[2020] KEHC 4348 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

PETITION NO. 1 OF 2018

IN THE MATTER OF ARTICLES 1,2,3(1),6,10,19,20,22,27,28,36,47,160(1),

165(3)(b),174,178,183,191,258 (1),260 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF RULES 4,10,11,13 AND 20 OF THE CONSTITUTION OF KENYA

(SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS

AND FREEDOM) OF THE INDIVIDUAL, HIGH COURT PRACTICE

AND PROCEDURAL RULES, 2013

AND

IN THE MATTER OF SECTION 8,10 AND 12 OF THE COUNTY

GOVERNMENT ACT, ACT NO. 17 OF 2012 LAWS OF KENYA

AND

IN THE MATTER OF THE POLITICAL PARTIES ACT NO.11 OF 2011

IN THE MATTER OF THE ELECTIONS ACT, NO. 24 OF 2011

AND

AND IN THE MATTER OF SECTION 46 OF THE COUNTY ASSEMBLY SERVICE ACT, NO. 24 OF 2017

AND

IN THE MATTER OF SECTION 8 OF THE PUBLIC APPOINTMENTS

(COUNTY ASSEMBLIES APPROVAL), ACT NO. 24 OF 2017 LAWS OF KENYA

AND

IN THE MATTER OF STANDING ORDER NO. 2,16,152,153 AND 185 OF THE COUNTY

GOVERNMENT STANDING ORDERS OF THE COUNTY ASSEMBLY OF UASIN GISHU

BETWEEN

HON. WERAMBO RAMADHAN ALI..................................................................PETITIONER

V.

THE COUNTY ASSEMBLY OF UASIN GISHU........................................1ST RESPONDENT

SPEAKER OF THE COUNTYASSEMBLY OF UASIN GISHU.............2ND RESPONDENT

CLERK OF THE COUNTYASSEMBLY OF UASIN GISHU...................3RD RESPONDENT

JUDGMENT

1. The petitioner herein avers that he is a resident of Kiplombe Ward, Turbo sub-county within Uasin Gishu County. He is a member of the Orange Democratic Movement. He sued the 1st respondent which is a creation of the Constitution of Kenya 2010, the 2nd respondent as the speaker of Uasin Gishu County Assembly and the 3rd respondent as the clerk of the County Assembly of Uasin Gishu, the administrative head of the County Assembly and the adviser of the County Assembly legislative procedures, practices, convention and traditions to the speaker.

2. It is his opinion that the County Assembly failed to recognize the position of the minority leader and minority whip, the minority party in the house was denied a chance to appoint its own leader and minority whip, the fundamental rights, freedoms and entitlement of a sole elected member of the minority opposition party were infringed. The petition also challenged the constitutionality of the “County Assembly Party” standing orders, the constitutionality and administrative fairness of the decision making process of the County Assembly in the absence of properly constituted house leadership and select committees.

3. The petitioner challenged the curtailing of the doctrine of separation of powers and the system of checks and balances by the County government by failing to appreciate the oversight role of the minority party and its elected representatives within the house. The petitioner wants to ensure that all business of the County Assembly is conducted in strict adherence to the Constitution, the standing orders of the County Assembly and the best practice procedures so as to safe guard the political, economic and democratic rights of the Citizens of Uasin Gishu County on whose behalf the County Assembly undertakes its three-fold representative, legislative and oversight functions.

The law

4. The petition is premised on the constitution of Kenya. The petitioner cited the following Articles;

1(1)&(3), 2(1),3,6,19(3).22. 23(1)&(3),27(1),28,38,47,91(1)(a)&(c), 91(2),108,160,165(3)(b),191(5),258(1) and Article 260.

5. The petition is also premised on Section 2 of the Political Parties Act. Section 2 of the Elections Act, Section 10 of the County Governments Act, no. 17 of 2012and Section 12 (3) (c) of the said Act, Section 8 of the Public Appointments (County Assemblies Approval) Act, No.33 of 2017, Section 46 of the County Assembly Service Act, no. 24 of 2017.

6. This petition is further premised on the standing orders of the (12th parliament) National Assembly especially standing order no. 2, 20 and 178(2) and the standing Order no.16(1), 2(1)(a), 16(1), 152(1)(c) which provides that the minority leader shall be a member of the County Assembly Business Committee, 153(1) which provides that the minority leader shall be a member of the County Assembly Committee on Selection, 185(1) provides that the minority leader shall be a member of the County Assembly Committee on Appointments of the County Assembly.

