maintained that role of the court is entrenched in Article 165(6) of the Constitution and that it also has a historical significance hence the court should allow the preliminary objection.

DETERMINATION

18. I have considered the foregoing. In my humble view, the main issue for determination in this matter of the preliminary objection is whether the preliminary objection is merited. To determine that issue, there are other ancillary questions to be considered. A preliminary objection must meet the threshold espoused in the case of Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd [1969] EA 696 where the court, Sir Charles Newbold observed:

“A Preliminary objection is in the nature of what used to be a demurrer. It raised a pure point of law which is urged on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.”

19. It is worth noting that there is no specific constitutional and or statutory provision cited which expressly or by implication bars the Attorney General from representing government ministries or departments in judicial review proceedings. it therefore follows that one has to examine principles of law and practice to establish whether there is guidance on the issue herein.

20. The preliminary objection raised by the exparte applicants herein is predicated on the grounds that the Attorney General’s representation of the 1st respondent Cabinet Secretary Ministry of Transport, Infrastructure, Housing and Urban Development offends Article 156(4) and (6) of the Constitution; Section 5 and 6 of the office of the Attorney General Act No. 49 of 2012; Article 156 of the Constitution establishes the office of the Attorney General.

21. Under Sub Article 4 thereof, the Attorney General:

a) is the principal legal advisor to the Government;

b) Shall represent the National Government in court or in any other legal proceedings to which the National government is a party, other than criminal proceedings; and

c) Shall perform any other functions conferred on the office by an Act of Parliament or by the President.

d) The Attorney General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.

e) The Attorney General shall promote, protect and uphold the rule of law and defend the public interest.

22. In 2012, vide Act No. 49 of 2012 Parliament enacted office of the Attorney General Act which commenced on 4th January 2013, Section 5 of the Act sets out functions of the Attorney General in addition to the Constitution mandate set out in Article 156 of the Constitution. The functions are in addition to those stipulated in Article 156 of the Constitution and shall be responsible for:

a) Advising government ministries, Departments, constitutional Commissions and state corporations on legislative and other legal matters;

b) Advising the government on all matters relating to the Constitution, International law, human rights and consumer protection and legal aid;

c) Negotiating, drafting, vetting and interpreting local and international documents, agreements and treaties for and on behalf of the government and its agencies;

d) Coordinating, reporting obligations to international human rights treaty bodies to which Kenya is a member or on any matter which member states are required to report;

e) Drafting legislative proposals for the government and advising the government and its agencies on legislative and other legal matters;

f) Reviewing and overseeing legal matters pertaining to the registration of companies, partnerships, business names, societies, adoption, marriages, charities, chattels, hire purchase and coat of arms;

g) Reviewing and overseeing legal matters pertaining to the administration of estates and trusts;

h) In consultation with the Law Society of Kenya, advising the government on the regulation of the legal profession.

i) Representing the national government in all civil and constitutional matters in accordance with the Government Proceedings Act ( Cap 40);

j) Representing the government in matters before foreign courts and tribunals; and performing any function as may be necessary for the effective discharge of the duties and the exercise of the powers of the Attorney General under Section 5(2) of the Attorney General’s Act, in the exercise of the functions conferred by the Constitution and this Act, the Attorney General shall provide efficient and professional legal services to the Government and the public for the purpose of facilitating, promoting and monitoring the rule of law, the protections of human rights and democracy.

23. Section 7 of the Act further stipulates that:

“ (1) despite the provisions of any written law to the contrary or in the absence of any other written law, the Attorney General shall have the right of audience in proceedings of any suit or inquiry of an administrative body which the Attorney General considers.

a) To be of public interest or involves public property; or

b) To involve the legislature, the judiciary or an independent department or agency of the Government. Section 9 of the Act establishes he Solicitor General who is the principal Assistant to the Attorney General and whose functions are among others:

c) Conduct, or assign and supervise all court cases, including appeals or petitions on behalf of the Attorney General.

24. Under Section 17(1) of the Act, no Ministry or Department shall engage services of a consultant to render any legal services relating to the functions of the Attorney General without the approval of the Attorney General. Section 19 of the Act stipulates that all Government Ministries and Departments shall seek the opinion of the Attorney General on any matter raising substantial legal constitutional issues.

