[2022] KEHC 13948 (KLR)

Wangamati v Speaker, County Assembly of Bungoma & 2 others; Kundu & another (Interested Parties) (Constitutional Petition 4 of 2020) [2022] KEHC 13948 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13948 (KLR)

Republic of Kenya

In the High Court at Bungoma

Constitutional Petition 4 of 2020

SN Riechi, J

October 7, 2022

In The Matter Of Alleged Infringement Of The Provisions Of Articles 1(3), 2(1)(2) &(4), 3(1), 10, 47(1)(2), 50, 73(1)(2), 176, 179, 181(2), 183(c)(d), 201, 207, 227, 232, & 236 Of The Constitution Of Kenya 2010 And In The Matter Of Sections 15, 33 Of The County Governments Act, 2012 And Standing Orders No. 60, Public Finance Management Act No. 18 Of 2012

Between

Hon Wycliffe Wafula Wangamati

Petitioner

and

Speaker, County Assembly of Bungoma

1st Respondent

Clerk Bungoma County Assembly

2nd Respondent

Chairman & Members of the Committee on Public Administration of the County Assembly of Bungoma

3rd Respondent

and

Barasa Nyukuri Kundu

Interested Party

Moses Wanjala Lukoye

Interested Party

Judgment

1. The petitioner is the Governor Bungoma County while the 1st respondent is the head of the Bungoma County Assembly under the provisions of article 178(1) of the Constitution and section 7(1)(b) of the County Governments Act, 2012. The 2nd respondent is the head of civil service in the County Assembly of Bungoma pursuant to section 13(1), (3) and (4) of the County Governments Act, 2012. The 3rd respondent is an elected member of the County Assembly and serves the Assembly in the capacity of chairperson of the Public Administration Committee while the interested parties are residents of Bungoma County.In his petition dated July 29, 2020, the petitioner sought;a.A declaration to issue that the committee on public administration & ICT of the County Assembly of Bungoma as constituted for purposes of hearing a public petition for the removal of the Governor of Bungoma County is inconsistent with article 181(2) of Constitution 2010, section 33 of the County Governments Act, violates and is inconsistent with the imperative of article 47(1) and 50(2) of the Constitution and its actions, decision, outcomes, reports and recommendations are null and void ab initio.b.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 and each of them, that directed the hearing of a public petition in proceedings to hear or determine or continue to hear, investigate, receive evidence or make a report to the County Assembly of Bungoma or delivering a resolution to the assembly or anywhere else for the removal from office of Wycliffe Wangamati as the Governor of Bungoma County.c.A declaration to issue that the proceedings contemplated by the County Assembly of Bungoma committee on the public administration and ICT of Bungoma County Assembly are tainted by bias, partiality and unfairness in its process and content as regards the intention to conduct investigations against Governor Wycliffe Wafula Wangamati and any decision made subsequent to such process is null and void.d.An order of prohibition barring the County Assembly of Bungoma from purporting to pass resolutions for the removal of Governor Wycliffe Wangamati as governor on the basis of the petition filed by the 2nd and 3rd interested persons or in a manner contrary to section 33 of the County Governments Act.

2. The petitioner in his supporting affidavit depones that by a public interest petition dated June 22, 2020 addressed to the clerk of the County Assembly, the interested parties invited the clerk to consider the removal of the petitioner from the office of the governor, consider the possibility of initiating an impeachment and removal process of the petitioner, abolishment of illegally created and unnecessary offices, termination and surcharge of employees employed un-procedurally and those implicated in corrupt practices be disciplined.

3. Upon receipt of the said petition, the same was placed before the principal legal counsel who advised the clerk that the petition meets the threshold set under standing order number 203 and therefore advised the same be forwarded to the House Business Committee for further action. It is averred that by letter dated July 1, 2020, the interested parties sought to withdraw the petition.