7. The petitioner avers that he was the only member of the minority party out of the 47 members, the others were drawn from the coalition of parties (URP and TNA) forming the national government. He took oath of office and was appointed as the leader of minority by virtue of being in the Orange Democratic Movement which was the minority party in the County Assembly of Uasin Gishu. In accordance to the standing orders of the house, he was further appointed to the following committees:

i. Member of the House Business Committee

ii. Member of the Committee on selections

iii. Member of the committee on appointments.

iv. Chairperson of the public investments and accounts committee

v. Member of several sectoral committees as nominated and elected by the Minority party(ODM) including roads, public works and transport, committee for Early Childhood Education and the Liasion Committee.

8. The petitioner was accorded all of the rights, privileges and entitlements appurtenant to the position of leader of minority in the 1st assembly of the 1st respondent, which came to an end in the first half of 2018. On the 8. 8.2017 the petitioner was re-elected as member of the County Assembly representing the people of Kiplombe, under the Orange Democratic Movement (National Super Alliance-Nasa Coalition) ticket. The 1st meeting was convened on 5. 9.2017 by the County Assembly in exercise of the powers conferred to the Governor vide Section 136 of the County Governments Act, 2012 and standing orders no. 3(1) and 23. The clerk to the County Assembly laid down a list of persons elected as members selected or nominated as contained in Gazette Notice no. CXIX No. 124 of 28. 8.2017 and CXIX 121 of 27. 8.2017. The petitioner took oath and/or affirmation of office. He was elected again as the minority leader on 18. 9.2017 and this information was relayed to the 3rd respondent informing him of the decision and the minutes, by another letter again on 19. 9.2017 he notified the 3rd respondent of his appointment pursuant to Order no. 16(5) of the County Assembly, he was also entitled to be a member of the county assembly business committee pursuant to standing order No.152(1)(c ), the County Assembly committee on selection as per standing order no. 153 and the county assembly committee on appointments pursuant to standing order no. 185, he also wrote to registrar about his dissatisfaction, complaint and positive objection to the respondents continued and unconstitutional failure to recognize the minority party within the Assembly together with its elected leadership.

9. In response, the respondents tabled a legal opinion on 21. 9.2017 to the effect that Orange Democratic Movement did not meet the 5% threshold for definition as a “county assembly party” as it had only one elected member, thus he did not qualify as a minority leader, therefore the Jubilee party which was the majority party and having the lions share membership, thus he did not qualify for proportional membership on the county assembly service board and therefore he could not sit in select committees where the membership of the leader of minority was mandatory.

10. The petitioner on 26. 9.2017 lodged a complaint challenging the composition of the Public Investment and Accounts Committee of the 1st respondent on its leadership traditionally held by the minority party. In response to ODM’S letter dated 19. 9.2017, through its letter dated 16. 10. 2017, it responded by stating that the position of the deputy speaker was elective and not reserved for the minority leader, there was a distinction between the minority party and the county assembly party; that ODM had not met the 5% representation to compromise the minority party and that the Uasin Gishu County Assembly Public Investment and Accounts Committee was properly constituted as members had the power to elect their own chair.

11. This, according to the Petitioner, implied that the minority leader position had been scrapped off, yet he had a role to play on the floor by being an oversight body. The respondents had irregularly and illegally formed a county assemblies parties who had now been bestowed with this role contrary to parliamentary best practice and convention. ODM had been discriminated against on the basis of meeting the 5% minimum threshold. It’s upon this, that the petitioner contends infringement of his fundamental rights and freedoms.

Particulars of infringement

12. It is his contention that the above procedure of disqualifying him as the minority leader contravenes Article 47 of the Constitution. They contravened Article 179(2)(b) of the Constitution together with the 1st respondents standing orders, by failing to appoint him to the business committee, committee on selection, and by rejecting to appoint him the chair to the county public investment and account committee, the rights of the citizens had been infringed and thus it was null and void. He was the only capable member to chair and was entitled to the same, and being that he was elected he would be the minority leader together with the entitlement to be a member of the house select committees. The respondents had requested for nomination from the party itself and therefore he expected that he would be co-opted into membership of the public investment accounts committee, the finance and planning and budget appointment committee, the trade committee, the lands and housing committee.

