[2021] KEHC 6089 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.11 OF 2020

BETWEEN

THOMSON KERONGO..............................................................................1ST PETITIONER

RIGENA HUMAN RIGHTS WATCHDOG ORGANISATION.............2ND PETITIONER

AND

HON. STEPHEN KALONZO MUSYOKA.............................................1ST RESPONDENT

HON. RAILA AMOLO ODINGA...........................................................2ND RESPONDENT

SAFARICOM (K) LTD............................................................................3RD RESPONDENT

RULING

1. The 3rd respondent moved this court vide an application dated 14th September 2020 seeking orders that;

a. The Petition dated 20th August, 2020 be struck out in its entirety with costs to the 3rd respondent;

b. The Petition dated 20th August, 2020 be dismissed with costs to the 3rd Respondent;

c. In the alternative, the Petition dated 20th August, 2020 be struck out as against the 3rd respondent with costs;

d. That the costs of the Petition and this application be borne by the Petitioners.

2. The application was made pursuant to Articles 35 (1) (b), 73and79of theConstitution; Section 4 (1) (b) of the Access to Information Act, 2016; Section 3, 4, 42and43 of the Leadership and Integrity Act, 2012; Rule (8)and19of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

3. The grounds in support of the application were that;

a. The petition is premature, misconceived, frivolous, bad in law and an abuse of the court process;

b. The Petitioners have failed to plead with reasonable precision their grievance against the 3rd respondent, the Articles of Constitution of Kenya that they allege have been infringed by the 3rd Respondent and the manner in which the said Articles of the Constitution of Kenya have been infringed by the 3rd respondent;

c. This Honorable Court lacks the original jurisdiction to adjudicate on the issues in the Petition in view of the express provisions [of] the Access to Information, Act, 2016;

d. There is a clear and effective procedure for the redress of the Petitioners’ alleged grievances prescribed by the Access to Information Act, 2016;

e. The Petitioners have failed, refused and/or neglected to follow the procedure prescribed under the Access to Information Act, 2016 to address their alleged grievances in complete disregard of the binding Court of Appeal decision in Speaker of the National Assembly vs. James Njenga Karume [1992] eKLR;

f. The petition does not disclose justiciable constitutional issues against the 3rd respondent at all.

g. As pleaded at Paragraph 5 of the Petition, the 3rd respondent is a limited liability company and is therefore not amendable to the provisions of the Leadership and Integrity Act, 2012.

4. The Petitioners indicated in their submissions that they had filed a replying affidavit in response to the application but none was found on record. See the 1st and 2nd petitioners’ submissions filed on the 29th April 2021.

5. The Petition which is the subject of this ruling is dated 20th August 2020. It was filed on even date and was accompanied by a Notice of Motion seeking interlocutory orders. The petition identified the 1st petitioner as the Chairman of the 2nd petitioner which is a Non- Governmental Organization. The Petitioners claimed that on or about 23rd September 2015, the 1st and 2nd respondents who were then Coalition for Reforms and Democracy (CORD) leaders launched a kitty to enable the public contribute money to cater for teachers’ salaries after their employer, the Teachers Service Commission (TSC), failed to pay teachers while they were on strike. The petitioners claimed that they were among the victims who were duped into contributing to the fund through M-pesa Pay Bill account number 672672 where the 1st and 2nd respondents ordered and directed the public to send money knowing well that they were conning the public.

6. The petitioners claimed that when they launched the kitty, at Uhuru Park within Nairobi City County, the 1st and 2nd respondents lied to the public that they had each made a personal contribution of Kshs. 100,000/=. This convinced and encouraged members of the public to subscribe towards the alleged teachers’ kitty with full confidence that Kenyan teachers would be paid the salary in order for them to go back to teach. According to the petitioners, the 1st and 2nd respondents acted in contravention of Article 237 (2) of the Constitution which sets out the functions of the TSC. They accused the 1st and 2nd respondents of receiving the public contribution knowing that they had no mandate to pay teachers as that was the mandate of the TSC. They also failed to pay the teachers or remit the public contributions for its intended purpose.

7. The petitioners further averred that the 3rd respondent, being the largest telecommunications provider in the country, failed to protect her clients more particularly Kenyan citizens from offensive financial integrity as envisaged under Section12 of the Leadership and Integrity Act, 2012. They claimed that respondents were out to enrich themselves contrary to section 12 of the Leadership and Integrity Act, 2012. They also claimed that the 1st and 2nd respondents had contravened Article 10 (2) (c) of the Constitution which provides for good governance, integrity, transparency and accountability. The respondents were also accused of going against the guiding principles of leadership and integrity as provided under Chapter 6.