4. Pursuant to the filing of the petition, the petitioner was on July 24, 2020 served with a letter inviting him for a pre-trial conference slated for July 31, 2020 to schedule and manage the evidence sessions and set time frames for procedural matters as well as appraising witnesses and documents. The date was later rescheduled to July 27, 2020 where the petitioner’s counsel appeared and raised preliminary issues relating to the propriety of the petition to wit; whether the petition met the threshold set by article 181(2) of the Constitution, whether the petition complied with section 15 of the County Governments Act, whether the petition was not sub judice in light of other petitions pending before other committees, whether the petition violated the provisions of article 232(1) of the Constitution and finally the issue of impartiality of the committee in light of public pronouncement and social media publications by the committee’s chair.

5. Pursuant to the aforesaid conference, the committee directed the clerk to publish in national newspapers a notice of the hearing of the evidentiary sessions as if the process were an impeachment brought under section 33 of the County Governments Act despite the fact that no notice of motion or resolution supporting the motion had been given.

6. As a result of the foregoing, it is averred that the process is unconstitutional, illegal, capricious, arbitrary, pre-determined, injudicious and contaminated and actuated by malice, self-interest and improper motive on the part of a number of the members of the county assembly.The petition is opposed through the replying the affidavits of John KO Mosongo, the Clerk County Assembly of Bungoma (‘the clerk’) and Emmanuel Mukhebi Situma, the speaker (‘the speaker’).

7. The clerk in his affidavit confirms receipt of the public interest petition from the interested parties and as required of his office by the provisions of County Assemblies (Procedure) Act, 2020, he reviewed them to ensure compliance with the requirements set, he forwarded to the speaker for communication to the house. The petitions were subsequently allocated to the public administration and ICT committee.He depones that when the applicant through counsel appeared at the pre-trial conference of July 27, 2020, he did not raise the allegations of bias as consensus was reached on almost all the issues wherein a gazzete publication was put up on July 31, 2020 notifying members of the public of the hearings.

8. He further depones that there is no notice of motion in the County Assembly and the reference therefore to section 33 of the County Governments Act is a misapprehension of the applicable legal provisions.That the petition seeks to bar the committee from executing its mandate when it is operating on specified timelines and the petition is calculated to obstruct the Assembly from discharging its mandate.

9. The speaker on his part depones that being the chair of the House Business Committee, his office received 2 petitions which were duly allocated for tabling in the house on 7th and July 14, 2020. That upon receipt and the subsequent allocation to the relevant house committee having been complete, the relevant legal provisions were adhered to. He depones that under article 196 of the Constitution, the County Assembly is mandated to involve the public in the conduct of its business. That at the time of filing the petition by the interested parties, there was no motion at the assembly for the impeachment of the petitioner.He further depones that the petitioner being a constitutional office holder, he is not immune from scrutiny from the public.

10. The petition was directed to be canvassed by way of written submissions but none complied. The court will therefore rely on the materials before it filed by the parties. The court is of the view that the issue arising for determination is whether the process undertaken by the respondents and the interested parties complied with the legal underpinnings governing the process of impeachment of a County Governor. The court is alive to the fact the petitioner has already left office upon the expiry of his term and this judgement is for record.

11. The office of the governor is a constitutional office created by the provisions of article 180 of the Constitution. The grounds for the removal of the governor are governed by article 181(1) which provides;(a)gross violation of this Constitution or any other law;(b)where there are serious reasons for believing that the county governor has committed a crime under national or international law;(c)abuse of office or gross misconduct; or(d)physical or mental incapacity to perform the functions of office of county governor.Pursuant to these provisions, parliament through section 33 of the County Governments Act gave an elaborate procedure for the removal of the governor and it is provided therein that;(1)A member of the county assembly may by notice to the speaker, supported by at least a third of all the members, move a motion for the removal of the governor under article 181 of the Constitution.(2)If a motion under subsection (1) is supported by at least two-thirds of all the members of the county assembly—(a)the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days; and(b)the governor shall continue to perform the functions of the office pending the outcome of the proceedings required by this section.(3)Within seven days after receiving notice of a resolution from the speaker of the county assembly—(a)the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the governor; and(b)the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.(4)A special committee appointed under subsection (3)(b) shall—(a)investigate the matter; and(b)report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated.(5)The governor shall have the right to appear and be represented before the special committee during its investigations.(6)If the special committee reports that the particulars of any allegation against the governor—(a)have not been substantiated, further proceedings shall not be taken under this section in respect of that allegation; or(b)have been substantiated, the Senate shall, after according the governor an opportunity to be heard, vote on the impeachment charges.

