[2009] KEHC 296 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Miscellaneous Civil Application 76 of 2009

IN THE MATTER OF: AN APPLICATION BY JAMES MAOBE MANYISA FOR JUDICIAL REVIEW (PROHIBITION)

AND

IN THE MATTER OF: LOCAL GOVERNMENT ACT, CAP 265 LAWS OF KENYA,

AND

IN THE MATTER OF: SECTION 33 OF THE CONSTITUTION

AND

IN THE MATTER OF: SECTION 26 (B) AND 27 (2) OF THE LOCAL GOVENRMENT ACT, CAP 265

AND

IN THE MATTER OF: EXTENSION OF THE PERIOD OF NOMINATION

AND

IN THE MATTER OF: MUNICIPAL COUNCIL OF KISII

BETWEEN

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

VERSUS

THE DEPUTY PRIME MINISTER &

MINISTER FOR LOCAL GOVERNMENT .… FIRST RESPONDEN

THE PERMANENT SECRETARY,

MINISTRY OF LOCAL GOVERNMENT …..SECOND RESPONDENT

THE INTERIM INDEPENDENT

ELECTORAL COMMISSION …………….... THIRD RESPONDENT

THE ATTORNEY GENERAL ……………. FOURTH RESPONDENT

MUNICIPAL COUNCIL OF KISII ……..…. FIFTH RESPONDENT

AND

MAZINGIRA GREENS PARTY OF KENYA .....…..FIRST INTERESTED PARTY

PETER OMURWA ARASA ……..……................. SECONDINTERESTED PARTY

AND

EX-PARTE

JAMES MAOBE MANYISA

RULING

The ex-parte applicant filed his application dated 10th July, 2009 and sought the following orders:

(a) An order of judicial review in the nature of prohibition

to prohibit the respondents herein and more

particularly the first respondent, from degazetting

and/or denominating him as a nominated councilor

within the municipal council of Kisii without complying

with the provisions of section 27 (2) of the Local

Government Act asread together with section 33 of

the Constitution of Kenya.

(b) An order of judicial review in the nature of prohibition

to prohibit the third respondent from approving and/or

forwarding the name of Peter Omurwa Arasa,the

second interested party, tothe first respondent for

gazettement and/or nomination.

(c) Costs of the application be borne by the respondents

and the interested parties jointly and severally.

In the affidavit in support of the said application, the ex-parte applicant deposed that he was proposed by the first interested party as a councillor in the municipal council of Kisii and was consequently gazetted and nominated as a councillor on 11th April, 2008. The nomination was for a period not exceeding sixteen months with effect from April 2008. He was renominated and gazetted on 22nd June 2009.

Sometimes in June/July, 2009, he learnt that the first interested party, without due notice to him, had proposed to substitute his nomination with that of the second interested party. He annexed a copy of a letter dated 9th June, 2009 addressed to the Minister for Local Government by the Secretary General of the first interested party. The letter read as follows:

“REF: NOMINATION OF COUNCILLOR OF

MAZINGIRA GREENS PARTY

The following is the name proposed by

Mazingira Greens Party to the Interim

Electoral Commission for the nomination of

the Municipal Council of Kisii, Peter Omurwa

Arasa Id/No. 20032194, electoral card

2007/005/0441546015 to replace James Maobe

Manyisa Id/No. 2672187, electoral card

2007/003/0439908886, whose term of

nomination is ending.”

The ex-parte applicant stated that prior to the issuance and forwarding of the said letter, the first interested party had not convened and/or held any party meeting where the issue of the substitution was discussed. In his view, the proposed substitution was done without complying with the rules of natural justice and the decision was therefore unilateral and ultra vires.

Although the first respondent had renominated and gazetted his name, the ex-parte applicant was apprehensive that the interested party was likely to influence the first respondent with a view to degazetting his name. He argued that the first respondent has no jurisdiction to degazette the name of already nominated and gazetted councillors.

