Background:
1. The Application before this Court is the Applicant’s Notice of Motion application dated 19th December 2023 wherein the applicant seeks the following orders;
i) A declaration that the impugned letter from the Respondent dated 12th April 2023 violates the Applicant’s rights to be heard and that of fair administrative action and therefore offends articles 25(c), 47 & 50 of the Constitution as the same was issued against the Applicant without affording him an opportunity of being heard.
ii) A declaration does issue that it is unfair, unjust and unreasonable for the Respondent to apportion blame on the Applicant for the institute’s award of staff medical insurance tender no. KEMRI/HQ/014/2020-2021 for provision of in and outpatient medical insurance cover for the financial year 2020-2021 to Madison Insurance as the go ahead and or decision to award Madison Insurance the tender was a decision of the then Director General and the Head of Procurement of the Institute.
iii) A judicial review order of Certiorari does hereby issue to bring into this court for the purpose of quashing the communication of the Respondent to the Applicant communicated vide a letter dated the 12th April 2023 citing him for alleged impropriety in the procurement of staff medical insurance tender no. KEMRI/HQ/014/2020-2021 for provision of in and outpatient medical insurance cover for the financial year 20200-2021 to Madison Insurance and cautioning him for the alleged breaches and notifying him of the entry of his name in its database as part of his personal integrity profile.
iv) Costs be provided for.
v) Any other order or relief that this Honourable Court deems fit and just in the circumstances.
2. The Application is supported by a statutory statement dated 20th June, 2023, verifying affidavit and Further Affidavit sworn by Anthony Stephen Wachira on 20th June, 2023 and 15th August, 2023 respectively.
3. The Applicant deponed that in February 2014 he was employed as an assistant Director of Finance at Kenya Medical Research Institute (hereinafter KEMRI).
4. It is his case that on 1st July 2019, wherein he was appointed as a member of the Institute’s budget Implementation Committee and on 10th December 2021, the Finance & Development Committee held a meeting where among the items listed on the agenda was the issue on staff medical insurance cover.
5. The Applicant further deponed that KEMRI capped the budget for procuring a medical cover for staff members at Kshs.115,000,000/=. The tender was floated to wit tender no. KEMRI/HQ/014/2020-2021 and Madison Insurance with a bid of Kshs.158,130,524 was evaluated as the best.
6. It is the Applicant’s case that Board of Management held a meeting on 20th December 2020 at the KEMRI Headquarters where among the issues listed on the agenda was the issue of medical cover for institute staff and a deliberation on the conduct by the FDC in the procurement process.
7. The Applicant avers that the Board resolved to request the Public Procurement Regulatory Authority to assist in reviewing the procurement process. It was further resolved to seek the Attorney Generals Advice on the legality of the contract who vide a letter dated 23rd April 2021 replied to the Institute’s request for advice and stated that inter alia they were not supplied with adequate documents to allow for their rendering of comprehensive & informed advice on the same. The AG also advised KEMRI to engage the relevant investigative authorities for further remedial action/guidance.
8. Following this the Attorney General vide a letter dated 28th Day of June 2021 acknowledged receipt of sufficient documentation to allow for the issuance of comprehensive legal advice where her stated that the procurement process had exceeded the budgeted amount and was in breach of section 176(1)(i) of the Public Procurement and Assets disposal Act.
9. The Applicant states that Respondent vide a letter dated 12th April 2023 wrote to him detailing improprieties that had occurred with regards to tender no. KEMRI/HQ/014/2020-2021.The letter the letter cautioned him and informed him that his name had been entered into the Respondents database as part of his personal integrity profile without affording him an opportunity of being heard in the conclusion the letter concluded by informing him that he had been included in their database as part of my personal integrity profile which letter made with mala fides and bad faith.
10. The Applicant avers through his advocates on record to responded to the adverse letter from the Respondent in an attempt to set the record straight with regards to the tender in question and to and demand its retraction. The Respondents failed to heed this demand necessitating the present suit.