25. The statutory and constitutional provisions set out above all speak to the functions of the Attorney General and the officers under the office.

26. The exparte applicant claims that Judicial Review remedies are public in nature and instituted in the name of the Republic who should be representing the exparte applicant because the state in judicial review matters in the master and is merely supervising its agent through the courts and not merely a matter of practice. Further, that the role of the court is supervisory.

27. The principal role of the Attorney General in Kenya’s constitutional framework is to uphold and promote the rule of law and to protect the public interest; human rights and democracy.

28. From the Act and constitutional provisions that I have reproduced herein above, among others, the Attorney General advises National Government and other National Government entities; participates as a member of the Cabinet, and advises Cabinet on legal and constitutional questions to ensure that the Government understands its legal and constitutional obligations. The Attorney General is the titular head of the legal profession( Bar) in Kenya and has oversight for the legal advise given to Government by all Government lawyers and private legal consultants.

29. In other words, the office of Attorney General is responsible, ultimately, for ensuring that the government’s decisions and actions respect and uphold the Rule of Law.

30. Independent of government functions, the Attorney General is responsible for the promotion and protection of the public interest. He has audience before any court of law or tribunal.

31. According to Sir Elwyn Jones the former Attorney General of the United Kingdom 1964-1970:

“The Attorney General is the protector.. of the public interest generally. The aspect of his duties had a very early origin. He had for long been the proper person to take legal proceedings where the interests of the public are endangered, or acts tending to public injury are done without authority.

32. In Gouriet v Attorney General [1978] Lord Wilberforce stated:

“ In all these matters the Attorney General role is to seek a just balance between often conflicting public interests. The functions referred to above may be held by the Attorney General as an inherent part of his ancient office or may have been conferred upon him by statute.

Thus, Parliament has again and again recognized his particular role in this sphere of seeking to balance the public interest in matters of character which have been mentioned. In doing so, it has reinforced his inherent powers.”

33. As to whether the public interest functions of the Attorney General are amenable to Judicial Review, Lord Chancellor, the Earl of Halsbury in London County Council v Attorney General [1902] stated:

“ In a case where as part of his public duty he has a right to intervene…the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this county has made to reside exclusively in the Attorney General. The public interest role of the Attorney General is intended to serve as a back stop to prevent or remedy any injustice in or pressures on other parts of the justice system.”

34. Professor I. Sagay San in his address on the role of the Attorney General in the administration of justice, in 2007 gives the history of the Attorney General and states that:

“ The office of the Attorney General is a very old office. It can be traced back to England in the 13th Century and he early beginnings of the legal profession itself.

The sovereign was unable to appear in person in his own courts to plead in any case affecting his own interests. It was therefore necessary for an Attorney to plead the sovereign’s cause. It was the responsibility of the King’s Attorney to maintain the interests of the sovereign before the Royal courts…..”

35. The Attorney General in this case drew and filed an affidavit on behalf of the Principal Secretary State Department of Transport, Ministry of Transport, Infrastructure, Housing and Urban Development. The Principal Secretary is the Accounting Officer of the Ministry whose decision is being challenged by the exparte applicant.

36. According to the exparte applicant, prerogative orders are issued in the name of the crown/Republic to supervise actions of its agents hence the Attorney General should not represent such agents in this case, the Cabinet Secretary. Several decisions were relied on including Lang v British Columbia (Superitendent of Motor Vehicles) 2005, BCCA 244 ; Re Allen and Superitendent of Motor Vehicles and Attorney General of British Columbia [1986] BCLR (2nd) 255; Republic vs Attorney General & Another Exparte James Alfred Koroso[2013] e KLRwhere the courts held that the state, the Republic on whose behalf the public officer undertakes his duties that will compel him, a servant, to do what he is under a duty to perform. That judicial review is never issued against the government but a government official to do what the government through Parliament, has directed him to do.

