[2022] KEHC 13669 (KLR)

Republic v Governor, Wajir County & another; Somow (Interested Party); Mohamed (Exparte) (Judicial Review Application E066 of 2022) [2022] KEHC 13669 (KLR) (Judicial Review) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13669 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E066 of 2022

AK Ndung'u, J

October 13, 2022

Between

Republic

Applicant

and

Governor, Wajir County

1st Respondent

Wajir County Assembly

2nd Respondent

and

Naema Ibrahim Somow

Interested Party

and

Badar Ahmed Mohamed

Exparte

Judgment

1. The application before this court is the ex parteapplicant’s notice of motion application dated May 6, 2022.

2. The ex parteapplicant’s case is that upon the Office of the County Attorney Act No. 14 of 2020 coming into law the post of County Attorney was advertised, and the interested party appointed thereafter. The appointment was made after the interested party who was the then deputy county attorney to theex parte applicant was nominated by the 1st respondent. Subsequently, the clerk of the 2nd respondent issued a Notice of the said nomination and schedule of the vetting process which was to take place on May 5, 2022.

3. The ex parteapplicant contends that the appointment was done despite him having held the office of County Attorney/ Legal Advisor since he was appointed on October 1, 2013and the same confirmed vide a letterNovember 7, 2013. He also argues that this was despite him possessing the relevant qualifications to transition into the office as established under the aforementioned act.

4. It is urged that the changes came following the gubernatorial elections of 2017 where a new governor assumed office and as such a new government was formed. The Interested Party is said to have been appointed to the County Executive Committee, Wajir County, as in charge of Lands and Physical Planning.

5. The ex parteapplicant claims that in 2015 his position of County Attorney, was regularized by the County Public Service Board, Wajir County, vide a letter appointing him to the post of County Legal Officer which letter is said to have been backdated to November 11, 2013. It was alleged that he was invited to re-apply for the Office of County Attorney which position was awarded to the interested party despite the fact that she already was holding a county position.

6. According to the ex parteapplicant the purported recruitment of a new County Attorney while he was holding the office is illegal, improper and a violation of his rights and statutory provisions and hence the reason why he has filed the motion before this court which seeks a raft of orders as follows;1. That this Honourable Court be pleased to grant an Order of Certiorarito bring into this(sic) quash and the decision by the 1st Respondent nominating of the interested party, to the position of County Attorney, Wajir County Government.2. That this Honourable Court be pleased to grant an order of Prohibition prohibiting the 1st respondent from nominating the interested party or any other person whatsoever to the position of County Attorney, Wajir County Government, under the Office of the County Attorney Act.3. That this Honourable Court be pleased to grant an order of prohibition to issue against the 2nd respondent, to prohibit it from vetting and approving the interested party or any other person for the position of County Attorney, Wajir County Government.4. That the Honourable Court be pleased to grant an order of prohibition restricting the 1st respondent from dismissing, demoting, suspending and or withholding the ex-parte applicant' salary.5. That this court do grant the ex-parte applicant all the necessary and consequential orders/directions.6. That costs of this application be provided for.”

7. The common thread in the replies by the 1st and 2nd respondents and the interested party is that upon the enactment of the Office of the County Attorney Act,2020 a need arose to employ a county attorney as per the Act and in order to achieve this the Wajir County Public Service Board advertised for persons to tender their applications for the said position. Interviews for all applicants were conducted and upon consideration of qualifications and performance a report was forwarded to the 1st respondent for consideration.

8. According to the parties, the 1st respondent upon considering the service board’s report and the qualification and experience of each candidate, nominated the interested party and forwarded her name to the county assembly for vetting and approval. The assembly upon vetting and interviewing the nominee approved the said nomination. The interested party took oath of office on May 6, 2022 and subsequently assumed office.

9. It is urged that prior to the commencement date of the Office of the County Attorney Act, 2020 the County government of Wajir did not have nor had it employed a County Attorney. There were only legal officers.

10. The ex parteapplicant is said to have become an absentee employee and as a result legal work of the county government of Wajir stalled and this in effect incapacitated the county government of Wajir. Further, that as a result of his absence from work and continuous misconduct, the County Public Service Board wrote warning letters and notice to show cause and subsequently disciplinary action was taken against him.

