[2023] KEHC 23850 (KLR)

Road Safety Association of Kenya Suing Through David Kiarie, Chairman v Njao; Board of Directors National Transport Safety Authority (Interested Party) (Constitutional Petition E021 of 2023) [2023] KEHC 23850 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23850 (KLR)

Republic of Kenya

In the High Court at Kiambu

Constitutional Petition E021 of 2023

PM Mulwa, J

October 19, 2023

IN THE MATTER OF VIOLATION OF THE LEADERSHIP AND INTEGRITY ACT UNDER ARTICLES 73, AND 75 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF VIOLATION OF THE VALUES AND PRINCIPLES OF PUBLIC SERVICE UNDER ARTICLES 232 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE VIOLATION OF NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE UNDER ARTICLE 10 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE PUBLIC OFFICER ETHICS ACY NO. 4 OF 2003 IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT NO 19 OF 2012

Between

Road Safety Association of Kenya Suing Through David Kiarie, Chairman

Petitioner

and

George Njao

Respondent

and

Board of Directors National Transport Safety Authority

Interested Party

Judgment

Introduction 1. This Petition and Notice of Motion filed herein concerns the leadership of the Respondent. It is argued that during the Respondent’s tenure in office, he ignored, disregarded and assumed the Mwongozo code of governance and failed to attend any mandatory governance training.

2. The Petitioner is a Road Safety Association of Kenya duly registered under the Societies Act. the Petition is brought on its behalf and on behalf of its members and members of the Public.

3. The Respondent is a state officer by virtue of his engagement at the National Transport and Safety Authority as the Director General.

4. The Interested Party is the Board of Directors of the National Transport Safety Authority.

5. The Petitioner in his Petition filed on 9th May 2023 avers the Respondent was appointed into office in the year 2019 for a term of 3 years. That during his tenure he performed poorly and disregarded, ignored and assumed the Mwongozo code of governance, which saw his suspension by the Interested Party, but has falsely re-assumed office. His conduct and actions were illegal and contrary to the intended benefit of the Kenyan public and in violation of Articles 73 and 75 of the Constitution of Kenya on leadership and integrity.

6. The petitioner sought the following reliefs:i.A declaration that the Respondent’s conduct of re-appointing himself without reinstatement by the Board and pending investigations is unconstitutional and is contrary to Articles 10(2), 73, 75, and 232 of the Constitution of Kenya 2010. ii.An order prohibiting the Respondent from assuming his term as Director General, National Transport Safety Authority until that period when the Board will reinstate and/or clear him.iii.Costs of the suit.iv.Any other order(s) as this honourable court shall deem just.

7. The Petitioner/Applicant filed a further affidavit sworn on 12th June 2023, by David Kiarie, who averred that the Respondent and the Interested Party have failed to file minutes and/or resolutions by the Board to reinstate the Respondent, the acting Director General’s appointment has not been revoked, the suspension of the Respondent was to pave way for investigations which have not been conducted and recalling the Respondent back into office in 10 days after the compulsory leave was illegal and contrary to the intended benefit of the Kenyan public.

8. The Motion was opposed by the joint Replying Affidavit of the Respondent and Interested Party sworn by George Njao, wherein he averred that the documents annexed to the application and the supporting affidavit were illegally obtained and the same ought to be expunged from the record, and that the orders sought had already been overtaken by events. Further that the petitioner had failed to demonstrate how the Respondent and Interested Party had violated the alleged articles of the constitution.

9. The petition was canvassed by way of written submission which both parties respectively filed.

Petitioner’s submissions 10. Counsel argued that no information has been provided on the investigations, procedures and findings conducted against the Respondent. It was the Petitioner’s legitimate expectation for the Interested Party to answer if the said investigations were conducted. The matter is of public interest and the parties seek justice from this court as the Interested Party had failed to address the cries of the public.