11. The Applicant deponed that in the wake of the adverse letter from the Respondents, KEMRI vide an advertisement in the dailies advertised a vacancy in the office of the Director, Corporate Services, an office that he holds albeit in an acting capacity and the impugned letter, is not made in good faith and puts him to disrepute and greatly damages his chances at career progression.
12. The Applicant deponed that on 4th May 2023, he received a letter from the Respondent dated the 12th April 2023 informing him about his alleged violations of the procurement laws during procurement of staff medical insurance Tender no. KEMRI/HQ/014/2020-2021 for the provision of in and outpatient medical insurance cover for KEMRI for the financial year 2020-2021.
13. The Applicant avers that the details of the alleged irregularities stated in the impugned letter are that whereas the budget for medical insurance was capped at Kshs. 115,000,000 the institute took up the offer by Madison Insurance of Kshs. 158,130,524 which action is a contravention of the Public Procurement and Asset Disposal Act.
14. The Applicant argues that the letter is made in total ignorance of his role and responsibility at the Institute and the fact that the award of the tender in issue to Madison Insurance was precipitated by the directives of the Director General and the Chief Executive Officer of the Institute.
15. It is the Applicant’s case that the Institutes budget committee which the Applicant was a member proposed for a medical insurance cover of Kshs.150 million for the financial year 2020/2021 due to the COVID -19 pandemic but which proposal was rejected by the Finance Development Committee which insisted on a seal of Kshs.115 million.
16. It is the Applicant’s case that the Respondent proceeded to be the investigator, the judge, the jury and the Prosecutor and is in violation of the Constitution and a subversion of his rights and fundamental freedoms.
17. The Applicant Respondents mandate under the Leadership and Integrity Regulations does not include the power to enter permanent adverse findings in an individual’s integrity profile.
18. The Applicant cites the case of in Civil Appeal 486 of 2019, JSC & Registrar of Judiciary v Lucy Muthoni held that: even fealty to the traditional “process only” approach to judicial review must invite a measure of merit analysis. They further observed that it would be unrealistic for a court to engage in a dry, formalistic approach steeped in process alone.
19. The Applicant posits that Respondents cannot hide under the cloak of institutional independence as their actions are subject to the constitution and all relevant laws and the suit before this Honorable court does not seek to clothe him with investigative immunity but seeks to remedy an injustice.
20. The Applicant states that Respondents actions are manifestly unreasonable, discriminatory, lack any intrinsic fairness hence his averment of malice and that its action been made without establishing any solid foundation.
21. The Applicant filed written submissions dated 5th March, 2024 where it submits that their application raises three issues for determination:
i. Whether the Respondent violated the Applicant’s right to be heard and that of fair administrative action in issuing the impugned caution letter dated 12th April 2023.
ii. Whether the decision by the respondent is unfair, unjust and unreasonable.
iii. Whether the Applicant has met the threshold for grant of the judicial review order of certiorari to quash the impugned letter.
22. The Applicant submits that Under Article 47(1), the Constitution provides that “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” It cites the case of Republic v County Director of Education, Nairobi & 4 others Ex-parte Abdukadir Elmi Robleh [2018] eKLR cited with authority the decision of the Canadian Supreme Court in Baker vs. Canada (Minister of Citizenship & Immigration) 2 S.C.R. 817 6 where the elements of procedural fairness in the administrative law were articulated as follows;
“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”
Further at Par. 21, the court stated that;
“…What the Constitution requires in my view is the notification of the intention to take an action against a person likely to be adversely affected thereby and the reasons for the intended action. The said reasons, it is my view must depend on the peculiar circumstances of each case and it is those peculiar circumstances which ought to be considered which consideration must under Article 47 of the Constitution entail an opportunity to the applicant to be heard on the circumstances alleged to constitute satisfactory reasons for the taking of the adverse action.”
23. The right to be heard in the context of fair administrative action includes the right to be informed of the charges before making a decision affecting a party’s interest. The Supreme Court in Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014] eKLR Par. 257-258 principally stated as follows;
“Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contents remain unsettled.”
24. What then are the norms or components of a fair hearing? The Supreme Court of India, in Indru Ramchand Bharvani & Others v. Union of India & Others, 1988 SCR Supl. (1) 544, 555 found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v. Collector of Customs, Calcutta & Others, AIR 1962 Cal. 460).”