8. The petitioners enumerated particulars of fraud against the respondents and set out the following particulars of violations and infringements;

a. Subjecting the petitioners and the innocent citizens to discrimination for due execution of statutory mandate.

b. Violating the provisions of Article 237 of the new Constitution of Kenya 2010.

c. Violating the provisions of Article 10 (2) (c) of the Constitution of Kenya 2010.

d. Violating the petitioners and the Kenyan citizens their fundamental and constitutional rights.

e. Resorting to and applying the Rule of the Jungle when we have a fully operational constitution.

f. Attempting to suspend, vary and/or put in abeyance the due process of the law.

g. Usurping themselves the mandate and/or statutory responsibility of the Teachers Service Commission.

9. The petitioners claimed that they had been exposed to unfair and inhuman treatment at the hands of the 1st and 2nd respondents with the 3rd respondent’s connivance. They also claimed that they and the public at large had been deprived of their lawful and legitimate expectation and had been treated in a manner that violated their fundamental rights. They therefore sought the following orders;

a. An order directing the 3rd Respondent to disclose the total amount of money subscribed and contributed to M-pesa account pay-bill number 672672 by the public including the petitioners, if already withdrawn by the 1st and 2nd Respondents an order of the court be issued to compelled (sic) both of them to return and deposit all the funds raised to the kitty of Covid 19 (Coronavirus) to buy beds and ventilators to counties to curb the pandemic disease.

b. Exemplary costs of the petition be borne by the Respondents jointly and/or severally.

c. The Honourable court be pleased to issue any such orders and /or writs as the court may deem fit and/or expedient.

10. The petition was supported by an affidavit sworn by the 1st petitioner confirming that he had authority to sign and testify on behalf of the 2nd petitioner and that the averments made in the petition were true to the best of his knowledge.

11. The 1st respondent did not enter appearance or file a response to the petition. For his part, the 2nd respondent filed grounds of opposition dated 21st October 2020 in response to the petition. The 3rd respondent’s Senior Legal Counsel – Litigation Daniel Mwenja Ndaba swore affidavits in response to the Petition and the Notice of Motion. The 3rd respondent also filed the application dated 14th September 2020, which will be determined in this ruling.

12. The application was canvassed by way of written submissions.

SUBMISSIONS

13. The 3rd respondent’s counsel raised two main issues in support of the case for striking out of the petition. The first was that the petition did not meet the threshold for a constitutional petition as set out in Anarita Karimi Njeru v R (No. 1) (1979 KLR 154andMumo Matemu vs Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012.

14. Counsel submitted that the petitioners claimed that the respondents had violated Articles 10 (2) (c), 237 (2) and Chapter Six of the Constitution as well as Section 12 of the Leadership and Integrity Act but their petition and the supporting affidavit barely revealed any particulars on the manner in which the 3rd respondent had infringed upon those provisions. Counsel also pointed out that the 3rd respondent was a Public Limited Company and hence not amendable to Chapter 6 of the Constitution and the Leadership and Integrity Act.

15. Secondly, the 3rd respondent’s counsel argued that there were alternative statutory procedures for dealing with the dispute. He submitted that the prayers sought in the petition were for access to information relating to M-pesa Pay Bill number 672672. Counsel observed that while the petitioners had sought access to information, they had not premised their petition under Article 35 of the Constitution. They had also failed to demonstrate how they required the information to exercise their fundamental freedoms and rights.

16. It was the 3rd respondent’s submissions that the Access to Information Act, 2016 provided an elaborate statutory mechanism for access to information. Counsel submitted that in Speaker of the National Assembly vs Karume Civil Application No. 92 of 1992, the Court of Appeal held that where there was a clear procedure for the redress of any particular grievance prescribed by the Constitution or Act of Parliament, that procedure had to be followed strictly. In this case, the petitioners had not followed the statutory mechanisms under the Access to Information Act. Consequently, their Petition was premature.

17. The case of Papinder Kaur Atwal v Manjit Singh Amrit Nairobi Petition No. 236 of 2011 was cited in support of the argument that not every pain could be addressed by the alleged violation of the Bill of Rights. Counsel also referred to the case of Tom Kusienya & 11 others vs Kenya Railways Corporation & 2 Others [2013] eKLRwhere the court quoted the finding in the case of Minister of Home Affairs vs Bickle & Others [1985] LRC that courts would not normally consider a constitutional question unless the existence of a remedy depended on it. According to him, the prayer for disclosure of information relating to M-pesa Pay Bill number 672672 was a remedy available under the Access to Information Act, 2016. He also submitted that the determination of the alleged conspiracy by the 3rd respondent with the 1st and 2nd respondents did not fall within the purview of this court.

