[2016] KEHC 3965 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

PETITION NO. 3 AS CONSOLIDATED 2 OF 2015.

TERESA NAKHUNGU BARASA ……………..……...……..1ST PETITIONER

MOSES WANJALA LUKOYE ………………..………….. 2ND PETITIONER

PHILIP WANYONYI WEKESA …………...…...…………. 3RD PETITIONER

AND

1. COUNTY ASSEMBLY OF BUNGOMA .....................…1ST RESPONDENT

2. THE SELECT COMMITTEE OF THE ASSEMBLY OF THE

COUNTY OF BUNGOMA….............................................. 2ND RESPONDENT

3. CLERK TO THE ASSEMBLY OF BUNGOMA…......3RD RESPONDENT

AND

1. HIS EXCELLENCY THE

GOVERNOR OF BUNGOMA ……...….…........… 1ST INTERESTED PARTY

2. KELLAN KHAOMA WAVOMBA….......…..…. 2ND INTERESTED PARTY

JUDGEMENT

Background

1. By a Petition dated the 13th of April 2015 Teresa Nakhungu Barasa moved the court citing contravention of rights and fundamental rights under Articles 10 (2), 20(1) (2), (3) & (4), 22 (1) (2), (3), & (4), 27 (1) (2) & (3), 28 and 50 (1) and (2) of the Constitution. She sought for the following;-

a). An order of certiorari do issue to bring forth into this court for purposes of being quashed the decision of the 1st, 2nd and 3rd Respondents each of them from proceeding to hear and determine or continue to hear, investigate, receive evidence, inquire or make a report to the County Assembly of Bungoma in respect of the petitioner Teresa Nakhungu Barasa pursuant to a letter dated 8th April, 2015, summons and documents by or from the County Assembly of Bungoma.

b). A declaration to issue that select committee of Bungoma County Assembly as constituted pursuant to standing order No. 154 (1) and the resolution of the County Assembly dated 1st April, 2015 is null and void.

c). A declaration to issue that the proceedings contemplated by the select committee of Bungoma County Assembly are tainted by bias, partiality and unfairness in its process and content as regards the intention to conduct inquiry and investigation touching on the petitioner and a decision made subsequent to such a process would be null and void.

d). A permanent injunction against the county assembly of Bungoma from purporting to do any other inquiry or investigations against the petitioner concerning her academic credential.

2. Those named as respondents are

i. The County Assembly of Bungoma as the 1st Respondent.

ii. The Select Committee of the assembly of the County of Bungoma as the 2nd Respondent.

iii. Clerk of the Assembly of Bungoma as the 3rd Respondent.

iv. His Excellency the Governor of Bungoma County as the interested party.

v. Kellan Khaoma Wavomba was enjoined as the 2nd Interested Party.

3. In the Petition the petitioner stated that having gone through due process, in the month of April, 2013 she was appointed by the Governor of the County of Bungoma (Governor) to serve as County Executive in the committee for Tourism, Environment, Natural Resources and Forestry. That prior to her nomination members of the public were invited to raise any objection and none was brought forward, that she went through vetting process where she produced requisite documents including her academic credentials which were scrutinized and sanctioned by the County Assembly (Assembly).

4. She took issue with the assembly for sanctioning a petition that had been lodged by a member of public questioning her eligibility to holding a public office over lack of academic credential, which information she had provided to the assembly through the vetting committee and the same had been approved by the assembly before her appointment. She contended further that the assembly’s select committee has no moral duty to subject her to any public inquiry or investigate her as to do so will be improper, unfit and unconstitutional.

5. Together with the petitioner was filed a notice of motion seeking for restraining orders the same was not heard as similar orders had been issued in a similar matter before the Chief Magistrate’s Court beind suit No. 189 0f 2015

6. It is instructive to note that this petition was consolidated with Constitutional Petition No. 2 of 2015 which was filed by Moses Wanjala Lukoye and Philip Wanyonyi Wekesa against the Clerk of Bungoma County Assembly, County Assembly of Bungoma and Teresa Nakhungu Barasa, the same was brought Pursuant to Articles 1 – 3, 10, 19. 22, 24, 25 (c ), 27, 28 & 29 (d), 37, 47 (1) & (2), 50 (4) 232 (1), (a) (b) (e) & f, and 185, sections 8 (1) (a), 30 (2) & 5 of the County Government Act. The said petitioners sought for orders as follows

i. An order restraining either by themselves or their agents from conduction public hearings with respect to Ms. Teresa Nakhungu Barasa.

ii. A finding that the County Assembly is a mere rubberstamp of the Executive and therefore the public cannot gain any good from them with regard to the said inquiry.

iii. Any other relief.