The first, second and fourth respondents did not file any affidavit in response to the ex-parte applicant’s affidavit. They however filed grounds of opposition and written submissions. They were represented by Mr. Nguyo Wachira, a Litigation Counsel, Attorney-General’s office. The third and fifth respondents did not file any papers at all and neither were they represented by counsel.

The second interested party filed a replying affidavit through M/s Minda and Company Advocates. He deposed that he was aware of the letter dated 9th June, 2009, addressed to the first respondent by the Mazingira Greens Party of Kenya. He stated that the first respondent has power under section 27 (2) of the Local Government Act to appoint a nominated councillor whose name has been presented by a party and at any time terminate such nomination upon request from the party that presented the name. He added that it was within the mandate of the first interested party to present a person to the third respondent for nomination by the first respondent. The first respondent was and is not under any duty to afford the ex-parte applicant a hearing before making his recommendation. Such decision is governed by individual party’s constitution and/or regulations, the deponent asserted. He further stated that it had not been demonstrated how the intended gazettement of his name as a nominated councillor and the degazettement of the ex-parte applicant had contravened section 27 (2) of the Local Government Act as read with section 33 of the Constitution. He urged the court to dismiss the application.

The first, second and fourth respondents filed the following grounds of opposition:

“1. A case for issuance of prohibition has not

been set out.

2. The Minister has the authority to revoke

the nomination of a councillor.

3. The court cannot stop a legitimate process

from taking place.

4. The applicant’s case is against the

interested parties and not the

respondents.

Mr. Oguttu, learned counsel for the ex-parte applicant, filed written submissions which I have perused and duly considered.

Mr. Nguyo and Mr. Minda made brief responses to the said submissions.

The first issue which I need to determine that the court was asked to determine was whether or not the provisions of section 27 (2) of the Local Government Act are effective and operational. The court was also asked to determine the constitutional effect of that section as avis the provisions of section 33 of the Constitution.

Section 27of theLocal Government Actprovides:

“ 27. (1) The term of office of the elected

councillors specified insection 26(a) shall

be five years.

(2) The term of office of every councillor

nominated undersection 26 (b)shall be five

years or such shorter period as the

Minister may, at the time of nominations,

specify.

Provided that the Minister may at any

time in his discretion terminate the

nomination of a councillor by notice in

writing delivered to the councillor, and

thereupon his office shall become

vacant.

(3) The term of office of every councillor

appointed undersection 26 (c)shall be five

years or such shorter period as may, at the

time of appointment, be specified by the

council which appoints such councillors:

Provided that where the councillor

ceases to be a councillor of the

county council which appointed him

he shall forthwith cease to be a

councillor of the municipal council.”

Section 33of the Constitution referred to in section 26 (2) of the Act provides:

“33. (1) Subject to this section, there shall be twelve

nominated members of the National

Assembly appointed by the President

following a general election, to represent

special interests.

(2) The persons to be appointed shall be

persons who, if they had been nominated

for a parliamentary election, would be

qualified to be elected as members of the

National Assembly.

(3) The persons to be appointed shall be

nominated by the parliamentary parties

according to the proportion of every

parliamentary party in the National

Assembly, taking into account the principle

of gender equality.

(4) The proportions undersubsection (3)shall

be determined by the Electoral Commission

after every general election and shall be

signified by the chairman of the Commission

to the leaders of the concerned

parliamentary parties, the President and the

Speaker.

(5) The names of the nominees of parliamentary

parties shall be forwarded to the President

through the Electoral Commission who shall

ensure observance of the principle of gender

equality in the nominations.”

Section 26of the Local Government Act deals with the number of councillors in a municipal council. Subsection (2)

thereof provides as hereunder:

“The criteria and principles for appointment

of nominated members of the National

Assembly undersection 33 of theConstitution

shallmutatis mutandisapply to the

nomination of councillors under this

section.”