11. The 2nd respondent through the clerk of the County Assembly contends that a court order without any pleadings attached to it was retrieved late on May 6, 2022 after vetting and approval proceedings. The attendant statement on the order was “staying the decision of the governor and the consequent decisions of the County Assembly of Wajir” and a further statement that “…in the circumstances of this case, allow prayer 4 on a temporary basis pending arguments on stay.”

12. According to the respondent the court’s orders ought to have been communicated with exactitude and enough detail to enable the respondent know what exactly is required from the recipient of the court order. A single leaflet of the impugned order in the absence of pleadings as served via email did not disclose what prayer had been granted to the ex parte applicant.

13. The 2nd respondent also filed a Preliminary Objection with two main grounds as follows;1. That this Honourable Court has no jurisdiction to entertain the subject matter of this judicial review.2. That the prayer sought and the subject matter of the instant Judicial review relate to the employment and Labour relations which is a preserve of the courts established under article 162(2)(a) thereof which is the Employment and Labour Relations Court.

14. In response to the Objection the ex parte applicant in his grounds of opposition to the preliminary objection contended that the matter before this court arises from the impugned administrative decision of the 1st respondent to purport to nominate and appoint the Interested Party to the position of county attorney, Wajir County contrary to the explicit provisions of statute, specifically sections 5 as read with section 31 of the Office of the County Attorney Act, 2020.

DETERMINATION 15. Having considered the arguments adduced by Parties and the pleadings before this court, three issues form for determination and these are;(i)whether this court has jurisdiction to hear and determine the chamber summons application filed by the ex parte Applicants.(ii)whether the interested party’s nomination was illegal, unreasonable, unlawful and against legitimate expectation.(iii)whether the respondents are in contempt of court orders.

16. The Court of Appeal in the case ofMukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, had the following;to say on circumstances when a Preliminary Objection may be raised.“a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

17. In this case the 2nd respondent challenges this court’s jurisdiction to hear the ex parteapplicant’s judicial review application on grounds that this honourable court lacks the jurisdiction to hear and determine the matter as the subject relates to employment and labor relations which is a preserve of the court established under article 162(2), that is the Employment and Labour Relations Court.

18. The ex parteapplicant in response to this argument contends that the same is false as the subject matter in the judicial review application before this court arises from the impugned administrative decision of the 1st respondent which according to him was contrary to the explicit provisions of statute, specifically sections 5 as read with section 31 of the Office of the County Attorney Act, 2020.

19. It is trite that the issue of jurisdiction is one that goes to the root of a case and as such must be determined before a court can take any further action in the matter. This court in JR 1155 of 2020, Republic v Public Procurement Administrative Review Board &anotherex parte Express Automation Limited stated as follows;“Jurisdiction is donated to a court by either constitution or legislation or both. The Supreme Court in Samuel Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR had this to say on jurisdiction of courts;68. “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission(Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

20. It is the ex parteapplicant’s case that the purported recruitment of a new County Attorney while he was still holding the office was illegal, improper and a violation of his rights and statutory provisions. This being the main stay of the applicant’s case, am persuaded that it is within the province of this court to determine if the process in the recruitment of a County Attorney conformed to the dictates of the Constitution under article 47 and the provisions of the Fair Administrative Actions Act.

21. Having established that this court has jurisdiction the next question would be whether the 1st and 2nd Respondents in appointing the interested party herein as County Attorney acted unreasonably, illegally, violated procedure or acted against the ex parte applicant’s legitimate expectation.

22. A brief espousal of the applicable law and legal principles is opportune at this stage. The scope of judicial review was elucidated in Council of Civil Service UnionsvMinister for the Civil Service (1985) A.C. 374,410 which has now become a reference point in the issuance of judicial review orders, Lord Diplock held as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognized in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K B 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow[1956] A C 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

23. Locally in Municipal Council of Mombasa v Republic Umoja Consultants Ltd, Nairobi Civil Appeal No185 of 2007(2002) eKLR, the Court of Appeal held that:-“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.

24. So then, how does the applicant’s application sit in view of the above scope? I note from his verifying affidavit sworn on May 3, 2022 in support of the Chamber Summons application that in a letter of appointment dated November 7, 2013 the then Governor; HE Hon. Ahamed Abdullahi Mohamad appoints the ex parte applicant to the position of County Attorney/Legal Advisor.