13. He sought for the following orders

a. A declaration that the Orange Democratic Movement is the minority party within the county assembly of Uasin Gishu.

b. A declaration that the petitioner is the leader of minority and minority whip of the County Assembly of Uasin Gishu, entitled to such rights, privileges and benefits as are appurtenant to.

c. A declaration that the term county assembly party is contradictory to the term political party, or minority party and is unconstitutional in that it violates Article 91,92 and 260 of the Constitution of Kenya 2010, section 2 of the political parties Act, No. 11 of 2011, section 2 of the Elections Act, no. 24 of 2011 and section 10 of the County Government Act, No. 17 of 2012.

d. A declaration that the minority party is entitled to nominate a member to the Uasin Gishu County Assembly Service Board.

e. An order of certiorari to remove into this honorable court and to quash the decision of the respondents herein as contained in the letters dated 21. 9.2017 and 16. 10. 2017 refusing to appoint and recognize the petitioner as the leader of minority.

f. An order of mandamus compelling the 1st,2nd and 3rd respondents either by themselves, their servants, agents or employees to approve the nomination and election of the petitioner as the minority leader and minority leader of the Uasin Gishu County Assembly and to accord him all such rights, privileges and benefits as are appurtenant thereto.

g. An order of mandamus compelling the respondents to expunge from the standing orders of the county assembly of Uasin Gishu any reference to the term county assembly party.

h. An order of mandamus compelling the respondents to approve the nomination and election of the petitioner as the minority party’s representative to the Uasin Gishu County Assembly Service Board.

i. An order of prohibition barring the respondents from nominating any other person as chair of Uasin Gishu county public investment and account committee in place or instead of the petitioner.

j. General damages for breach of fundamental rights and freedoms and reputational risk.

k. Costs and interest

l. Such other order(s) and directions as this honorable court shall deem just and expedient in the circumstances.

14. The petition was supported by an affidavit sworn by Werambo Ramadhan Ali, who affirmed that the facts stated were true and correct. He reiterated the facts in the main petition and annexed the following documents.

i. Standing orders adopted by the County Assembly of Uasin Gishu.

ii. A list of the duly elected and nominated members of the 1st assembly of the 1st respondent.

iii. Orders of the 1st session electing him as leader of minority and chair of the public investments and accounts committee.

iv. Copy of the full membership of the committees of the 1st house of the County Assembly of Uasin Gishu

v. Copy of the Hansard of the 1st respondent dated 24. 4.2014

vi. Certificate of elected member of the County Assembly dated 10. 8.2017.

vii. A list of the duly elected and nominated members of the 2nd house of the 1st respondent.

viii. A copy of oath of office for county assembly member dated 5. 8.2017

ix. Minutes of the Orange democratic Movement dated 16. 9.2017

x. Copies of correspondence letters dated 19. 9.2017.

xi. Copy of the legal opinion dated 21. 9.2017 addressed to the 3rd respondent.

xii. Hansard report of the 1st respondent dated 26. 9.2017

xiii. Copy of list of committee members of the 1st respondent

xiv. Objection letter dated 26. 9.2017

15. In addition, the petitioner averred that Jubilee being the majority, in the interest of justice they could not investigate themselves, the independent candidate Hon. Philip Melly was a member of the jubilee party during the party nominations and when he wasn’t elected he duly jumped ship and ran as an independent. He therefore could not be independent.

16. Further he deposed that his objection had been dismissed by the leader of Government Business stating that the County Public Investment and Accounts Committee was properly constituted as per Section 185(5) of the County Assembly standing orders. His advocate had read to him and he understood that standing order no. 2 did not provide for a minimum threshold of 5% representation in the house. The respondents had therefore denied ODM and himself the discretion to appoint him a minority leader thus their rights had been violated.

17. The 1st respondent was on recess but was scheduled to resume on 16. 2.2018. He was apprehensive that a special sitting may be called to debate on the revised budget for 2017/2018 in order to make provisions for the period through march 2018. If this is allowed then the deliberations and making decision would be in breach of the Constitution, the political parties Act, the County Governments Act and the standing orders of the 1st respondent. It was imperative that the orders sought be granted in order for the separation of powers between different arms of the county government and in particular the system of checks and balances to be upheld.

