[2015] KEHC 2537 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CONSTITUTIONAL PETITION NO. 6 OF 2015

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

ARTICLE 1, ARTICLE 2(1), 2 AND 5, ARTICLE 3(1), AND (2), ARTICLE 4(2), ARTICLE 10, 19, ARTICLE 20, ARTICLE 21, ARTICLE 22(1) AND 2(B), AND (C), ARTICLE 23(1), ARTICLE 165(3), (d) (i) (iv), ARTICLE 174, ARTICLE 201, AND ARTICLE 224

AND

IN THE MATTER OF SECTION 87 (a) AND (b) OF THE COUNTY GOVERNMENT ACT

AND

IN THE MATTER OF SECTION 102(1) OF THE PUBLIC FINANCE MANAGEMENT ACT

AND

IN THE MATTER OF SECTION 3 DO1 OF THE SUPPLEMENTARY BUDGET ACT OF KIRINYAGA COUNTY GOVERNMENT

BETWEEN

RICHARD KARIUKI KIBUCHWA……….......…………….1ST PETITIONER

GICHIRA KAMUTI………….…………………………....2ND PETITIONER

-VERSUS-

THE GOVERNOR, KIRINYAGA COUNTY…….....….1ST RESPONDENT

COUNTY ASSEMBLY OF KIRINYAGA………..……2ND RESPONDENT

THE CONTROLLER OF BUDGET…………………3RD RESPONDENT

RULING

This ruling relates to a preliminary objection raised by the 2nd Respondent in respect to the Petitioner’s Notice of Motion dated 8th June, 2015 which substantively sought conservatory orders from this Court to restrain the 1st and 3rd Respondents from appropriating, releasing, allocating, applying, using public finance allocated for the construction of the County Administration Assembly Block pending the hearing and determination of the petition.

The Preliminary Objection alleged that the said application is incompetent and fatally defective since the act being impugned ceased being in existence as of 30th day of June, 2015. The 2nd Respondent in his written submissions has alluded that the Act sought to be impugned ceased operation on 30th June, 2015. The 2nd Respondent further submitted that the County Government Supplementary Budget Finance Act was enacted in accordance with Appropriations Act which allows County assemblies to pass legislations to cover emergencies such as disaster relief and other urgent needs deemed too urgent to be postponed until enactment of the year’s regular Appropriations Act and that such acts are time bound. It was further submitted that supplementary appropriation is only applicable within one financial year which ended on 30th June, 2015.

The 2nd Respondent further contended that Kirinyaga County Supplementary Appropriations Act 2015 which is the subject of the petition and the application was operational only upto the end of the previous financial year 30th June, 2015 and consequently the petition and the application is time barred and only serves as an academic exercise as the substratum or the basis of the petition no longer exist according to them.

The Petitioners opposed the preliminary objection vide their written submissions through their learned counsel. The Petitioners have maintained that the constitutional issues raised in their petition and the application as pointed out in the petition and framed by the 2nd Respondent in their submissions are valid. They have pointed out the first question in the petition which is whether the 1st and 2nd Respondents’ action of enacting the County Supplementary Budget Act 2015 without involving the Petitioners violated the cited provisions of the Constitution and Section 102 of the Public Finance Management Act and secondly whether the 1st and 2nd Respondent are duty bound to conduct concurrent public participation pursuant to Article 10, 196(2) (b) and 201(a) of the Constitution. The petitioners have opined that whereas the above questions emanate from the manner in which Kirinyaga County Supplementary Appropriations Act 2015 was passed, the determination by this Court on the above questions will have relevant implication on the legislative process generally.

The Petitioners have also submitted that whereas Kirinyaga County Supplementary Appropriation Act may have ceased to exist on 30th June, 2015 the impugned allocation of public funds has been rolled over to the Kirinyaga County Development Expenditure budget 2015-2016 and the question of prudent use of public finances remains valid as public funds must be used prudently as provided for in Article 216 of the Constitution and Section 102 of the Public Finance Management Act. The Petitioners have therefore submitted that in view of allocations in the development budget 2015-2016 the importance and merit of their petition has become more critical and important for determination by this Court.

I have considered the Preliminary Objection, the submissions made in support and the response made by the Petitioners. It is clear from the petition that the Petitioners are claiming that the Respondents neglected to facilitate public participation in formatting the Kirinyaga County Supplementary Appropriations Act, 2015. Public participation in any legislative process is now a constitutional requirement and is a critical factor in legitimizing any legislation passed whether by County assembly or National Assembly. In the case of POVERTY ALLEVIATION NETWORK & OTHERS –VS- PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA & 19 OTHERS CCT 86/08 [2010] ZACC 5the Court made the following relevant observations;

“…………engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even make demands. In any democratic state participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.”

The 2nd Respondent has contended that the petition has been filed belatedly because the subject matter in the petition ceased on 30th June, 2015. However, the Petitioners are asking this Court to interrogate the process and make a finding or determination as to whether it met constitutional demands. Our Constitution borrowed heavily from the South Africa Constitution and on the basis of that I find the observations made in South African case of MINISTER OF HEALTH & ANOTHER –VS- NEW CLICKS SOUTH AFRICA (PTY) LTD & OTHERS 2006 (2) SA 311 CCrelevant. A 3 judge bench held as follows:

“The forms of facilitating an appropriate degree of participation in the law making process are indeed capable of infinite variations. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues to have an adequate say ………in the circumstances of this particular case, we are of the view that it is not too late in the day for the state to involve the public, including the petitioners in the negotiations leading to the agreement……….we find that the fact that the state did not directly involve the petitioners cannot be said to invalidate the whole process, which now even as we speak is understandably in its final stages. We also cannot find the state to have been in breach of provisions which were not in existence at the infancy stage of the negotiations. The only relief that commends itself is to direct the respondents to put in place mechanisms to facilitate participation of the stakeholders in the ensuing process.”

The court went further to order that information concerning negotiations

be published in at least two dailies to create public awareness and to stimulate public debate.

In our present case what is impugned is not just the Act but the process leading upto the legislation of the Act which is claimed excluded public participation. The issue is serious and requires more interrogation rather than being struck out at a preliminary state. I agree with the Petitioners that the petition deals with the use or utility of public finances which is a continuous process and the decision made here will likely influence how future appropriation of funds by Kirinyaga County and elsewhere is undertaken. The determination in my view will be anything but academic and to ask this Court to dismiss the issue at a preliminary stage will not be in the interest of justice.

The Petitioners have made an interesting submission that the funds allocated to the impugned expenditure have been rolled over to the development budget for 2015-2016 but have not sworn affidavits or placed any material before this Court to prove or support the allegations but that as it may this Court finds that the constitutional questions posed in the petition are valid and require interrogations and determination. The 2nd Respondent has not shed any light as to what became of the project the beneficiary of the impugned legislation. Perhaps more light will be shed at the hearing of the petition. In the end I find no merit in the Preliminary Objection dated 1st July, 2015. It is dismissed with costs.

Dated and delivered at Kerugoya this 30th day of September, 2015.

R. K. LIMO

JUDGE

30. 9.2015

Before Hon. Justice R. Limo

Court Assistant Willy Mwangi

Kimathi for Petitioners present

Odhiambo holding brief for Okach for 2nd Respondent

COURT: Ruling signed, dated and delivered in the open court in the presence of Kimathi for applicants and Odhiambo holding brief for Okach for the 2nd Respondent.

R. K. LIMO

JUDGE

30. 9.2015