25. Subsequent to this letter in another letter dated November 11, 2013 and titled “Offer Of Employment As A County Legal Officer I (Job Group R) and written by the Secretary of the County Public Service Board, the ex parteapplicant herein is informed that he will be appointed as a County Legal Officer I(Job Group R) with effect from the date of the said letter.

26. Section 31 of the County Attorney Act,2020, speaks to the transitional provisions upon the commencement of the County Attorney Act. It provides;“31. Transition(1)Upon the coming into effect of this Act, members of staff employed by the county executive to perform the functions of the Office under this Act shall—(a)be deemed to be members of staff of the Office in their respective capacities;(b)retain any rights accrued or accruing to them as such staff or contributors;(c)be at liberty to continue to contribute to any superannuation scheme to which they were contributors;(d)be entitled to receive any deferred or extended leave as if they have continued to be such staff of the Office during their service with the county executive;(e)be entitled to receive any payment, pension or gratuity as if they have continued to be such staff of the Office during their service with the county executive; and(f)be deemed to be employees of the Office for the purposes of any law under which those rights accrued or were accruing, under which they continue to contribute or by which that entitlement is conferred.(2)Despite the provisions of subsection (1), a person employed by the county public service board to perform the functions of the County Attorney, County Solicitor or County Legal Counsel at the commencement of this Act shall continue to hold their respective positions in the Office after the coming into effect of this Act only if they meet the qualifications specified in this Act.(3)The county public service board shall, where a person employed by the county executive to perform the functions of the County Attorney, County Solicitor or County Legal Counsel does not meet the qualifications specified in this Act, redeploy such person to the highest position that is vacant and to which such person qualifies for appointment.”

27. It is difficult to comprehend the ex parte applicant’s grouse. He acknowledges that vide a letter dated November 7, 2013 he was appointed the County Attorney. Hot on the heels of this letter, in another letter dated November 11, 2013, he was appointed a legal Officer. There is no evidence that he ever challenged this 2nd appointment. It is safe to infer that his effective designation at the time the Act came into force was legal officer. In any event any attempt to challenge the appointment as a legal officer at this stage comes a cropper as it is undone by latches.

28. The evidence tabled by the 1st Respondent clearly shows that at the time of the commencement of the Act, there was no county Attorney in Wajir County. A vacancy for the post was declared. applicants, who included the Applicant applied. 5 were shortlisted, again, the Applicant included. They were interviewed. Based on the report of the Public Service Board, the 1st Respondent nominated the Interested Party who was vetted by the County Assembly and approved upon which she took oath of office.

29. I have evaluated the initiation and eventual recruitment of the Interested Party herein as the County Attorney. The process employed is discernibly bereft of any illegality, irrationality or procedural impropriety. It does not leak of any breach of the Applicant’s legitimate expectation. This, for the simple reason that the Act envisaged that, persons serving as County Attorneys at the commencement of the new law were to continue serving as such if they were qualified. In the ex parteapplicant’s case he was not such an Attorney. He was a legal officer. The issue of breach of his legitimate expectation cannot arise.

30. The fact that the ex parteapplicant subjected himself to the process of applying and interview for the post lends credence to the fact that he appreciated he was not a County Attorney and was not thus entitled to continue holding the office under the new Act. From his own averments he was well aware that section 31 of theCounty Attorney Act,2020 required that if he was the County Attorney he be retained in the same position, yet he still went ahead to apply for the said position, was shortlisted and attended interviews, and, it is only after the interested party herein had been nominated that he filed the judicial review application before this court seeking to have the said decision quashed.

31. The Wajir County Public Service Board in advertising for applications for the position of County Attorney was aware that at the time there was no County Attorney in office and as such it was only undertaking its duty as is stipulated under the law.

32. The ex parte applicant has thus failed to prove to this court that the respondents in undertaking the selection process did not correctly understand the law that regulates their decision-making power nor that the decision made was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The procedure adopted by the respondent has not been shown to have any impropriety.

33. The upshot is that the application dated May 6, 2022 fails. The same is dismissed. In the circumstances of this case, each party is to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13THDAY OF OCTOBER 2022---------------------------------A. K. NDUNGUJUDGE