[2022] KEHC 26913 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION NO. MISC.E1101 OF 2020

NELSON MWENDA PAUL.................................................................................1ST APPLICANT

FRANCIS MUTUKU KIMITI...........................................................................2ND APPLICANT

JACKLINE KARAMBU....................................................................................3RD APPLICANT

VERSUS

NATIONAL GOVERNMENT CONSTITUTENCIES

DEVELOPMENT FUND BOARD................................................................1ST RESPONDENT

THE SELECTIONS PANEL OF THE NATIONAL

GOVERNMENT CONSTITUENCIES

DEVELOPMENT FUND COMMITTEE FOR

KAMKUNJI CONSTITUENCY................................................................2ND RESPONDENT

AND

BRIAN MAKUBA INGALULA....................................................1ST INTERESTED PARTY

DICKENS OTIENO OKODE......................................................2ND INTERESTED PARTY

ESTHER WAIRIMU KINYWA...................................................3RD INTERESTED PARTY

HAMIDA HUSSEIN ROBA........................................................4TH INTERESTED PARTY

VIOLET LIHEMO KIVAYA......................................................5TH INTERESTED PARTY

ALI JORAM JUMA....................................................................6TH INTERESTED PARTY

ANN MUTHONI KURIA...........................................................7TH INTERESTED PARTY

JUDGMENT

1. The Applicants are before this Court vide a Notice of Motion Application dated 30th September,2020, filed under Order 53 Rule 4 of the Civil Procedure Rules. The Application seeks the following orders:

(i)THAT an Order of CERTIORARI be and is hereby issued quashing and setting aside the decision the 2nd Respondent arising from the interviews conducted on 3rd February 2020, where they selected persons to be considered for appointment to the National Government Constituencies Development Fund Committee for Kamkunji Constituency.

(ii)THAT an Order of CERTIORARI be and is hereby issued quashing the selection, nomination, co-option, gazettement and appointment of members of the National Government Constituencies Development Fund Committee for Kamkunji Constituency by the Respondents as published in the Kenya Gazette vide Notice No.3737 on 29th May 2020.

(iii)THAT an Order of MANDAMUSbe and is hereby issued to compel the 1st Respondent to constitute a proper Selection Panel for Kamkunji Constituency to conduct fresh and proper interviews of persons to be selected, nominated, co-opted, gazetted and appointed to the National Government Constituencies Development Fund Committee for Kamkunji Constituency.

(iv)THAT this Honourable Court be pleased to issue such further Orders and Directions as it may deem fit.

(v) THATcosts of this Application be provided for.

2. The Application is supported by a Supporting Affidavit dated 30th September 2020 and sworn by Nelson Mwenda Paul. Mr. Mwenda averred that he had the authority to swear the affidavit on behalf of the 2nd and 3rd Applicants. It was averred that together with the 2nd and 3rd Applicants they tendered their applications for the position of member of the Constituency Committee in accordance to an advertisement by the 2nd Respondent.

3. Further that the 3rd Applicant and the deponent were shortlisted to attend interviews before the selection panel on 3rd February,2020. The deponent contended that during the interview the panel consisted of 3 members and not 4 as is required by Regulation 5 paragraph 4 of the National Government Constituencies Development Fund Regulations, 2016. It was deponed that the fund manager, who is the officer of the Board seconded to the Constituency and the secretary of the selection panel, did not sit in the panel that conducted the interviews on 3rd February,2020.

4. The deponent deposed that all members on the panel were male contrary to Regulation 5 paragraph 4(c) and that the panel failed to comply with the provisions of Chapter Six of the Constitution of Kenya,2010 as they failed to ask the applicants, for Certificates of Good Conduct or for clearance by the Ethics and Anti-Corruption Commission contrary.

5. Mr Mwenda deponed that they were intimidated by the former committee members who had also applied to be considered for the positions of Chairperson and that some of the committee members were re-appointed and are joined to this suit as Interested Parties. Further that the selection panel was disadvantaged from making an objective decision as the environment was tense to the extent of physical violence at the venue.

6. The deponent deposed that a few days later he received threats that he would be beaten up and killed if he complained about the interview and the constitution of the panel. He reported the same to Shauri Moyo Police Station under OB No.108/7/2/2020.

7. It was deposed that despite the inconsistency in the said selection the panel still forwarded the names to the 1st Respondent for submission before the National Assembly for approval. The deponent averred that the Applicants’ counsel wrote a letter dated 15th May,2020 to the 1st Respondent raising the said issues and complaints pursuant to section 56 of National Government Constituencies Development Fund Act,2015 and upon trying to serve the same upon the 1st Respondent on 18th May, 2020 access to the said offices was denied due to the Covid 19 pandemic.

