[2022] KEHC 11552 (KLR)

Republic v Principal Secretary Ministry of Transport, Infrastructure And Urban Planning & another; Joram & another (Exparte) (Judicial Review Application E114 of 2021) [2022] KEHC 11552 (KLR) (Judicial Review) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11552 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E114 of 2021

AK Ndung'u, J

May 12, 2022

Between

Republic

Applicant

and

Principal Secretary Ministry of Transport, Infrastructure And Urban Planning

1st Respondent

The Attorney General

2nd Respondent

and

David A. Joram

Exparte

David Kasisi

Exparte

Judgment

Introduction 1. The ex-parte Applicants (hereinafter “the Applicants”) moved this court vide a notice of motion application dated September 9, 2021 seeking the following Orders:1. Thatthis ex parte Application be certified as urgent and apt for the following Judicial Review orders:a)A declaration does hereby issue that the 1St Respondent undated Election Notice communicated through the chief Highrise Location Nairobi West Division goes against the provision of fairness.b)A declaration that the 1st Respondent’s unilateral decision to exclude the Applicants offends among others the provision of articles 10, 27 (4) , 47 of the Constitution of Kenya 2010 as read together with section 4 of the Fair Administrative Actions Act of 2015. c)A declaration that the 1st Respondent decision to exclude the applicants from the forthcoming elections amounts to discrimination.d)Certiorarito bring into the High Court for the purpose of quashing the decision of the 1st Respondent of calling for election of four posts of the settlement executive committee members.e)Prohibitionprohibiting the Respondent either by themselves, his agents or servants from in any manner continuing with the elections without the Applicants in this matter.f)MandamusCompelling the Respondents to include the names of the Applicants in the ballot for any elections for the settlement executive members when they are held.2. Thatthis Honourable Court be and is hereby pleased to issue directions necessary towards ensuring the expeditious disposal of this matter by way of video conferencing either through zoom or Skype during the COVID-19 interruption period.3. Thatin View of the COVID-19 pandemic, this Honourable Court be pleased to order the service of this Application/ suit herein either physically, through electronic means to wit, email and/or WhatsApp, whichever is possible.4. Costs be provided for.5. Any other order that this Honourable Court will be pleased to issue in the circumstances.

Factual Background 2. The motion is supported by the grounds on the face of the application together with the Statutory Statement and Verifying Affidavit of David A. Joram sworn on even date. The Applicants’ case is that the Government in partnership with other stakeholders initiated the Slum Upgrading Programme for construction of social housing in Kibera and the State Department for Housing and Urban Development was tasked with the responsibility of overseeing the project. During consultations with the stakeholders and residents of Kibera, it was agreed that a committee to represent the residents of Kibera be formed and called the Settlement Executive Committee (hereinafter “SEC”). It was further agreed that for one to serve as a committee member, they shall be elected by residents of Kibera in line with various groups and were to serve a three (3) year term subject to renewal for one more term.

3. Accordingly, the Applicants together with other 15 others were elected in office on July 27, 2018 with the 1st Applicant representing structure owners while the 2nd Applicant represented the Community Based Organizations and worked as such until their purported termination by the State Department of Housing and Urban Development through the letter dated August 16, 2021.

4. Prior to their termination, the SEC members together with the Ministry officials were engaged in an exercise of identifying bona fide beneficiaries in the housing project and after data collection, the Ministry tabled a total of 1800 names in their database as the eligible beneficiaries for resettlement. However, after due diligence, it was established that 150 names in the database were not residents of Kibera hence not bona fide beneficiaries to the housing project and 1200 bona fide residents of Kibera Soweto Zone B had been left out.

5. Subsequently, a meeting was held between the SEC and the Ministry where the above facts were tabled in August, 2019 and the Ministry officials agreed that the number of beneficiaries should increase to 3000 from 1800 already captured. However, during the said meeting, the Applicants together with two other SEC members demanded that the 150 illegitimate beneficiaries in the database be removed from the list of beneficiaries which demands unsettled the Ministry officials and other SEC members.

6. Consequently, the Ministry officials in cahoots with some SEC members decided to sideline the Applicants and the other two from attending subsequent SEC meetings from March 2020 and raised their concerns through a letter dated May 5, 2020 to the Principal Secretary, State Department of Housing and Urban Development citing corruption issues and underhand dealings by the Applicants to disenfranchise and deny the bona fide Kibera residents of their rightful benefit from the project. Based on this misinformation in the SEC minutes in a meeting purportedly held on September 21, 2020, the 1st Respondent without verifying the facts with the Applicants went ahead and terminated their services on August 16, 2021 twelve (12) months after the purported SEC meeting that recommended their removal and after their term had come to an end.

