[2022] KEHC 13334 (KLR)

Republic v Cabinet Secretary, Ministry of Information, Communications, Technology, Innovation and Youth Affairs; Information Communication Technology Association of Kenya (ICTAK) (Exparte); Noor & 4 others (Interested Parties) (Judicial Review Application E095 of 2021) [2022] KEHC 13334 (KLR) (Judicial Review) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13334 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E095 of 2021

AK Ndung'u, J

October 4, 2022

Between

Republic

Applicant

and

Cabinet Secretary, Ministry of Information, Communications, Technology, Innovation and Youth Affairs

Respondent

and

Information Communication Technology Association of Kenya (ICTAK)

Exparte

and

Mahmoud Mohamed Noor

Interested Party

Paul Muraguri Mureithi

Interested Party

Jackson Kiprotich Kemboi

Interested Party

Laura Chite

Interested Party

Communications Authority of Kenya

Interested Party

Judgment

1. By Notice of Motion application dated July 29, 2021 the Ex parte Applicant seeks the following orders:i.That an order of Certiorari be and is hereby issued to remove into this Honourable Court and quash the Gazette Notice No 6981, published on July 12, 2021 in a special issue of the Kenya Gazette (Vol CXXIII—No 145), appointing the 1st–4th Interested Parties herein, as members of the Board of the Communications Authority of Kenya.ii.That costs of and incidental to this application be provided for.iii.That such further and other relief that the Honourable Court may deem just and expedient to grant.

2. The application is supported by the grounds on its face, a statutory statement and verifying affidavits sworn by Dr Salesio Mbogo Kiura and Joel Itube on July 26, 2021.

3. In his affidavit Dr Salesio, the Chairperson of the Information Communication Technology Association of Kenya (ICTAK), averred that vide Gazette Notice No 6981 published on July 12, 2021 the 1st Respondent appointed the 1st–4th Interested Parties herein as members of the 5th Interested Party’s Board.

4. He states that he is aware that the Kenya Information and Communications Act, 1998 is the principal statute that establishes the 5th Interested Party as the regulator of the information and communications sector in Kenya and that upon the enactment of theConstitution various amendments have been made to the Act.

5. According to the ex parte Applicant among these amendments are the following pertinent provisions;i.Section 3 which establishes the 5th Interested Party as a Commission, a body corporate with perpetual succession and a common seal.ii.Section 5A which provides that the 5th Interested Party shall be independent and free of control by government, political or commercial interests in the exercise of its powers and in the performance of its functions in fulfilling its mandate, the 5th Interested Party is to be guided by the national values and principles of governance in Article 10 and the values and principles of public service in Article 232(1) of theConstitution.iii.Section 6A (1) which provides the qualifications for appointment as a member of the Board of the 5th Interested Party.iv.Sections 6 and 6B which provide for the procedure of appointment or filling of a vacancy in the office of member of the Board of the 5th Interested Party.

6. He asserts that in Okiya Omtatah Okoiti & 4 others v Attorney General & 4 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR the court having declared section 6 of the Kenya Information and Communications Act (KICA),1998 unconstitutional, null and void the current operative law with regard to appointment of members of the Board of the 5th Interested Party is the Kenya Information and Communications Act, 1998 as amended through the Kenya Information and Communications (Amendment) Act, 2018.

7. The deponent alleges that prior to the appointment of the 1st-4th Interested Parties herein, no vacancy notice was declared in the Kenya Gazette or on the official website of the Ministry of the 1st Respondent, regarding the vacancy in the office of member of the Board of the 5th Interested Party as statutorily provided nor was a selection panel convened as is required by section 6B(1) of KICA,1998 and that the process culminating in the appointment of the 1st-4th Interested Parties was unknown to law and the appointments procedurally flawed and ultra vires.

8. It is the deponent’s case that the impugned appointments are for all intents and purposes repugnant to the constitutionally embedded right to equality underpinned by Articles 27 and 47 of theConstitution as the same excludes other eligible persons from competing for the said position, further that the constitutionally prescribed independence of the 5th Interested Party will be interfered with.