Response

18. (No replying affidavit by respondents.) However, they have indicated in their submissions that they filed a response to the petition. They averred that they do not recognize the petitioner as the leader of the minority in the assembly on the basis of the law and the standing orders of the Uasin Gishu County Assembly. ODM could not be the minority party since it had only one person elected into the assembly which had 30 elected members and 17 nominated members. The standing order of the Uasin Gishu, defines a county assembly party as a party or coalition of parties consisting of not less than 5% of the membership of the county assembly. ODM did not therefore qualify as a county assembly party, or as the 2nd largest party or coalition, the petitioner constituted 0. 04% as the only member, short of 5% minimum required.

19. Article 108 of the Constitution on having leader of majority party and leader of minority party applied to the national assembly and not the county assemblies. Further pursuant to Article 175, County Government are based on democratic principles and the doctrine of separation of power, which is different from the instant case, where the county assembly had the power to exercise appointment of minority leader in respect to the standing orders. There is no similar provision relating to county assemblies in regard to leader of the majority party or minority party since some county assemblies are dominated by one political party. In the 1st term the petitioner was recognized as leader of the minority party but this did not imply that he was entitled to the same position in the current assembly.

20. The petitioner is asking the court to intervene with the county assembly which is regulated by the standing orders, thus this was a violation of the constitution or the doctrine of separation of power.

Standing order no. 16 provides that a party or coalition of parties in the County Assembly shall elect a member of the county assembly belonging to a party or coalition of parties to be leader of minority party.

21. In regard to the County Assembly Service Board, section 46 of the County Assembly Service Act 2017 provides that, “theboard shall consist of two members of the county assembly nominated by the political parties represented in the county assembly nominated by the political parties according to their proportion of membership in the county assembly.” This provision amended Section 12 of the County Government Act. In addition the county assembly is comprised of 45 jubilee party members out of the 47 members , thus the said party was entitled to the two slots having commanded the lion’s share of membership of the assembly.

22. The parties agreed to file written submissions.

Submissions

Petitioner’s submission

23. In 2013 the petitioner herein was duly elected by the people of Kiplombe ward to represent them under the ODM ticket. He was appointed as the minority leader, by virtue of ODM being the second largest party in the County Assembly of Uasin Gishu. As a minority leader he was subsequently entitled to be chair of the Public Investments and Accounts Committee, deputy chair of the committee on appointments and the deputy chair on the committee on selections. He was re-elected in 2018 and it was legitimately expected that he would be appointed as the minority leader pursuant to Section 10 and Section 12 of the County Government Act no. 17 of 2012 and standing order no. 16(5) of the Uasin Gishu County Assembly. The respondents however failed to discharge their duty as enshrined by Article 1(3)of theConstitution as read with Section 10 and Section 12 of the County Government Act No. 17 of 2012 and Standing Order No. 2 and 16 of the 1st respondent by failing to recognize him as the leader of the minority. In Speaker of the senate & anor v. A.G, the speaker of the National Assembly & 3 Ors(2013) eklr the court held that parliament (in this case county assembly) must operate within the confines of the constitution which is the supreme law of the land, and that a violation of procedural requirements of the constitution was liable to be questioned by the courts in asserting the supremacy of the constitution. See also Doctors of life International v. Speaker of the National Assembly & Ors (CCT 12 of 2005)(2006) ZACC11.

The respondents had failed to recognize him as the minority leader and the chief whip.

24. On the issue of the petitioner being the minority leader, Article 108 of the Constitution provides that:

(1) There shall be a leader of the majority party and a leader of the minority party.

(2) The leader of the majority party shall be the person who is the leader in the National Assembly of the largest party or coalition of parties.

(3) The leader of the minority party shall be the person who is the leader in the National Assembly of the second largest party or coalition of parties.

25. In line with Article 108, the County Governments Act, 2012 also provides for leader of minority. Section 10(1) and (3)provides as hereunder

(1) There shall be in each county assembly a leader of the majority party and a leader of the minority party.

(3) The leader of the minority party shall be the person who is the leader of the second largest party or coalition of parties in the county assembly.

The county assembly order no. 16(1) also provides for election of minority leader. The petitioner duly complied with this requirement by informing the respondents.