25. It is the Applicant’s submission that submits that he the Respondent conducted procedural improprieties in arriving to the decision and issuing the Cautionary letter to the Applicant herein against the backdrop of the statutory provisions of the Fair Administrative Action Act. The Applicant was neither informed that he was subject to the investigation nor accorded an opportunity to challenge accusation levelled against him leading issuance of the impugned decision.
26. The Applicant further submits that Section 30 of the Leadership and Integrity Regulations does not license the Respondent to illegally, irregularly and arbitrary
27. conduct their role in utter disregard of the principles of fair administrative action as envisaged in the Constitution. In the case of James Willy Kingori v Chairman Extra Ordinary Meeting of Michimikuru Factory Ltd & 2 others; Maurice Kobia Dickson (Interested party) [2022] eKLR where the court held;
“The Constitution binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article `19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies. (See Kenya Human Rights Commission & another v Non- Governmental Organizations Co-ordination Board & another [2018] eKLR).”
28. It is the Applicant’s submission that the Respondent is in violation of the principle of principles of reasonability as enshrined in the Wednesbury unreasonableness test. He cites the case of Republic v Public Procurement Administrative Review Board & 2 others Ex-parte Rongo University [2018] eKLR opined that:
“Review by a court of the reasonableness of decision made by another repository of power is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also with weather the decision falls within a range of possible, acceptable outcomes which are defensible with respect to the facts and law. Differently stated, the following propositions can offer guidance on what constitutes unreasonableness: -
i. Wednesbury unreasonableness is the reflex of the implied legislative intention that statutory powers be exercised reasonably;
ii. This ground of review will be made out when the Court concludes that the decision fell outside the area of decisional freedom which that legislative assumption authorizes, that is, outside the “range” within which reasonable minds may differ;
iii. The test of unreasonableness is whether the decision was reasonably open to the decision-maker in the circumstances of the case. To say that the decision was “not reasonably open” is the same as saying that “no reasonable decision maker” could have made it;
29. The Applicant also submits that the Respondent is a constitutionally mandated body does not exclude them from applying the rules of natural justice in the discharge of their mandate particularly where a decision arrived at is likely to impact the rights of a party. He cites the case of Kenya National Examination Council -versus- Republic ex parte Geoffrey Gathenji Nioroge (1997) eKLR the court held that:
“Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction. or where the rules of natural justice are not complied with or for such like reasons. In the appeal before us. The respondents did not apply for an order of certiorari and that is all we want to say on that aspect of the matter.”
30. The Applicant thus prays that his application dated 20th June, 2023 be allowed and the reliefs sought be granted.
Respondent’s case;
31. In opposition to the Applicants’ Application, the Respondents filed grounds of opposition dated 12th July, 2023 Replying Affidavit dated 21st July, 2023 sworn by Christine Ombaka.
32. The Respondent oppose the Notice of Motion application dated 19.12.2023 on the following grounds:
i) The EACC is empowered by law to investigate the conduct of any person and/or body which in its opinion constitutes corruption or economic crime and unethical conduct pursuant to the provisions of Chapter Six of the Constitution of Kenya, the Anti-Corruption & Economic Crimes Act, 2003, Ethics & Anti-Corruption Commission Act, 2011 and Leadership and Integrity Act, Cap 182 Laws of Kenya.
ii) The ex-parte applicant has failed to demonstrate that EACC was acting outside its legal mandate in conducting investigations into the Inquiry, the subject matter of this Application.
iii) The ex-parte applicant has failed to demonstrate that the decision by EACC was made without or in excess of jurisdiction, or that the rules of natural justice were breached or for such like reasons to warrant issuance of an order of certiorari.
iv) The ex-parte applicant has failed to demonstrate that he should be granted the prerogative orders sought.
v) That the ex-parte applicant has a good defence in the criminal process is not a ground to halt a criminal process undertaken bona fides since that defence is open to the applicant in those proceedings as was held by Justice Emukule in the case of Nbi. HC. Misc. Appl. No. 1413 of 2005; Neptune Credit Management ltd & another v Chief Magistrate’s Court & 2 others.
vi) The ex-parte Applicant has not demonstrated that the EACC acted in contravention of the Constitution for this court to interfere with and interrogate its actions.
vii) The Application does not meet the threshold for granting the orders sought.
viii) Granting the orders sought would be against public interest.
ix) The orders as sought are frivolous, vexatious, without merit and an abuse of the court process and therefore should be dismissed with costs to the EACC.