9. Mr Joel Itube a member of the ICTAK while reiterating the averments made by Dr Salesio contends that the qualifications of the 1st-4th interested parties have not been disclosed and it has also not been declared whether or not in the last six months immediately preceding the appointment, they had personal direct or indirect commercial interest in the sector as prescribed by section 6A (3) (a) of the Act.

10. It is also his argument that the appointments contravene the 2/3 gender rule as provided under Article 27(8) of theConstitution,2010.

11. The respondent in its replying affidavit sworn by Esther Koimeit the Principal Secretary State Department of Broadcasting and Telecommunications under the Ministry of Information, Communications, Technology, Innovation and Youth affairs on November 12, 2021 contends that at the time of appointment, the operative law on appointment of Members of Board of the 5th Interested Party was Section 6 of the Kenya Information and Communication Act, 1998 as amended vide the Statute Law (Miscellaneous Amendments) Act No 18 of 2018 further amending the said section 6.

12. Further it is urged that the orders in Okiya Omtatah Okoiti & 4 Others v Attorney General & 4 Others: Council of Governors & 4 Others (Interested Parties) [2020] eKLR as relied on by the ex parte applicant were suspended for a period of nine (9) months in a subsequent judgement delivered on October 29, 2020 in Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another: Attorney General & 7 others (Interested Parties) [2020] eKLR.

13. The deponent further contends that the Gazette Notice appointing the 1st - 4th Interested Parties to the Board of the 5th Interested Party was published on July 12, 2021 thus within the 9 months.

14. Subsequently, it is deponed that the court in Republic v Attorney General & another Ex Parte Benedict Kabugi Ndungu; Kembi Gitura (Interested Party) [2021] eKLR held that the Statute Law (Miscellaneous Amendments) Act No 18 of 2018 continued to apply in the interim period pending expiry of the 9 months as per the suspended declaration issued in the case of Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another (supra).

15. The 5th Interested in its Replying Affidavit sworn on August 17, 2021 by Christopher Kemei the Director, Universal Service Fund of the 5th Respondent urges that as the amendments deleting Section 6B of KICA effected through the Statute Law (Miscellaneous Amendments) Act, No 18 of 2018 were still operational, any acts done within the intervening period aforesaid were valid, including the decision by the Respondent to appoint the 1st -4th Interested Parties to the Board of the 5th Interested Party.

16. Further, that the Court has already pronounced itself on the issues raised in the Application vide its Judgment delivered on June 29, 2021 in the case of Republic v Attorney General another Ex Parte Benedict Kabugi Ndungu: Kembi Gitura (Interested Party) [2021] eKLR the instant Application is an attempt by the Applicant to evade the doctrine of res judicata.

17. It is the Authority’s case that the orders sought are greatly prejudicial to the operations of its mandate due to lack of quorum as provided for under Section 3(5) of KICA and other governance functions under Chapter 1 of the Mwongozo: Code of Governance for State Corporations.

Parties Submissions 18. The application was canvassed by way of oral and written submissions and in its written submissions the ex parte Applicant contends that the court’s orders in the Okiya Omtatah case were never suspended in any manner as they took effect immediately thereby annulling the amendments to section 6 of KICA as effected through the Statute Law (Miscellaneous Amendment) Act No 18 of 2018.

19. It is the Ex parte Applicant’s case that as was held in the Supreme court case of In re Speaker County Assembly of Embu [2018] eKLR that pursuant to Articles 10 and 259 of theConstitution the interpretive approach to be adopted at all times is that which inclines to good governance and the rule of law.

20. Further that as was held in the case of Wambua Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & 2 others (Interested Parties) [2019] eKLR, an appointing authority is required, inter alia, to adhere to the twin principles of fair competition and merit. It is also the Ex parte Applicant’s submission that appointment powers can only be lawful if undertaken within statutory confines as was held in Githu Muigai & Another vs Law Society of Kenya & Another [2015] eKLR and that appointments made outside the law are not only untenable but also injurious to the public interest.