26. Further it was his submission that he was entitled to minority whip being the only elected member from the second largest party in the assembly. Order 21(1)(a) provides for a minority whip who is a member designated as minority leader of minority party for purposes of transaction of the business in the county assembly. Failure by the respondents to effect the nomination of the petitioner as the minority chief whip was contrary to the due process and procedure, as it would result to unfairness, as held in Joseph Subalu Mutara v. A.G & Anor (2014) eklr

27. On whether ODM was entitled to having a minority leader it was submitted that Standing Order No.2(1)(a) defined minority party as the second largest party or coalition of parties in the County Assembly. The respondents’ assertion that ODM did not make the 5% minimum does not qualify. This was based on vague and contradictory clause in the standing order which amounts to gross violation of his right. This standing order was not clear and precise to enable individuals conform to its conduct, and thus it was against the Constitution. Therefore, clause 2 of the standing order which did away with the minority party was unenforceable and thus ought to be expunged from the standing orders.

28. The petitioner submitted that he had the right to move the court since he was aggrieved as provided under Article 2 of the Constitution. Article 165(3) gave the high court the power to determine any question as to the interpretation of the constitutional rights. The county as a state organ had a fundamental duty to protect, promote and fulfill the rights and fundamental freedoms contained in the bill of rights as provided by Article 21(1). The county assembly was not above any law and the court had been given jurisdiction to assert its authority and the supremacy of the constitution, in Advisory Opinion No. 2 of 2013the court stated that: “[61] It emerges that Kenya’s legislative bodies bear an obligation to discharge their mandate in accordance with the terms of the Constitution, and they cannot plead any internal rule or indeed, any statutory scheme, as a reprieve from that obligation”

29. In addition, this court as the custodian of the bill of rights is entitled to intervene where the facts disclose a need to prevent a violation of the rights and fundamental freedom guaranteed under the constitution, this was held in Bill Kipsang Rotich v. Inspector General National police Service(2013) eKLR.

30. It was urged that costs are awarded at the discretion of the court. The petitioner had proved his case. The issues raised are of great public interest which arose out of the respondents violation of his rights, he has incurred legal expenses in filing the petition, and has used his time to follow up on the suit which time would have been used to address the needs of his constituents. Thus the petition be allowed with costs.

Respondents’ submission

31. The respondents framed their issued to include: whether this court has jurisdiction to hear and determine this petition, whether the respondents flouted the constitution and the law in failing to recognize ODM as a minority party of the 1st respondent and the petitioner as leader of minority whip in the County Assembly of Uasin Gishu or as member of Uasin Gishu County Assembly Service Board, and who should bear costs.

32. On jurisdiction, the court was referred to The Owners of Motor Vessel ‘Lilian S’ v. Caltex Oil Kenya Ltd(1989)KLR 1Nyarangi J. had stated that jurisdiction was everything, and without it a court had no power to make one step. Further the supreme court addressed itself on jurisdiction in Macharia & Anor v. K.C.B LTD & 2 Ors, civil appl. No.2 of 2011, where at par. 68 the court stated that a court’s jurisdiction flowed from either the constitution or legislation or both. See also William Kipurko Andiema & Anor v. County Government of Trans-Nzoi & Anor

33. On separation of power the court was referred to Mumo Matemo v. Trusted Society of Human Rights Alliance & 5 Ors (2013) eklr, where the court of appeal stated that, “it was not in doubt that the doctrine of separation of power is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of power does not only prescribe organs of government from interfering with the other’s function. It also entails empowering each organs of government with countervailing powers which provide checks and balances on actions taken by the organs of government…”

See also R v. County Assembly of Migori & 4 Ors ex-parte Johnson Omolo Owiro[2014] eKLR. In Simon Wachira Kagiri v. County Assembly of Nyeri &2 Ors(2013) eKLR, the court opined that, “theonly possible scenario in which the court may be prepared to interfere with the proceedings and decisions of the county assembly and indeed with the proceedings is if the proceedings is in a manner that amounts to abrogation of the Constitution. I say so because Article 1 of the Constitution vests the sovereign power on the people of Kenya which they can either exercise directly or through their democratically elected representatives. This sovereign power is delegated to parliament, legislative assemblies of the County Governments, the judiciary and independent tribunals…”

The petitioner could not seek the court to interfere with internal arrangements of Uasin Gishu County Assembly which is clearly regulated by the standing orders.