33. The Respondent deponed that it carried out investigations into allegations of irregular award of Kshs. 158 million to Madison Insurance Company for staff medical insurance cover for Kenya Medical Research Institute (KEMRI) employees, in the financial year 2020/2021.
34. The Respondent further deponed that it was pursuant to the above investigations that the impugned letter dated 12th April 2023 was issued to the Applicant and it was so issued because of his role in the said irregular procurement process, where he had failed to advise and/or provide any proof that he advised the Accounting Officer to halt the part payment of Kshs. 115,000,000 of the tender sums for the procurement of KEMRI staff medical insurance due to the unavailability of adequate funds. This aforesaid lapse caused the staff of KEMRI not to receive the full value of the medical cover as procured.
35. The Respondent avers that evidence obtained by it indicates that the Applicant, being the Deputy Director Finance at KEMRI, approved the purchase requisition of the subject staff insurance at the budgeted amount of Kshs. 115,000,000/- and that Finance Department’s approval was based on a budget that had not been approved. The Applicant single-handedly granted authorization for commencement of the tendering process for the subject KEMRI staff medical cover.
36. It follows that as a consequence as a consequence of the Applicant’s actions, KEMRI was committed to a financial obligation of Kshs. 43,130,524/- in excess of and/or over and above the amount provided for in the subject budget for the financial year 2020/2021.
37. The Respondent continued to state that investigation disclosed unethical and corrupt conduct and economic crimes on the part of the Applicant, which falls within its investigative mandate.
38. The Respondent deponed that it is established under section 3 of the Ethics and Anti-Corruption Commission Act (hereinafter ‘the EACC Act’) pursuant to section 79 of the Constitution. Its functions are provided for under Article 252(1)(a) of the Constitution and Section 11 of the EACC Act which include at 11 (1)(d) to investigate and recommend to the Director of Public Prosecutions the prosecution of corruption or economic crimes under any law enacted pursuant to Chapter six of the Constitution and is mandated to do the following:
a) Empowered by law to investigate the conduct of any person and/or body which in its opinion constitutes corruption or economic crime, and unethical conduct pursuant to the provisions of Chapter Six of the Constitution of Kenya, the Anti-Corruption & Economic Crimes Act, 2003, Ethics & Anti-Corruption Commission Act, 2011 and Leadership and Integrity Act, Cap 182 Laws of Kenya.
b) Mandated by section 11(1)(j) of the EACC Act to inter alia institute and conduct proceedings in Court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption.
c) Sections 25 and 25A of the Anti-Corruption and Economic Act (ACECA) provides that the Commission shall not terminate investigations without good cause upon receipt of a complaint. In case of any termination, the said sections of ACECA have provided stringent terms which must be met.
d) Pursuant to Article 252(1)(a) of the Constitution and section 13(2)(c) of the EACC Act, the Commission has the power to conduct investigations on its own initiative or on a complaint made by any person.
39. The Respondent avers that it received a report of an allegation of irregular payment of Kshs. 158 million to Madison Insurance Company for staff medical insurance cover for KEMRI employees in the financial year 2020/2021 without following the procurement laws. It is alleged that the said contract sum was above KEMRI’s approved budget of Kshs 108 million. It was also reported that NHIF had offered to provide similar services as Madison Insurance Limited at a cost of Kshs 107 million, which cost was well within KEMRI’s approved budget and proceeded to commence investigations.