Respondent’s and Interested Party’s submissions 11. Learned counsel, Ms. Sirai submitted that the letter dated 24th April 2023, and the resolutions attached to the petition ought to be expunged from the record as the same was illegally obtained on account that they are internal and privileged official information not open for consumption by the public at the time of filing the petition. The Petitioner is not an employee of the Interested Party and it illegally obtained the letter. Counsel urged the court not to rely on improperly obtained documents and placed reliance on the case of Susan Wariara Kariuki vs Diakonie Katastrophen Hilfe (2016) eKLR where the court held: “This country now has a constitution that enables parties access documents necessary for their case through legal means and there is, therefore, no need to resort to street methods to do so.” And as held by Lenaola, J. in Okiya Omtatah Okoiti & 2 others vs Attorney General & 3 others (2014) Eklr: - “…a court of law will not rely on documents that are improperly obtained.”

12. Counsel submitted that the relief sought in the petition had already been overtaken by events as the Respondent had already assumed office by a letter dated 4th May 2023. That the Interested Party notified the then Acting Director accordingly after recalling the Respondent from his annual leave.

13. Counsel further argued that the Petitioner had failed to demonstrate the fundamental rights and freedoms violated by the Respondent and the Interested Party, citing the case of Anarita Karimi Njeru vs The Republic (1976-1980) KLR 1272 where it was stated that the Petitioner needed to demonstrate to the court precisely the violations with reasonable precision.

14. It was stated that the petitioner had in its further affidavit introduced new issues not in the Motion and urged the court to disregard the same. The court was urged to dismiss the petition as it lacked merit.

Analysis and determination 15. I have considered the petition, the responses thereto and the submissions by parties. The issues for determination are:i.Whether the petitioner has disclosed any violation or threatened violation of his constitutional rights in a precise manner.ii.Whether the petition is spent having been overtaken by events.

16. In respect of the first issue - the petition states that the provisions allegedly violated as Articles 10, 73, and 75 of the Constitution. According to the Petitioner alleged the Respondent breached and/or violated the constitutional provisions on good governance, integrity, transparency and accountability when he resumed office despite pending investigations and ignored the suspension by the Board which is mandated by the Act.

17. In the Anarita Karimi Case (supra) it was stated “that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

18. The above decision provides for clarity in constitutional litigation. The High Court, being a constitutional court, has a duty to protect the rights of every individual as ordained in Article 165 of the Constitution and as such the court should not be quick to dismiss a petition on the ground that it has not been drafted with precision. Consequently, I am of the view that the Petitioner has demonstrated the provisions of the Constitution infringed by the Respondent and the Interested Party which allegations have been clearly understood and responded to by the Respondent and Interested Party.

19. On whether the petition is spent for having been overtaken by events, Article 10(1) of the Constitution provides that:The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them–(a)applies or interprets this Constitution;(b)enacts, applies or interprets any law; or(c)makes or implements public policy decisions.

20. Further Article 10(2) sets out the examples of the said national values and principles of governance as:a.…b.…(c)good governance, integrity, transparency and accountability; and(d)...

21. The Interested Party in carrying out its constitutional and legislative mandate is bound, inter alia by the principles of democracy, the rule of law, good governance, integrity, transparency and accountability. These are the principles the Petitioner argued have been violated in accordance with Article 10 of the Constitution. The Petitioner contended that no information had been offered to the public on the investigations and findings against the Respondent and sought an order barring the Respondent from re-appointing himself into office.

22. I have perused the entire pleadings as well as the submissions herein. I agree with the Respondent and the Interested Party that the entire petition has been overtaken by events since, as it stands now, the Respondent has since resumed office. It is worthy to note that the Respondent did not appoint himself into office but was recalled vide the letter dated 4th May 2023 which stated that he was to resume duties with immediate effect.

23. No doubt, the orders being sought herein will be rendered in vain as the court will be engaging in an academic exercise. In National Gender and Equality Commission vs Independent Electoral and Boundaries Commission, Petition 209 of 2017; (2018) eKLR Mativo J. held thus:“A matter is moot if further legal proceedings with regard to it can have no effect or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness also arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual, practical impact”.

24. In the circumstances therefore, and without dwelling on other issues raised by the parties, it is my finding that the petition herein has been overtaken by events.

25. Consequently, the petition dated 8th May 2023 lacks merit and is dismissed. This being a public interest litigation, each party is to bear their own costs.Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 19TH DAY OF OCTOBER 2023. ...........................P. MULWAJUDGEIn the presence of:Duale – Court assistantMr. Ochola - for the PetitionerMs. Sirai - for the Respondent and Interested Party