7. Thereafter, the Applicants were barred from contesting in the upcoming elections in the SEC and despite various demands for explanations from the 1st Respondent as to why they should not be on the ballot, the 1st Respondent put up an undated notice calling for elections for only four (4) positions to be held on September 3, 2021. Further, on September 2, 2021 the 1st Respondent put up ballot paper posters containing the names of the contestants except that of the Applicants. However, on September 3, 2021 the impugned elections were postponed culminating into this application.

8. The question that therefore arose in their written submissions dated November 30, 2021is whether the 1st Respondent’s has power to terminate, bar and unilaterally appoint the SEC members to another term without being subjected to an election. In counsel’s view, the 1st Respondent cannot purport to terminate the Applicants whose term of service of three (3) years as the SEC members had come to an end. Indeed, counsel argued that no policy document has been produced before this court to show that the 1st Respondent has powers to terminate, bar and appoint SEC members in office unilaterally without subjecting them to elections. Accordingly, the Applicants are entitled to the orders sought.

The Respondents’ case 9. The Respondents opposed the motion through the Replying Affidavit of Mary Ndung’u sworn on November 1, 2021. The gist of the Respondent’s case is that the Government of Kenya through the State Department embarked on the construction of social housing in Kibera informal settlements in Nairobi within the Affordable Housing Programme under the Big Four Agenda and it is in this context that Kibera Soweto was identified as one of the informal settlements to benefit in the pilot project.

10. In undertaking such a project, the State Department conducted public participation and the communities were informed of their role and involvement in the project including its approval, the designs and supervision through the SEC. The representation at the SEC in Kibera Soweto was by Structure Owners (2 slots), Tenants (5 slots), Special Needs Group (2 slots), Community Based Organization (2 slots), Faith Based Organization (2 slots) Non-Governmental Organizations (1 slot), Widows, Widowers and Orphans (1 slot), Youth (2 slots) and 3 Ex-officio members (Area Member of County Assembly, Area Member of Parliament and Sub-County Commissioner.)

11. The community under the supervision of the National Government then elected new SEC members upon the stated criterion and the elected SEC members were to serve for a term of three (3) years renewable for one extra term. However, a SEC member may be removed if he/she is involved in conflicts and sabotage in respect of the Government projects and activities. The SEC member was to also fill a Performance Form with the State Department on his/her performance deliverables which details are duly contained in the individual appointment letters to each of the elected SEC member.

12. The initial term for the Applicants as SEC members was ending on June 30, 2021and the renewal was subject to their performance. However, the State Department received complaints regarding the performance of the Applicants having been involved in conflicts sabotaging the Government project which was an explicit ground for removal as per their aforesaid letters of appointment. The other SEC members noted that these issues had the effect of jeopardizing the project and as such, they called for a meeting on 21st September, 2020 for a way forward and in light of these deeds and upon cogent evidence, the State Department never renewed Applicants’ terms of service in line with the terms of their appointment. The Respondents however contended that one of the four (4) vacancies in the SEC that were subject to the impugned election, related to a member who had since passed on, Mr. Dan Atieli Opayi, a fact that the Applicants deliberately failed to state in order to mislead the Court. Accordingly, it was urged the application by the Applicants is misleading and no grounds have been adduced to warrant the orders sought.

13. In their written submissions dated November 22, 2021, counsel submitted that the only issue that arose for determination was whether the 1st Respondent has power to exclude any person from elections in the SEC. In counsel’s view, the Applicants conducted themselves improperly and therefore were not fit to serve the community and in the circumstances the 1st Respondent by way of legal mandate of his position in office had the power to appoint/remove a person from any upcoming SEC elections and/or after the elections if his/her performance deliverables were not met. Furthermore, the Applicants were appointed by the 1st Respondent as mandated by the Policy which mandates the 1st Respondent to make rules and decisions in the day to day running of the issues affecting its Ministry and slum upgrading being a project of the Ministry, the 1st Respondent had the mandate to make decisions that relates to the project.

14. Be that as it may, the Applicants being aggrieved by the decision of the Respondent to exclude them from the Elections ought to have first exhausted the appeal avenue to the Minister before filing for Judicial Review orders. Indeed, counsel argued that the unilateral decision made by the 1st Respondent to remove the Applicants from the upcoming SEC elections was just and merited.