34. The petitioner relied on Article 108 of the Constitution that he is to be recognized as leader of minority, this is also provided by Section 10of the County Governments Act, as well as by Section 16(1) of the County Assembly Standing Orderwhich provides for election of a member belonging to the second largest party or coalition of parties to be a minority leader. This must consist of not less than 5% of the membership of the county assembly as provided for by standing order no. 2(1). The Petitioner being the only elected member in his party, his party did not qualify to be recognized as a county assembly party for purposes of leader of minority party. The petitioner has failed to convince the court of the constitutional provisions the said order violates.

35. The petitioner had cited Article 179(2)(b) as violated, yet it was in regard to appointment of county executive committee. With regard to Article 47, the petitioner has failed to explain how a political process regulated by the standing order amounts to an administrative action. Article 91, 92 and 260 does not make standing order no. 2 of the 1st respondent unconstitutional. Standing order no. 2 fosters growth of political parties and enhances democracy. The petitioner’s assertion that he was entitled to be recognized as leader of minority party despite being the only member was misconceived and mischievous. Under Section 14 of the County Governments Act, the 1st respondent had powers to make standing orders regulating the procedure and processes of the county assembly for such special and general purposes as it considers fit and to regulate the procedure of any committee so established. The committee was lawfully and properly constituted and he was elected to the following committees: lands and housing committee, trade and industrialization committee, physical planning and urban development; and public investment and public accounts committees. Therefore, he could still discharge his mandate even without being the minority leader. He had the option of vying in the above committees as the chair but he chose not to and in-fact when the elections for the chair were being conducted he failed to turn up. He therefore can’t argue that he had been discriminated against.

36. In addition, the offices of the minority whip and leader of the minority party, were two distinct offices, if the petitioner had been appointed as minority leader by his party, there was no minority whip who could have communicated the information to the 2nd respondent, the petitioner was the sole member of his political party ODM which was not a county assembly party of the 1st respondent. There had been no communication made by the 2nd respondent as required by Standing Order no. 16(5), the alleged communication was directed to the 3rd respondent who has no powers and functions relating to the said appointment. The alleged minutes were of no legal effect as the petitioner had prepared them by himself.

37. Further, the orders of mandamus, certiorari and prohibition could only be issued where a party gives the grounds of illegality, irrationality and procedural impropriety. There was no public duty obligation that the respondents were mandated to carry out, that they had failed to exercise. The 1st respondent is not an inferior tribunal but a constitutional body vested with legislative authority under Article 185, thus vested with separation powers under Article 175. By compelling the respondents to approve the nomination and election of the petitioner as minority party representative, that would amount to breach of section 12 of the County Assembly Services Act. The Uasin Gishu County Assembly Service Board is a body corporate capable of being sued, though it has not been enjoined in these proceedings. The prayer for prohibition has been overtaken by events as the petitioner snubbed elections for chair of Public Investment Accounts Committee and he failed to vie for the same. The court of appeal in Kenya National Examinations Council v. Republic ex-parte Geoffrey Njoroge(1997) eKLR, held: “an order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition cannot quash what has already been done. Only an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.”

See also R v. Cabinet Secretary for Internal Security & 4 Ors(2017) eklr. The orders sought by the petitioner are misconceived and without basis.

Analysis and determination

38. The issues for determination are:

i. Whether the court has jurisdiction to determine the petition

ii. Whether the petition as framed is supported by sufficient evidence to discharge the petitioner of the burden of proving and to establish his allegations that his rights have been violated.

iii. Whether the respondents were in breach or violation of the petitioners constitutional rights to require the court to interfere with the power and functions of the 1st respondent.

iv. Whether the rejection to appoint the petitioner as leader of the minority has disentitled the residents of Uasin Gishu their rights

v. Who is entitled to costs.

Jurisdiction

39. The petitioner was an elected member of Orange Democratic Movement(ODM) who was elected to represent the people of Kiplombe ward. He was initially elected to represent them in the year 2013. In the year 2018 he was duly elected again, a fact, which is not disputed by the respondents. The petitioner was however not recognized as the leader of the minority party, which in his opinion he says, he is entitled to since his party is the minority party. The respondents failed to do so, and he filed this petition citing various provisions of the Constitution, the County assembly standing orders and the County Government Act.