37. It was therefore maintained that the Attorney General can only join the prosecution of the Judicial Review proceedings if at all, and not to defend such proceedings as is the case herein. It is submitted that the Attorney General’s unlawful representation of the 1st respondent curtails the government’s supervision of its agents or servants of the state against their master which is gravely inimical to public interest and that such representation places the Republic on both sides of the dispute which in effect violates the public interest law and that the provisions of Article 156 of the Constitution only obligates the Attorney General to represent the government and that Tanui B.K. J in James Aggrey Mwamu & Others vs The Chief Justice in HCC Miscellaneous 150 of 20004 (unreported) erroneously allowed the Attorney General to represent the Chief Justice hence his decision was made per incuriam hence the replying affidavit filed by the Attorney General should be expunged from the record as unlawful and incompetent.

38. This court does appreciate the important issue raised by the exparte applicant’s counsel and the persuasive decisions/opinions derived from foreign jurisdictions on the matter which, basically stipulates that judicial review remedies are prerogative writs of the crown issued by the court as supervisor of the action of administrative bodies and that as they are issued in the name of the Republic/crown, then the Attorney General being a protector of the Rule of Law, public interest and democracy should not purport to represent the state agent/servant whose actions are impugned. What the exparte applicant is insinuating is that the respondents should engage services of a private advocate to represent them and not the Attorney General.

39. The Office of the Attorney General is a constitutional office and in the public service, and in all civil cases filed against Government Ministries/Departments, the Attorney General ought to be made a party as the Principal Legal advisor to the National Government, not just a mere advocate representing the government department.

40. The office of Attorney General Act makes clear provisions tha All government Ministries and Departments shall seek the Attorney General’s legal opinion in matters raising substantial legal or constitutional issues. The issues raised herein raise serious or substantial legal questions and it is for that reason that I fund that the Attorney General is either enjoined hereto or is under a legal duty to appear and represent the relevant government Ministry or Department.

41. The role of the Attorney General today in Kenya is different from the role of the Attorney General in England and in the period prior to the 2010 Constitution. In England, the Attorney General is also the public prosecutor as was the case in Kenya prior to 2010. The National Government is represented by Government Ministries and Departments which are sued in civil legal proceedings.

42. No doubt, judicial review proceedings involve challenging of decisions made by persons in administrative capacities or compelling the performance of statutory duties by public bodies. The Attorney General being the Principal legal advisor to the National Government has a duty to advise the relevant Government Ministry on what is expected of it, whether proceedings are brought by way of Judicial Review in the name of Republic or by way of civil suit.

43. I find no legal bar to the Attorney General to represent the 1st respondent Cabinet Secretary sued in his official capacity in this matter as the author of the impugned legal notice.

44. The exparte applicant has not sought legal services/representation of the Attorney General hence they cannot complain that the Attorney General should be standing on their side of the case and not on the side of the 1st respondent Cabinet Secretary representing the relevant government or state department.

45. In my humble view, the preliminary objection raised is a mere technicality which cannot be upheld at the expense of substantive justice, and the public interest. Public interest demands that state resources be used in an effective and economical manner. Barring the Attorney General from representing a government Department in these proceedings means that resources will have to be expanded to hire lawyers from private practice to represent and advise the government on its obligations towards citizens. That is not, in my view, the spirit and letter of Article 156 of the Constitution and the Office of the Attorney General Act, 2012. Citizens should not be overburdened with the cost of meeting legal fees of private enterprises when the Government spends huge sums of money e in salaries to sustain a whole law firm in the name of Office of the Attorney General, full of qualified and competent advocates to represent the Government in proceedings such as these.

46. The Attorney General is paid by the public to represent their interests. This is a case where the 1st respondent can be ordered to pay costs of these proceedings to the successful party. Those costs will be derived from the public coffers. It does not make economic sense for the government Ministry or state department to hire services of a private advocate to represent it in such proceedings when no prejudice is shown to occur if the Attorney General represents the relevant Government Ministry in court, as stipulated in law.

47. Without the Ministries and Departments, in place, the rest of government or state are a mere abstract entities which cannot appear pro se and on their own in a court of law. In the cases referred to by Mr Miyare from the foreign jurisdictions, none of them explicitly stipulate that because judicial review remedies are issued in the name of the Republic then the Attorney General cannot be a legal representative for the respondent.