7. The 2nd & 3rd Petitioners were in agreement with the 1st in that her appointment had gone through an elaborate process. They argued that the Assembly had been rendered functus officio in this regard and if the 2nd Interested Party had an issue with the 1st Petitioner’s appointment her recourse was in an appeal. They stated further that taking the 1st respondent through yet another vetting process would be double jeopardy. It was also their case that the process had been taken over by events as the 1st petitioner no longer held the office subject matter of the inquiry.

8. The two petitions were by consent of the parties consolidated under Petition Number 3 on the 4th of May, 2015. The court also directed that Kellen Khaoma Wavomba be served with the proceedings as she had been mentioned as the mover of the public inquiry. The court was also informed of the withdrawal of CMCC No. 189 of 2015 and the restraining orders sought for in the Notice of Motion referred to above were by consent of the parties granted pending hearing and determination of this petition.

9. The 1st, 2nd and 3rd Respondents filed their reply to the petition on 4th of May, 2016 wherein they stated that the petitioner did not provide any academic certificates to the appointing committee of the assembly which was charged with vetting of nominees; that the assembly is not barred from revisiting its decision on the emergence of new evidence or change of circumstances; that in setting up a select committee to investigate an issue the assembly is not in breach of any constitutional provisions; there is no ill motive; and sufficient notices were issued to enable the petitioner and the public prepare for the hearing.

10. They stated further that Section 35 (1) (b) of the County Government Act is clear on qualifications for one to be eligible for appointment as County Executive Committee member and the petitioner had indicated that she holds a B.A degree in Economics; that the application before court is premature. They sought for dismissal of the petition. They also relied on the replying affidavit of one John K.O. Mosongo sworn on 4th May, 2015. In the said affidavit he reiterates that the petitioner submitted in her declaration form accompanying her application that she was a holder of B.A degree in Economics; that however her file did not contain any academic certificates or testimonials neither did she produce the originals at the time of her interview; that indeed documents before court indicate that the petitioner did not obtain a degree as alleged.

11. On his part the 1st interested party did not file any documents for or against and remained a spectator in the matter.

12. The 2nd interested party Kellen Khaoma Wavomba filed her response and a replying affidavit sworn on the 21st May, 2015. She described herself as a civil and human rights activist. She stated that the case before court is mischievous and meant to protect the 1st petitioner. That in the year 2015 she visited the assembly and at looking at the 1st petitioners file it was clear that the 1st Petitioner did not present original copies of her credentials although in her declaration form she had indicated that she has a degree in B.A degree in Economics. The 2nd interested party further stated that she personally visited the university of Nairobi, met the academic registrar and on checking on the list of graduants for March and September 2015, the 1st petitioner’s name was missing and armed with that information she petitioned the assembly. She was of the view that the 1st petitioner needed to clear her name as she is paid from tax payers’ money.

13. In response to the Respondents and 2nd interested party the 1st petitioner filed a supplementary affidavit reiterating that she supplied all necessary documents before her appointment.

Submissions.

14. The matter was disposed of by way of submission. All the parties filed written submissions safe for the 1st interested party.

15. The 1st petitioners submitted that this court has the mandate to step in where there is a breach or threat in a fundamental right. It is her case that when she appeared for vetting before the committee of the assembly she presented her academic credentials and testimonials and though members of public were given time to object, no objection to her appointment was raised leading to her formal appointment as a County Executive member in charge of Tourism, Environment , Natural Resources and Forestry. That in a reshuffle by the 1st interested Party in March, 2015, she was moved from her previous office and appointed a secretary of Investment and Regulatory Services in the office of the Governor. That before her initial appointment the 1st petitioner went through a competitive process and by allowing the process of inquiry and investigation by the public as required by the Assembly will itself subject the 1st petitioner to double standards and deprive her of her constitutional right. It was further urged that Section 35 (3) (b) does not make it mandatory for one being appointed as a member of the County Executive Committee to be a holder of a degree. Further that if there was need the proper forum to investigate the declaration forms is the Ethics and Anti-Corruption Commission.

16. In their submissions the 2nd and 3rd petitioners agreed with the 1st that she had undergone an elaborate process before her appointment. They argued further that the Assembly was thus rendered functus officioand the process the Respondents had initiated will amount to double jeopardy and the only recourse is an appeal.

The two argued further that the events have been taken over by the action of the Governor who announced a reshuffle where the petitioner was moved to head the County Agency for Investments and Regulatory Services.

17. On their part the 1st , 2nd & 3rd Respondents contend that the courts should not unless in extreme situations interfere with the proceedings and decisions of the County Assembly. That, it is only when an organ of State acts in excess of its powers, that the High court can issue appropriate orders.