40. The Respondent further avers that pursuant to its investigations, it established the following:
i. That the Applicant was the Deputy Director-Finance at KEMRI at the time of the tender, subject matter herein.
ii. That the Applicant was appointed as a member of the Tender Evaluation Committee for the subject tender vide a memo reference number KEMRI/SUP/10/60.
iii. That following an evaluation exercise, the Tender Evaluation Committee recommended Madison Insurance for award of the tender at Ksh. 158,130,524/- in disregard of the approved budget by KEMRI and despite the fact that Madison Insurance was not the lowest bidder.
iv. That a professional opinion was prepared by the Head of Procurement at KEMRI indicating that the said committee had noted that the estimated budgetary approval for the tender was for Ksh. 115,000,000/- and as such, recommended the award of the tender at Ksh 158,130,524/- on condition that the User department first confirms availability of the extra funds.
v. That in total disregard to the said professional opinion, KEMRI proceeded to enter into a contract with Madison Insurance on 14.10.2020 for the provision of in and outpatient medical insurance, effective the same day, at a sum of Ksh. 158,130,524/-.
vi. That on 26.11.2020, the Corporation Secretary at KEMRI rendered a legal opinion on the contract and copied the CEO and the Deputy Director-Supply Chain Management. He indicated that the Director General should hold on signing the draft contract and advised KEMRI to write to the Public Procurement Regulatory Authority (PPRA) seeking advice on how to proceed. Once PPRA advised KEMRI, the Corporation Secretary opined that the PPRA recommendation be tabled before the KEMRI Board of Management for consideration.
vii. That following the KEMRI Board Management meeting held on 18.12.2020, it was noted that the subject tender was awarded without adequate budgetary provision and recommended that KEMRI requests PPRA in writing to assist in reviewing the procurement process of the medical cover with Madison Insurance and advise accordingly. Additionally, the meeting agreed that the Attorney General (AG) was to advise on the legality of contract between KEMRI and Madison Insurance and whether the outstanding balance of Kshs 43,130,154/- should be paid. Also, that the request by the KEMRI Management seeking an additional Kshs. 43,130,154/- towards paying Madison Insurance be put on hold.
viii. That following the execution of the subject contract between KEMRI and Madison Insurance, the outstanding amount of Kshs. 43,130,154/- fell due and Madison Insurance informed KEMRI of its intention to suspend the medical cover if the amount due was not paid within a specified deadline.
ix. That KEMRI requested Madison Insurance to extend the deadline for payment of the outstanding amount.
x. That on 7.4.2021, Madison Insurance responded to KEMRI indicating that its request for extension of deadline was accepted and that the medical cover wasextended to 12.4.2021 in anticipation of payment of the outstanding amount.
xi. That on 14.4.2021, Madison Insurance issued a Notice of Suspension for the provision of medical insurance services to KEMRI if payment of the outstanding balance of Kshs 43,130,154/- is not paid by 21.4.2021.
xii. That on the same day, KEMRI wrote to Madison Insurance requesting for a further extension until the end of April 2021. Madison Insurance did not respond to the email communication but continued to provide medical insurance to KEMRI staff until 3.5.2021 when Madison Insurance suspended the cover.
xiii. That on 28.6.2021, the Solicitor General (SG) wrote a letter to KEMRI indicating that KEMRI had entered into a contract with Madison Insurance at a cost that exceeded the approved budget making it an offence under Section 176 (1) of the Public Procurement and Asset Disposal Act. He added that the balance is the responsibility of the Accounting Officer and that KEMRI should seek guidance from EACC owing to the fact that investigations were ongoing at EACC.
xiv. That at that point, KEMRI opted to utilize the medical ex-gratia account for payment of staff medical expenses on reimbursement basis for outpatient services and on credit payment to hospitals for inpatient cases. As at 30.6.2021, KEMRI had made payments out of the ex-gratia account totaling to Kshs 4,465,266.20/- which was within the approved ex-gratia amount of Kshs 5,000,000/- for the Financial Year ending 30.6.2021. Additionally, there were pending claims in the ex-gratia vote totaling to Kshs 471,113.50/- that were yet to be paid as at 4.8.2021. This amount was to be paid once the KEMRI Board approved the budget for FY 2021/2022.
41. The Respondents deponed that Section 53(8) of the Public Procurement and Asset Disposal Act 2015 provides that the Accounting Officer shall not commence any procurement proceeding until satisfied that sufficient funds to meet the obligations of the resulting contract are reflected in its approved budget estimates.