48. In addition, with Judicial Review remedies being elevated to being constitutional remedies as opposed to the traditional prerogative writs issued in the name of the crown or Republic, this court is of the view that the format of bringing judicial review proceedings in the traditional name of the Republic is a procedural issue which cannot override substantive justice to the parties. That procedure is now overtaken by the Fair Administrative Action Act, 2015, as not all judicial review proceedings instituted challenge decisions of or compel or prohibit performance of public duties.

49. According to the exparte applicant, the 1st respondent is not a National Government therefore does not warrant being represented by the Attorney General. As I have stated, government is an abstract entity and life is only breathed in it by the various entities/offices that form the national government which are the respective state Departments and or Ministries, which cannot on their own run the affairs of Government without the respective office holders, in the form of Cabinet Secretaries and Principal Secretaries, to perform official government functions and exercise powers bestowed upon them by statute s or the Constitution. It is for that reason that decisions of Cabinet Secretaries become Government decisions and not individual decisions of the particular office holder.

50. The exparte applicant in his substantive notice of motion is accusing the 1st respondents of promulgating rules without subjecting them to public participation. The 1st respondent in filing the replying affidavit contends that the Rules were subjected to public participation hence there was no breach of the constitutional or legislative provisions. The replying affidavit is sworn by the Principal Secretary State Department of Transport, not by the Attorney General.

51. In my humble view, therefore, in view of the provisions of Article 156 of the Constitution which are clear that the Attorney General is mandated to represent the National Government in court in civil or in any other legal proceedings to which the National Government is a party other than criminal proceedings, the words or in any other legal proceedings, I have no doubt that the any other legal proceedings to which the National Government is a party, extends to Judicial Review proceedings where a State Department or Ministry is a party like in this case.

52. Furthermore, Judicial Review remedies also constitutional remedies. I am therefore unable to find that the James Aggrey Mwamu & Others v The Chief Justice case was decided per incuriam by Honourable B.K. Tanui J (as he then was), as the exparte applicant would want this court to believe and hold. I do not find any unlawfulness or incompetence in the replying affidavit sworn by the Principal Secretary and filed on behalf of the 1st respondent Cabinet Secretary.

55. In addition, this court is unable to find that any representation of the Attorney General in these and similar proceedings is a violation of the Constitution, relevant statutes and known/settled practice.

54. The times when a court of law would determine proceedings on account that they were completely muddled in form and thus incompetent and misconceived save where such form affects the substance of the proceedings are long gone. Article 159 2(d) of the Constitution obligates this court to ensure that in exercising judicial authority, justice is administered without undue regard to procedural technicalities and (e) the purposes and principles of the Constitution are protected and promoted.

55. This court therefore declines to turn to procedural pit falls which do not affect the substance to deny the 1st respondent access to justice and the right to legal representation by the government and state machinery especially where it is not demonstrated that the exparte applicant will suffer any prejudice, if the Attorney General represents the 1st respondent or that the Attorney General is conflicted in any way.

56. In the instant case, the 1st respondent is not before the court as an individual but as an office of Cabinet Secretary in its capacity as such, having promulgated rules that the exparte applicant herein in challenging their constitutionality.

57. It is not the same as the Cabinet Secretary in his personal capacity being sued and seeking legal services or representation by the Attorney General. Article 156(4) ( c) of the Constitution is clear that the Attorney General can perform such other functions as shall be conferred by an Act of Parliament or by the President and in this case, the office of Attorney General Act confers on the Attorney General the function of representing the National Government in all civil proceedings in which the National Government is a party and also in any other proceeding to which the National Government is a party, other than criminal proceedings.

58. Therefore, although legal representation is different from legal advise, I find that this case is clearly distinguishable from the Isaac Aluoch Polo Aluochier vs Uhuru Muigai Kenyatta & William Samoei Ruto.

59. It is clear to me that the Attorney General can perform any other such functions for as long as the said functions do not conflict with or are inconsistent with the Attorney General’s constitutional functions.