21. Having appointed the 1st-4th Interested Parties, it is contended that the 1st Respondent is under the belief that the unlawful acts would be beyond redress and that time would cause the illegalities to dissipate contrary to what has been held by the courts as in the case of Resley vs The City Council of Nairobi [2006] 2 EA 311.

22. The Respondent in its submissions reiterates that in appointing the 1st -4th Interested Parties it acted within its statutory mandate and within the confines of the applicable law as per the Judgment in the, Senate case (supra).

23. The Interested Parties in their submissions contend that the Court of Appeal having extended the 9-month period from lapsing on or about July 29, 2021 to November 5, 2021 in its ruling in Civil Appeal No E084 of 2021; Speaker of the National Assembly& Another v Senate of the Republic of Kenya & 13 Others the amendments to KICA were still in force.

24. It is their case that at the time of appointment of the 1st to 4th Interested Parties as the members of the Board of the 5th Interested Party, the amendments to the Kenya Information and Communication Act by the Statute Law (Miscellaneous Amendments) Act No 18 of 2018 aforesaid and in particular the deletion of Section 6B were still in force. Therefore, the appointment of the 1st to 4th Interested Parties by the 1st Respondent vide the Gazette Notice No 6981 published on July 12, 2021 (Vol CXXIII — No 145) is not only regular, but valid for the time being.

25. The Interested parties also contend that the Judicial Review application is res judicata as the Employment and Labour Relations Court has already pronounced itself on the issues raised in the instant judicial review application vide its judgment delivered of June 29, 2021 in Republic-vs Attorney General & Another Ex Parte Benedict Kabugi Ndungu, Kembi Gitura (Interested Party) [2021] eKLR.

26. The cases ofJohn Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR, Okiya Omtatah Okoiti v Commissions Authority of Kenya & 14 Others [2016] eKLR andDaniel Muthama Muoki v Ministry of Health & Another Shenzen Mindray Bio-Medical Electronics CO LTD & 5 Others (Interested Parties) [2020] were cited on the doctrine of res judicata.

Determination 27. I have considered the pleadings and the respective arguments advanced by the parties. The issues that crystalize for determination are;1. Whether this suit is res judicata2. Whether the applicant has established the threshold for the grant of the judicial review orders sought. the herein two issues form for determination and that is whether the 1st to 4th Interested Parties were regularly appointed by the Cabinet Secretary as the members of the Board of the Communications Authority of Kenya, the 5th Interested Party herein, vide Gazette Notice No 6981 published on July 12, 2021 and if so whether the ex parte Applicant is entitled to orders sought.

Whether this suit is res judicata 28. The 5th Interested Party has contended that the suit herein is res judicata as the court has already pronounced itself on the issues raised in the instant application vide its judgement delivered on the June 29, 2021 in the case of Republic v Attorney General& Ex Parte Benedict Kabugi Ndungu;Kembi Gitura Interested Party [2021] eKLR. (Kembi Gitura case).

29. Section 7 of the Civil Procedure Act provides that;'No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.'

30. The applicable principles behind the doctrine of res judicata are now well settled. In John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure and 3 Others [2015] eKLR the Court of Appeal stated;'The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably’.

31. Granted, the matter before court is a public interest litigation and the strictures envisaged under Section 7 of the Civil Procedure Act must be interpreted with flexibility in the circumstances. Of note is that care must be taken curtail any attempt to evade the doctrine of res judicata through proxy litigation by introduction of new parties.

32. The circumspection necessary is well captured in Daniel Muthama Muoki v Ministry of Health and Another; Shnzhen Mindray Bio-medical Electronics Co Ltd & 5 Others (Interested Parties) [2020] eKLR where the court stated;'34. It is noted that courts have observed recently that constitutional petitions are at risk of abuse through proxy litigation disguised as public interest litigation, as practice which amounts to waste of court’s value time as well as an abuse of the court’s process. In Brian Asin & 2 Others v Wafula W Chebukati & 9 Others [2017] eKLR this court held:'while dealing with the question of 'bona fides' of a petitioner, especially in the case of a person approaching the Court in the name of Public Interest Litigation, the Indian Supreme Court in the case of Ashok Kumar Pandey vs State of West Bengal held as hereunder: -'Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and to publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or form improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.'