42. The Respondent posit that the Applicant was in violation of Section 53(8) of the Public Procurement and Asset Disposal Act, 2015, Section 25 of the Leadership and Integrity Act (LIA) and thus caution dated 12th April 2023 should be sustained.
43. The Respondent argues that applicant has not placed materials before this court to demonstrate that it acted irrationally or the investigations undertaken are not in accordance with the law, or actuated by malice and meant to harass the Applicant, or that the investigations and caution were done for other reasons other than the honest enforcement of criminal law.
44. The Respondent contends that allegation that the said caution is designed to deliberately taint the Applicant’s reputation in order to scuttle his chances of being interviewed and possibly confirmed and/or appointed as the substantive Director of Corporate Services at KEMRI which remains unproved, is a spurious claim that is not backed by any evidence and is purely calculated to attract sympathy from this Court.
45. The Respondent filed submissions dated 21st September, 2024. where it submitted that the application raised the following issues for determination:
i) Whether the Commission acted within its mandate in issuing the caution letter dated 12.4.2023?
ii) Whether the caution letter dated 12.4.2023 violates the Applicant’s rights to be heard and that of fair administrative action?
iii) Whether the decision by the Commission against the Applicant is unfair, unjust and unreasonable?
iv) Whether the Petitioner has met the threshold for grant of an order of Certiorari to quash the letter dated 12.4.2023?
v) Which party should bear the costs of the Application?
46. The Respondent further submits that pursuant to Article 79 of the Constitution of Kenya 2010 it is mandated is to ensure compliance and enforcement of the principles on leadership and integrity as enshrined in Chapter 6 and it is also empowered by law to investigate the conduct of any person that, in its opinion, constitutes corruption or economic crime pursuant to section 11 of the Ethics & Anti-Corruption Commission Act, 2011 and make recommendations to the Office of the Director of Public Prosecution based on evidence gathered and facts established.
47. The Respondent cites the case of Boundary Commission [1983] 2 WLR 458, 475 which held that: -
“The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too lightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.”
48. The Respondent further submits that in compliance with the principles of natural justice afforded the Applicant an opportunity to record his statement to be considered during decision making.
49. It is also the Respondent’s submission that it is independent of control and/or direction by any person. The said independence is provided at Article 249(2) of the Constitution and Section 28 of the Ethics and Anti-Corruption Commission Act (EACC Act) and that the investigations singularly targeted Applicant are an attempt by him to control and/or direct the Commission on whom its investigations should be carried out contrary to the above stated provisions of the Law.
50. The Respondent further submits that it has not exceeded its mandate as is provided under Commission is espoused in Article 252(1)(a) of the Constitution and Section 11 of the EACC Act which include at 11 (1)(d) to investigate and recommend to the Director of Public Prosecutions the prosecution of corruption or economic crimes under any law enacted pursuant to Chapter six of the Constitution.
51. It is also their submission that the Respondent acted within the provisions of Section 23 of the Anti-Corruption and Economic Crimes Act (ACECA), section 252(1)(a) and section 13(2)(c) of the EACC Act, Section 25 of the Leadership and Integrity Act and Section 29 of the Leadership and Integrity Act and the Applicant has failed to prove that the Commission acted illegally during investigation into the allegations or that there was a violation or threatened violation of the Applicant’s constitutional rights by the Commission in the cause of investigation.
52. The Respondent cites the case of James Ondicho Gesami –v- Attorney General & 2 others [2012] eKLR it was held:
“To argue that KACC can carry out investigations only when the Auditor-General has audited CDF funds and found misappropriation is again to seek to limit the powers of the anti - corruption body. To do this would be to fetter its powers and make the anti-corruption fight in Kenya totally impossible. Given the grave consequences of corruption in Kenya, such an interpretation of the law would be inimical to the public interest. To borrow the words of the constitutional court of South Africa in Hugh Glenister -v- President of the Republic of South Africa Case CCT 48/10 [2011] ZACC 6 at paragraph 83:
“Corruption is a scourge that must be rooted out of our society. It has the potential to undermine the ability of the state to deliver on many of its obligations in the Bill of Rights, notably those relating to social and economic rights.”