8. On 28th May,2020 learned counsel opted to serve the same by way of email but no response was forthcoming from the 1st Respondent. The names of the persons (the Interested Parties herein) selected, nominated, co-opted and appointed to the Kamkunji Constituency Committee were published in the Kenya Gazette Vol.CXXII-No.97 on 9th May 2020 vide Gazette Notice No.3737.

9. It was contended that the Interested Parties have assumed office and that the public is exposed to a risk of mismanagement and/or losing of the Constituencies Development Funds as a result of members of the Constituency Committee being unqualified and incapable of managing the fund.

10. In conclusion it was deposed that it is in the interest of justice that the application herein be allowed and the prayers sought be granted.

11. The 1st Respondent herein filed a Replying Affidavit sworn by Simon Ndweka, the Corporation Secretary of the 1st Respondent. The Affidavit is dated 27th November, 2020. In the Affidavit, Mr. Ndweka deposed that the Applicants have failed to disclose to this Honourable Court that the reliefs sought herein are the same as those that were sought in Judicial Review Miscellaneous Cause No.62 of 2020 which also involved the parties herein.

12. It was argued that the issues raised herein date back to February 2020 which was more than 7 months from the time the application was filed and therefore the orders sought are time barred. The Applicants were also said to be challenging the decision and not the process of making the decision and as such the application is misplaced as this Honourable Court does not have the said jurisdiction.

13. Mr. Ndeka deponed that Section 56 of the National Government Constituencies Development Fund Act provides for a dispute resolution mechanism and that the Applicants were well aware of this provision. It was averred that this Court therefore lacks jurisdiction to entertain the said application.

14. The deponent argued that the selection panel is not constituted by the 1st Respondent but third parties who have not been joined in this case and as such prayer 3 in the Application is misplaced. It was deponed that the Constituency nominated a lady and gentleman to represent it contrary to the Applicants’ allegations that the panel only consisted of males. It was also averred that all members of the panel sat during sessions including the Fund Account Manager. The allegations that there was intimidation were also challenged.

15. Mr. Ndweka argued that the issue on whether the panel failed to comply with the requirements of Chapter 6 of the Constitution does not fall within the purview of Judicial Review. Further that the selected candidates submitted Police Clearance Certificates and Self Declaration Forms from EACC.

16. In conclusion it was averred that the Gazette notice published on 29th May, 2020 was pursuant to the requirements of the law and that Applicants have not demonstrated any procedural irregularity.

17. The 2nd Respondent also filed a Replying Affidavit dated 15th October,2020. The Affidavit is sworn by Ferah G. Keinan, the Fund Manager of the National Government Constituency Development Fund Kamkunji (NG-CDF Kamkunji).

18. Mr. Keinan averred that he was the secretary to the selection panel committee for Kamkunji Constituency, the 2nd Respondent herein. He deposed that the application should be dismissed or struck out as the applicants have failed to follow the laid down procedure for the resolution of disputes.

19. He averred that the allegations that the selection panel was not properly constituted are false and that during the process the panel considered all facts and acted in accordance with the provisions of the Constitution both during the interview stage and in the selection. It was deponed that the application is not based on facts requiring the courts intervention and that there is no evidence the funds will be at any risk. The deponent argued that the applicants are unhappy of their non-selection hence the case before this court.

20. The Application was canvassed by way of written submissions. The Applicants filed written submissions dated 27th November, 2020. In the submissions 3 issues are identified for determination.

21. On the first issue that is whether the decision of the 2nd Respondent should be quashed and set aside learned counsel cited the case of Chief Consable of North Wales vs. Evans [1982]3 ALL ER141where Lord Brightman stated as follows;

“Judicial review is not concerned with the decision, but with the decision making process, unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.

Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

22. Counsel urged the Court to find that the procedure was flawed with illegalities and to issue an order quashing and setting aside the decision of the 2nd Respondent.

23. On whether the selection, nomination, co-option, gazettment and appointment of members of National Government Constituencies Development Fund Committee for Kamkunji Constituency should be quashed, it was submitted that the process was null and void and to buttress this argument counsel cited the case of Pastoli vs. Kabale District Local Government Council & Others [20008]2 EA 300. Counsel submitted that any decision that arose from the interviews held on 3rd February,2020 ought to be quashed and set aside.

24. In conclusion counsel submitted that costs follow the event and therefore the court should award costs to the Applicants. Further, that the court should find that the Applicants application has merit and grant the prayers sought.