40. The court shall address itself to the issue on jurisdiction raised by the respondents. This has to be sorted out first since as stated in the Owners of Motor Vessel ‘lilian S’ v. Caltex Oil Kenya Ltd (supra), jurisdiction is everything, and once a court has no jurisdiction then it has to down its tools. The petition before this court is on violation of the petitioner’s right. The court under Article 165(3)(b) has jurisdiction to hear and determine any grievance on bill of rights which a person feels has been violated. The said proviso provides as follows:

“jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; “

41. The respondents cited various cases touching on election of persons into office. The petitioner is already an elected ward representative and according to him, being a member of the minority party he ought to have been recognized as minority leader and thus to chair various committees. The county assembly has got its own laws and procedure and therefore this court can only determine issues pertaining to the fundamental freedom in the bill of rights, of which it has jurisdiction. It all depends on the circumstances of each case. The respondents referred to Mumo Matemo v. Trusted Society of Human Rights Alliance & 5 Ors(2013)eklr where the court of appeal opined as follows on power of the court to intervene in certain matter: “(49) It is not in doubt that the doctrine of separation of powers is a feature of our constitutional design and a pre-commitment in our constitutional edifice. However, separation of powers does not only proscribe organs of government from interfering with the other’s functions. It also entails empowering each organ of government with countervailing powers which provide checks and balances on actions taken by other organs of government. Such powers are, however, not a license to take over functions vested elsewhere. There must be judicial, legislative and executive deference to the repository of the function. We therefore agree with the High Court’s dicta in the petition the subject of this appeal that:

“[Separation of powers] must mean that the courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the executive sufficient latitude to implement legislative intent. Yet, as the Respondents also concede, the Courts have an interpretive role - including the last word in determining the constitutionality of all governmental actions...”

In regard to the above, the issue at hand was in regard to the appointment where the process had been complied with in the appointment but the question as to legality arose. The applicant had first been heard at a tribunal and was appealing against that decision.

The court recognized separation of powers in recognizing the legislature as an independent arm of the government. This does not apply in this instant case. The jurisdiction of this court in this case is dependent on the process and constitutionality of appointment.

42. The petitioner challenged the doctrine of separation of powers and the system of checks and balances by the County Government of Uasin Gishu in failing to recognize the necessary oversight role of the minority party and it’s elected representatives within the house. The petitioner is an elected member from the ODM party and he is dully elected to be a member of some of the committees. He therefore can exercise oversight roles while not necessarily being the chair to the committees.

Breach of fundamental bill of rights

43. The petitioner challenged the failure and refusal of the County Assembly of Uasin Gishu to recognize his position as minority leader and minority whip, thus his fundamental rights, freedoms and entitlements of a sole elected member of a minority opposition party within the county assembly of Uasin Gishu. For a petitioner to move the court effectively, he has to fulfill the requirements set down in AnaritaKarimi Njeru v. The republic(Trevelyan & Hancoxx,JJ) (1976-1980) KLR 1272. The respondents urged that the petitioner had not cited the constitutional provisions that had been violated and the acts or omissions complained of with reasonable precision. The petitioner has elaborated how the county assembly had conducted itself from the beginning when he issued them with a notice of his re-election, though the correspondence letters were denied by the respondents in that they had been drafted by the petitioner himself. As stated in the above case, a petition has to be specific and particular in its pleadings.

What constitutes minority leader and majority leader?

44. It is not in dispute that the petitioner was elected the Kiplombe ward representative as evidenced by the certificate issued on 10. 8.2017 by the returning officer, this was after the elections held on 8. 8.2017, this was in regard to Article 177(1)(a) of the Constitution. There is a list of members elected and nominated by Jubilee party, ODM and the independent party. Under the ODM, the petitioner was the only elected representative. Previously, the petitioner had been the leader of the minority after the 2013 election, and he therefore qualified since his party was the second largest party in the county assembly, which was not disputed as it is provided under Article 38(3)(C )of the Constitution.

45. Article 108 of the Constitution provides for leader of minority and majority party at the National Assembly. The petitioner urged the court to refer to this yet it does not touch on the County Assembly. The provisio states as:

(1) There shall be a leader of the majority party and a leader of the minority party.

(2) The leader of the majority party shall be the person who is the leader in the National Assembly of the largest party or coalition of parties.

(3) The leader of the minority party shall be the person who is the leader in the National Assembly of the second largest party or coalition of parties.