Analysis and Determination 15. I have considered the pleadings and the arguments advanced by the parties herein and in my view, the main issue for determination is whether the 1st Respondent’s decision contained in the letter dated August 16, 2021 was tainted with procedural impropriety and if so, whether the Applicants are entitled to the orders sought.

16. Judicial review is a special supervisory jurisdiction concerned with the legality, rationality and procedural propriety of the exercise of administrative actions whereby a recognizable public law wrong has been committed. These parameters for judicial review were set out in the Ugandan case of Pastoli v Kabale District Local Government Council and Others(2008) 2 EA 300 where the Court cited with approval the case of Council for Civil Service Unions vs. Minister for Civil Service(1985) A.C. 374, at 401D and An Application by Bukoba Gymkhana Club (1963) EA 478 at 479 and held:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards... Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.” [Emphasis added]

17. The right to fair administrative action is enshrined under article 47 of the Constitution, which provides as follows;(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

18. Pursuant to the said article, Parliament enacted the Fair Administrative Action Act, 2015. Section 2 of the thereof defines “administrative action” to include:(i)the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or(ii)any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;

19. The same section defines ‘administrator” as “a person who takes administrative action or who makes an administrative decision.” Section 3 on the other hand provides:(1)This Act applies to all state and non-state agencies, including any person(a)exercising administrative authority;(b)performing a judicial or quasi-judicial function under the Constitution or any written law; or(c)whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates

20. The Applicants’ case is that they were appointed by the electorate in Kibera Soweto East Village for a term of three (3) years renewable for one term which term commenced on 1st July, 2018. However, on September 21, 2020, the SEC held a meeting to their exclusion and resolved to have them suspended since they purportedly had pending cases in court against the Ministry regarding development of Soweto East Zone B slum. Without verifying the facts, the 1st Respondent vide a letter dated August 16, 2021 unilaterally terminated their services and declared their positions vacant and purported to bar them from running for the said positions again.

21. The Respondents on the other hand argued that the 1st Respondent terminated the services of the Applicants and declared their positions vacant and barred them from vying for the said positions because they were purportedly involved in conflicts and sabotage in respect of the said government project.

22. I have perused the letters of appointment of the Applicants to the SEC dated April 2, 2019. I have also perused the election guide criteria that members must satisfy before election to the SEC and terms of service including grounds for removal from office and there is no prescribed procedure for removal of a SEC member save for what is provided in the letter of appointment that “in the event that you fail to execute your duties as stipulated, stakeholders are at liberty to replace you.” While that may be the case, the right to fair administrative action is a constitutional right prescribed under article 47 of the Constitution.

23. The Late Onguto, J in Kenya Human Rights Commission v Non-Governmental Organizations Co-Ordination Board [2016] eKLR expressed himself inter alia as follows:“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.The Petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.The right to fair hearing is evidently closely intertwined with fair administrative action. The oft cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50(1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”

24. I couldn’t agree more with the sentiments of the Late Onguto, J. In my view, the Applicants’ services were terminated merely because they raised concerns about the beneficiaries who appeared in the Government’s data base yet they were not residents of Kibera to the exclusion of the actual residents. This according to the 1st Respondent and the SEC generally was sabotaging the government project hence termination of their services. The positions they held in SEC were elective positions and as such to condemn them unheard and bar them from vying for those same positions flies against the rules of natural justice. They were not informed on any allegations levelled against them nor were they given an opportunity to be heard.

25. I am also mindful of the fact that while this court’s role remains strictly supervisory, it is concerned with determining whether there has been a lawful exercise of power having regard to the terms, scope and purpose of the statute conferring the power. When reasonable minds disagree about the outcome of, or justification for, the exercise of power, or when the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable just because the court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision, it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. However, in this case, the 1st Respondent herein has failed to prove that due process was indeed followed in terminating the services of the Applicants and bar them from running for the said elective posts. I therefore find that the 1st Respondent’s actions were tainted with procedural impropriety.

26. The last issue is as regards the relief sought by the Applicants. The Court of Appeal held in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge (1997) eKLR inter alia as follows as regards judicial review orders:“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings…The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way… These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order of certiorari and that is all the court wants to say on that aspect of the matter.”

27. The Applicant sought orders of certiorari, prohibition and mandamus. I find that as the 1st Respondent’s actions having been found to be tainted with procedural impropriety, the Applicants are entitled to the orders sought. The upshot is that the notice of motion dated September 9, 2021 is allowed as prayed.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2022. ................................A. K. NDUNG'UJUDGE