33. Left unchecked, proxy litigation that evades the doctrine of res judicata would end up opening the court to instability in judgements resulting from inconsistency in findings of concurrent courts. As held in the John Maritime Services Limited case (supra), it would erode confidence in the courts and predictability which is one of the ingredients in maintaining respect for justice and the rule of law.

34. In the Kembi Gitura case, the applicant sought the quashing of Gazette Notice No 2215 of 2021 published on March 10, 2021 appointing Kembi Gitura to be the Chairperson of the Board of the Communications Authority of Kenya. The suit was based on the assertion that such appointment ought to be in accordance with the Kenya Information and Communications Act ,1998 as amended in 2013, specifically in accordance with Section 6 and 6B of the Act. The issues raised therein are a replica of the issues before the court in the instant matter. In a judgement dated June 29, 2021, Makau J made a finding that the appointment was proper and dismissed the judicial review application.

35. The common thread running through this matter and the Kembi Gitura case is the question whether the appointment to the Board of the CAK should be in accordance with section 6 and 6B of the Act.

36. The ex parte Applicant before this court contends that the procedure of the appointment or filing of a vacancy in the office of member of the Board of the 5th Interested Party is provided for under Section 6B of the Act, however vide the Statute Law (Miscellaneous Amendments) Act, 2018, section 6 of the Kenya Information and Communications Act, 1998 was amended to remove the procedure set out as per section 6B of the Kenya Information and Communications Act, 2013.

37. That through the court’s judgment in the Okiya Omtatah Okoiti & 4 others v Attorney General & 4 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR, the High Court declared section 6 of KICA, 1998 as amended by Statute Law (Miscellaneous Amendment) Act No 18 of 2018 unconstitutional, null and void. In effect, the provisions of section 6B of the Kenya Information and Communications (Amendment) Act, 2013 were duly restored.

38. Accordingly, the subsisting law with regard to appointment of the member of the Board of the 5th Interested Party is the Kenya Information and Communications Act, 1998 as amended in 2013.

39. The Respondent in rejoinder contends that the appointment was done regularly as at the time the operative law on appointment of Members of the Board of the 5th Interested Party was Section 6 of the Kenya Information and Communication Act, 1998 as amended vide the Statute Law (Miscellaneous Amendments) Act No 18 of 2018.

40. Further that although the High Court declared Section 6 of KICA,1998 as amended by Statute Law (Miscellaneous Amendment) Act No 18 of 2018 as unconstitutional, null and void in the case of Okiya Omtatah Okoiti & 4 others v Attorney General & 4 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR, a subsequent judgment in the matter of Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 others (Interested Parties) [2020] eKLR suspended the orders nullifying the impugned Acts, including the Statute Law (Miscellaneous Amendments) Act No 18 of 2018 for a period of 9 months from the date of judgement.

41. A glimpse of the issues hereinabove clearly shows that those were the same issues that were before Makau J and which issues he resolved in Republic v Attorney General& Ex Parte Benedict Kabugi Ndungu; Kembi Gitura Interested Party. The judgement by Makau J conclusively determined the matter in his judgement dated June 29, 2021. This is in consonance with the requirement set in Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others [2014] eKLR where the court stated; -'To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.'

42. This suit therefore offends the doctrine of res judicata. The litigation must be brought to finality for the reasons well captured by the Court of Appeal in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi CA Civil Appeal No 105 of 2017 ([2017] eKLR), thus; -'The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.'

43. The finding on the question of res judicata disposes off the matter. I find it unnecessary to delve into the 2nd issue for determination.

44. With the result that the application dated July 29, 2021 is dismissed. Each party to bear its own costs.

45. It is acknowledged that the judgement herein has been delivered after some considerable delay, which is regretted. This was as a result of factors beyond this court’s control.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4THDAY OF OCTOBER, 2022. .......................A. K. NDUNG'UJUDGE