[2017] KEHC 9683 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAPENGURIA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL APPLICATION NO. 4 OF 2017

IN THE MATTER OF: ARTICLE 10, 22, 23, 38, 47, 50, 81 AND 118 OF THE CONSTITUTION OF KENYA , 2010

AND

IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLE 1, 2, 10, 19, 33, 35, 37, 37, 47, 50, 73, 174, 175 AND 196 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013.

AND

IN THE MATTER OF THE COUNTY GOVERNMENT ACT

AND

IN THE MATTER OF WEST POKOT VILLAGE UNITS DELINEATION ACT, 2017

BETWEEN

SAMWEL LOPUO.......................................................1ST PETITIONER

ELIJAH KASEUSEU...................................................2ND PETITIONER

JOSEPH PTOO KAMASHARIPU.............................3RD PETITIONER

ALLAN RENG'ETEE....................................................4TH PETITIONER

LOITANYANG ARIONGORENG..................................5TH PETITIONER

GEORGE KAPROM.....................................................6TH PETITIONER

RAEL KIRAA................................................................7TH PETITIONER

JOYLINE CHEPTOO LIMANGURA...........................8TH PETITIONER

AND

WEST POKOT COUNTY GOVERNMENT....................RESPONDENT

RULING

The Petitioners herein filed this Notice of Motion against the County Government of West Pokot seeking the following orders pending hearing and determination of the petition:-

i. A conservatory order staying the operation and implementation of the West Pokot County Village Units Delineation Act, 2017.

ii. A temporary injunction suspending the operation and implementation of the West Pokot County Village Units Delineation Act, 2017

iii. An injunction temporarily restraining the Respondent by themselves, their officials, or any person, servant and or agent, acting under or at its behest, from implementing all or any part and or provisions of the West Pokot County Village Units Delineation Act, 2017.

iv. Costs of the Application.

This court granted conservatory orders to the petitioner on 29. 5.2017 pending interparte hearing and determination of the Notice of Motion dated 24. 5.2017. the orders stayed the operation and implementation of the West Pokot County Village Units Delineation Act, 2017; suspended the operation of the West Pokot County Village Units Delineation Act, 2017 and injuncted temporarily the Respondent (County Government of West Pokot) by themselves, their officials, or any person, servant and or agent, acting under or at its behest, from implementing all or any part and or provisions of the West Pokot County Village Units Delineation Act, 2017.

The genesis of the Application is that the Respondent advertised the position of Village administrators on its website and in the Daily Nation newspaper dated 12th May 2017. The advertisement called for application of Village administrators positions under the West Pokot Village Units Delineation Act, 2017, which as per the applicants was enacted without the due process that is in particular, Public participation contrary to article 196 of the constitution of Kenya 2010 and part VIII of the County Governments Act No. 17 of 2012. The Applicants in their Application detailed that the proposed West Pokot County Village Delineation Bill, 2016 was introduced to the West Pokot County Assembly sometime in December 2016 for its first reading by the County Executive Committee member responsible for Administration & Public Service Management. At the first reading the West Pokot County Assembly on Administration of Justice and Legal Affairs was directed to organize public participation and to collect the views of the Public before the second reading of the said bill.

The Applicants have annexed to their application a report dated 12th April 2017 compiled by the committee on Administration of Justice and Legal affairs to show that indeed no public participation was organized and that the Public was not presented with an opportunity to present their views on the bill. On 6th April 2017 the bill was presented for the 2nd and 3rd reading before the West Pokot County Assembly. The bill was thereafter assented to by the Governor of West Pokot County on 13th April 2017 and subsequently published in The Kenya gazette Special issue as West Pokot County Village Units Delineation Act no. 2 of 2017. Section 3 of the said Act provides for Delineation and Establishment of the Village units in West Pokot County which is in accordance with Article 176 (2) of The Constitution of Kenya. Section 4 of the Act and its schedule establishes 103 village units. The respondent then advertised the 103 positions for village Administrators. This then prompted the Petitioners to file the suit and the instant application.