18. Further that, for the court to interfere, the applicant ought to demonstrate that the action or inaction by the organ attacks the very fabric of the Constitution which if left unchecked would destroy the foundation of Law , sovereignty and Nationhood.

19. They submitted further that the 1st respondent was in the process of investigating allegations lodged by the 2nd interested party against the 1st petitioner; that sufficient notices had been issued and the public invited to submit memoranda; the petitioners have not shown any wrong doing on the part of the respondents and therefore the court lacks jurisdiction to entertain the petition.

20. It was also argued that the 2nd interested party’s petition is properly before the assembly and the process should proceed to its conclusion and as a citizen she has immense powers to check those exercising public authority.

21. They also stated that in the vetting process for the position of County Executive member for Tourist, Forestry, Environment and Natural Resources, the 1st petitioner claimed to be a holder of a Bachelors of Arts degree in Economics from the University of Nairobi but she failed to supply her academic credentials and the report of the vetting committee on appointments had rejected her appointment for the said reason. However the assembly endorsed the entire report; that the 2nd interested party’s petitioned to the assembly claimed that the petitioner was hired based on a false declaration and the same ought to be interrogated and investigated to establish the truth.

22. In her submissions the 2nd interested party stated that she was prompted to act by the report of the County of Bungoma appointment Committee which indicated that during her vetting the 1st petitioner did not avail her original certificates. That even in the affidavits of the 1st Petitioner no certificates have been availed. That Article 185 empowers the County Government to have an oversight role over county executives. The Petition was brought in good faith. Having appeared before the select committee it was expected that the 1st petitioner would do the same to clear her name.

Issues for determination

23. The court having considered the pleadings, submissions and authorities cited by the parties is of the considered view that the issues for determination are:

1. Whether this court has jurisdiction to entertain the petition before it.

2. Whether in receiving the 1st interested party’s petition, deliberating on the same and appointing a select committee to receive evidence; inquire and report to the assembly the respondents acted in contravention of Articles 27 (1) (2) and 50 (1) & (2) of the Constitution.

3. Whether the appointment of the select committee pursuant to standing order 154 (1) and the resolutions of the Assembly of 1. 4.2015 are null and void.

4. Whether Sections 31 and 40 of the County Government Act were declared unconstitutional and therefore cannot be relied upon?

5. Whether or not to issue a permanent injunction against the County Assembly of Bungoma County from making an inquiry or investigating the allegations leveled against the petitioner in relation to her academic qualifications

6. Who meets the costs of the suit

Analysis & Determination

24. Does this court have jurisdiction to entertain this petition?

This issue must be determined from the onset as jurisdiction is the basis upon which a matter before a court of law must be grounded upon. The parties extensively submitted on this point.

This subject has been discussed in various cases and the same is no longer moot.

In Owners ofMotor Vessel “ Lillian S” vs. Caltex Oil Kenya Limited [1989] I KLR the Court of Appeal had this to see on jurisdiction,

“Jurisdiction is everything without it, a court has no power to make one step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”

25. The petitioner has challenged the actions of the 1st, 2nd & 3rd Respondents in receiving, interrogating the 2nd interested parties petition and appointing of a select committee to investigate the allegations, she alleges that there has been and there will be a violation of her fundamental rights. She further wants this court to interrogate whether Sections 31 and 40 are unconstitutional. This in my considered opinion squarely places this matter under the jurisdiction of this court.

In petition No. 3 and 4 John Mining Temoi & AnotherVs. The Govenor of Bungoma Countythe court held that;-

“However, for the avoidance of doubt, this court reiterates that no person, State officer or organ is above the Constitution or the law. All organs created by the Constitution are subordinate to it. Further, Article 10 (1) binds all state organs, state officers; public officers and all persons while ……..; interpreting the Constitution or the law or public policy. Therefore when any of these organs; including the County Executive; County Assembly and speakers of either parliament or County assemblies act in breach of the constitution or outside their areas of operation; this court will not hesitate to intervene and reverse this actions. The Constitution is supreme and its dictates are to be jealously protected by this court. That is what Article 165 of the Constitution decrees.”

26. Article 165 of the Constitution empowers the High Court to hear any question in respect to the interpretation of the Constitution including the determination of

“i.The question whether any law is inconsistent with or in contravention of this constitution.

ii. The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with or in contravention of this Constitution;

iii. Any matter relating to constitutional powers of state organs in respect of County Governments and any matter relating to the Constitutional relationship between the levels of Government and

iv. A question relating to conflict of laws Article 191;

v. ……………………

27. Have the 1st, 2nd & 3rd Respondents acted in violation of the Constitution by receiving the petition of the 2nd interested party; considering the same and passing a resolution to have the 1st petitioner subjected to a public inquiry before a select committee?