25. The 1st Respondent also filed written submissions dated 2nd July,2021, in which 3 issues were identified for determination. On the first issue learned counsel submitted that the Application herein is an appeal to this Court to set aside the proceedings of the selection panel in an effort to create a second opportunity for them to join the Committee.

26. To support this argument counsel cited the cases of Municipal Council of Mombasa v. Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007 [2002] eKLR,David Kenya Adie v. District Commissioner, Kisumu District & Another [2012] eKLR, Republic v. Chairperson Business Premises Rent Tribunal & Another ex Parte Keiyo Housing Cooperative Society Ltd & Another [2014] eKLR.

27. On whether the impugned process was conducted as per the law, it was submitted that the 1st Respondent merely acts as the agent of the National Assembly and other bodies in the appointment and notification of the same in the gazette. Learned counsel submitted that the assertions by the Applicants require evidence to approve and that the Applicants are under a duty to prove the same. To support this argument counsel cited the case of M’Bita Nitro v Mbae Mwirichia & Another [2018] eKLR.It was submitted that the Applicants have not controverted the position evidenced by the minutes and resolutions attached to the 1st Respondent’s Replying Affidavit, further that the allegations of intimidation should be disregarded as rumours with no relevance to the judicial review process.

28. Learned counsel urged that the Panel complied with Regulations 6(1) of the NG-CDF and as such there is no illegality as alleged. It was argued that the grounds upon which the Application is premised do not fall within the purview of judicial review. In addition, that the process complied with all legal requirements and that it has also been shown that it is not the duty of the 1st Respondent to constitute the Panel. The orders of Certiorari and Mandamus can therefore not issue.

29. Counsel sought for the instant case to be dismissed with costs to the 1st Respondent.

30. The 2nd Respondent also filed written submissions dated 23rd November, 2020. In the submissions learned counsel submitted that the NGCDF Act,2015 vests the resolution of disputes similar to the one before this court on the 1st Respondent. It was also urged that the suit is time barred and therefore incompetent and should fail. To support this argument, counsel cited the case of James Marienga Obonyo & 2 Others v Fund Manager Suna West National Government Constituency Development Fund Committee & Another [2019] eKLR.

31. Similar to the submissions of the 1st Respondent, counsel submitted that the Applicants have not provided any evidence to back their allegations. Counsel submitted that the suit is maliciously before this Court and that it should be dismissed with costs.

DETERMINATION

32. I have considered the pleadings filed in court and arguments made by parties and find that there are 3 issues for determination as follows;

(i) Whether the suit before this Court is time barred?

(ii) Whether the Applicant’s herein have exhausted the dispute resolution mechanisms provided under the law?

(iii) Whether the Applicants are entitled to the orders sought?

33. This Court (Nyamweya J as she then was) in its Ruling dated 14th April,2021 dealt with the issue of whether the matter before this court is time barred. In the Ruling Nyamweya J (as she then was) stated as follows;

“27. It is however not in dispute that the ex parte Applicants’ cause of action is the process of selection and appointment of the members of the National Government Constituencies Development Fund Committee for Kamkunji Constituency………….

29. It is evident from the above provisions that the process of appointment of members of the Committee is complete after their gazettement. In the present case, the appointment of the members of the National Government Constituencies Development Fund Committee for Kamkunji Constituency was published in the Kenya Gazette on 29th May,2020, and the ex parte Applicants commenced the judicial review proceedings herein on 15th September,2020. The ex parte Applicants are therefore within the 6-month’s limitation period for seeking orders of certiorari provided for in section 9 of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. It is notable in this regard that one of the orders of certiorari sought is to quash the Gazette Notice dated 29th May,2020. ”

34. On the issue of whether the Applicants herein have exhausted the dispute resolution mechanisms provided for under the law. The Court had this to say;

“33. The ex parte Applicants have in this respect contended and brought evidence of their compliance with section 56 of the National Government Constituencies Development Act,2015, which is not disputed by the Respondents. They annexed copies of a complaint dated 15th May,2020 they made to the 1st Respondent and email forwarding the said complaint dated 28th May,2020 in compliance with the said section. Section 56 provides as follows;

(1) All complaints and disputes by persons arising due to the administration of this Act shall be forwarded to the Board in the first instance.

(2) Complaints of a criminal nature shall be forwarded by the Board to the relevant government agencies with prosecutorial powers.

(3) Disputes of a civil nature shall be referred to the Board in the first instance and where necessary an arbitration panel whose costs shall be borne by the parties to the dispute, shall be appointed by consensus of the parties to consider and determine the matter before the same is referred to court.