46. The National Assembly and the County Assembly are two distinct bodies born by virtue of devolution of government. Article 93(1) establishes the national assembly of Kenya and the senate, whereas Article 176(1) establishes the County Assembly and the county executive. This is as a result of devolution provided for by Article 174 of the Constitution. The constitution provides that it should reflect certain principles under Article 175:

“(a) county governments shall be based on democratic principles and the separation of powers;

47. The county assembly is governed by the County Government Act and the standing orders. The County Government Act Section 6 defines a county as a, “… an entity exercising constitutional authority, a county government shall be a body corporate with perpetual succession and shall have all the powers necessary for the discharge of its functions”

The county assembly is obliged to serve its constituents without discrimination on any one.

48. The standing order defines leader of minority party as, “that person who is the leader in the county assembly of the second largest party or coalition of parties understanding order 16”. Further Order no. 16(1) on leader of minority of the Standing order provides as, “the minority party or coalition of parties in the county assembly shall elect a member of the county assembly belonging to the party or coalition of parties to be the leader of the minority party.” The list of members elected or nominated shows only two members not in the jubilee party.

49. The above definition on the second largest party or coalition of parties is clear. The petitioner is the only elected member from ODM, and therefore it falls short of being the second largest party. Therefore, the petitioner as he alleged that he qualified to be the leader of the minority and the chief whip in his party does not hold water. Being the only member from his party, ODM did not meet the 5% threshold to be a county assembly party as provided for by Order NO.2(1). The party ODM and the petitioner did not meet the clear legal threshold.

Whether the acts of the 1st respondent disentitled the county citizens from their fundamental economic and social rights.

50. The county assembly in furtherance of the principles of county government, had to ensure majority of the people are represented by their elected leaders in the various committees. It was the petitioners case that he qualified to chair the committees, and by him not chairing the various committees, the people had been denied their economic and social rights. It was the respondents’ contention that the petitioner failed to attend the various meetings held to elect the chair of the committees. He was elected to serve in the following committees:

i. Lands and housing committee

ii. Trade and industrialization committee

iii. Physical planning and urban development

iv. Public investment and public accounts committee.

This is a presentation that he is already serving in four committees though not as the chair.

Whether the petitioner prayers can be granted

51. The petitioner had prayed for an order of prohibition, mandamus and certiorari. On order of certiorari, the petitioner urged the court to quash the decision of the respondents refusing to appoint and recognize him as leader of minority. The petitioner challenged that being appointed by his party as the leader of the minority, the respondents had a duty to appoint him. He referred to the letters dated 21. 9.2017 and 16. 10. 2017. The letter dated 21. 9.2017 was drafted by the county legal counsel addressed to the clerk of the county assembly informing him that the petitioner did not qualify as the leader of the minority as he was the only ODM member thus fell short of the 5% requirement, and could therefore not enjoy the privileges accorded to that office. The letter dated 16. 10. 2017 was in response to inquiry of the composition of the county public investment and accounts committee whereby the respondents averred that it was properly constituted as per Section 186(5) of the Uasin Gishu Standing Orders. The assembly had already made its decision and the county is functional to date. Granting this order shall affect the smooth functioning of the county.

52. On order for prohibition the petitioner cited that the respondents be barred from nominating any other person as chair of the public investment and account committee. The court in Kenya National Examination Council v. Republic ex-parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996 held that:-

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings…The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to bedone at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way… These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order of certiorari and that is all the court wants to say on that aspect of the matter.”

The respondents contended that the committees’ chair, has already been conducted and therefore this prayer has been overtaken by events. This order on prohibition cannot be issued on an event that has already occurred as stated in the above case.

53. On issuance of an order for mandamus, the petitioner asked this court to compel the respondents to approve him as the leader of minority and accord him all the privileges that come with the position, as illustrated above, according to Standing Order No.2 (1), the petitioner does not qualify to be a minority leader as the 5% threshold has not been met being the only member from ODM party.

The petition therefore lacks merit and is hereby dismissed with no order as to costs.

S. M GITHINJI

JUDGE

DATED, SIGNEDand DELIVEREDatELDORETthis 4thday of March, 2020

In the absence of:

Mr. Osundwa for the applicant/Petitioner

Mr. Yego for the respondent

And in the presence Mr. Eululo – Court assistant