18. In his submissions, counsel for the 2nd respondent urged the court to allow the application for the reasons that first, the petitioners had not demonstrated how their constitutional rights had been violated; second, the petition was speculative and presumptive and third, the grounds set out in the petition did not raise any constitutional issues for the enforcement of fundamental rights.

19. Counsel made reference to the case of Mumo Matemo v Trusted Society of Human Rights Alliance [2014] eKLR, and submitted that the petition and supporting affidavit did not show the breach of known constitutional provisions. Counsel submitted that the claim was not about the usurpation of the role of the Salaries and Remunerations Commission but a civil action seeking reimbursement of monies raised and held. He agreed with the 3rd respondent that an array of reliefs was available to the Petitioner including the statutory mechanisms set out in the Access to Information Act.

20. The cases of Benard Murage v Fine Serve Africa Limited & 3 Others [2015] eKLRandTom Kusienya & 11 others vs Kenya Railways Corporation & 2 Otheres [2013] eKLR were cited in support of the submissions that not every violation of the law had to be raised before the court as a constitutional issue. Where there existed an alternative remedy, such a remedy should be pursued first. Counsel urged the court to allow the application dated 14th September 2020 and strike out the petition against all respondents with costs.

21. In rejoinder, counsel for the petitioners started off by attacking the application on the grounds that it was not supported by an affidavit as required by law. He then asserted that this court was clothed with jurisdiction to entertain the constitutional issues raised by the petitioners vide Article 165 (3) (b) of the Constitution. Counsel submitted that the petitioners had a right to seek information from the 3rd respondent on the amounts contributed via M-pesa Pay Bill Number 672672 pursuant to Article 35 (1) (b) of the Constitution. He thus urged the court to dismiss the contention that the court lacked jurisdiction.

22. On whether the petition met the threshold of a constitutional petition, counsel argued that the petitioners should be given an opportunity to have their dispute proceed to its logical conclusion instead of hijacking the petition on the way. He relied on the case of DT Dobie & Company (K) Limited v Joseph Mbaria Muchia & Another [1980] eKLR and the case Yaya Towers Limited vs Trade Bank Limited (In liquidation) Civil Appeal No. 35 of 2000 in support of this position. He also cited the case of Nation Media Group Limited vs Attorney General (2007) 1EA 261 where the court held that a constitutional court should be liberal in the manner in which it went about dispensing justice and should look at the substance rather than technicalities.

23. Counsel further submitted that the information sought by the petitioners from the 3rd respondent was not limited by Article 24 of the Constitution as the information being sought did not infringe on the rights and fundamental rights of any other person. He thus urged the court to dismiss the application.

ANALYSIS AND DETERMINATION

24. The issues arising for determination from the application and the parties’ depositions are;

a. Whether the application is defective by virtue of lack of a supporting affidavit;

b. Whether the petition meets the threshold for a constitutional petition; and

c. Whether the petitioners have exhausted the mechanisms for resolution of the dispute.

25. The petitioners have urged this court to dismiss the Notice of Motion dated 14th September 2020 for the reason that it was not supported by an affidavit. However, formal applications made under Rule 19 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 need not be accompanied by a supporting affidavit. The Rule states,

19. A formal application under these rules shall be by Notice of Motion set out in Form D in the schedule and may be supported by an affidavit. [Emphasis added]

26. Having answered the first issue in the negative, I now turn to the substance of the 3rd respondent’s application. The respondent contends that the petition herein does not meets the threshold for a constitutional petition. It is trite that a person seeking to claim an infringement of the constitution is required to set out his case with precision. The Court of Appeal in the seminal case of Anarita Karimi Njeru v Republic Miscellaneous Criminal Application No 4 Of 1979 [1979] eKLR held;

“We would, however, again stress 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.

27. The principle in Anarita Karimi Njeru (supra) was reaffirmed in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the Court of Appeal held as follows;

“(42) However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3Bof the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”

28. The reason for insisting on precise drafting in constitutional petitions as well as other pleadings, is to ensure that each party is notified of the issues arising so that he may have an opportunity to prepare an appropriate response. The court is also bound by the issues raised by the parties in their pleadings. (See Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLRandGandy v Caspar Air Charters Ltd [1956] 23 EACA, 139)

29. The petitioners outlined the facts upon which their claim of contravention of the Constitution was based. They also claimed that the respondents had violated Article 237 (2) which lists the functions of the Teachers Service Commission; Article 10 (2) of the Constitution which sets out the national values and principles of governance; Chapter 6 of the Constitution on Leadership and Integrity and Section 12 of the Leadership and Integrity Act, which provides for financial integrity by State officers. They then went ahead to seek the reliefs set out above as against the respondents.