It is common ground that the petitioner herein applied for the position of member of County Executive Committee for Tourism Environment, Natural Resources and Forestry. It is also common knowledge that on the 4th of June 2013, alongside other nominees she received a nod from the County Assembly leading to her appointment as search by the 1st interested party.

28. This petition was triggered by the action taken of the 2nd respondent following a petition lodged before it by the 2nd interested. The 2nd interested party lodged her petition pursuant to Article 37 and 88 of the County Government Act. The petition stated

“We the undersigned, and on behalf of I Kellan Mavomba a voter and resident of Kanduyi……….. in excercise of my constitutional rights and acting on public interest draw the attention of the County Assembly of Bungoma (clerk) and the county Government (the County Secretary); to the following

1. That Teresa Nakhungu Barasa, County Executive Committee Member (ECM) did not qualify for nomination and appointment as a County Executive Member for Bungoma County. The appointment contravened provisions of the laws of Kenya.

2. That Teresa Nakhungu Barasa does not have a degree from the University of Nairobi; therefore did not meet the educational requirements for nomination and appointment as County Executive Committee member.

3. That Teresa Nakhungu Barasa does not meet threshold of leadership and integrity as she had in her declaration in the Ethics and Anti-Corruption Commission.

The 2nd interested party therefore prayed …

1. Removal of TeresaNakhungu Barasa as the County Executive Committee Member.

2. Find and declare the saidTeresa Nakhungu Barasa unsuitable to hold public office and be surcharged.”

29. Article 37 of the constitution grants the right to every person to peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

Section 15 of the County Government Act gives a right to any person to petition a county assembly to consider any matter within its authority, including enacting, amending or repealing any of its regulation.

Section 88 of the Act empowers citizens to petition the County government in any matter under the responsibility of the County Government.

30. Based on the above the 2nd interested Party was within the Law to bring to the attention of the Assembly the 2nd Respondent the issue concerning the 1st Petitioner’s academic qualifications.

31. The question arising is whether the 2nd respondent took the correct steps in addressing the issue.

32. The 1st Petitioner is a serving Executive Committee Member and the process of removal of a member is covered by Section 31 & 40 of the County Government Act No. 17 of 2012. The sections give two methods by which a serving County Executive committee member may be removed from office. Firstly the Governor on his own motion may do so under section 31 of the said Act. Secondly the County assembly could initiate the process under section 40 which provides

“40. Removal of member of an Executive Committee

(1). Subject to Subsection (2), the Governor may remove a member of the County Executive Committee from office on any of the following grounds;

a). Incompetence

b). Abuse of office

c). Gross misconduct

d). Failure, without reasonable excuse, or written authority of the Governor, to attend three consecutive meetings of the County Executive Committee.

e). Physical or mental incapacity rendering the Executive Committee Member incapable of performing the duties of the office; or

f). Gross violation of the Constitution or any other law.

(2). A member of the County Assembly, supported by at least one third of all the members of the County Assembly, may propose a motion requiring the Governor to dismiss a County Executive Member or any of the grounds set out in Sub-section (1).

(3). If a motion under subsection (2) is supported by at least one third the members of the County Assembly-

(a). The County Assembly shall appoint a select committee comprising five of its members to investigate the matter; and

(b). The select committee shall, report, within ten days, to the County Assembly whether it finds the allegations against the County Executive committee member to be substantiated.

(4). The County Executive Committee Member has the right to appear and be represented before the Select Committee during its investigations.

(5). If the select committee reports that it finds the allegations

(a). Unsubstantiated, no further proceedings shall be taken; in

(b). Substantiated, the County Assembly shall vote whether to approve the resolution requiring the county Executive Committee Member to be dismissed.

(6) If a resolution under subsection (5) (b) is supported by a majority of the members of the county assembly –

(a). The speaker of the County Assembly shall promptly deliver the resolution to the Governor; and

(b). The Governor shall dismiss the County Executive committee member.”

33. From the above quoted sections of the Law there was needed to have been a motion on the floor of the assembly moved by a member of the Assembly and supported by 1/3 of its members.

34. In the affidavit of the 3rd Respondent and specifically paragraph 14 to 19 he deposes to the process that took place upon the 1st Interested Party lodging her petition; the 3rdt respondent received the petition on the 23rd of March, 2015, he forwarded the same to the speaker who tabled the same in the 1st Respondent on the 1st of April, 2015 and subsequently the 3rd Respondent was constituted, the 3rd Respondent called for public participation by advertising in the newspaper, the chairman of the 2nd Respondent wrote to the 1st Petitioner to appear before it to assist in its inquiry and investigations.