Mr. Oguttu submitted thatsection 27 (2)of theLocal Government Act is inconsistent with section 33 of the Constitutionand to the extent of its inconsistency it is therefore void. He cited the decisions of the Ibrahim, J. inREPUBLIC –VS- HON. E.K. MAITHA & 2 OTHERS, EX-PARTE ANTONY MUSILA MWAMANGI,Miscellaneous Application No. 669 of 2004 at Nairobi andREPUBLIC –VS- MINISTER FOR LOCAL GOVERNMENT & ANOTHER,Miscellaneous Application No. 917 of 2004 at Nairobi as well as the decisions by Lenaola, J. inREPUBLIC –VS- HON. E.K. MAITHA & 2 OTHERS, EX-PARTE JOSEPH OKOTH WAUDI, Miscellaneous No. 802 of 2003 at Nairobi andREPUBLIC –VS- HON. E.K. MAITHA & 2 OTHERS EX-PARTE OTIENO KARAN, Misc. Application No. 75 of 2004 at Nairobi.

All the above decisions were cited before Sergon, J. inTAIB A.

TAIB –VS- THE MINISTER FOR LOCAL GOVERNMENT & OTHERS, Misc. Civil Application No. 158 of 2006 at Mombasa.

Sergon, J. did not agree with the views of Ibrahim & Lenaola, JJ that section 27 (2) of the Location Government Actwas inconsistent with section 33of theConstitution. He delivered himself thus:

“When parliament, throughsection 26 (2)of the

Local Government Actdirected the Minister for

Local Government to nominate councillors by

applying the criteria and principles set out

underS.33of theConstitution, did parliament

intend to take away the Minister’s power to

revoke the nomination? In order to get the

true intention of the legislature, I think the best

rule of interpretation is to avoid the repugnancy

clause by deeming the two provisions to

co-exist so thatSection 33of the Constitution

would be domesticated under theLocal

Government Actto be applied to the process of

nomination and thatsection 27(2)of theLocal

Government Actwould be retained to take care of

denomination of nominated councillors.

In my view, I am convinced that

parliament intended to retainsection 27(2)of the

Local Government Actas an exception to the

domesticatedsection 33of theConstitution. I

respectively depart from the view taken by my

learned brothers justices Ibrahim and Lenaola

and hold that parliament conferred to the

Minister for Local Government the power to

revoke denomination of councillors.”

The ex-parte applicant, Taib A. Taib, whose nomination

as a councillor in the municipal council of Mombasa had been

revoked by the Minister for Local Government, was not satisfied by the decision of Sergon, J. and preferred an appeal against the same. In the appeal,TAIB A. TAIB –VS- THE MINISTER FOR LOCAL GOVERNMENT AND OTHERS,Civil Appeal No. 107 of 2006, the majority decision of Githinji and Waki, JJ.A, agreed with Sergon, J. in so far as the provisions of section 27 (2) of the Local Government Act and section 33 of the Constitutionare concerned.

Githinji, J.A., stated, inter alia,:

“It is however, contended thatsection 27 (2)of

the Act is inconsistent withsection 33of the

Constitutionand therefore void. Firstly, there is

no specific provision insection 33of the

Constitutionor in the entire Constitution either

providing that the term of a nominated

councillor cannot be abridged or that the

Minister has no power to terminate the

nomination. Had the Constitution provided so,

then, it would have been easy to understand the

appellant’s case. The alleged inconsistency only

arises from the construction put tosection 26(2)

of theActby the appellant. I would respectfully

agree with the construction ofsection 26 (2)by

the learned Judge in his lucid and well reasoned

judgment.Section 26 (2)incorporates by

reference, the criteria and principles of

appointment of nominated members of National

Assembly undersection 33of theConstitutionto

the nomination of councillors undersection 26of

theAct.

In that case, the legal effect is that the

provisions ofsection 33of theConstitutionso

incorporated must be generally construed as if

they were set out in full insection 27 (2)of the

Act.