In view of the above matters, I do not find anything that amounts to a violation of the law or the rights of the petitioner in the investigations by KACC of the use or misappropriation of CDF funds for West Mugirango Constituency.”
53. On the fourth issue, the Respondent submits that rights and freedoms of persons under the Bill of Rights in our Constitution are neither absolute except those non-derogable rights enumerated under Article 25 of the Constitution, nor do they legitimize criminal conduct. Article 2 declares the supremacy of the Constitution and its binding nature on all persons. Article 3 obligates every person to respect and uphold the Constitution.
54. The Respondent submits that it allowed the Applicant a chance to record his statement and provide evidence. Secondly, the allegation is premature and unmerited as Article 50 provides for a dispute to be resolved by the application of law and decided in a fair and public hearing before a court, another independent and impartial tribunal or body and that provision only applies to a hearing after investigations have been concluded and findings made.
55. The Respondent thus posits that Applicant has failed to demonstrate that Respondent is in violation of his Constitutional rights and fundamental freedoms and therefore his application has no merit and also that the Applicant has also failed to meet the threshold of being granted an order of certiorari.
56. The Respondent thus prays that this court should dismiss the application with costs to the Respondent.
Analysis and determination;
57. I have considered the Applicant’s application, affidavits respectively filed in support and opposition of the application and find that the issue that emerges for determination before this court is whether the Respondent violated the Applicant’s rights and fundamental freedoms under Articles 25, 47 and 50 of the Constitution by its decision and procedure used to enter his name in it’s database.
58. The Purpose of Judicial Review was set out in the case of Municipal Council of Mombasa v Republic & Umoja Consultants Limited, [2002] eKLR where the Court of Appeal stated:
“The court would duly be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power i.e the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of Judicial review is concerned with; and such court is not entitled to act as a court of appeal over the decider acting on appeal would involve going into the merit of the decision itself such as whether there was or there was not sufficient evidence to support the decision and that, as we have said, is not the province of judicial review”.
59. On the other hand, Justice Kasule elaborated circumstances under which orders of Judicial Review can be issued in the Uganda case of Pastoli v Kabale District Local Government Canal & Others [2008] 2 EA 300
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality, is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality. Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety, is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehidswi v Secretary of State for the Housing Department (1990) AC 876”.
60. Judicial review is now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action, and Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision.
61. In addition, it was emphasized by the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, (2016) KLR that Article 47 of the Constitution as read with the grounds for review provided by Section 7 of the Fair Administrative Action Act reveals an implicit shift of judicial review to include aspects of merit review of administrative action, even though the reviewing court has no mandate to substitute its own decision for that of the administrator.
62. Article 165(6) of the Constitution also provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights. The consideration and determination of the substantive issues raised in this instant application now follows.
63. I find nothing to show that Applicants are disputing the conduct of the Respondent whilst carrying out its investigations question. They are using privilege as a shield. The Respondent has enumerated in detail the reasons why the Applicant was investigated and summoned and the legal basis for summoning him as well as the provisions that guided the said investigations The provisions have not been challenged or shown to be inapplicable or abused. I see no procedural impropriety in the issuance of the summons nor has any been alleged or proved. The Applicant cannot be heard to say that they do not know why they were summoned.
This court shall now turn to the issue of whether the Respondent’s impugned letter dated 12th April 2023 violates the Applicant’s rights to be heard and without affording him an opportunity of being heard.
64. The Applicant is aggrieved by the fact that the Respondent vide a letter dated 12th April 2023 wrote to him detailing improprieties that had occurred with regards to tender no. KEMRI/HQ/014/2020-2021. The letter the letter cautioned him and informed him that his name had been entered into the Respondents database as part of his personal integrity profile without affording him an opportunity of being heard in the conclusion the letter concluded by informing him that he had been included in their database as part of my personal integrity profile which letter made with mala fides and bad faith.
65. The Respondent refused to react to the Applicants lawyer requesting that the letter from the Respondent be retracted in an attempt to set the record straight.