35. The 1st Respondent flouted the law from the onset. The law requires that for purposes of discussing the conduct and subsequent removal of an Executive Committee Member there has to be moved in the County Assembly and supported by one third of its members.

36. Sections 40 (1) to (6) speaks of investigations and inquiry not participation of the public and in a public hearing as was perceived and conceived by the Respondents. There was no explanation why a public inquiry was necessary. Indeed the respondents could carry investigations as the 3rd Respondent eventually did as stated in paragraph 24, 25 and 26 of his affidavit without involving the public.

37. Were the actions of the Respondents calculated to humiliate and embarrass the 1st petitioner?

38. The appointment of the select Committee per se was not wrong or in violation of the law however the process leading to the appointment of the select committee was inconsistent with the law and to the extent that the select committee was to make an public inquiry following a petition was not in compliance with Section 40 (2) of the Count Governments Act and to that extent the same was null and void.

39. Have Sections 31 & 40 of the County Government Act been declared unconstitutional?

Parties made reference to High Court decision that found the said sections 31 & 40 unconstitutional however the Court of Appeal in various decisions found that the sections were enacted in compliance with Article 200 of the Constitution and the same would have to be employed within the meaning of that Article

40. The Court of Appeal sitting in Nyeri in Civil Appeal No. 2 The County Government of Nyeri & Another versus Cecilia Wangechi Ndungu had this to say on this very issue

“In determining how a member of a County Executive Committee can be removed from office we have to take into consideration the relevant Constitutional and statutory provisions. The County Government Act was enacted pursuant to Article 200 of the Constitution to give effect to Chapter 11 of the Constitution which provides for a devolved government in particular Article200(c) placed an obligation on Parliament to enact legislation which would provide;

……….the manner of election or appointment of persons to, and their removal from office in the county governments…..”

The court further stated;

“….. section 31 (a) of the County Government Act does not require the Governor to hold a disciplinary hearing in respect of the said member before dismissal, he can only dismiss if he considers it appropriate or necessary. Appropriate or necessary is not arbitrariness or whimsical. Appropriateness or necessity imports the requirement that there must be reasons that make the dismissal necessary or appropriate.”

41. The Sections 31 clearly was not declared unconstitutional. The Court of Appeal cautioned that there must be necessary and appropriate reason for any dismissal. The same may be said of Section 40 of the County Government Act. The process must be fair and impartial and strictly in accordance with the law, where reasonableness , fairness and impartiality will be applied.

42. Should the court issue a permanent injunction against the County Assembly from making an inquiry or investigating the allegations against the 1st Petitioner or to do anything concerning her academic credential.

It is not disputed that at the time of petitioning the court the 1st Petitioner was still an employee of the 2nd Respondent albeit in another position; Secretary of Investment and Regulatory services in the office of a Governor; still a high office within the County Government of Bungoma. In his replying affidavit and more specifically in his paragraphs 24 – 26 the 3rd respondent as stead elsewhere in this judgment deposed to the fact that in his investigations he wrote to the University of Nairobi who in their response dated April the 13th, 2015 indicated that the 1st petitioner enrolled as a student in the faculty of Arts in the said university and has not finalized her studies and therefore did not graduate in 2005 as claimed.

43. This issue that triggered this petition remains unresolved. This coupled with the implications of having given false information.

44. This court cannot therefore aid the 1st petitioner by issuing a permanent injunction as prayed. The 1st Petitioner is a public servant and Public service under the current Constitution carries certain obligations and for that reason this prayer cannot in the light of the matters raised succeed.

45. For avoidance of doubt and for clarity, the petition succeeds partly to the extent that

(a). The court do issue an order of certiorari to bring forth and quash the decision of the 1st, 2nd & 3rd respondents to hear, investigate, receive and inquire and make a report to the County Assembly pursuant to the letter dated 8th April, 2015.

(b). A declaration do issue to the effect that the Select Committee of the Bungoma County Council formed pursuant to the resolution of the County Assembly dated 1st April 2015, is null and void.

(c ). The prayer for a declaration that Section 31 & 40 of the County Government Act is unconstitutional be and is hereby dismissed.

(d). The court declines to issue a permanent injunction against the 1st and 3rd Respondents in their bid to investigate and make an inquiry into the academic qualifications of the 1st Petitioner.

(e). Each party to meet his own costs.

DatedAndDeliveredatBungoma this 1st day of August 2016.

ALI-ARONI

JUDGE.