…………

…………

The criteria, principles and method of

nomination of members of parliament insection

33of theConstitutionhaving been transplanted

intosection 26 (2)of theAct,they apply to the

nomination of councillors andsection 33of the

Constitutionbecomes inoperative as a

constitutional provision with respect to the

nomination of councillors under the Local

Government Act.

That being my view, it follows thatsection

27 (2)of theActcannot be inconsistent with

section 33of theConstitution. Moreover,section 27

(2) of the Actunlikesection 33of theConstitution

does not deal with the criteria and principles for

the nomination of councillors.”

Waki, J.A, having reviewed the import of all the amendments that had been done to the Local Government Act since 1967, was of the view that parliament, in retaining the provisions of section 27 intact, having amended section 26 by adding subsection (2) thereof, intended to give the Minister for Local Government executive functions for control of Local Authorities.

The learned judge held as follows:

“Section 26itself has been revisited on no less than

seven times since 1963 and five times forsection 27.

The latest was inAct No. 10/97which addedsection

26 (2)but the side note still remained“Number of

Councillors.”Some powers of the Minister were

severely restricted and some were taken away, while

others were left intact when those amendments

were made. Unlike the President who cannot control

members of parliament in view of the principle of

separation of powers, the Minister, under the Act has

been given executive functions for control of Local

Authorities.

………..

………..

Section 27which is about“Terms of Office of Councillors”

remained intact when section 26 was amended. Can

it be said that parliament was oblivious of that

section whenAct No. 10/97was passed? I do not

think so. In my view, the powers of the Minister

were deliberately retained under that section and it

will take a clear amendment of the law to eliminate

that perception.

Section 33of theConstitutionandsection 26 of Cap

265provide for the process of nomination. They make

no provision for removal which is found elsewhere.

As I have stated earlier, no issue arises out of the

nomination process of the appellant as he was validly

nominated. I agree with Sergon, J. in the

circumstances that the provisions ofsection 26and27

ofCap. 265are mutually exclusive andsection 27 (2)is

neither inconsistent nor repugnant tosection 33of the

Constitution.I so find.”

In view of the emphatic findings by the two learned Judges of the Court of Appeal, I cannot agree with the submissions of Mr. Oguttu that the provisions of section 27 (2)of the Local Government are inconsistent with the provisions of section 33of theConstitution. I further reject the submission that the Minister for Local Government, the first respondent herein, has no power to denominate a councillor. In TAIB’S case, the Court of Appeal found that the Minister has such power but in exercising the same the proviso to section 27 (2) of Cap. 265requires him to serve a notice in writing to a councillor whose nomination is sought to be terminated. Until the law is amended to state otherwise, the Minister is still vested with the aforesaid power. Ideally, once a councillor has been nominated he should be allowed to serve for a period of five years or such other period before the next civic elections are held but that is not what the current law provides.

Turning to the other issues raised in this application, having found that the Minister did not contravene the provisions of section 27 (2) of the Local Government Act as read with section 33 of the Constitution, the relief sought against him and the Permanent Secretary, Ministry of Local Government must fail. I say the same of the third respondent. In any event, none of them had taken any action against the ex parte applicant. The latter was merely apprehensive that his nomination was about to be revoked.

As regards the first interested party, I do not know what its constitution and/or regulations provide regarding the procedure of picking any of its members and recommending him/her for nomination. Suffice to say that the party acted within its mandate to pick the second interested party. The party also had power to request the first respondent to nominate the interested party when the term of nomination of the ex-parte applicant ended. I do not think that the said party can be faulted for so doing.

In view of the foregoing, I find no merit in this application

and dismiss the same with costs to the respondents and the

interested parties.

DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF DECEMBER, 2009.

D. MUSINGA

JUDGE.

16/12/2006

Before D. Musinga, J.

Mobisa – cc

Mr. Ochwangi for the applicant

Mr. Minda for the respondent

Court:Ruling delivered in open court on 16th December, 2009.

D. MUSINGA

JUDGE.