12. The petitioner herein has made reference to the above provisions which is countered by the respondents through the assertion that the section is not applicable since the process of impeachment was not initiated by an elected member of the County Assembly. This is true since the process has been initiated by members of the public in what has been called public interest petition. The provisions of section 33 do not come into play at all in the circumstances.

13. The court has considered various pieces of legislation to ascertain the applicable law and the procedure stipulated therein. The respondents have alluded to Petitionto County Assemblies (Procedure) Act which the court has duly considered and finds that the same is not applicable in this matter the petition having been served on the clerk to the County Assembly on June 22, 2020 whereas the act was assented to on July 9, 2020 and commenced on July 27, 2020. Clearly, the said act had not been enacted by then.

14. The law therefore applicable at the time was section 15 of the County Governments Act, 2012 which provides;(1)A person has a right to petition a county assembly to consider any matter within its authority, including enacting, amending or repealing any of its legislation.(2)Each county assembly shall prescribe a procedure for exercising the right under subsection (1).

Sub-section (2) was amended by the Petition to County Assemblies (Procedure) Act, 2020 whereby section 7 thereof states;section 15 of the County Governments Act is amended by deleting subsection (2) and substituting therefor the following new subsection—(2)The procedure for the exercise of the right to petition a county assembly under subsection (1) shall be as set out in the Petition to County Assemblies (Procedure) Act and in the standing orders of the relevant county assembly. 15. The other piece of legislation relating to the matter before-hand is the County Assemblies’ respective standing orders wherein standing order No 203 of the Bungoma County Assembly provides for the general form of petitions. Standing Order Number 205 provides for the procedure to be adopted once a petition has been presented by a member of the public other than an elected member.The process of removal from the office of a County Governor was stated in the case of Martin Nyaga Wambora v Speaker of Senate & 6 Others (2014) eKLR, wherein the Court of Appeal stated thus;31. Our reading and interpretation of article 181 of the Constitution as read with section 33 of the County Governments Act shows that removal of a Governor is a constitutional and political process; it is a sui generis process that is quasi-judicial in nature and the rules of natural justice and fair administrative action must be observed. The impeachment architecture in article 181 of the Constitution reveals that removal of a Governor is not about criminality or culpability but is about accountability, political governance as well as policy and political responsibility. Section 33 of the County Governments Act provides for the procedure of removal of an erring Governor. The organ vested with the mandate at first instance to move a motion for the removal of a County Governor is the County Assembly. Neither the courts nor the Senate have the constitutional mandate to move a motion for the removal of a County Governor. The Senate's constitutional mandate to hear charges against a Governor is activated upon receipt of a resolution of the County Assembly to remove a Governor. Upon receipt of such a resolution, the Senate shall convene a meeting to hear the charges against the Governor and may appoint a special committee to investigate the matter. It is our considered view that the jurisdiction and process of removal of a Governor from office is hierarchical and sequential in nature. There are three sequential steps to be followed: first is initiation of a motion to remove the Governor by a member of the County Assembly; second there are is consideration of the motion and a resolution by two thirds of all members of the County Assembly and third, the Speaker of the County Assembly is to forward the County Assembly's resolution to the Senate for hearing of the charges against the Governor.

16. Having set out the procedure above, the court finds and holds that the process of inquiry into the propriety of the petitioner’s removal from office was proper and accords with the law. Consequently, the petition dated July 29, 2020 is hereby dismissed with no order as to costs.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S N RIECHIJUDGE