(4) Notwithstanding subsection (3), parties shall be at liberty to jointly appoint an arbitrator of their choice in the event of a dispute but where parties fail to jointly agree on an arbitrator, any of the parties may apply to the Cabinet Secretary to reconsider the Board's decision and determine the matter.

(5) Subject to this Act, no person in the management of the Fund shall be held personally liable for any lawful action taken in his official capacity or for any disputes against the Fund.

34. It is notable that there are no time limits within which the said Board which is the 1st Respondent herein, is required to act on a complaint in the said provisions, which presents a challenge in determining whether the alternative remedy is still available to the ex parte Applicants, and adequate to address their grievance. In this respect, it was held by the African Commission of People and Human Rights in the case of Dawda K. Jawara vs. Gambia ACmHPR 147/95-149/96 as follows;

“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] …the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light…. a remedy is considered available only if the applicant can make use of it in the circumstance of his case.”

35. This Court is in respect also guided by the general principle of law that when there are no time limits prescribed, an administrative authority and public body is required to act within a reasonable period of time. In the present case the ex parte Applicant’s complaint was brought to the attention of the 1st Respondent in May 2020, and the 1st Respondent did not bring any evidence of having acted on the same by the date of filing of the instant judicial review proceedings in September 2020. This delay of four months is in my view unreasonable, given that the term of office of the members is two years under section 43(8) of the National Government Constituencies Development Act,2015. The delay also essentially makes the alternative remedy not only unavailable but also ineffective to the ex parte Applicants in the circumstances.”

35. This leaves only one issue for determination and that is whether the Applicants are entitled to the Orders sought. I will begin by setting out the scope of Judicial Review as has been elucidated in various decisions of the courts.

36. In the case of Council of Civil Service Unions Vs Minister for the Civil Service (1985) A.C. 374,410which 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.”

37. The Applicants in this case contend that during the interview the selection panel consisted of 3 members and not 4 as is required by Regulation 5 paragraph 4 of the National Government Constituencies Development Fund Regulations, 2016 and that the fund manager, who is the officer of the Board seconded to the Constituency and the secretary of the selection panel, did not sit in the panel that conducted the interviews on 3rd February,2020. In addition, it was also contended that all members of the panel were male contrary to Regulation 5 paragraph 4(c). The panel was also accused of failing to comply with the provisions of Chapter Six of the Constitution of Kenya,2010.

38. In response, the Respondent stated that the Constituency nominated a gentleman and lady to represent it and that the Fund Manager was also present during sessions. To back this argument, the Respondent produced a letter dated 7th January,2020 from the Kamkunji Constituency Office nominating Cleveland Odhiambo Otieno and Zeynab Siyal Bardad to sit in the selection panel as representatives of the Constituency. Further, I have noted that the Respondent also produced Minutes of every meeting held beginning with 7th January,31st January and 3rd February,2020. In every of this meetings all 4 members were present.

39. Contrary to the allegations of the Applicants the Minutes of 3rd February,2020 demonstrate that during the interviews there were 4 members namely Tobias O. Okoth(chairman), Farah Gabone Keinan(secretary), Cleveland Odhiambo Otieno(member) and Zeynab Siyal Bardad(member) and that one of the members was also female as the Kamkunji Constituency Office had been requested to nominate two persons to sit in the selection panel. A letter dated 7th January,2020 is also produced to that effect.

40. To counter the Applicants allegations that the Respondents did not request for Certificates of Good Conduct or Clearance Certificates from the EACC, copies of the said documents belonging to the successful candidates are attached to the 2nd Respondent’s Replying Affidavit dated 15th October,2020.

41. It is trite that he who alleges must prove and the burden of proof lay on the applicants to demonstrate by way of evidence that indeed the Respondents acted illegally, irrationally or with procedural impropriety. What has been produced before this Court is a Gazette Notice dated 29th May,2020 on the Appointment of Members of National Government Constituency Development Fund Committees in various constituencies, a letter from Chesikwa & Kiprop Co Advocates addressed to the National Government Constituencies Development Fund Board dated 15th May,2020 challenging the conduct of the interviews and an email dated 28th May,2020 forwarding the said letter.

42. There is no evidence brought before this Court to show that the selection panel acted irrationally, illegally or that it did not follow the set procedure as is provided by law. The Applicants have also not challenged the annexures produced before this Court as evidence by the Respondents.

43. The respondents have laid evidence before court, and which evidence is not controverted, that the process complied with the law and the set procedure in the appointment of the successful candidates.

44. From the foregoing, the applicants have fallen short of proving their case to the required degree. The claim fails with the result that the application dated 30th September, 2020 is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT THIS 3RD DAY OF FEBRUARY 2022

________________

A. K. NDUNG'U

JUDGE