60. Albeit the authorities such aRepublic vs Machakos County Government & 2 Others Exparte Johnstone Muthama [2016] e KLR insist that the Judicial Review proceedings are neither civil nor criminal proceedings, the authority does not acknowledge the fact that the Judicial Review proceedings are no longer the traditional prerogative proceedings and the fact that with the enactment of Fair Administrative Action, 2015, there is a shift from Judicial Review being merely remedies against decisions of public authorities.

61. Judicial review has taken shape with the definition of “ administrator” not being limited to public bodies or authorities. ‘Administrator' means ‘a person who takes an administrative action or who makes an administrative decision’

62. It follows that Judicial Review is no longer a writ issued in the name of the Republic to its agents and servants, as ‘administrators’ are not confirmed to public bodies or persons in the public service. The exparte applicant’s proceedings are also brought under the Fair Administrative Action Act, 2015.

63. In addition, although it is often stated in majority of decisions that Judicial Review are sui generis and that they are neither civil nor criminal proceedings as stipulated in Section 8 of the Law Reform Act, the provisions referred to do not restrict the legal representation of the Attorney General to only civil proceedings but to any other proceedings to which the National Government is a party.

64. The exparte applicant has argued that the crown cannot be both applicant and respondent in the same matter. Agreed. However, it is the exparte applicant who has named the 1st respondent as such respondent. He is not saying that the 1st respondent is the crown but a Cabinet Secretary responsible for a specific ministry.

65. In the MC neice vs British Columbia [1981] 13 BCLR 2d 288case, it was clear that the Director of Public Prosecutions could not act for an accused person in private prosecution proceedings. That resonates well considering that a private prosecutor takes the position of the public prosecutor, while the public prosecutor becomes a nominal party. The same cannot be said of the Attorney General who is given the mandate to represent the Government in civil proceedings and in any other proceedings other than criminal proceedings.

66. The 1st respondent is a public officer occupying a public/state office and has been enjoined to these proceedings in his capacity as holder of such office having promulgated the impugned rules.

67. In my view, it would be absurd to expect a Public/Government Ministry in such circumstances to be expected to hire a private advocate to represent the Cabinet Secretary. That would in my view amount to wastage of public resources ( seeTruth Justice and Reconciliation Commission v Chief Justice of the Republic of Kenya & another [2012] eKLRwhere Hon Warsame(as he then was) stated and I concur:

“In recent times, there has been increasing instances of litigations by Commissions without any reference to the office of the Attorney General. This court has to device a number of strategies to ensure that, that attractive brand of litigation should not be used or allowed to be used for suspicious products of mischief. One strategy is that before a Commission files a suit, it must seek advice, guidance and concurrence of the honourable the Attorney General in respect of the issues it wants the court to address and determine. Where such guidance and advice is not sought and/or obtained, the court would have to take further steps to ensure public resources are not wasted on frivolous and useless litigations.”

68. In Isaac Aluoch Poto Aluochier vs Uhuru Muigai Kenyatta and William Samoei Ruto, HCC Petition 360/2013 [2014] e KLR, I find that case can be distinguished from this case as the respondents in that case could not be described as National Government for or Government/ State departments to warrant legal representation by the Attorney General. The learned Honourable Lenaola J (as he then was) was therefore correct in accepting the submission that the respondents who were also facing criminal charges at the International Criminal Court could not be represented by the Attorney General because they were charged as individuals and not part of or on behalf of the Government of Kenya.

69. I also find the learned judge in the above Aluochier case was right in finding that the alleged actions of the respondents could not be termed as actions of the National Government to attract legal representation by the Attorney General as they were alleged to have committed criminal offences.

70. It is my view that it would be setting a dangerous precedent to hold that the Attorney general cannot represent government Ministries in judicial review proceedings.

71. Accordingly, I find and hold that the preliminary objection raised by the exparte applicant is misconceived and unmerited. The same is hereby dismissed.

72. Costs shall be in the cause.

Dated, signed and delivered in open court at Nairobi this 13th day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Oriwo h/b for Mr Miyare for the exparte applicant

Mr Barasa h/b for Mr Nyamodi for 2nd Respondent

N/A for 1st Respondent

CA: George