66. Article 47 (1) of the Constitution provides that, “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”
Article 47(2) provides that, “If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
67. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015 under which Section 4(3) provides as follows:
“(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
(a) prior and adequate notice of the nature and reasons for the proposed administrative action;
(b) an opportunity to be heard and to make representations in that regard;
(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;
(d) a statement of reasons pursuant to section 6;
(e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine or where applicable; or
(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.
68. This court has placed the Applicant’s case through the lens of the principles as enunciated in the case of Pastoli v Kabale District Local Government Canal & Others [2008] 2 EA 300 where it was held that,
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety, Procedural impropriety, is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehidswi v Secretary of State for the Housing Department (1990) AC 876”.
69. In the case of Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLR a case in which the powers of the same Respondent were in question, in which the learned Judge expressed himself inter alia as follows:
“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]
Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.
The Petitioner also alleges violation of its right to fair hearing. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.
Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:
“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.
It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”
70. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly.
71. According to Section 2 of The Fair Action Act, administrative action includes (i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.
72. The Respondent did not tender any evidence to demonstrate or to justify the entry of the Applicants name into its data base within the threshold as laid out under Article 24 of The Constitution of Kenya.
73. In the instant suit it is my finding and I so hold that the Respondent did not issue the Applicant with a prior and adequate notice of the nature and reasons for the administrative action as set out in the impugned letter and in particular the entry of The Applicant’s name into the Respondents data base without hearing him.
74. The entry of the Applicant’s name into the Respondent’s data base before giving the Applicant a chance to be heard amounts a breach of the Applicants right to fair administrative action.
75. The Applicant has demonstrated that its case falls within the procedural impropriety as set out in the Pastoli case (supra).
76. The Applicant has also sought for a declaration to issue that it is unfair, unjust and unreasonable for the Respondent to apportion blame on the Applicant for the institute’s award of staff medical insurance tender no. KEMRI/HQ/014/2020-2021 for provision of in and outpatient medical insurance cover for the financial year 2020-2021 to Madison Insurance as the go ahead and or decision to award Madison Insurance the tender was a decision of the then Director General and the Head of Procurement of the Institute.
77. This court is of the view that this issue cannot be determined without a deed exchange of documents, hearing of witnesses and an in-depth analysis of the evidence as set out in the documents that the parties seek to rely on. It I no wonder the litigants delved deeply into matters and questions of evidence in their affidavits. This court will not fall into the invitation to conduct a merit analysis.
78. In so holding this court is guided by their Supreme Court case of Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others reaffirmed that;
“…The court concluded at paragraph 85 [see page 33]and held as follows: ‘It is clear from the above decisions that when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.
79. This court will not delve into the merit analysis of the issues raised by the parties.
Disposition;
80. The Applicant has made out a case for the grant of the orders sought to the extent as set out in the orders below.
Order;
i. A declaration that the impugned letter from the Respondent dated 12th April 2023 violates the Applicant’s rights to be heard and that of fair administrative action and therefore offends articles 25(c), 47 & 50 of the Constitution as the same was issued against the Applicant without affording him an opportunity of being heard is hereby issued.
ii. The prayer for a declaration to issue that it is unfair, unjust and unreasonable for the Respondent to apportion blame on the Applicant for the institute’s award of staff medical insurance tender no. KEMRI/HQ/014/2020-2021 for provision of in and outpatient medical insurance cover for the financial year 2020-2021 to Madison Insurance as the go ahead and or decision to award Madison Insurance the tender was a decision of the then Director General and the Head of Procurement of the Institute is declined.
iii. A judicial review order of Certiorari does hereby issue to bring into this court for the purpose of quashing the communication of the Respondent to the Applicant communicated vide a letter dated the 12th April 2023 citing him for alleged impropriety in the procurement of staff medical insurance tender no. KEMRI/HQ/014/2020-2021 for provision of in and outpatient medical insurance cover for the financial year 2020-2021 to Madison Insurance and cautioning him for the alleged breaches and notifying him of the entry of his name in its database as part of his personal integrity profile is hereby issued.
iv. Costs to the Applicant.
It is so ordered.