30. Having analyzed the petition holistically, I find that there was no coherence between the reliefs sought by the Petitioners and the constitutional provisions alleged to have been violated by the Respondents. While the petitioners sought orders to compel the 3rd respondent to disclose the total amount of money subscribed and contributed to M-pesa Pay Bill number 672672, they did not indicate whether and the manner in which their right to access that information had been infringed by the respondents. The petitioners brought up their right to seek information under 35 (1) (b) in their written submissions but did not refer to the Article in their Petition. It is also difficult to discern from the petition how the 3rd respondent violated the constitutional provisions said to be infringed.

31. The petitioners’ prayer for an order to compel the 1st and 2nd respondent “to return and deposit all the funds raised, to the kitty of Covid 19 (Coronavirus) to buy beds and ventilators to counties to curb the pandemic disease” is also not backed by any constitutional provision in the petition.

32. Even assuming that the petition met the threshold for a constitutional petition, which it is not, I find that the petitioners did not exhaust all the mechanisms provided in the law for resolving the dispute.

33. The first aspect of the reliefs sought is for disclosure by the 3rd respondent of the total amounts raised through the M-pesa Pay Bill number 672672 launched by the 1st and 2nd respondents on 23rd September 2015. The right of every citizen to access information from the State or another person and required for the exercise or protection of any right or fundamental freedom is provided under Article 35 of the Constitution. This constitutional right is operationalized by The Access to Information Act, 2016.

34. Section 8 of The Access to Information Act provides the manner in which an application to access information is to be made. An applicant dissatisfied by the decision of a public entity or private body in relation to a request for access to information may apply for review of the decision to the Commission on Administrative Justice under Section 10 of the Act. Section 23 (3) of the Act provides for appeals to the High Court against decisions made by the Commission on Administrative Justice.

35. In the matter Speaker of the National Assembly v James Njenga Karume CIVIL APPLICATION NO NAI 92 OF 1992 (NAI 40/92 UR) [1992] eKLRthe Court of Appeal held;

“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

36. The Court of Appeal in the case of Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others [2015] eKLRdefined this doctrine as follows;

“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

37. The petitioners were required by law to follow the mechanisms under The Access to Information Act and invoke this court’s appellate jurisdiction once they had exhausted the statutory process. There is no indication that the petitioners followed the procedure outlined in Act prior to filing the petition.

38. Secondly, the petitioners sought to compel the 1st and 2nd respondents to return the funds they had fraudulently collected in the salary kitty and reallocate the money to the fight against the Covid-19 pandemic. The petition dwelt on the fact that the 1st and 2nd respondents had used their positions of power to collect money from the public which they did not use for the intended purpose of pay striking teachers. They claimed that the respondents acted in contravention of Chapter 6 and Section 12 of the Leadership and Integrity Act.

39. Chapter 6 and the Leadership and Integrity Act establish the Ethics and Anti-Corruption Commission which is empowered to ensure compliance with and enforcement of Chapter 6 of the Constitution. The functions of the Ethics and Anti-Corruption Commission are also provided under Article 252 of the Constitution and Section 11 of the Ethics and Anti-Corruption Commission Act. Among the functions of the Commission is to investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption or violation of codes of ethics or other matter prescribed under the Ethics and Anti-Corruption Commission Act or any other law enacted pursuant to Chapter Six of the Constitution.

40. With the above in mind, I find that the multi- faceted issues raised by the petitioners against the respondents were not constitutional in nature. The petitioners did not indicate that the statutory processes were less convenient in the circumstances. While I agree with the petitioners that courts should not strike out petitions on technicalities, I am also mindful of the court’s duty not to aid in the bending or circumventing of rules. The High Court’s power to exercise its jurisdiction under Article 165 of the Constitution is also limited or restricted where there are procedures provided in a statute to resolve certain grievances. (See Ndiara Enterprises Ltd v Nairobi City County Government [2018] eKLR)

41. It is clear that the issues raised in the petition and the remedies sought by the petitioners were best dealt with in other fora. I agree with the finding of the court in Bernard Murage vs Fine Serve Africa Ltd&3 Others [2015] eKLRthat ‘Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.’

42. The inevitable conclusion to be drawn from the above is that the application dated 14th September 2020 is merited. The petition dated 20th August 2020 is hereby struck with costs to the 2nd and 3rd respondent.

DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF JUNE 2021.

R.E OUGO

JUDGE

In the presence of:

Petitioners Absent

1st Respondent Absent

Mr. Makori For the 2nd Respondent

3rd Respondent Absent

Ms Rael Court Assistant