The Respondents oppose the application in that the same has been made in bad faith, is an abuse of due process and pray that the same be dismissed with costs. The Respondents aver that due process was strictly adhered to as per The Constitution of The Republic of Kenya. In their replying affidavit they outline the events as follows:- The bill was introduced to the County Assembly committee on 20th December 2016 for the first reading during which the west Pokot County Assembly Committee on Administration of Justice and Legal Affairs was directed to organize public participation in order to collect views of the Public before the second reading. The Respondent avers that the CEC in charge of the Public Service management in collaboration with the County Government of West Pokot organized a two day Public Participation exercise comprising of all the wards in West Pokot County. A public participation meeting was carried out in Pokot South Sub-County at Chepareria and another one concurrently at Pokot Central Sub-County at Sigor on the 15th day of March 2017. On 16th March 2017 Public participation meetings were also carried out in West Pokot Sub-County and Pokot North Sub-County concurrently. The bill was then taken through its second and third reading on 6th April 2017 and passed by the county assembly with minimal amendments. The Bill was thereafter assented into law on 13th April 2017 by the Governor and subsequently published in the Kenya Gazette Special Issue Delineation Act no. 2 of 2017 and became operational on 2nd May 2017. It is thereafter on 12th May 2017 that the county government of West Pokot advertised for the positions of 103 village administrators. According to the respondents the petitioners only came to court after the advertisement for the positions of the village administrators and clearly they demonstrate ill motive and that they came to court with unclean hands.

The issue that is clearly in contention is whether or not there was public participation incorporated before the Bill became assented into an Act.

Article 196 of The Constitutionprovides that

1) A county assembly shall;

a) Conduct its business in an open manner and shall hold its sittings and those of its committees in public; and

b) Facilitate public participation and involvement in the legislative and other business of the assembly and its committees.

Part VIII of The County Governments Act 2012 contains the principles of Citizen participation more so under Section 91 which contains Establishment of modalities and platform for Citizen participation.

Section 91of the County Governments Act 2012states that The County Government shall facilitate the establishment of structures for citizen participation including-

a) information communication technology based platforms,

b) town hall meetings

c) budget preparation and validation fora

d) notice boards; announcing jobs, announcements, procurement, awards and other important announcements of public interest.

e) development project sites

g) establishment of citizen for at county and decentralized units.

The respondent has annexed several copies of minutes to show that there was Public participation in line with the Bill that was assented into, The West Pokot County Village Units Delineation Act. Annexture IM2 is a copy of minutes of a meeting carried out on 16th March 2017 at West Pokot Sub-County. A look at the minutes does show that the participants were informed of the Bill before the county assembly and that it was going through the 2nd and 3rd reading. The participants were then asked to group themselves as per wards and to come up with five names of the village units per ward. Basically the minutes show that the meeting was for purposes of naming the village units and not Public participation on views concerning the contents of the Bill that was before the County Assembly. Other than that the respondents have not established any form of Public participation undertaken. There was no invitation of the public for the same.

In Robert N. Gakuru & Others v Governor Kiambu County & 3 others [2014] eKLRthe issue of what entails Public participation is address at length. The Honourable Judge opines that:-

“...a careful perusal of the said advert reveals that apart from the mention of the Finance Bill in the title of the advert and the mention of the Bill in passing, there was not much mention of the said Bill. In other words there was no attempt to exhort the public to participate in the process of the enactment of the Bill. In my view there was no “facilitation”. That the Finance Bill was an important Bill cannot be doubted. Its effect on the people of Kiambu in terms of ordering their way of life was bound to be far reaching. It was therefore crucial that the information going out to the public be clear and ought not to have admitted any ambiguity. The other document relied upon were list of certain persons. However, the said lists only referred to County Integrated Development Plan and not the Finance Bill. There is no evidence at all that at the said meetings the participants were invited to comment on the said Bill let alone that the contents of the same were availed to them.”

Similarly in this case there ought to have been clarity on how the information on Public participation reached the Public and further to that the views of the members of the Public should have been exhorted in a clear manner.

In Diani Business Welfare Association and others v County Government of Kwale [2015] eKLRthe court addressed the same issue and stated that:-

The modalities set out in section 91 of County Governments Act for citizen participation include town hall meetings, budget preparation and validation fora, notice boards, project development sites. A meeting in a 5 Star Hotel would not be open to all and sundry, a notice by “tweeting” [would not be inclusive as the “tweet” goes to an individua] (Robert N. Gakuru & Others vs. Governor, County Government of Kiambu). A paid advertisement in any of the popular (by circulation and readership), and by radio listened to by citizens of the County is adequate information to the citizens.

It’s therefore clear that the respondents have not illustrated vividly how they reached out to the citizens of West Pokot County in order to have them give their inputs on the West Pokot Village Units Delineation Bill before it was taken back for the 2nd and 3rd reading and for assenting. They have also not shown that the invitation was clear and that the meetings held and minutes taken were for purposes of public participation in analysis of the entire Bill before it proceeded to be approved and assented into an Act. The applicants have therefore established a prima facie case with probability of success. The application is granted; temporal orders grated on 29. 5.2017 are hereby confirmed pending hearing and determination of the petition.

Mrs Opondo holding brief for Mr. Magal for the petitioner.

Ruling is read and delivered in her presence in the open court this 7th day of December 2017.

S. M. GITHINJI

JUDGDE

7. 12. 2017